*1 PANNELL, Appellant, Lee Cedric Texas, Appellee.

The STATE of

No. 61527. Appeals

Court of Criminal

En Banc.

Feb. Weis, Green, Greenville, Larry

Joe E. W. appellant. Davis, Jerry Spencer Atty., Dist. Green- ville, Austin, Huttash, Atty., Robert State’s for the State.

OPINION ON MOTION APPELLANT’S FOR REHEARING McCORMICK,Judge. submission,

On of this having appellant, Court held that after him, appointed right counsel waived his *2 97 voluntary right of his to coun- gave intelligent to counsel and a confession waiver granted knowing to authorities. mo- voluntary We by sel followed a tion leave to file his motion for rehear- is then question confession. The before us consider, things, other among discipli- violation of a following: Does a fourth of error was raised in nary rule a violation of constitute specifically his not ad- brief but law? by panel opinion. dressed presented The federal courts have been Appellant contends that because the dis- with question a similar several cases. trict interviewed with- Thomas, United 474 F.2d 110 States v. attempting out the consent of obtain his (10th 932, Cir.1973), cert. denied 412 U.S. court-appointed attorneys the district attor- 2758, (1973), a 93 S.Ct. 37 L.Ed.2d 160 7-104(A)(l) ney Disciplinary violated Rule special agent New for the Mexico Bureau Responsibility, Code of of the Professional Dangerous Drugs of Narcotics and ob provision a of the of the laws State of tained a written statement from Thomas in Appellant argues Texas. that since a law absence of and without the of the State of was violated the Texas attorney. noting of Thomas’ After admission the confession into evidence requested Thomas had interview and violated V.A.C.C.P. signed -type had read and a Miranda waiv 7-104(A)(l) Disciplinary provides: Rule form, rights Appeals er of Court of “(A) During represen- course governing found that the canons of ethics lawyer tation of a client shall a not: attorneys actions of federal courts “(1) Communicate or cause to commu- However, had been violated. the Court subject representa- nicate on the of the on the affirmed Thomas’ conviction follow party repre- tion with a he knows to be ing basis: by lawyer sented in that matter un- “A canon violation of the of ethics as he prior less has the consent of the here concerned need not be remedied lawyer representing party such other wherein it reversal of the case is violat- law is authorized to do so.” necessarily present ed. This does not also, Texas, See State Bar of Committee on question, constitutional but this is an eth- Interpretation Ethics, of the Canons of relating ical and one administrative (1956). Opinion attorneys practicing before the United 38.23, V.A.C.C.P., provides as fol- problem initially States courts. The lows: courts; however, ap- one for the trial “No evidence obtained officer or peals such as this in future the con- person any provi- violation attorneys appear cerned before this will sions of the or laws Constitution Court and consideration of the matter or of the Constitution or will be therein undertaken as to occur- America, United States of taking place rences after this has against shall be admitted in evidence been circulated.” 474 F.2d at 112. any accused on the trial criminal case. Star,

“In legal case where See also: v. Four United States hereunder, Cir.1970), an issue jury (9th raises shall F.2d 1406 cert. denied 400 believes, instructed if it or has a 91 S.Ct. L.Ed.2d 253 doubt, reasonable evidence was (1970),in this the also found a viola provisions in violation obtained professional tion but affirmed ethics Article, event, such then and in the Four Star’s The Fifth conviction. Circuit disregard shall evidence so has also found that ethical violations alone obtained.” justify in these situations will reversal clearly the record shows that a de Initially, let us we note that have thor- presence agree reviewed the fendant waived the of counsel. oughly record States, made knowing 398 F.2d Wilson United Fur (5th Cir.1968), capacity. plied denied 398 U.S. an administrative cert. (1969). found the thermore, cases have 21 L.Ed.2d 712 several 89 S.Ct. “quasi-statutory” State bar rules us turn to the Texas scheme. Let now upon effect legal “have the force and same the Texas enacted the as the Texas matters to which relate Act, 320a-l, State Bar have to matters to Rules CivilProcedure Bar, act denominat- created the State *3 Title relate.” Rattikin Com agency of the ing it “an administrative v. the pany Grievance Committee State of Department of the Article Judicial State.” Texas, (Tex.App.— 272 S.W.2d 948 Bar 320a-l, 2, provided of supra. Section The act Worth, 1954, history); writ Cochran Ft. no Supreme the of Texas should that Court Cochran, (Tex.Civ.App. 333 S.W.2d 635 v. promulgate regulations for rules and disci- 1960, n.r.e.); —Houston, ref. v. State disbarring plining, suspending attor- Dancer, (Tex.App. Corpus S.W.2d 504 391 — neys. Supreme pre- Court was also to Christi, 1965, n.r.e.). see: ref. But Silver governing scribe code of ethics 410, Texas, Bar 405 F.2d man State attorneys. of fessional conduct of Article (5th Cir.1968), F.Supp. 303 414 on remand 320a-l, 4, supra. February of Section (W.D.Texas 1969), where the Texas 1940, Supreme approved its first Court Bar that its Rules ‘have State “concedes of of ethics. set rules code of in this the force and effect statutes a new Code of Professional Re- ” state.’ promulgated by sponsibility was the Su- foregoing, we Because of all XII, preme Court. Rules Section rules disciplinary now hold that the Governing the Bar of follow- Responsibility not Code Professional 320a-l, (1973). ing Article Texas as were contem the State of The 66th enacted new 38.23, Thus, by supra. viola plated Article State Bar Act effective June disciplinary of one of these rules tion new act retained the administrative proceed obtaining a criminal evidence for again empow- of the State Bar and status bar introduction of that evi will not adopt to Supreme ered the Court rules at V.A.C.C.P. dence pertaining to conduct of the regulations agree in the federal with our brothers We Bar. Arti- members of Section are to system that such ethical violations 320a-l, supra (Supp.1980). In an order cle administra be dealt with means 11, 1979, Supreme June dated specially tive mechanisms established Re- that the Code of Professional decreed dealing Ap such unethical conduct. sponsibility should continue to be effect. ground is overruled. pellant’s first of error also, 3rd, Law, Attorneys Tex.Jur. See error, appellant In his second (1980). 8 and 9 Sections panel opinion erred in find- argues that governing Are these rules the conduct of- testimony prosecutor ing no attorneys in Texas considered to be laws exchange appellant a life sentence fered above, of Texas? As noted the State for his confession. Responsibility of Professional was Code during hear- The record shows Legislature, promulgated by suppress appellant ing on the motion to law-making body of this but jailer he notified the Court, testified that when he part branch Supreme judicial attorney III, guilty the district plead wanted to government. Article Sec- of the state Constitution; V, telephoned. Appellant was allowed was Texas Sec- tion tele- speak attorney in the over the Texas Constitution. As noted the district tion he Act, that when language phone. Appellant State Bar testified very attorney appellant Responsibility of Professional was talked the district Code attorney if the “deal” prepared agency”— asked the district for an “administrative good. Appellant still testified the dis- the State Bar Texas. rules was ap- attorney replied in the therein were to be used and trict affirmative contained Reversal appellant played part told in his conviction. would have to no make in effect Nothing specific a statement. was not cure the error because would cured, jury. said about the but already terms of the “deal” it has been appellant interpreted mean a life “deal” to opinion in cognizant of our recent We are sentence pre- since the district had (Tex.Cr. State, 646 S.W.2d 185 Jeffers viously arrangement mentioned such an rehearing) which (opinion App.1983) appellant’s court-appointed attorneys. stated: we

Our supports review of the record deciding sufficiency “The test for finding opinion. Nowhere in the face of a motion indictment anof testimony record is there that the quash insufficient notice is to ex- attorney personally appel offered perspec- amine the indictment from the exchange lant a life sentence in for a con tive of the accused. Drumm v. testimony fession. There is (Tex.Cr.App.1977).... S.W.2d interpreted the remarks of the district at require “To evidence reflected *4 offer, convey torney to such an but that is of facts to insuffi- statement establish thing. not the same The record does show ignore requirement cient notice is to attorney and his staff had appear on the face of that notice must appellant’s attorneys pos mentioned to Examination of the in- indictment. sibility exchange of a life sentence in for a dictment, evidence, not the is the ulti- plea guilty but there was never formal added) (Emphasis mate test.” v. Jeffers exchange offer of a life sentence in a State, 646 S.W.2d at 189. directly appellant by confession made departing holding. We are not from that attorney. the district All State’s However, reversal of this case would be hearing witnesses on the motion to pointless. already The harm has been suppress promises testified that no were panel properly relied on cured. The Goss appellant made to in exchange for his con State, Appellant’s ground supra. v. third knowingly fession and that he and volun of error is overruled. tarily confessed. The trial court found the submission, appellant On com- confession to voluntarily given and the plained failing in that the trial court erred supports record finding. Appel a proved indictment when he to dismiss the lant’s second error overruled. selecting County that the method of a Hunt Next, appellant contends the Jury racially Grand foreman was discrimi- relying State, erred in on Goss v. natory. rehearing, appellant contends On (Tex.Cr.App.1979), 580 S.W.2d 587 in hold panel erroneously overruled this con- ing that quash the trial court’s refusal to Appellant on tention. relies Rose v. Mitch- the indictment was not reversible error. ell, 99 S.Ct. 61 L.Ed.2d Appellant relies on Brasfield (1979). (Tex.Cr.App.1980), S.W.2d 288 and Evans review of the record of the Our (Tex.Cr.App.1980), S.W.2d 943 pretrial hearing convinces us that in capital two cases which the murder prima a failed to establish facie case of name dictments failed to the victims of the systematic persons exclusion black from aggravating offense. Those cases can be serving grand jury as the foreman. Lee distinguished from the instant case in that Bostick, auditor, county testified that instant case was convicted County in he had worked for Hunt various murder, the lesser included offense of capacities exception since 1946 with while the two aforementioned cases period years. testimony a His of four capital mur defendants were convicted of regarding direct examination the foremen bar, In the case at the failure to der. grand juries was as follows: plead aggravat properly victim of the “Q. way appel right. your knowledge element no harmed the All To since aggravating personal your knowledge, lant because element 1946 to has there a foreman of either witness ever been knew who had served as duly grand jury in years constituted Hunt grand foremen in the between County that’s been of the black or 1946 and the time of trial. The defense Negro race? read list of names to witness Bostick, whom identified as white Bostick knowledge it, “A. I don’t know individuals, but the record is nowhere no. (t * * * grand jury this list identified as a list of tion with the the 196th Judicial District testified had had an on and Mrs. Anne “A. Not u “Q. “A. ^[*] “Q. “A. “Q. ^[*] That was of the black or race? No, served *5 grand jury? knowledge, All you ever black grand jury No, All ^[*] right. right. sir. sir.” that I ( person? Prince, there’s ever been foreman county known To know off sworn of in Hunt To can your the district clerk for employment since December of your you recall of a foreman of a of, knowledge County to be a Hunt County sir. own personal whether associa- Negro have she total number pointed man— black time of mony capacity from years foremen there was no pressed any knowledge as to the race of Furthermore, grand jury foremen before 1946. so, sonal say so ed Rose, what “Absent significant foreman, addition, from 1946 had ever that the just was sufficient in Hunt nor does there years such neither of of grand jury even if the witnesses’ testi- number of even positive testimony approximately was no evidence served the witnesses as to the time County these individuals served. of a black the record evidence, to make out if to account zero, as during the witnesses ex- Negroes appoint- grand jury it is difficult serving in indicate is foremen 1946 to trial, just had no statistically as to a case that no that if time. fore- per- ap- to “Q. Okay. knowledge But your to no ‘rule of discrimination under the exclu-

such, Negro no such black or fore- there is no evi- sion.’ ... Inasmuch as man has ever served? the number of dence record of appointed, possible foremen it is not to of, no, I “A. Not that know sir. compari- perform the calculations “Q. right. memory All And that dates permit needed to a court to conclude sons back at least to 1950? that a statistical case of discrimination Well, of, part gone “A. we were proof made had been out ... under there, years ten in about but not fails_” (Cita- ' n the ‘rule of exclusion’ of, no, I time that know sir. omitted) Mitchell, 443 tions Rose v. U.S. “Q. Okay. you’ve Since been back to at 99 S.Ct. at 3008. person your knowledge has a black is Appellant’s of error overruled. jury grand ever served as foreman? rehearing appellant’s motion for is No, “A. sir. panel is opinion denied and affirmed. “Q. you’ve working Since been back in continuously? the courthouse CLINTON, dissenting. Judge, No,

“A. sir.” majority simply A will the Court in at The evidence relied on the case bar grips challenge come to to surprisingly similar to the evidence is grand jury selection of foremen. tenor Mitchell, supra, duced Rose v. which the opinion En tone the of the Court Banc Supreme Court found insufficient consti- prima opinion facie of discrimination. echoes sub- tute a case nothing reprise to show Both irrelevancies There is the record that mission. 2.21, presence past; correctly e.g., lead of of the clerk neither follows the Article Supreme proceedings pre- decisions rendered during may court be respectfully of the United States. I dis- Indeed, ap- judge after the has sumed. sent. foreman, the clerk direct- pointed may grand pre- jurors ed to oath administer majority panel nega- opinion noted 19.34. scribed Article tively composition jury grand shown, that indicted was not al- grand jury issue may The foreman of a complaint only though his is directed to 20.10, grand process, and when the that, grand jury. foreman As jury process session is not in is returned remarks, opinion was there “[N]or signed clerk. The foreman showing grand jury how the foreman indictment, 20.20, deliv- each V.A.C.C.P., 19.34, is selected.” Yet Article court, but ered them to provided predecessors always and its have upon the fact the clerk enters minutes the grand jury “the completed, once is Ar- presented, that an indictment has been appoint court shall one of the number fore- ticle 20.22. “presumption reg- man.” The venerable Therefore, the district clerk Hunt ularity” inevitably leads us conclu- to the County more akin to the clerks who grand jury is select- sion that foreman negro “had never they testified known of a judge ed of the trial accord- court serving grand jury in Coun- on a Jackson ance with law. Alabama, ty” in Norris it Though does not what the reiterate (1935), 581, 79 L.Ed. 55 S.Ct. shown, opinion stressed was not Supreme whom the Court alluded majority on rehearing is full of its Mitchell, 545, 572, Rose v. 443 U.S. 99 S.Ct. negativism. put proper own It fails to (1979), grand 61 L.Ed.2d than the perspective the testify who did witnesses jury therein foremen who were not shown as to their that a black had not “knowledgeable years to be about County grand served as foreman of a Hunt served,” id., than the ones themselves jury. at fore- 3009. Grand S.Ct. Trial of this cause was held in 1978—be- go, men but district clerks are come and *6 fore the alternative method of selection more constant. grand jurors was enacted. See Article 19.- county charged a Similarly, auditor is 01, V.A.C.C.P.,1 as amended in 1979. with and functions relative to duties occupied the district clerk position a so judges, jurors fore- grand grand jury and that one sensitive must swear not to con- keep register men: a war- “He shall of all anyone verse with as a selected to serve judges rants the or the district issued grand juror concerning any or ease treasurer, county the and ... clerks on 19.11; ceeding, Article out the clerk made a payment by their and the treasurer. dates copy persons grand of names of selected as judges daily or shall furnish Such clerks jurors, certified to it and the delivered list report specifying the auditor itemized 19.13; summoning, to the sheriff for Article that have been the warrants issued ... executing summons, after the sheriff persons payable, to whom and names of the returned the list to the his certif- clerk with 1662, purpose...” for what V.A. showing icate date and manner of service. Indeed, service, unless for all many C.S. persons Once as as twelve so sum- county court, warrants on treasurer must be judge moned were one by the Arti- countersigned county auditor. acting judge under direction of the shall course, 1661, proceed qualify grand Generally, cle prospective each V.A.C.S. 19.21-26, impanel appointed by juror, judges Articles the auditor is district and general jurisdiction county. them. Considering twelve with matters, 1647, district clerks in duties of criminal V.A.C.S. procedure article of crimi- Each cited hereafter is in code nal unless otherwise indicated.

102 question should be answered the Judicial Districts Act of

Since affirmative. County Hunt has constituted 196th Ju- 199a, dicial Sec. District. State, light S.W.2d of Henrich v. 666 terms, the V.A.C.S. It has two continuous 1983), (Tex.App. was a 185 which —Dallas commencing Monday first first opinion unanimous authored Justice January the second on the first Mon- and Appeals, Guillot of Dallas Court Id., year. day July of each 2.001. For- position dissenting I took I filed a merly County was within both the 8th Hunt opinion in this Districts, and and each dis- 62nd Judicial cause, in which I concluded that court, though trict two terms of court had his confession was inadmissible impaneled grand judge latter trial, strengthened. has been judgment it was jury only when his necessary do so. Article Secs. supra, Henrich Article 19.01 directs situ- confronted with a factual Appeals was appoint grand jury com- judge district one in this cause. similar to the ation during “at or term of missioners There, two defendants were accused Thus, again giving to the court.” effect defend- wrongdoing. One of the criminal regularity, from presumption of ants, attorney, his went and visited appointments to serve as some licensed attorney, a the assistant district grand jury have been made foreman this who was Bar of member County. majori- judge district of Hunt The opinion reflects handling the case. ty may exclusion” apply “rule of should during the visit before or that either it desire. attorney was made aware assistant However, majority faults the district had retained that the defendant respec- attorney. their Notwith- county clerk auditor for of another services dis- grand standing knowledge, race of assistant tive lack of as to agreement merely I into an jury foremen “before 1946.” ob- trict entered his Partida, had come to defendant who serve that Castaneda with the office, dictated that agreement 51 L.Ed.2d 498 S.Ct. (1977), conversa- years sufficed to record future period eleven defendant would co-defendant, might his prima make a facie case. tions he have with which, course, occur would without I dissent. or the knowledge of the co-defendant either attorney. defendant co-defendant’s MILLER, J., joins. be- subsequently conversations recorded TEAGUE, Judge, dissenting. At himself his co-defendant. tween trial, objection, co-defendant’s over appeal Appellant contends in his *7 into the court evidence the trial admitted inadmissible evi- written confession was Appeals The Court of taped conversations. Implicitly, presents he dence at his trial. admitting conversa- taped in the held that following question for this the Court commit- evidence the trial court tions into answer: error. ted reversible Supreme of the Because one Rules in its the opinion, Court, XII, of For reasons stated see Art. Section Code holdings. 7-104, Appeals made several Responsibility, DR Court of Professional disciplinary rules of It the was first held that that was enacted violated of Responsibility Attorney investiga- the Code of Professional the District and effect appellant, have the same force confession from did this State tor took a have as Texas of Civil Procedure Art. V.A.C. the Rules this violation cause cause, relate. applicable to the matters to which C.P. to become this cause does not disa- causing appellant’s majority in this thus confession to be- principle of The Court gree with this law. come inadmissible evidence his trial? govern profession- Appeals held rules of this which of next that the Rules of Civil State 320a-l, Procedure the same and effect al See Art. Sections responsibility. have force Although 12(a) 12(b), statutes or of as laws this State. Also see Art. V.A.C.S. agree majority opinion with 332d, does not law, acknowledges principle it that this of 38.23, supra, provides pertinent Art. Texas the State Bar of has conceded part: effect of its Rules “have force and by. officer or No evidence obtained statutes of this State.” Silverman provi- person any in violation of (5th Bar F.2d State of sions Constitution or laws of of Cir.1968), (W.D. F.Supp. on remand 303 Texas, or of the or Constitution of Tex.1969). America, laws of United States reaching taped its conclusion that against shall be admitted evidence evidence conversations were inadmissible the trial accused on criminal trial, at the co-defendant’s and after find- [Emphasis case... Added]. attorney that the assistant district clearly expressly statute 7-104, that cause violated DR had way worded in that there can be no such Appeals following used rea- doubt obtained soning: anyone peace officer or else in violation of the assistant district “[W]hen any provisions of the Constitution or laws 7-104, violated DR it was the same as Texas State of is not to admitted violating the statute. Because evi- at the accused’s trial. through taped dence obtained conver- sations was obtained in violation of a inquiry It is that when the beyond now statute, trial judge should have Legislature provi- of this enacted granted appellant’s suppress motion to Act, 320a-l, Bar Art. sions of the State see pursuant to TEX.CODE CRIM.PROC. V.A.C.S., provide by statute a it intended (Vernon 1979). ANN. art. 38.23 comprehensive full and set of laws to cover instance, however, majority completely reg- and the practice law though this Court holds that even it was disciplining lawyers. By ulation and in obtaining appellant’s established that statute, Legislature empow- also Attorney confession the District had violat- Supreme ered the Court of Texas enact 7-104, not, DR pursuant ed this did to Art. of a laws the form Code of Professional 38.23, V.A.C.C.P., appellant’s render con- done. Responsibility, it has fession inadmissible evidence at govern Code consists of It holding errs in so because DR responsibility fessional of licensed attor- 7-104 is a statute law of this State. neys provisions of of this State. 320a-l, supra,

DR Art. and the of Profes- provides pertinent part 7-104 Code following: Responsibility sional the kinds “laws Texas” that contem- State of were

(A) During representa- the course of his plated by the when it enacted tion of a lawyer a client shall not: 38.23, supra. (1) Communicate or cause another subject repre- communicate on the wrong obviously What with the is so sentation a party he knows to be majority opinion is its understand failure to represented lawyer aby in that matter “laws,” the term meaning *8 prior unless he has consent of the 38.23, supra. is in Art. For term used lawyer representing party such other or example, duty of commission or omission by is authorized law to do so. placed upon attorneys that is licensed of by Code of Professional Re- Attorneys Because District and their as- this law,” law, duty “imposed by attorneys sponsibility sistants must be licensed is a are, e.g., Clack, like S.W.2d 748 licensed of Howard v. State, laws, statutes, subject 1979), (Tex.Civ.App. this or no writ histo- —Dallas obtaining engaged in conduct in

ry, unethical as such is that kind of law and alone, evidence, this, standing will not Legislature contemplated it enacted 38.23, supra. cause to become inadmissible Art. the evidence However, is in a the same Federal Court. Furthermore, Legisla- failure of attorney in the prosecuting not true of a meaning limit the ture restrict or of ethics State of Texas because canons Texas,” only phrase, of the State of “laws govern part him are of the laws of which Legis- of “statutes” which the violations this State. past in the or in the lature had would enact, e.g., expressly Honeycutt instance, v. future facts are not State, (Tex.Cr.App. gave 627 S.W.2d dispute his con- that before 1982), part intent on reflects an Attorney’s investiga- fession to the District Legislature implicate phrase, tor, Attorney was the District well aware Texas,” Leg- just “laws of the State represented by then two was statutes, islatively implicate but to enacted attorneys and was also appointed court laws, kinds of as court well other investigator well of what his was aware law, lawfully made rules authorized and doing. Attorney’s the District then When statute, adopted administrative under agent, investigator, appellant, contacted regulations, municipal ordi- rules and appellant’s attorneys were not notified or courts, nances, orders of commissioners’ clearly a contacted. This was violation and the like. law in DR 7-104. Also as contained Henrich, State, supra, compare, see Thus, majority opinion when it v. errs (Tex.Cr. phrase, of Brewer 649 S.W.2d 628 implicitly holds that the “laws Texas,” App.1983). is or limited restricted passed only statutory expressly laws appellant’s confession was ob- Because past enacted State, it of a law of this tained in violation or and enacted in the future. passed to be appellant’s evidence at became inadmissible implicitly also errs when it majority the Code of Professional holds that because reasons, foregoing For the above ad- Responsibility is to be executed sustaining the trial court’s majority errs in fashion, it ministrative cannot constitute evidence decision to admit into contemplated part by Art. of the “laws” its respectfully I dissent to confession. supra. majority, Overlooked holding was admissible that the confession however, principal is the fact evidence. by the changes effected Administrative Register Act of this Procedure and Texas 6252-13a, V.A.C.S., see agency must include in its decision law.

findings of fact conclusions of Law, Administrative Section

Tex.Jur.2d Feder- majority opinion’s reliance on HOLLOWAY, Reginald Harris authority holdings al cases as its Appellant, misplaced government because the Federal mandatory has seen fit to enact a not ever statute, exclusionary such as the State Texas, Appellee. The STATE 38.23, su- when it enacted Art. Texas did 67979, 67980. Nos. in no terms pra, states uncertain may circumstances evidence that under no Texas, Appeals of Criminal or obtained violation Constitution En Banc. the Consti- of the State 7, 1984. March tution or laws of United States America, against admitted at his trial. because accused might have prosecuting attorney

Federal