Justice Patterson dissents from Austin court's decision reversing trial court's ruling on motion to suppress.
DISSENTING OPINION: Dissenting Opinion by Justice Patterson (Before Chief Justice Law, Justices Patterson and Puryear)
03-06-00330-CR
The State of Texas v. Milton Dwayne Gobert (Tex.App.- Austin (Feb. 1, 2008)
Appeal from 331st District Court of Travis County
DISSENTING OPINION BY JUSTICE PATTERSON
Also See ---> Majority Opinion
Because Gobert's statement that "I don't want to give up any right, though, if I don't got no lawyer" is sufficiently and clearly an invocation of his right to consult with counsel, I would conclude that this Court's original opinion and judgment affirming the trial court's suppression order was correct. The State now urges on rehearing that Gobert's statement is a "conditional request" for counsel and therefore not a sufficient invocation. (1) The experienced trial judge--with the benefit of the actual videotaped interview not in the record on appeal (2)--found otherwise. So should we. Accordingly, I respectfully dissent to the substituted opinion and judgment reversing the trial court's order.
The majority opinion agrees with the State that Gobert's statement to the interrogating officer was not a clear assertion of the right to counsel. The State asserts that Gobert "never expressly asked for a lawyer" and "never expressly stated he wanted an attorney there." Therefore, the State argues, the statement was not a "clear, unequivocal, unambiguous" invocation of his right to counsel but was "conditional" and therefore no assertion:
[Gobert] may have meant he did not want to waive his right to silence since there was no lawyer there. That is not a request for an attorney. Or [Gobert] may have meant he wanted to talk to a lawyer before he decided whether or not he would waive his right to remain silent. What exactly he meant is just not clear. His statement being subject to more than one interpretation, the State submits it did not constitute an unambiguous, unequivocal request for counsel, nor did it constitute an unambiguous, unequivocal assertion of his right to remain silent. When the detectives immediately asked [Gobert] for clarification, [Gobert] promptly and definitely
indicated his willingness to talk to them.
This argument confuses the right to counsel with the right to remain silent. It may have been unclear, as the State argues, whether Gobert "did not want to waive his right to silence since there was no lawyer there" or whether Gobert "wanted to talk to a lawyer before he decided whether or not he would waive his right to remain silent." But no reasonable police officer in the circumstances could construe Gobert's statement to mean that he was waiving a right to counsel. That Gobert thereafter evinced a willingness to talk to officers must be viewed in context.
The Controversy
As the facts have evolved and now seem to be disputed, it is instructive to recite the passage of the interview at issue. It occurs at the very inception of the interview as Detectives Burgh and Scanlon enter the interview room. As the State acknowledges in its brief on appeal, "It was during the first few moments of the videotaped interview that the transaction at issue took place." The transcribed videotape (3) shows the following questioning by Detective Burgh:
Q. Hey? Hey, Milton. I'm Detective Burgh. This is Detective Scanlon.
A. Okay.
Q. Do you know a girl named Christine?
A. Yeah.
Q. You do?
A. My ex-girlfriend. My ex-fiancee.
Q. Okay. Before we get started, I--I mean, its--we have to read you your rights because you're under arrest right now. Okay? It's something we have to do.
A. What's the charge?
Q. Well, you're--they picked you up on a parole violation. You're in custody.
Detective Scanlon then stated, "And the assault involving Christine." Detective Burgh continued, "So that's what we need to talk about. I want to read you this thing, okay? It's just--we got to do it. All right? Okay. Milton, you have the right to remain silent . . . ."
Immediately after Detective Burgh advised appellant of his rights, the following exchange occurred:
Q. Do you understand those rights I just read to you?
A. Yes, sir.
Q Q. Okay. Can you--do you have a problem reading?
A. No.
Q. Can you read that out loud to me, the top line there?
A. I have received and understand (inaudible) statement.
Q. They're the one I just read to you.
A. I don't want to give up any right, though, if I don't got no lawyer.
Detective Scanlon: You don't want to talk?
Detective Burgh: You don't want to talk to us?
A. I mean, I'll talk to y'all. I mean, I know, you know, what she had said about it, you know. I'll speak with y'all, but (inaudible), man. I mean, I'll speak with y'all, you know.
Detective Scanlon: Okay, signing this--signing this is not giving up your right. Signing this is acknowledging that this was read to you.
Detective Burgh: Yeah.
Detective Scanlon: Okay? Your choice to talk to us is different. This--all this is, is acknowledging you were warned.
After asking whether he should read "it" again, Burgh began questioning Gobert. Minutes later, as appellant discusses "Christine," Scanlon returns to the subject of the lawyer and the verbatim transcript reflects the following exchange between Scanlon and Gobert:
Q. I want to clear something up, though, because earlier you said you don't want to give up your right to a lawyer. I want you--I want you--I want to clear up the fact that you want to talk to us about this. Okay? You understand what I'm saying?
A. Yeah.
Q. I want to clear it up. I mean, that's--that's what you want to do, right?
A. Yeah.
Q. Okay. Where is Christina now?
At issue is Gobert's statement, "I don't want to give up any right, though, if I don't got no lawyer." Following a hearing, the trial court concluded that this was an unequivocal invocation of the right to counsel during custodial interrogation.
The Hearing
The motion to suppress sought the exclusion of the statement under Article 38.22 of the code of criminal procedure based on the denial of due process, the denial of the defendant's state and federal constitutional rights, and Jackson v. Denno, 378 U.S. 368, 380 (1964). At the initial hearing on the motion to suppress, the defense argued that Gobert's statement was a clear invocation of the right to counsel and that he had been deceived about why he was at the police station and what the detectives wanted to talk about. (4) After several pretrial hearings addressing the motion to suppress, the trial court granted Gobert's motion on the ground that Gobert's invocation of his right to counsel was unequivocal. Relying on Edwards v. Arizona, 451 U.S. 477 (1981), the trial judge found that Gobert invoked his right to a lawyer: "I don't know what he can say to them that invokes his right to a lawyer any more than this."
The trial court dictated its findings and conclusions into the record, satisfying the requirements of Article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005). The findings and conclusions were transcribed and were made a part of the appellate record. See Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). The court announced its findings and conclusions as follows:
I just don't find anything that is unequivocal [sic] about the statement 'I'm not going to waive any rights if I don't got no lawyer.' I mean, I think that that's as unequivocal as I can imagine a statement being.
I mean, if I were a defense lawyer and I was advising my client what to say, I can't imagine what advice I'd give him to say anything better than that. I mean, he's saying that he's not going to waive any rights until he has a lawyer. Under Edwards, once he makes that statement, he's got a right to a lawyer before anything else happens, you know.
I just--you know, and he was not provided a lawyer. They just--as soon as he says that, instead of saying, okay, you want a lawyer, we will get you a lawyer, or instead of--instead of asking him about the lawyer question, they just go totally around that and they start saying, well you don't want to talk to us, which is not really what he had asked.
The right that he asked to invoke was his right to a lawyer, and he says at the same time he doesn't want to waive any rights until he's got one. I think the fact that they totally ignored what he said and kept on talking to him about does he want to make a statement, I think that that implies . . . they really don't believe in the warnings they have given him . . . .
* * *
And that's what he's saying, is he doesn't want to give up any right. He doesn't want to give up his right to remain silent; he doesn't want to give up his right to have a lawyer appointed for him; he doesn't want to give up his right to terminate the interview. You know, that what he says. I assume that that's what he means.
Now, the thing is, at that time what he says, 'if I don't got no lawyer,' maybe they might have some question at that point about whether he wanted a lawyer from that. I don't know how they could have that question.
But if they were going to ask any question, at that point, it seems to me, it was incumbent upon them to ask, okay, so you're saying you want a lawyer right now? Is that what you're saying? They want him to repeat his assertion that he wanted a lawyer, and then they could proceed along that line. But they don't ask that. They totally blow by the question of the lawyer deal.
* * *
Well, either Edwards means what it says or it doesn't. Either you can invoke your right to a lawyer or you can't. I don't know what he can say to them that invokes his right to a lawyer any more than this. . . . Under Edwards, it seems to me that once he says, I want a lawyer, that's it. I mean, that's the end of the ball game.
The Appeal
The procedural posture of this case has become relevant to this appeal. On appeal from the trial court's ruling suppressing the statement, the State addressed two issues raised at the pretrial hearings: whether Gobert's statements were made in violation of his right to counsel and whether the police deceived Gobert, rendering his statement involuntary by their manner of questioning. By a majority, this Court affirmed the trial court's ruling that the statements were obtained in violation of Gobert's right to counsel. Pursuant to Rule 50 of the Texas Rules of Appellate Procedure, and without requesting a response from Gobert's counsel, (5) a new majority substituted an opinion reversing the trial court's ruling. See Tex. R. App. P. 50 (allowing a majority of the justices who participated in a decision to summarily reconsider and correct or modify the court's opinion or judgment within 30 days after a petition for discretionary review is filed). The new majority opinion addressed the trial court's determination that the officers conducting the interrogation failed to honor Gobert's invocation of the right to counsel. The majority concluded then and now again in a revised opinion that Gobert's statement that "I don't want to give up any right, though, if I don't got no lawyer" was not an invocation of his right to an attorney.
Standard of Review
The majority considers this issue under a de novo standard. Because the application of the standard of review is relevant, I set it forth. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In reviewing the trial court's decision, we do not engage in our own factual review. Rather, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost complete deference to the trial court's ruling on (i) questions involving historical facts, and (ii) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002); Carmouche, 10 S.W.3d at 327. We may review de novo mixed questions of law and fact that do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53; Ross, 32 S.W.3d at 856. We must affirm the trial court's ruling if it is supported by the record and correct under some theory of law applicable to the case. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
In this case, a videotape of the interview was provided to the trial court, and the record makes clear that the trial judge reviewed and considered its content to determine contested issues. See Carmouche, 10 S.W.3d at 332 (determining that the videotape contradicted officer's testimony in hearing on motion to suppress). The videotape, however, was not included in the record on appeal. Instead, the State included a verbatim transcription of the videotape. Whether a defendant has unambiguously invoked his right to counsel may involve--as here--a factual as well as a legal determination. See, e.g., Ross, 32 S.W.3d at 857 (case falls within "almost total deference" standard of review because trial court's factual findings were dispositive).
Here, whether we defer to the factual findings of the trial court or review the issue de novo, I would reach the same conclusion. But any deference to the findings of the trial court compels the conclusion it then reached.
Invocation of Right to Counsel
Over twenty-five years after the landmark Edwards case and forty years after Miranda, certain bright lines have emerged. See Edwards v. Arizona, 451 U.S. 477, 485 (1981); Miranda v. Arizona, 384 U.S. 436, 479 (1966). Prior to custodial interrogation, a suspect must be advised that he has a right to consult with an attorney. Miranda, 384 U.S. at 467-68. Interrogation must cease immediately if the suspect states that he wants an attorney. Id.; see also Edwards, 451 U.S. at 485; McCarthy v. State, 65 S.W.3d 47, 51 (Tex. Crim. App. 2001); Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995). If the suspect indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the questioning must cease. Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Cross v. State, 144 S.W.3d 521, 526 (Tex. Crim. App. 2004). A suspect's invocation of his right to counsel must be "scrupulously honored." Michigan v. Mosley, 423 U.S. 96, 103 (1975). An invocation of counsel must not be ambiguous, meaning the suspect must "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States, 512 U.S. 452, 459 (1994).
In Miranda, the Supreme Court held that once an individual in custody invokes his right to counsel, interrogation "must cease until an attorney is present." 384 U.S. at 474. At that point, "the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning." Id. Edwards then made clear that the admonitions of Miranda did not require any invocation to be in the syntax and grammar demanded of an interrogatory. Rather, in Edwards the Court found it "inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." Id. at 485. The Court held that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Id. at 484.
By its assertion on appeal that Gobert "never expressly asked for a lawyer," "never expressly stated he wanted an attorney there," and that his statement was not a "clear, unequivocal, unambiguous invocation of the right to counsel," the State applies an erroneous standard for determining waiver when the accused has specifically invoked his right to counsel. The facts in Edwards are similar to those here. In the aspects in which the cases differ, the facts are more compelling here.
In Edwards, the defendant said: "I want an attorney before making a deal." Id. at 479. Similarly, Gobert announced: "I don't want to give up any right, though, if I don't got no lawyer." In Edwards, two detectives who were colleagues of the officer who had interrogated Edwards the previous night, came to the jail the next morning, stated they wanted to talk to Edwards, and readvised him of his Miranda rights. Id. Linking the assertion of right to counsel to an accused's response to his advice of rights, the Court in Edwards reasoned: "Miranda itself indicated that the assertion of the right to counsel was a significant event and that once exercised by the accused, 'the interrogation must cease until an attorney is present.'" Id. at 485 (quoting Miranda, 384 U.S. at 474).
Here, the same detectives advised Gobert that by signing the form he was not giving up any rights. They then plainly ignored his desire not to relinquish his rights in the absence of counsel. Immediately after Gobert refused to give up "any" rights "if I don't got no lawyer," both detectives said, "You don't want to talk?" and "You don't want to talk to us?" Then Scanlon assured Gobert that "signing [the Miranda warnings] is not giving up your right," and "Signing this is acknowledging that this was read to you," which was followed by "Your choice to talk to us is different." What could it mean to an accused to then be told that "all this is, is acknowledging that you were warned?"
In Edwards, the defendant agreed to make a statement as long as it was not tape-recorded: "I'll tell you anything you want to know, but I don't want it on tape." Id. at 479. Likewise, Gobert agreed that he wanted to "clear it up," but apparently believed that, having invoked his right to an attorney, nothing he thereafter said to the officers could be used against him until counsel had been provided. After Gobert had given a confession and the interrogation was winding down, Detective Burgh asked if Gobert would be willing to sign a written statement. Gobert became agitated and said, "I'm telling you that I done it, man. Why you have to type up a statement and all of that?" He added, "Oh, man, I mean why we have to go back through all this, you know, this is just like what to present to the judge or something, to the D.A., make your job easier or something?" Gobert's attempts to terminate the interview were similarly ignored. In response to Gobert's plea to "just take me to a lock-up, man," the officers continued their questioning. At the conclusion of the interview, as he repeatedly asks the detectives why they are reducing his statement to writing, Gobert realized he has given up every right he had.
Edwards could not be more clear. To impose an "additional safeguard," the Edwards Court held that a valid waiver of a defendant's right to counsel cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. Id. at 484. But the Court further held that an accused, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-85. Likewise, the Texas Court of Criminal Appeals has recognized that "the Edwards rule acts as a 'clear and unequivocal' guideline to law enforcement precisely because it is 'relatively rigid.'" McCarthy, 65 S.W.3d at 51 (quoting Arizona v. Roberson, 486 U.S. 675, 681 (1988)). The court of criminal appeals held:
[T]he Edwards rule does not take into account the good intentions of the individual police officer, the lack of official coercion or badgering in the particular case, or the actual voluntariness of a person's custodial statement. Edwards represents a bright and firm constitutional rule that applies to all suspects and all law enforcement officers. Id.
The right to consult with counsel before and during any custodial interrogation is independent of the right to remain silent. Although Gobert did not expressly request a lawyer to be present, he unambiguously, if ungrammatically, told the officers that he did not want to give up "any" right "if I don't got no lawyer." This was a clear statement that Gobert was unwilling to waive any of his rights under Miranda and article 38.22 without first consulting counsel. At least one of the officers, Scanlon, showed he understood this when he said, "I want to clear something up, though, because earlier you said you don't want to give up your right to a lawyer." Gobert's willingness to speak to the officers did not serve to waive his right to counsel. (6)
The opinions cited by the majority are distinguishable on their facts. In Davis v. United States, the Supreme Court held that a suspect's statement, "Maybe I should talk to a lawyer," uttered over an hour and a half into a custodial interrogation and after the suspect had previously waived his Miranda rights was an ambiguous assertion of the right to counsel. 512 U.S. at 458-59. Likewise, the Texas Court of Criminal Appeals held that the suspect's question in Robinson v. State, "Do I need to talk to a lawyer before I sign?" was plainly ambiguous; it was neither an assertion of the right to counsel nor a request for counsel. 851 S.W.2d 216, 223-24 (Tex. Crim. App. 1991). In the unpublished case of Harper v. State, a case cited by the majority, after the suspect confessed to the armed robbery in which a murder occurred, he said "I don't even want to talk unless I have me a lawyer and go through this shit. I don't have to go through this shit, right?" No. 03-00-00677-CR, 2001 Tex. App. LEXIS 7497, at *4-6 (Tex. App.--Austin Nov. 8, 2001, no pet.). No further interrogation took place until after one of the officers asked a question not posed to Gobert, "Are you telling us you want to terminate this interview and speak to an attorney or do you want us to continue to discuss this matter?" Id. The suspect expressed his desire to continue without counsel. Id.; cf. Jones v. State, 742 S.W.2d 398, 405 (Tex. Crim. App. 1987) (defendant's statement "I think I want a lawyer" was a clear and unequivocal assertion of right to counsel.)
Of course, waiver is possible when a request for counsel is equivocal and an interrogation need not cease following an ambiguous or equivocal reference to an attorney. See Edwards, 451 U.S. at 484; Nash v. Estelle, 597 F.2d 513, 517 (5th Cir. 1979). To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. Davis, 512 U.S. at 458-59. Invocation of the Miranda right to counsel "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." McNeil v. Wisconsin, 501 U.S. 171, 178 (1991). The Supreme Court in Miranda held that if a defendant indicates "in any manner" that he wishes an attorney before speaking or that he does not wish to be interrogated further, questioning must cease. 384 U.S. at 444-45. Although a suspect must "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney," Davis, 512 U.S. at 459, he need not speak with the level of clarity or "discrimination of an Oxford don." Id. at 476 (Souter, J., concurring). Whether viewed as an invocation of his right to remain silent or to invoke his right to counsel, I agree with the trial court that Gobert adequately communicated his desire to speak to an attorney before giving a statement that could be used against him. That the officers recognized this is clear from their retort "You don't want to talk to us?" and their return, after questioning, to clarify Gobert's intent.
When reviewing alleged invocations of the right to counsel, we look at the totality of circumstances surrounding the interrogation, as well as the alleged invocation, to determine whether a suspect's statement can be construed as an actual invocation of right to counsel. Dinkins, 894 S.W.2d at 351; Lucas v. State, 791 S.W.2d 35, 45-46 (Tex. Crim. App. 1989). Because the trial court is the sole judge of the credibility of the witnesses and the weight of their testimony, I would hold that the trial court's findings and conclusions are supported by the record. Ross, 32 S.W.3d at 855. That the trial court performed its function in evaluating credibility and demeanor is clear. The trial court observed:
The problem, as far as I'm concerned, is this: You-all say that he has not stated specifically that he wants to invoke his right to remain silent or to invoke his right to cut off the interview. But the words that he uses--and, actually, if you watch the tape, his voice gets noticeably louder. Because, you know, there [are] a lot of things that he says on the tape that I couldn't understand and that he talks so low and mumbles and that sort of thing.
But one is very clear. When he gets particular to this point, he says out loud and pretty loudly, he says, 'I don't want to give up any right though, if I don't got no lawyer.' He tells--that is the loudest thing he says throughout that interview.
* * *
And that's what he's saying, is he doesn't want to give up any right. He doesn't want to give up his right to remain silent; he doesn't want to give up his right to have a lawyer appointed for him; he doesn't want to give up his right to terminate the interview. You know, that's what he says. I assume that that's what he means.
Now, the thing is, at that time what he says, 'if I don't got no lawyer,' maybe they might have some question at that point about whether he wanted a lawyer from that. I don't know how they could have that question.
But if they were going to ask any questions, at that point, it seems to me, it was incumbent upon them to ask, okay, so you're saying you want a lawyer right now? Is that what you're saying? They want him to repeat his assertion that he wanted a lawyer, and then they could proceed along that line. But they don't ask that. They totally blow by the question of the lawyer deal.
And as far as I'm concerned, after Edwards--it does seem to me that one of the paramount rights that's established in Miranda after Edwards is the right to a lawyer. I mean, I think that that's kind of a high trump card in Miranda litigation after Edwards, is you say you want a lawyer, that's the end of the ball game.
(Emphasis added.) The trial court then concluded:
[E]ither Edwards means what it says or it doesn't. Either you can invoke your right to a lawyer or you can't. I don't know what he can say to them that invokes his right to a lawyer any more than this. He says he doesn't want to waive any rights unless he's got a lawyer, and at that time, it seems to me, under Edwards, they have got to respect that right and they have got to say--maybe they can say to him--and I am not even sure they can do this under Edwards, but maybe they can say to him, okay, you're saying to us you want a lawyer, so you understand under the law we can't talk to you now until you get a lawyer or until you come back to talk to us individually or something like that. Maybe they can say that to him. I don't see how they can say anything else to him, though.
Not surprisingly, the trial court found that a statement that "I don't want to give up any right" necessarily means that one is giving up no rights.
These are explicit findings of historical fact made by the trial court; they must be given "almost complete" deference. See Carmouche, 10 S.W.3d at 327; see also St. George, 237 S.W.3d at 725. We review the record to determine whether the trial court's ruling is supported by the record and correct under some theory of law applicable to the case. See Armendariz, 123 S.W.3d at 404. Here, the trial court made explicit findings of fact. Moreover, the trial court was favored with the presentation of a videotape of the interview, which was not included in the record on appeal. See Carmouche, 10 S.W.3d at 332 (regarding importance of videotape). Applying a bifurcated standard of review, we afford "almost total deference" to the trial court's findings of historical fact. See Guzman, 955 S.W.2d at 89. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id. In other words, we review de novo the trial court's application of law to the facts as found by the trial court. Id. Because the trial court is the sole judge of the credibility of the witnesses and the weight of their testimony, I would hold that the trial court's findings and conclusions are supported by the record.
Viewing the totality of the circumstances, see Dinkins, 894 S.W.2d at 351; Lucas, 791 S.W.3d at 45-46, I would hold that Gobert's statement, made immediately after he was advised of his rights under Miranda and article 38.22, that "I don't want to give up any right, though, if I don't got no lawyer" was a clear invocation of the right to counsel. The majority concludes that Gobert "told the police three times that he was willing to talk to the police, indicating that he was willing to proceed without having the assistance of counsel." This is precisely the type of police conduct Edwards forbids. See 451 U.S. at 484-85. Under Edwards, all interrogation should have ceased until counsel was provided. Id. Because the interrogation continued in violation of Edwards, I would hold that Gobert's statements to the police are inadmissible against him on the trial of any criminal case. See Tex. Code Crim. Proc. Ann. art. 38.22.
Miranda and Edwards together etch a bright line here. It is disturbing at best that in 2008 we are still debating whether a defendant is entitled to an attorney once he indicates a clear intent to invoke that constitutional right, and the State insists on parsing the grammar and syntax of double negatives to deprive an accused of his right to consult with an attorney, arguing that the statement was "conditional" and just not clear to "a reasonable police officer." That it was sufficiently clear to the police officer is apparent from the officer's statement that "earlier you said you don't want to give up your right to a lawyer." The officer determined that he ought to at least clarify Gobert's statement but, instead of clarifying Gobert's declaration, he "clear[ed] up the fact that you want to talk to us about this. Okay? You understand what I'm saying?" Attempting to make a record to continue the interview and not to clarify Gobert's wishes regarding an attorney, the officers, as the trial court found, bypassed any opportunity to clarify the issue of counsel.
The indispensable right to counsel during custodial interrogation cannot function effectively as Miranda requires if the police are free to ignore an accused's invocation of his right to counsel. Indeed, the Supreme Court has made it clear beyond peradventure that this right is indispensable as well to the protection of an accused's Fifth Amendment privilege. See Fare v. Michael C., 442 U.S. 707, 719-20 (1979); see also Miranda, 384 U.S. at 469. We should not be quibbling over an accused's clear intent to invoke the most basic of rights.
__________________________________________
Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Filed: February 1, 2008
Publish
1. The State also now claims on rehearing that, contrary to its original brief on appeal, "parts of this comment are close to being inaudible" and the tape "might also support his comment as being 'I don't want to give up these rights, though, before I got no lawyer.'" The State then argues: "Regardless of the precise words used, the conditional 'tenor and sense' of this early interchange, including its cryptic nature and possible use of a double negative, vividly depict the reasonableness of the detectives' responses, and illustrate the limitations of drawing conclusions from the cold written record, as have the courts and parties so far."
2. Although the videotape was attached to the State's petition for discretionary review, it was not in the record before us on appeal.
3. The interview was videotaped. The videotape was presented to the judge at the suppression hearing. The record reflects that the trial court reviewed the actual videotape. A verbatim transcript of the videotape was included in the record on appeal; the videotape itself was not included in the record on appeal. The State attached a copy of the transcript to its brief on appeal.
4. Gobert urged two issues at the hearings on his motion to suppress. In addition to the ground on which the trial court ruled and suppressed the evidence, he also urged that the statements were involuntary based on the deception of the police officers. The trial court did not rule on the second ground.
5. Gobert's counsel complains that the opinion was substituted and the result changed without permitting a response.
6. Although the defendant carries the burden of unequivocally asserting his right to counsel, see Davis v. United States, 512 U.S. 452, 461-62 (1994), the State has the burden of establishing by a preponderance of the evidence that the defendant subsequently voluntarily waived his right to counsel. Moran v. Burbine, 475 U.S. 412, 421 (1986) (holding State is required to establish alleged waiver "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it"). The State challenges only the trial court's finding that Gobert unequivocally invoked his right to counsel; it does not claim that, after invoking the right to counsel, Gobert subsequently waived that right.
Sunday, February 3, 2008
Trial court granted motion to supress, but appeals court reverses; Justice Patterson dissents
The State appeals the district court's order granting appellee Milton Dwayne Gobert's motion to suppress statements. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West 2006). At issue is the admissibility of Gobert's videotaped custodial interrogation by Austin police officers. The trial court determined that the officers conducting the interrogation failed to honor Gobert's invocation of the right to counsel. We conclude that the district court erred by granting the motion to suppress. - Justice Patterson dissented
The State of Texas v. Milton Dwayne Gobert, No. 03-06-00330-CR (Tex.App.- Austin, Feb. 2, 2008)(Opinion on motion for rehearing by Justice Puryear ) (Before Chief Justice Law, Justices Patterson and Puryear)
The State of Texas v. Milton Dwayne Gobert
Appeal from 331st District Court of Travis County
Disposition: Reversed and remanded
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. D1DC06-904006, HONORABLE BOB PERKINS, JUDGE PRESIDING
O P I N I O N
Our opinion and judgment issued on October 4, 2007, are withdrawn, and the following opinion is substituted.
The State appeals the district court's order granting appellee Milton Dwayne Gobert's motion to suppress statements. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West 2006). At issue is the admissibility of Gobert's videotaped custodial interrogation by Austin police officers. The trial court determined that the officers conducting the interrogation failed to honor Gobert's invocation of the right to counsel. We conclude that the district court erred by granting the motion to suppress.
The relevant facts are not in dispute. Gobert, who was suspected of committing the murder for which he now stands indicted, was arrested for a parole violation and for the assault of a woman named Christine or Christina. Following his arrest, Gobert was questioned by Austin detectives Burgh and Scanlon. Burgh began the interview by advising Gobert of his constitutional and statutory rights. See Miranda v. Arizona, 384 U.S. 436, 479 (1966); Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2, 3 (West 2005). Asked if he understood his rights, Gobert replied that he did and then said, "I don't want to give up any right, though, if I don't got no lawyer." Scanlon immediately asked, "You don't want to talk?" The question was repeated by Burgh, "You don't want to talk to us?" Gobert answered, "I mean, I'll talk to y'all. I mean, I know, you know, what she had said about it, you know. I'll speak with y'all, but (inaudible), man. I mean, I'll speak with y'all, you know." Scanlon then said, "Okay, signing this--signing this is not giving up your right. Signing this is acknowledging that this was read to you." He then added, "Okay? Your choice to talk to us is different. This--all this is, is acknowledging that you were warned."
Burgh then began to question Gobert regarding his relationship with Christina. After a number of questions were asked and answered, Scanlon interrupted to ask, "I want to clear something up, though, because earlier you said you don't want to give up your right to a lawyer. I want you--I want you--I want to clear up the fact that you want to talk to us about this. Okay? You understand what I'm saying?" Gobert answered, "Yeah." Scanlon continued, "I want to clear it up. I mean, that's--that's what you want to do, right?" Gobert again answered, "Yeah." The interrogation continued for several hours and ultimately resulted in appellant confessing to the murder of Mel Kernena Cotton.
At issue is Gobert's statement, "I don't want to give up any right, though, if I don't got no lawyer." The trial court concluded that this was an unequivocal invocation of the right to counsel during questioning.
Because the issue presented is a mixed question of law and fact, we conduct a de novo review. See Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). To effectuate the Fifth Amendment privilege against self-incrimination, a suspect has the right to consult with an attorney and to have counsel present during custodial interrogation, and the police must explain this right to the suspect before questioning begins. Miranda v. Arizona, 384 U.S. 436, 479 (1966). When a suspect asserts his right to counsel, all interrogation must cease until counsel is provided or until the suspect personally reinitiates the conversation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1980); Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995). The suspect's request for counsel must be unambiguous, that is, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Davis v. United States, 512 U.S. 452, 459 (1994). If the suspect makes an ambiguous or equivocal reference to an attorney that a reasonable officer in the circumstances would have understood only as possibly invoking the right to counsel, questioning need not cease. Id. To invoke the right to counsel, a "suspect must unambiguously request counsel." Davis v. United States, 512 U.S. 452, 459 (1994) (emphasis added); see Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995) (invocation must be clear and unambiguous); see also Smith v. Illinois, 469 U.S. 91, 97-98 (statement is either invocation of right to counsel or it is not). At a minimum, the suspect must make a statement that could reasonably be interpreted as "an expression of a desire for the assistance of an attorney." McNeil v. Wisconsin, 501 U.S. 171, 178 (1991) (emphasis added). The invocation must be clear enough that a reasonable officer "in the circumstances would understand the statement to be a request for an attorney." Davis, 512 U.S. at 459 (emphasis added). In other words, a suspect does not invoke his right to an attorney if he merely mentions the word "attorney" or makes an equivocal statement that, in light of the circumstances, would have lead a reasonable officer to believe "only that the suspect might be invoking the right to counsel." Id.; see Dinkins, 894 S.W.2d at 351; Robinson v. State, 851 S.W.2d 216, 223 (Tex. Crim. App. 1991). There are no magic words needed to invoke the right, but the words must communicate that the suspect desires to speak to someone who is an attorney. Dinkins, 894 S.W.2d at 352. If a suspect makes an equivocal or ambiguous statement, there is no requirement that officers attempt to clarify the statement, and the officers may continue their questioning. Davis, 512 U.S. at 459, 461; see also Moran v. Burbine, 475 U.S. 412, 434 n.4 (1986) (unless suspect communicates that he wants attorney, interrogation can continue). Although it may be good police practice for interviewing officers to clarify a suspect's ambiguous statement regarding counsel, both to protect the rights of the suspect and to minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement, clarifying questions are not required, and the officers have no obligation to stop questioning. Davis, 512 U.S. at 461; Dinkins, 894 S.W.2d at 351-52.
We conclude that Gobert's statement that "I don't want to give up any right, though, if I don't got no lawyer" was not an invocation of his right to an attorney. It is unclear what Gobert was trying to convey when he made the statement, but it is clear that the statement is not an unequivocal request for counsel. Gobert's statement may have clearly conveyed the idea that he did not have a present intent to "give up any right," but it was not a request for counsel so as to halt further interrogation by the officers. The word "lawyer" appeared in the statement, but not in any manner that could reasonably be interpreted as expressing a desire for the assistance of counsel or to speak to an attorney. See Davis, 512 U.S. at 459 (declining invitation to extend holding in Edwards and "require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney"). At the very most, Gobert's statement to the officers was an equivocal and ambiguous statement that Gobert might want to invoke his right to counsel. See Robinson, 851 S.W.2d at 223-24 (question "Do I need to talk to a lawyer before I sign?" was equivocal at best); Harper v. State, No. 03-00-00677-CR, 2001 Tex. App. LEXIS 7497, at *4, 19 (Tex. App.--Austin Nov. 8, 2001, pet. ref'd) (not designated for publication) (concluding that statement "I don't even want to talk unless I have me a lawyer and go through this shit. I don't have to go through this shit, right?" was ambiguous and equivocal and did not invoke right to counsel). Moreover, after being read his Miranda rights and immediately after making the statement in question, Gobert told the police three times that he was willing to talk to the police, indicating that he was willing to proceed without having the assistance of counsel. Dinkins, 894 S.W.2d at 351 (courts may consider totality of circumstances surrounding interrogation when determining whether individual invoked his right to counsel). Although they were not required to do so, the officers engaged in the "good police practice" spoken of in Davis by immediately seeking to clarify the meaning of Gobert's statement.
The district court's order granting Gobert's motion to suppress is overruled and the cause is remanded for further proceedings consistent with this opinion.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Dissenting Opinion by Justice Patterson
Reversed and Remanded on Motion for Rehearing
Filed: February 1, 2008
Publish
The State of Texas v. Milton Dwayne Gobert, No. 03-06-00330-CR (Tex.App.- Austin, Feb. 2, 2008)(Opinion on motion for rehearing by Justice Puryear ) (Before Chief Justice Law, Justices Patterson and Puryear)
The State of Texas v. Milton Dwayne Gobert
Appeal from 331st District Court of Travis County
Disposition: Reversed and remanded
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. D1DC06-904006, HONORABLE BOB PERKINS, JUDGE PRESIDING
O P I N I O N
Our opinion and judgment issued on October 4, 2007, are withdrawn, and the following opinion is substituted.
The State appeals the district court's order granting appellee Milton Dwayne Gobert's motion to suppress statements. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (West 2006). At issue is the admissibility of Gobert's videotaped custodial interrogation by Austin police officers. The trial court determined that the officers conducting the interrogation failed to honor Gobert's invocation of the right to counsel. We conclude that the district court erred by granting the motion to suppress.
The relevant facts are not in dispute. Gobert, who was suspected of committing the murder for which he now stands indicted, was arrested for a parole violation and for the assault of a woman named Christine or Christina. Following his arrest, Gobert was questioned by Austin detectives Burgh and Scanlon. Burgh began the interview by advising Gobert of his constitutional and statutory rights. See Miranda v. Arizona, 384 U.S. 436, 479 (1966); Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2, 3 (West 2005). Asked if he understood his rights, Gobert replied that he did and then said, "I don't want to give up any right, though, if I don't got no lawyer." Scanlon immediately asked, "You don't want to talk?" The question was repeated by Burgh, "You don't want to talk to us?" Gobert answered, "I mean, I'll talk to y'all. I mean, I know, you know, what she had said about it, you know. I'll speak with y'all, but (inaudible), man. I mean, I'll speak with y'all, you know." Scanlon then said, "Okay, signing this--signing this is not giving up your right. Signing this is acknowledging that this was read to you." He then added, "Okay? Your choice to talk to us is different. This--all this is, is acknowledging that you were warned."
Burgh then began to question Gobert regarding his relationship with Christina. After a number of questions were asked and answered, Scanlon interrupted to ask, "I want to clear something up, though, because earlier you said you don't want to give up your right to a lawyer. I want you--I want you--I want to clear up the fact that you want to talk to us about this. Okay? You understand what I'm saying?" Gobert answered, "Yeah." Scanlon continued, "I want to clear it up. I mean, that's--that's what you want to do, right?" Gobert again answered, "Yeah." The interrogation continued for several hours and ultimately resulted in appellant confessing to the murder of Mel Kernena Cotton.
At issue is Gobert's statement, "I don't want to give up any right, though, if I don't got no lawyer." The trial court concluded that this was an unequivocal invocation of the right to counsel during questioning.
Because the issue presented is a mixed question of law and fact, we conduct a de novo review. See Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). To effectuate the Fifth Amendment privilege against self-incrimination, a suspect has the right to consult with an attorney and to have counsel present during custodial interrogation, and the police must explain this right to the suspect before questioning begins. Miranda v. Arizona, 384 U.S. 436, 479 (1966). When a suspect asserts his right to counsel, all interrogation must cease until counsel is provided or until the suspect personally reinitiates the conversation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1980); Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995). The suspect's request for counsel must be unambiguous, that is, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Davis v. United States, 512 U.S. 452, 459 (1994). If the suspect makes an ambiguous or equivocal reference to an attorney that a reasonable officer in the circumstances would have understood only as possibly invoking the right to counsel, questioning need not cease. Id. To invoke the right to counsel, a "suspect must unambiguously request counsel." Davis v. United States, 512 U.S. 452, 459 (1994) (emphasis added); see Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995) (invocation must be clear and unambiguous); see also Smith v. Illinois, 469 U.S. 91, 97-98 (statement is either invocation of right to counsel or it is not). At a minimum, the suspect must make a statement that could reasonably be interpreted as "an expression of a desire for the assistance of an attorney." McNeil v. Wisconsin, 501 U.S. 171, 178 (1991) (emphasis added). The invocation must be clear enough that a reasonable officer "in the circumstances would understand the statement to be a request for an attorney." Davis, 512 U.S. at 459 (emphasis added). In other words, a suspect does not invoke his right to an attorney if he merely mentions the word "attorney" or makes an equivocal statement that, in light of the circumstances, would have lead a reasonable officer to believe "only that the suspect might be invoking the right to counsel." Id.; see Dinkins, 894 S.W.2d at 351; Robinson v. State, 851 S.W.2d 216, 223 (Tex. Crim. App. 1991). There are no magic words needed to invoke the right, but the words must communicate that the suspect desires to speak to someone who is an attorney. Dinkins, 894 S.W.2d at 352. If a suspect makes an equivocal or ambiguous statement, there is no requirement that officers attempt to clarify the statement, and the officers may continue their questioning. Davis, 512 U.S. at 459, 461; see also Moran v. Burbine, 475 U.S. 412, 434 n.4 (1986) (unless suspect communicates that he wants attorney, interrogation can continue). Although it may be good police practice for interviewing officers to clarify a suspect's ambiguous statement regarding counsel, both to protect the rights of the suspect and to minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement, clarifying questions are not required, and the officers have no obligation to stop questioning. Davis, 512 U.S. at 461; Dinkins, 894 S.W.2d at 351-52.
We conclude that Gobert's statement that "I don't want to give up any right, though, if I don't got no lawyer" was not an invocation of his right to an attorney. It is unclear what Gobert was trying to convey when he made the statement, but it is clear that the statement is not an unequivocal request for counsel. Gobert's statement may have clearly conveyed the idea that he did not have a present intent to "give up any right," but it was not a request for counsel so as to halt further interrogation by the officers. The word "lawyer" appeared in the statement, but not in any manner that could reasonably be interpreted as expressing a desire for the assistance of counsel or to speak to an attorney. See Davis, 512 U.S. at 459 (declining invitation to extend holding in Edwards and "require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney"). At the very most, Gobert's statement to the officers was an equivocal and ambiguous statement that Gobert might want to invoke his right to counsel. See Robinson, 851 S.W.2d at 223-24 (question "Do I need to talk to a lawyer before I sign?" was equivocal at best); Harper v. State, No. 03-00-00677-CR, 2001 Tex. App. LEXIS 7497, at *4, 19 (Tex. App.--Austin Nov. 8, 2001, pet. ref'd) (not designated for publication) (concluding that statement "I don't even want to talk unless I have me a lawyer and go through this shit. I don't have to go through this shit, right?" was ambiguous and equivocal and did not invoke right to counsel). Moreover, after being read his Miranda rights and immediately after making the statement in question, Gobert told the police three times that he was willing to talk to the police, indicating that he was willing to proceed without having the assistance of counsel. Dinkins, 894 S.W.2d at 351 (courts may consider totality of circumstances surrounding interrogation when determining whether individual invoked his right to counsel). Although they were not required to do so, the officers engaged in the "good police practice" spoken of in Davis by immediately seeking to clarify the meaning of Gobert's statement.
The district court's order granting Gobert's motion to suppress is overruled and the cause is remanded for further proceedings consistent with this opinion.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Dissenting Opinion by Justice Patterson
Reversed and Remanded on Motion for Rehearing
Filed: February 1, 2008
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Denial of motion to supress upheld on appeal
AFFIRMED: Opinion by Justice Patterson (Before Justices Patterson, Puryear and Pemberton)
03-06-00589-CR
Terry Michael Dalton v. The State of Texas--Appeal from 390th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. D-1-DC-05-201498, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
O P I N I O N
Terry Michael Dalton appeals from a guilty plea to the murder of his spouse following the district court's order denying appellant's motion to suppress statements. See Tex. Code Crim. Proc. Ann. art. 44.01(5) (West 2006). At issue is the admissibility of appellant's videotaped custodial interrogation obtained by Austin police officers. The trial court determined that appellant voluntarily waived his rights and that his statement to an officer asking him to tell his friends to get him a lawyer was not a direct, unequivocal invocation of his right to counsel. We agree with the trial court's conclusion and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 27, 2005, Austin police officers, including Officer Paul Basulto, were summoned to 4802 Clarkson to assist an EMS unit. A deceased female, Laura McIntosh Dalton, was in the house, and appellant was present on the scene outside the house. When Basulto arrived at the scene, he observed appellant and two women. Appellant matched the description of the possible suspect. For his own security, Basulto approached appellant, handcuffed appellant's hands behind his back, and frisked him for weapons. Appellant identified the two women as his friends and asked Basulto, "Would you give my friends my keys that are in my pocket?" Basulto agreed, placed appellant in the back seat of the squad car, and turned on the car's video camera, which he directed at appellant.
In the car, Basulto advised appellant of his rights and appellant acknowledged he understood them. Basulto testified at the hearing on the motion to suppress that he considered appellant to be under arrest. Appellant then asked Basulto: "When you give my friends the keys, could you tell them to get me a lawyer?" (1) Although the tape is at times inaudible, Basulto assured appellant that "we'll probably do that in a little bit" and asked appellant for the names of his friends. Over the next few minutes, appellant also asked the officers to obtain medications from his house, to pass along messages to his father, and to take care of his dogs. Basulto recounted to other officers that appellant wanted the keys in his pocket to be given to his friends, that the officers ask his friends to get him a lawyer, that the officers retrieve his medications from his house, and that his father be contacted.
When homicide Detective Michael Burgh arrived, he approached the patrol car and spoke with appellant. Burgh explained that the officers needed appellant's consent to go into the house and conduct their investigation. He asked appellant for his consent, and inquired, "Do you have a problem with that?" After an exchange that is inaudible on the videotape, appellant consented and executed the consent form.
Burgh then advised appellant that he would be transported to the police station and that detectives would speak with him there. Appellant asked whether he could get a lawyer then and confirmed in response to a question from Burgh that he had been advised of his rights. Burgh replied that if appellant wanted a lawyer, he could have a lawyer and that his rights would be explained to him in more detail at the police station. Appellant then asked for his eyeglasses and again for his prescription medicines.
For the next half hour, appellant continued to ask Basulto various questions, including about what was going to happen. Basulto replied that he did not know what was going to happen, but that appellant could ask the detectives his questions when they spoke at the police station. Appellant asked about his anti-anxiety medication and when his friends would get his messages. Someone off-camera replied, "They're probably gonna have to go make a statement, so they'll let them know then." When asked if that was "okay," appellant nodded. Appellant again asked about his dogs and was assured they would be taken care of.
Approaching appellant in the patrol car a few minutes later, homicide Detective Kerry Scanlon introduced himself and advised appellant they would be leaving soon. Several minutes later, Scanlon and Basulto discussed transporting appellant to the police station and how to address appellant's concerns about his medications and dogs. Basulto then transported appellant to the police station.
At the police station, appellant was placed in an interrogation room and Scanlon advised appellant of his rights. Scanlon told appellant that he knew Basulto had advised him of his rights, but that he would do so also. After Scanlon read appellant his rights, appellant confirmed that he understood them. Scanlon then explained to appellant that he wanted to talk about "what happened" and asked appellant if he would be willing to talk about it. Appellant responded, "Well, should I get a lawyer first?" Scanlon advised appellant that that was a decision for appellant to make and that Scanlon could not advise him one way or the other. Scanlon again explained that appellant had a right to a lawyer and that Scanlon needed to figure out whether appellant wanted to talk about what had happened. Appellant said that he had never done this before and asked if people usually get a lawyer before they "talk." During an extended conversation in which Scanlon told appellant that some people did and some people did not, and answered appellant's questions about the process of getting a lawyer, appellant agreed to acknowledge in writing that he understood the warnings and wanted to waive those rights in order to make a statement.
Appellant then proceeded to respond to Scanlon's questions about how he had met his wife and what their marriage had been like. Appellant described how his wife had assaulted him on one occasion for which she was arrested, and he talked about the troubles they had in their marriage. He started to describe a fight he and his wife had had the night before, explaining that he wanted a divorce. Appellant recounted that his spouse had called a friend, telling her that appellant was hitting her, which he denied doing. Appellant described how his wife had threatened him and sat on his chest trying to suffocate him. He struggled to get her off. Appellant then said, "I guess I should get a lawyer before I really get into what happened."
Appellant again asked Scanlon to explain the process of getting a lawyer. Scanlon tried to clarify whether appellant still wanted to talk or if he was invoking his right to counsel and terminating the interview. Appellant responded to Scanlon's clarifying questions, stating "I should get one, probably. I guess so. I mean, I guess I should do it. I suppose I should get a lawyer. Oh, yeah, I want one," while also saying that he "didn't mind talking" to Scanlon. Scanlon asked again, "Yes you want a lawyer?" Appellant then said, "Yes sir."
Scanlon terminated the interview and explained to appellant that he would be transported to jail where he would be booked and could make a telephone call.
Appellant's Motion to Suppress and the Hearing
Prior to trial, appellant filed a motion to suppress, seeking to suppress all oral statements made after he invoked his right to counsel. (2) The trial court conducted a hearing over the course of two days. Detective Scanlon and Officer Basulto both testified, and the State introduced into evidence the videotaped interview. The defense presented, as evidence, the videotape recording of appellant in the patrol car.
Basulto testified that he first advised appellant of his rights at the scene of the crime and that appellant stated that he understood his rights. Basulto testified:
A. He advised me that he was HIV and Hep C positive. And he also had some keys that were in his right front pocket. He asked if I could give that to his two friends, which he named as Jennifer and Joy.
Q. And did he ask you to tell Joy and Jennifer anything else?
A. He asked if they could get him a lawyer.
Q. Okay. Did you question the suspect in any way?
A. No.
Basulto recounted that Detective Burgh arrived and asked appellant for consent to search the house to which appellant agreed. Basulto advised Burgh of appellant's request to ask his friends to get him a lawyer. Basulto later transported appellant to the police station where he was interviewed by Scanlon.
Detective Scanlon testified that he had a brief conversation with appellant while he was in the patrol car at the scene to introduce himself and to advise appellant that he would be transported to the police station. At that time, appellant made no statements to Scanlon.
Detective Scanlon testified that he advised appellant of his rights at the beginning of the videotaped interview at the police station:
Q. Did you read each right to him and ask whether he understood it?
A. Yes.
Q. How did he indicate to you that he understood it?
A. Verbally giving me an affirmative answer, yes or yes, sir.
Q. And when you--after you advised him of his rights, did he indicate that he would agree to waive his rights and speak to you?
A. Eventually yes, he did.
Q. Will you describe what he said in the--what the conversation was when you said "eventually"?
A. After reading the warning to him, he said that--he asked me the question if he needed a lawyer. I told him that it was not my place to advise him whether or not he needed a lawyer, that that was a decision that he needed to make on his own.
Q. Did you give him time to make that decision?
A. Yes.
Q. Okay. And in fact, did he ponder that decision for about approximately eight minutes?
A. Yes.
Q. And what did he ultimately decide about whether he wanted a lawyer or whether he wanted to speak to you?
A. He decided that he would speak to me up to the point that he no longer wanted to speak to me. And if he decided he didn't want to speak to me anymore, that he would stop at that time.
Scanlon testified that, before appellant terminated the interview, appellant discussed his relationship with his wife, some of his health history, and "some of the things they had been fighting about":
They were arguing about an alarm service that was at the house, either discontinuing it or something along that line because the alarm wasn't working properly and that their argument became a physical altercation to the point that I believe he stated it began with Laura McIntosh going out the back door and screaming stuff like "he's hurting me" or something like that, to returning in the house they were actually fighting with each other. And he said that Laura McIntosh had him on the floor and was sitting on top of him and that he struggled to get free and that he finally did get free from Laura, from underneath Laura. And at that point I asked him what happened after he got freed, and that was when he decided he didn't want to talk to me anymore.
Over the next few minutes, Scanlon and appellant went "back and forth" about whether he wanted a lawyer. Scanlon testified that he stopped questioning appellant when appellant said he wanted to talk to a lawyer.
Based upon the above testimony, the trial court made the following findings of fact and conclusions of law:
Findings of Fact:
1. The defendant was in custody when he spoke to Detective Kerry Scanlon at the Austin Police Department on March 27, 2005.
2. Detective Scanlon's interview with the defendant was recorded and is in evidence as State's Exhibit 2.
3. Before the defendant made his statement to Detective Scanlon, State's Exhibit 2, he knowingly, intelligently, and voluntarily waived all rights as set out in the warnings and in State's Exhibit 1.
4. The statements made by the defendant were made voluntarily, without any threats or promises.
5. The statement to Officer Basulto, "tell my friends to get me a lawyer," was an indirect request for counsel transmitted to a third party, and not a direct, unequivocal request for counsel.
6. The defendant's discussion with Detective Scanlon regarding an attorney did not constitute a request for counsel.
7. The defendant's statement, "yes, sir," made after Detective Scanlon's question, "you're asking for a lawyer?" was a request for counsel.
8. The videotaped interview with the defendant complies with Article 38.22, Texas Code of Criminal Procedure.
Conclusions of Law:
1. Officer Basulto's belief as to whether the defendant had requested a lawyer is not relevant to the Court's determination of whether the defendant's statement constituted a direct, unequivocal request for counsel.
2. The statements of the defendant in his interview with Detective Scanlon, up to the point where Detective Scanlon asks, "you're asking for a lawyer?" are admissible.
3. The statements of the defendant in his interview with Detective Scanlon, after he answers "yes, sir" to Detective Scanlon's question, "you're asking for a lawyer?" are not admissible.
ANALYSIS
Appellant urges on appeal that the trial court abused its discretion in finding that appellant's statement to Officer Basulto--to "tell my friends to get me a lawyer"--was an indirect request for counsel transmitted to a third party, and was not a direct, unequivocal request for counsel. Appellant contends that the motion to suppress should have been granted based on appellant's invocation of his right to counsel in his initial encounter with Basulto.
Standard of Review
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Ross v. State, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We give almost total deference to the trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But we review de novo a trial court's rulings on mixed questions of law and fact if they do not turn on credibility and demeanor of witnesses. Id.
Invocation of Right to Counsel
To effectuate the Fifth Amendment privilege against self-incrimination, a suspect has the right to consult with an attorney and to have counsel present during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). The police must explain this right to the suspect before questioning begins. Id. at 479. When a suspect asserts his right to counsel, all interrogation must cease until counsel is provided or until the suspect personally reinitiates the conversation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995). The suspect's assertion for counsel must be unambiguous, that is, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Davis v. United States, 512 U.S. 452, 459 (1994). If the suspect makes an ambiguous or equivocal reference to an attorney that a reasonable officer in the circumstances would have understood only as possibly invoking the right to counsel, questioning need not cease. Id. Although it may be good police practice for interviewing officers to clarify a suspect's ambiguous statement regarding counsel, both to protect the rights of the suspect and to minimize the chance of the suppression of evidence in subsequent judicial proceedings, clarifying questions are not required. Id. at 461; Dinkins, 894 S.W.2d at 352.
When reviewing alleged invocations of the right to counsel, we look at the totality of the circumstances surrounding the interrogation, as well as the alleged invocation, to determine whether a suspect's statement can be construed as an actual invocation of his right to counsel. Dinkins, 894 S.W.2d at 351; Castillo v. State, 742 S.W.2d 1, 4 (Tex. Crim. App. 1987).
Review of Trial Court's Totality-of-the-Circumstances Determination
Here, the trial court conducted a two-day hearing and heard live testimony from Detective Scanlon and Officer Basulto. The trial court viewed the videotape of the disputed conversation between Basulto and appellant. In addition to its findings of fact and conclusions of law, the trial court observed:
. . . The court has taken into consideration the videotape as well as the totality of the circumstances with regard to whether the defendant invoked his right to counsel.
And based upon the evidence and all of the relevant case law that was provided by both the state and defense, the court finds that the defendant--what the defendant said to Officer Basulto, as quoted from the video, that this was not an unequivocal invocation of the defendant's right to counsel. And even though Officer Basulto believed the defendant requested an attorney, the case law is clear.
And to tell you the truth, when I first heard it, without looking at the case law, you feel like he--it's a close call. But I do believe that the case law is clear on this point, and Officer Basulto's belief does not change the law. And what actually happened, it was an indirect request for counsel transmitted to a third party, who was his friend, that he was asking the officer to tell--ask to get counsel and the keys.
The court also found that, "during the actual interview by Detective Scanlon," there were times when appellant talked about a lawyer and whether he needed one: "It was not an unequivocal assertion of his right for an attorney."
We agree with the trial court that appellant's statement to the officer to ask or tell his friends to get him a lawyer was not an invocation of his right to an attorney. It was not the type of direct, unequivocal assertion required to halt any further questioning by the officers. At most, it was an equivocal and ambiguous statement that he might want the services of an attorney at some point. That Basulto reported to other officers that appellant had requested a lawyer does not convert the statement at issue into the type of unequivocal statement required. Moreover, appellant's statements during the course of the interview with Detective Scanlon at the police station were also insufficient to constitute the type of unambiguous statement that a reasonable police officer in the circumstances would understand to be a request for an attorney. See, e.g., Robinson v. State, 851 S.W.2d 216, 223-24 (Tex. Crim. App. 1991) (question "Do I need to talk to a lawyer before I sign?" was equivocal). Here, Scanlon's discussions with appellant about whether he needed a lawyer and whether he was invoking his right were efforts to clarify appellant's intent and constitute the "good police practice" allowed by Davis. See Davis, 512 U.S. at 461.
The trial court found that appellant did not articulate his desire to have counsel sufficiently clearly that a reasonable police officer in the circumstances would conclude that appellant invoked his right to counsel. The record supports the trial court's findings. Viewing the totality of the circumstances, we hold that the trial court did not abuse its discretion in denying the motion to suppress.
CONCLUSION
Having overruled appellant's point of error, we affirm the trial court's judgment.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: February 1, 2008
Publish
1. Although the State urges that appellant asks Basulto to "ask" his friends to get him a lawyer, the videotape is not clear and we will defer to the trial court's factual finding.
2. On appeal, appellant attempts to broaden the scope of the motion, seeking to suppress all statements made after he invoked his right to counsel, all physical evidence derived from those statements, and evidence gathered pursuant to his execution of the consent to search form. Although appellant's argument varies from that urged below, the State does not urge that the issue was waived. In any event, our conclusion as to when appellant unequivocally invoked his rights is dispositive of the issue however it is couched.
03-06-00589-CR
Terry Michael Dalton v. The State of Texas--Appeal from 390th District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. D-1-DC-05-201498, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
O P I N I O N
Terry Michael Dalton appeals from a guilty plea to the murder of his spouse following the district court's order denying appellant's motion to suppress statements. See Tex. Code Crim. Proc. Ann. art. 44.01(5) (West 2006). At issue is the admissibility of appellant's videotaped custodial interrogation obtained by Austin police officers. The trial court determined that appellant voluntarily waived his rights and that his statement to an officer asking him to tell his friends to get him a lawyer was not a direct, unequivocal invocation of his right to counsel. We agree with the trial court's conclusion and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 27, 2005, Austin police officers, including Officer Paul Basulto, were summoned to 4802 Clarkson to assist an EMS unit. A deceased female, Laura McIntosh Dalton, was in the house, and appellant was present on the scene outside the house. When Basulto arrived at the scene, he observed appellant and two women. Appellant matched the description of the possible suspect. For his own security, Basulto approached appellant, handcuffed appellant's hands behind his back, and frisked him for weapons. Appellant identified the two women as his friends and asked Basulto, "Would you give my friends my keys that are in my pocket?" Basulto agreed, placed appellant in the back seat of the squad car, and turned on the car's video camera, which he directed at appellant.
In the car, Basulto advised appellant of his rights and appellant acknowledged he understood them. Basulto testified at the hearing on the motion to suppress that he considered appellant to be under arrest. Appellant then asked Basulto: "When you give my friends the keys, could you tell them to get me a lawyer?" (1) Although the tape is at times inaudible, Basulto assured appellant that "we'll probably do that in a little bit" and asked appellant for the names of his friends. Over the next few minutes, appellant also asked the officers to obtain medications from his house, to pass along messages to his father, and to take care of his dogs. Basulto recounted to other officers that appellant wanted the keys in his pocket to be given to his friends, that the officers ask his friends to get him a lawyer, that the officers retrieve his medications from his house, and that his father be contacted.
When homicide Detective Michael Burgh arrived, he approached the patrol car and spoke with appellant. Burgh explained that the officers needed appellant's consent to go into the house and conduct their investigation. He asked appellant for his consent, and inquired, "Do you have a problem with that?" After an exchange that is inaudible on the videotape, appellant consented and executed the consent form.
Burgh then advised appellant that he would be transported to the police station and that detectives would speak with him there. Appellant asked whether he could get a lawyer then and confirmed in response to a question from Burgh that he had been advised of his rights. Burgh replied that if appellant wanted a lawyer, he could have a lawyer and that his rights would be explained to him in more detail at the police station. Appellant then asked for his eyeglasses and again for his prescription medicines.
For the next half hour, appellant continued to ask Basulto various questions, including about what was going to happen. Basulto replied that he did not know what was going to happen, but that appellant could ask the detectives his questions when they spoke at the police station. Appellant asked about his anti-anxiety medication and when his friends would get his messages. Someone off-camera replied, "They're probably gonna have to go make a statement, so they'll let them know then." When asked if that was "okay," appellant nodded. Appellant again asked about his dogs and was assured they would be taken care of.
Approaching appellant in the patrol car a few minutes later, homicide Detective Kerry Scanlon introduced himself and advised appellant they would be leaving soon. Several minutes later, Scanlon and Basulto discussed transporting appellant to the police station and how to address appellant's concerns about his medications and dogs. Basulto then transported appellant to the police station.
At the police station, appellant was placed in an interrogation room and Scanlon advised appellant of his rights. Scanlon told appellant that he knew Basulto had advised him of his rights, but that he would do so also. After Scanlon read appellant his rights, appellant confirmed that he understood them. Scanlon then explained to appellant that he wanted to talk about "what happened" and asked appellant if he would be willing to talk about it. Appellant responded, "Well, should I get a lawyer first?" Scanlon advised appellant that that was a decision for appellant to make and that Scanlon could not advise him one way or the other. Scanlon again explained that appellant had a right to a lawyer and that Scanlon needed to figure out whether appellant wanted to talk about what had happened. Appellant said that he had never done this before and asked if people usually get a lawyer before they "talk." During an extended conversation in which Scanlon told appellant that some people did and some people did not, and answered appellant's questions about the process of getting a lawyer, appellant agreed to acknowledge in writing that he understood the warnings and wanted to waive those rights in order to make a statement.
Appellant then proceeded to respond to Scanlon's questions about how he had met his wife and what their marriage had been like. Appellant described how his wife had assaulted him on one occasion for which she was arrested, and he talked about the troubles they had in their marriage. He started to describe a fight he and his wife had had the night before, explaining that he wanted a divorce. Appellant recounted that his spouse had called a friend, telling her that appellant was hitting her, which he denied doing. Appellant described how his wife had threatened him and sat on his chest trying to suffocate him. He struggled to get her off. Appellant then said, "I guess I should get a lawyer before I really get into what happened."
Appellant again asked Scanlon to explain the process of getting a lawyer. Scanlon tried to clarify whether appellant still wanted to talk or if he was invoking his right to counsel and terminating the interview. Appellant responded to Scanlon's clarifying questions, stating "I should get one, probably. I guess so. I mean, I guess I should do it. I suppose I should get a lawyer. Oh, yeah, I want one," while also saying that he "didn't mind talking" to Scanlon. Scanlon asked again, "Yes you want a lawyer?" Appellant then said, "Yes sir."
Scanlon terminated the interview and explained to appellant that he would be transported to jail where he would be booked and could make a telephone call.
Appellant's Motion to Suppress and the Hearing
Prior to trial, appellant filed a motion to suppress, seeking to suppress all oral statements made after he invoked his right to counsel. (2) The trial court conducted a hearing over the course of two days. Detective Scanlon and Officer Basulto both testified, and the State introduced into evidence the videotaped interview. The defense presented, as evidence, the videotape recording of appellant in the patrol car.
Basulto testified that he first advised appellant of his rights at the scene of the crime and that appellant stated that he understood his rights. Basulto testified:
A. He advised me that he was HIV and Hep C positive. And he also had some keys that were in his right front pocket. He asked if I could give that to his two friends, which he named as Jennifer and Joy.
Q. And did he ask you to tell Joy and Jennifer anything else?
A. He asked if they could get him a lawyer.
Q. Okay. Did you question the suspect in any way?
A. No.
Basulto recounted that Detective Burgh arrived and asked appellant for consent to search the house to which appellant agreed. Basulto advised Burgh of appellant's request to ask his friends to get him a lawyer. Basulto later transported appellant to the police station where he was interviewed by Scanlon.
Detective Scanlon testified that he had a brief conversation with appellant while he was in the patrol car at the scene to introduce himself and to advise appellant that he would be transported to the police station. At that time, appellant made no statements to Scanlon.
Detective Scanlon testified that he advised appellant of his rights at the beginning of the videotaped interview at the police station:
Q. Did you read each right to him and ask whether he understood it?
A. Yes.
Q. How did he indicate to you that he understood it?
A. Verbally giving me an affirmative answer, yes or yes, sir.
Q. And when you--after you advised him of his rights, did he indicate that he would agree to waive his rights and speak to you?
A. Eventually yes, he did.
Q. Will you describe what he said in the--what the conversation was when you said "eventually"?
A. After reading the warning to him, he said that--he asked me the question if he needed a lawyer. I told him that it was not my place to advise him whether or not he needed a lawyer, that that was a decision that he needed to make on his own.
Q. Did you give him time to make that decision?
A. Yes.
Q. Okay. And in fact, did he ponder that decision for about approximately eight minutes?
A. Yes.
Q. And what did he ultimately decide about whether he wanted a lawyer or whether he wanted to speak to you?
A. He decided that he would speak to me up to the point that he no longer wanted to speak to me. And if he decided he didn't want to speak to me anymore, that he would stop at that time.
Scanlon testified that, before appellant terminated the interview, appellant discussed his relationship with his wife, some of his health history, and "some of the things they had been fighting about":
They were arguing about an alarm service that was at the house, either discontinuing it or something along that line because the alarm wasn't working properly and that their argument became a physical altercation to the point that I believe he stated it began with Laura McIntosh going out the back door and screaming stuff like "he's hurting me" or something like that, to returning in the house they were actually fighting with each other. And he said that Laura McIntosh had him on the floor and was sitting on top of him and that he struggled to get free and that he finally did get free from Laura, from underneath Laura. And at that point I asked him what happened after he got freed, and that was when he decided he didn't want to talk to me anymore.
Over the next few minutes, Scanlon and appellant went "back and forth" about whether he wanted a lawyer. Scanlon testified that he stopped questioning appellant when appellant said he wanted to talk to a lawyer.
Based upon the above testimony, the trial court made the following findings of fact and conclusions of law:
Findings of Fact:
1. The defendant was in custody when he spoke to Detective Kerry Scanlon at the Austin Police Department on March 27, 2005.
2. Detective Scanlon's interview with the defendant was recorded and is in evidence as State's Exhibit 2.
3. Before the defendant made his statement to Detective Scanlon, State's Exhibit 2, he knowingly, intelligently, and voluntarily waived all rights as set out in the warnings and in State's Exhibit 1.
4. The statements made by the defendant were made voluntarily, without any threats or promises.
5. The statement to Officer Basulto, "tell my friends to get me a lawyer," was an indirect request for counsel transmitted to a third party, and not a direct, unequivocal request for counsel.
6. The defendant's discussion with Detective Scanlon regarding an attorney did not constitute a request for counsel.
7. The defendant's statement, "yes, sir," made after Detective Scanlon's question, "you're asking for a lawyer?" was a request for counsel.
8. The videotaped interview with the defendant complies with Article 38.22, Texas Code of Criminal Procedure.
Conclusions of Law:
1. Officer Basulto's belief as to whether the defendant had requested a lawyer is not relevant to the Court's determination of whether the defendant's statement constituted a direct, unequivocal request for counsel.
2. The statements of the defendant in his interview with Detective Scanlon, up to the point where Detective Scanlon asks, "you're asking for a lawyer?" are admissible.
3. The statements of the defendant in his interview with Detective Scanlon, after he answers "yes, sir" to Detective Scanlon's question, "you're asking for a lawyer?" are not admissible.
ANALYSIS
Appellant urges on appeal that the trial court abused its discretion in finding that appellant's statement to Officer Basulto--to "tell my friends to get me a lawyer"--was an indirect request for counsel transmitted to a third party, and was not a direct, unequivocal request for counsel. Appellant contends that the motion to suppress should have been granted based on appellant's invocation of his right to counsel in his initial encounter with Basulto.
Standard of Review
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Ross v. State, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We give almost total deference to the trial court's rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But we review de novo a trial court's rulings on mixed questions of law and fact if they do not turn on credibility and demeanor of witnesses. Id.
Invocation of Right to Counsel
To effectuate the Fifth Amendment privilege against self-incrimination, a suspect has the right to consult with an attorney and to have counsel present during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). The police must explain this right to the suspect before questioning begins. Id. at 479. When a suspect asserts his right to counsel, all interrogation must cease until counsel is provided or until the suspect personally reinitiates the conversation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995). The suspect's assertion for counsel must be unambiguous, that is, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Davis v. United States, 512 U.S. 452, 459 (1994). If the suspect makes an ambiguous or equivocal reference to an attorney that a reasonable officer in the circumstances would have understood only as possibly invoking the right to counsel, questioning need not cease. Id. Although it may be good police practice for interviewing officers to clarify a suspect's ambiguous statement regarding counsel, both to protect the rights of the suspect and to minimize the chance of the suppression of evidence in subsequent judicial proceedings, clarifying questions are not required. Id. at 461; Dinkins, 894 S.W.2d at 352.
When reviewing alleged invocations of the right to counsel, we look at the totality of the circumstances surrounding the interrogation, as well as the alleged invocation, to determine whether a suspect's statement can be construed as an actual invocation of his right to counsel. Dinkins, 894 S.W.2d at 351; Castillo v. State, 742 S.W.2d 1, 4 (Tex. Crim. App. 1987).
Review of Trial Court's Totality-of-the-Circumstances Determination
Here, the trial court conducted a two-day hearing and heard live testimony from Detective Scanlon and Officer Basulto. The trial court viewed the videotape of the disputed conversation between Basulto and appellant. In addition to its findings of fact and conclusions of law, the trial court observed:
. . . The court has taken into consideration the videotape as well as the totality of the circumstances with regard to whether the defendant invoked his right to counsel.
And based upon the evidence and all of the relevant case law that was provided by both the state and defense, the court finds that the defendant--what the defendant said to Officer Basulto, as quoted from the video, that this was not an unequivocal invocation of the defendant's right to counsel. And even though Officer Basulto believed the defendant requested an attorney, the case law is clear.
And to tell you the truth, when I first heard it, without looking at the case law, you feel like he--it's a close call. But I do believe that the case law is clear on this point, and Officer Basulto's belief does not change the law. And what actually happened, it was an indirect request for counsel transmitted to a third party, who was his friend, that he was asking the officer to tell--ask to get counsel and the keys.
The court also found that, "during the actual interview by Detective Scanlon," there were times when appellant talked about a lawyer and whether he needed one: "It was not an unequivocal assertion of his right for an attorney."
We agree with the trial court that appellant's statement to the officer to ask or tell his friends to get him a lawyer was not an invocation of his right to an attorney. It was not the type of direct, unequivocal assertion required to halt any further questioning by the officers. At most, it was an equivocal and ambiguous statement that he might want the services of an attorney at some point. That Basulto reported to other officers that appellant had requested a lawyer does not convert the statement at issue into the type of unequivocal statement required. Moreover, appellant's statements during the course of the interview with Detective Scanlon at the police station were also insufficient to constitute the type of unambiguous statement that a reasonable police officer in the circumstances would understand to be a request for an attorney. See, e.g., Robinson v. State, 851 S.W.2d 216, 223-24 (Tex. Crim. App. 1991) (question "Do I need to talk to a lawyer before I sign?" was equivocal). Here, Scanlon's discussions with appellant about whether he needed a lawyer and whether he was invoking his right were efforts to clarify appellant's intent and constitute the "good police practice" allowed by Davis. See Davis, 512 U.S. at 461.
The trial court found that appellant did not articulate his desire to have counsel sufficiently clearly that a reasonable police officer in the circumstances would conclude that appellant invoked his right to counsel. The record supports the trial court's findings. Viewing the totality of the circumstances, we hold that the trial court did not abuse its discretion in denying the motion to suppress.
CONCLUSION
Having overruled appellant's point of error, we affirm the trial court's judgment.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: February 1, 2008
Publish
1. Although the State urges that appellant asks Basulto to "ask" his friends to get him a lawyer, the videotape is not clear and we will defer to the trial court's factual finding.
2. On appeal, appellant attempts to broaden the scope of the motion, seeking to suppress all statements made after he invoked his right to counsel, all physical evidence derived from those statements, and evidence gathered pursuant to his execution of the consent to search form. Although appellant's argument varies from that urged below, the State does not urge that the issue was waived. In any event, our conclusion as to when appellant unequivocally invoked his rights is dispositive of the issue however it is couched.
Appeals in credit card abuse and child endangerment cases dismissed on Anders brief
AFFIRMED: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00422-CR
Karrie Smith v. The State of Texas--Appeal from 426th District Court of Bell County
AFFIRMED: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00451-CR
Karrie Smith v. The State of Texas--Appeal from 426th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NOS. 60514 & 60515, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Karrie Smith pleaded guilty and judicially confessed to credit card abuse (cause number 60514) and endangering a child (cause number 60515). See Tex. Penal Code Ann. §§ 22.041, 32.31 (West Supp. 2007). The trial court adjudged her guilty of both offenses and assessed two eighteen-month state-jail terms, to be served concurrently.
Appellant's court-appointed attorney filed a brief concluding that the appeals are frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the records demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant received a copy of counsel's brief and was advised of her right to examine the appellate records and to file a pro se brief. No pro se brief was filed, but appellant did write a letter to the Court explaining why she believes that her conviction for endangering a child was improper.
We have reviewed the records, counsel's brief, and appellant's letter. We find nothing in the record that might arguably support the appeals. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the appeals are frivolous and without merit.
The judgments of conviction are affirmed.
_________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: February 1, 2008
Do Not Publish
03-07-00422-CR
Karrie Smith v. The State of Texas--Appeal from 426th District Court of Bell County
AFFIRMED: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00451-CR
Karrie Smith v. The State of Texas--Appeal from 426th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NOS. 60514 & 60515, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Karrie Smith pleaded guilty and judicially confessed to credit card abuse (cause number 60514) and endangering a child (cause number 60515). See Tex. Penal Code Ann. §§ 22.041, 32.31 (West Supp. 2007). The trial court adjudged her guilty of both offenses and assessed two eighteen-month state-jail terms, to be served concurrently.
Appellant's court-appointed attorney filed a brief concluding that the appeals are frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the records demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant received a copy of counsel's brief and was advised of her right to examine the appellate records and to file a pro se brief. No pro se brief was filed, but appellant did write a letter to the Court explaining why she believes that her conviction for endangering a child was improper.
We have reviewed the records, counsel's brief, and appellant's letter. We find nothing in the record that might arguably support the appeals. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the appeals are frivolous and without merit.
The judgments of conviction are affirmed.
_________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: February 1, 2008
Do Not Publish
Appeal dwopped on Appellee's motion
DISMISSED ON APPELLEE'S MOTION: Opinion by Justice Puryear (Before Justices Patterson, Puryear and Henson)
03-07-00459-CV
Kevin Allan Smith v. Dale Lee Jaschke--Appeal from County Court at Law No. 4 of Williamson County
FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
NO. 05-1556-CC2-4, HONORABLE JOHN MCMASTER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The trial court signed its judgment on March 8, 2007, and appellant timely filed his notice of appeal on June 6. After some delay, the clerk's record was filed on October 9, making appellant's brief due on November 8. On November 26, this Court received appellant's motion for extension of time to file his brief, which was mailed on November 13. Appellant requested until November 28 to file his brief, but neglected to include a certificate of conference, which we requested on November 26. On November 29, we received from appellee a "Certificate of Non-Conference," stating that appellant did not confer with appellee before submitting his motion for extension of time but that appellee would have agreed to the extension if appellant had asked. Appellee also alleged that appellant had mischaracterized the underlying proceedings. Appellant never responded to appellee's filing or to this Court's request for a certificate of conference, see Tex. R. App. P. 10.1(a)(5), nor has he proffered a brief for filing. On January 11, 2008, appellee filed a motion to dismiss for want of prosecution. To date, appellant has not responded to appellee's motion or communicated with this Court in any form since filing the incomplete motion for extension of time. We therefore grant appellee's motion and dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b).
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Appellee's Motion
Filed: January 31, 2008
03-07-00459-CV
Kevin Allan Smith v. Dale Lee Jaschke--Appeal from County Court at Law No. 4 of Williamson County
FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
NO. 05-1556-CC2-4, HONORABLE JOHN MCMASTER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
The trial court signed its judgment on March 8, 2007, and appellant timely filed his notice of appeal on June 6. After some delay, the clerk's record was filed on October 9, making appellant's brief due on November 8. On November 26, this Court received appellant's motion for extension of time to file his brief, which was mailed on November 13. Appellant requested until November 28 to file his brief, but neglected to include a certificate of conference, which we requested on November 26. On November 29, we received from appellee a "Certificate of Non-Conference," stating that appellant did not confer with appellee before submitting his motion for extension of time but that appellee would have agreed to the extension if appellant had asked. Appellee also alleged that appellant had mischaracterized the underlying proceedings. Appellant never responded to appellee's filing or to this Court's request for a certificate of conference, see Tex. R. App. P. 10.1(a)(5), nor has he proffered a brief for filing. On January 11, 2008, appellee filed a motion to dismiss for want of prosecution. To date, appellant has not responded to appellee's motion or communicated with this Court in any form since filing the incomplete motion for extension of time. We therefore grant appellee's motion and dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b).
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Dismissed on Appellee's Motion
Filed: January 31, 2008
8-year jail sentence on molestation conviction affirmed
AFFIRMED: Opinion by Justice Puryear (Before Justices Patterson, Puryear and Pemberton)
03-06-00712-CR
Thomas Aleshire v. The State of Texas--Appeal from 331st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. D-1-DC-06-900220, HONORABLE FRED A. MOORE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
A jury found appellant Thomas Aleshire guilty of indecency with a child by contact and assessed his punishment at eight years' imprisonment. See Tex. Penal Code Ann. § 21.11 (West 2003). In his only point of error, appellant contends that the evidence is factually insufficient to sustain the guilty verdict. We find the evidence to be sufficient and affirm the judgment of conviction.
When there is a challenge to the sufficiency of the evidence to sustain a criminal conviction, the question presented is whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979) (legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (legal sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency). In a factual sufficiency review, all the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). Due deference must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence, and the reviewing court may disagree with the result only to prevent a manifest injustice. Johnson, 23 S.W.3d at 9; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The evidence will be deemed factually insufficient if the evidence supporting the verdict is so weak as to make the finding of guilt clearly wrong or manifestly unjust, or if the verdict is against the great weight and preponderance of the available evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 11.
In September 2005, the complainant, C.A., who was then nine years old, was living in the Salvation Army family dorm with her mother and younger sister. There, they met and befriended appellant and his son, who were also living in the dorm. Eventually, both families left the dorm and, by February 2006, they were sharing a three bedroom duplex apartment. C.A. and her sister slept in one bedroom, their mother slept in another bedroom, and appellant and his son shared the third bedroom. C.A.'s mother was employed, and she generally returned home at around 7:30 in the evening. Appellant, who was recovering from surgery and walked with the aid of a cane, stayed at the apartment, watched the children after school, and prepared dinner.
On the afternoon of February 13, appellant walked with C.A. and her sister to a nearby convenience store so the girls could buy an after-school snack. C.A. testified that she had had a bad day at school; she had failed a spelling test and had disliked lunch. She and appellant began to argue as they walked home. C.A. could not remember the reason for the argument, but she said that it was probably about the mess in her room. When they got back to the apartment, appellant did not allow C.A. to eat her snack and ordered her to go to her room to "think about what I did."
C.A. and her sister had bunk beds. C.A. slept in the upper bunk, and she was sitting there when appellant entered the room. Appellant told C.A. that she should not argue with adults. C.A. testified that after they finished talking, appellant "lifted up my shirt and he put his mouth on my private." She explained that she was referring to her breast. After doing this, appellant told C.A. that she could eat her ice cream and left the room.
C.A.'s mother testified that when she got home from work that day, C.A. asked to speak with her privately. C.A. was unable to tell to her mother about the incident orally, so she wrote a note describing what appellant had done. C.A.'s mother suggested to C.A. that it might have been an accident; that perhaps appellant had meant merely to blow a "raspberry" on C.A.'s stomach. But, she testified, "[C.A.] said she was certain. And she showed me on my arm what it was that he had did specifically." She said that C.A. "put her mouth on my arm and made a suckling motion." C.A.'s mother slept that night on the floor of her daughters' bedroom, and she called the police the following morning after taking the girls to school.
Shana Hill, a Child Protective Services investigator, testified that she went to the apartment on February 15 to speak to C.A.'s mother. Appellant approached her outside the apartment, and she told him that she was there to investigate the allegation that he had sexually abused C.A. Appellant told Hill that "he should be able to confront the child face to face." Hill told appellant that this "was not a good idea." Appellant waited outside while Hill spoke to C.A.'s mother inside the apartment. Later, after appellant refused to leave the apartment, Hill took C.A. and her mother and sister to a shelter to spend the night.
Kiara Alvarez, a forensic interviewer at the Center for Child Protection, testified that she interviewed C.A. at the center on February 22. In addition to recounting the incident on February 13, C.A. told Alvarez that appellant had often touched and rubbed her breast when tucking her into bed at night. C.A. told Alvarez that she had spoken to her mother about this, but her mother testified that this was the first time she had heard of it. The court instructed the jury to consider this testimony for the limited purposes allowed by article 38.37. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp. 2007).
Austin Police Officer William Dupre testified that he interviewed appellant at the police station, and a videotape of this interview was introduced in evidence. Dupre described appellant as "very polite and very cooperative. He showed up on time even though he had some physical ailments. And he was very straightforward." During his interview with Dupre, appellant denied the allegations made against him. Dupre also went to the apartment and measured the bunk beds. The upper bunk was sixty-four inches high. Appellant is six feet, five inches tall, and Dupre was of the opinion that he was tall enough to have placed his mouth on C.A.'s breast as he stood by the bed and she sat in the upper bunk.
The State's final witness was Dr. William Carter, a psychologist in private practice with expertise in the area of child sexual abuse. Carter described what he referred to as the "process" of child sexual abuse, beginning with selection of the victim by the perpetrator and ending with the victim's outcry. Carter, who had not spoken to C.A., was asked a series of hypothetical questions based on the facts of this case and explained how these facts fit into his theory of the child sexual abuse process.
Carter also described the factors that he considered in determining the validity of a child's outcry. These factors included: whether the child volunteered the information or was responding to questions from an adult; whether the details related in the outcry are consistent with what normally occurs in sexual abuse; the child's emotional affect; whether the child's account remains fundamentally consistent over time; and whether the child has a motive to fabricate.
The defense called no witnesses. In his argument, defense counsel reminded the jurors that they had heard from appellant in the form of his videotaped statement to the police.
Appellant argues that C.A.'s trial testimony did not satisfy Carter's validity standards. He notes that she testified on direct examination that her mother arrived home at the usual time on February 13, around 7:30 P.M., and that she immediately spoke to her mother about the alleged incident. On cross-examination, however, C.A. said that her mother got home early that day, around 5:00 p.m., and that she did not speak to her mother about the incident until after they ate dinner. Appellant also notes that C.A. admitted that she did not particularly like appellant, and that she had argued with him a few hours before making her outcry. The State responds that the inconsistencies in C.A.'s testimony involved unimportant details, and that C.A.'s description of appellant's abusive behavior remained consistent. The State also points out that C.A. volunteered her outcry without any prompting from her mother, who testified that she had always trusted appellant.
Appellant also claims that it was physically impossible for him to have placed his mouth on C.A.'s breast as she described. According to C.A.'s testimony, she was sitting in the upper bunk with her back to the wall when the act took place. Appellant claims, without citation to record evidence, that C.A.'s torso would have been two or three feet behind the front edge of the bed, which the evidence showed was sixty-four inches from the floor. Appellant asserts that he would have had to have been over seven feet tall to have placed his mouth on C.A.'s breast while standing beside the bed, and that it was physically impossible for him to have used the bunk bed's ladder to get closer to C.A. The State responds by pointing to the investigating officer's testimony that he had determined that it was possible for appellant to have touched C.A. in the manner she described.
It was the jury's duty to determine the credibility of C.A.'s testimony and its weight relative to the other evidence. This Court must defer to the jury's determination, and we may not order a new trial merely because we might disagree with the verdict. Watson, 204 S.W.3d at 414. Viewing all the evidence in a neutral light, we do not find the State's evidence to be so weak as to make the guilty verdict clearly wrong or manifestly unjust, nor do find the jury's verdict to be against the great weight and preponderance of the contrary evidence or factors cited by appellant. See id. at 414-15. We therefore overrule appellant's challenge to the factual sufficiency of the evidence.
The judgment of conviction is affirmed.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: January 31, 2008
Do Not Publish
03-06-00712-CR
Thomas Aleshire v. The State of Texas--Appeal from 331st District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. D-1-DC-06-900220, HONORABLE FRED A. MOORE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
A jury found appellant Thomas Aleshire guilty of indecency with a child by contact and assessed his punishment at eight years' imprisonment. See Tex. Penal Code Ann. § 21.11 (West 2003). In his only point of error, appellant contends that the evidence is factually insufficient to sustain the guilty verdict. We find the evidence to be sufficient and affirm the judgment of conviction.
When there is a challenge to the sufficiency of the evidence to sustain a criminal conviction, the question presented is whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979) (legal sufficiency); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex. Crim. App. 1981) (legal sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency). In a factual sufficiency review, all the evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Orona v. State, 836 S.W.2d 319, 321 (Tex. App.--Austin 1992, no pet.). Due deference must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence, and the reviewing court may disagree with the result only to prevent a manifest injustice. Johnson, 23 S.W.3d at 9; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The evidence will be deemed factually insufficient if the evidence supporting the verdict is so weak as to make the finding of guilt clearly wrong or manifestly unjust, or if the verdict is against the great weight and preponderance of the available evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 11.
In September 2005, the complainant, C.A., who was then nine years old, was living in the Salvation Army family dorm with her mother and younger sister. There, they met and befriended appellant and his son, who were also living in the dorm. Eventually, both families left the dorm and, by February 2006, they were sharing a three bedroom duplex apartment. C.A. and her sister slept in one bedroom, their mother slept in another bedroom, and appellant and his son shared the third bedroom. C.A.'s mother was employed, and she generally returned home at around 7:30 in the evening. Appellant, who was recovering from surgery and walked with the aid of a cane, stayed at the apartment, watched the children after school, and prepared dinner.
On the afternoon of February 13, appellant walked with C.A. and her sister to a nearby convenience store so the girls could buy an after-school snack. C.A. testified that she had had a bad day at school; she had failed a spelling test and had disliked lunch. She and appellant began to argue as they walked home. C.A. could not remember the reason for the argument, but she said that it was probably about the mess in her room. When they got back to the apartment, appellant did not allow C.A. to eat her snack and ordered her to go to her room to "think about what I did."
C.A. and her sister had bunk beds. C.A. slept in the upper bunk, and she was sitting there when appellant entered the room. Appellant told C.A. that she should not argue with adults. C.A. testified that after they finished talking, appellant "lifted up my shirt and he put his mouth on my private." She explained that she was referring to her breast. After doing this, appellant told C.A. that she could eat her ice cream and left the room.
C.A.'s mother testified that when she got home from work that day, C.A. asked to speak with her privately. C.A. was unable to tell to her mother about the incident orally, so she wrote a note describing what appellant had done. C.A.'s mother suggested to C.A. that it might have been an accident; that perhaps appellant had meant merely to blow a "raspberry" on C.A.'s stomach. But, she testified, "[C.A.] said she was certain. And she showed me on my arm what it was that he had did specifically." She said that C.A. "put her mouth on my arm and made a suckling motion." C.A.'s mother slept that night on the floor of her daughters' bedroom, and she called the police the following morning after taking the girls to school.
Shana Hill, a Child Protective Services investigator, testified that she went to the apartment on February 15 to speak to C.A.'s mother. Appellant approached her outside the apartment, and she told him that she was there to investigate the allegation that he had sexually abused C.A. Appellant told Hill that "he should be able to confront the child face to face." Hill told appellant that this "was not a good idea." Appellant waited outside while Hill spoke to C.A.'s mother inside the apartment. Later, after appellant refused to leave the apartment, Hill took C.A. and her mother and sister to a shelter to spend the night.
Kiara Alvarez, a forensic interviewer at the Center for Child Protection, testified that she interviewed C.A. at the center on February 22. In addition to recounting the incident on February 13, C.A. told Alvarez that appellant had often touched and rubbed her breast when tucking her into bed at night. C.A. told Alvarez that she had spoken to her mother about this, but her mother testified that this was the first time she had heard of it. The court instructed the jury to consider this testimony for the limited purposes allowed by article 38.37. See Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (West Supp. 2007).
Austin Police Officer William Dupre testified that he interviewed appellant at the police station, and a videotape of this interview was introduced in evidence. Dupre described appellant as "very polite and very cooperative. He showed up on time even though he had some physical ailments. And he was very straightforward." During his interview with Dupre, appellant denied the allegations made against him. Dupre also went to the apartment and measured the bunk beds. The upper bunk was sixty-four inches high. Appellant is six feet, five inches tall, and Dupre was of the opinion that he was tall enough to have placed his mouth on C.A.'s breast as he stood by the bed and she sat in the upper bunk.
The State's final witness was Dr. William Carter, a psychologist in private practice with expertise in the area of child sexual abuse. Carter described what he referred to as the "process" of child sexual abuse, beginning with selection of the victim by the perpetrator and ending with the victim's outcry. Carter, who had not spoken to C.A., was asked a series of hypothetical questions based on the facts of this case and explained how these facts fit into his theory of the child sexual abuse process.
Carter also described the factors that he considered in determining the validity of a child's outcry. These factors included: whether the child volunteered the information or was responding to questions from an adult; whether the details related in the outcry are consistent with what normally occurs in sexual abuse; the child's emotional affect; whether the child's account remains fundamentally consistent over time; and whether the child has a motive to fabricate.
The defense called no witnesses. In his argument, defense counsel reminded the jurors that they had heard from appellant in the form of his videotaped statement to the police.
Appellant argues that C.A.'s trial testimony did not satisfy Carter's validity standards. He notes that she testified on direct examination that her mother arrived home at the usual time on February 13, around 7:30 P.M., and that she immediately spoke to her mother about the alleged incident. On cross-examination, however, C.A. said that her mother got home early that day, around 5:00 p.m., and that she did not speak to her mother about the incident until after they ate dinner. Appellant also notes that C.A. admitted that she did not particularly like appellant, and that she had argued with him a few hours before making her outcry. The State responds that the inconsistencies in C.A.'s testimony involved unimportant details, and that C.A.'s description of appellant's abusive behavior remained consistent. The State also points out that C.A. volunteered her outcry without any prompting from her mother, who testified that she had always trusted appellant.
Appellant also claims that it was physically impossible for him to have placed his mouth on C.A.'s breast as she described. According to C.A.'s testimony, she was sitting in the upper bunk with her back to the wall when the act took place. Appellant claims, without citation to record evidence, that C.A.'s torso would have been two or three feet behind the front edge of the bed, which the evidence showed was sixty-four inches from the floor. Appellant asserts that he would have had to have been over seven feet tall to have placed his mouth on C.A.'s breast while standing beside the bed, and that it was physically impossible for him to have used the bunk bed's ladder to get closer to C.A. The State responds by pointing to the investigating officer's testimony that he had determined that it was possible for appellant to have touched C.A. in the manner she described.
It was the jury's duty to determine the credibility of C.A.'s testimony and its weight relative to the other evidence. This Court must defer to the jury's determination, and we may not order a new trial merely because we might disagree with the verdict. Watson, 204 S.W.3d at 414. Viewing all the evidence in a neutral light, we do not find the State's evidence to be so weak as to make the guilty verdict clearly wrong or manifestly unjust, nor do find the jury's verdict to be against the great weight and preponderance of the contrary evidence or factors cited by appellant. See id. at 414-15. We therefore overrule appellant's challenge to the factual sufficiency of the evidence.
The judgment of conviction is affirmed.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: January 31, 2008
Do Not Publish
Counsel did not file brief; appellant given another chance to go forward with appeal
ABATED: Opinion by Justice Henson (Before Justices Patterson, Puryear and Henson)
03-07-00395-CR
Pauline Faye Jones v. The State of Texas--Appeal from 264th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 60315, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant is represented by appointed counsel, Bobby Dale Barina. Counsel's brief was originally due September 27, 2007. The time for filing was extended twice on counsel's motion, most recently to November 28, 2007. The brief has not been received.
The appeal is abated. The trial court shall conduct a hearing to determine whether appellant desires to prosecute this appeal and, if so, whether the attorney appointed by the court has abandoned the appeal. Tex. R. App. P. 38.8(b)(2). The court shall make appropriate findings and recommendations. If necessary, the court shall appoint substitute counsel who will effectively represent appellant in this cause. A record from this hearing, including copies of all findings and orders and a transcription of the court reporter's notes, shall be forwarded to the Clerk of this Court for filing as a supplemental record no later than February 29, 2008. Tex. R. App. P. 38.8(b)(3).
__________________________________________
Diane Henson, Justice
Before Justices Patterson, Puryear and Henson
Abated
Filed: January 31, 2008
Do Not Publish
03-07-00395-CR
Pauline Faye Jones v. The State of Texas--Appeal from 264th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 60315, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant is represented by appointed counsel, Bobby Dale Barina. Counsel's brief was originally due September 27, 2007. The time for filing was extended twice on counsel's motion, most recently to November 28, 2007. The brief has not been received.
The appeal is abated. The trial court shall conduct a hearing to determine whether appellant desires to prosecute this appeal and, if so, whether the attorney appointed by the court has abandoned the appeal. Tex. R. App. P. 38.8(b)(2). The court shall make appropriate findings and recommendations. If necessary, the court shall appoint substitute counsel who will effectively represent appellant in this cause. A record from this hearing, including copies of all findings and orders and a transcription of the court reporter's notes, shall be forwarded to the Clerk of this Court for filing as a supplemental record no later than February 29, 2008. Tex. R. App. P. 38.8(b)(3).
__________________________________________
Diane Henson, Justice
Before Justices Patterson, Puryear and Henson
Abated
Filed: January 31, 2008
Do Not Publish
Request for Findings of Fact does not necessarily extend deadline for appeal
Summary judgment is a classical example. No evidentiary hearing takes place in connction with summary judgment motion, and findings of facts are improper.
DISMISSED FOR WANT OF JURISDICTION: Opinion by Justice Henson (Before Justices Patterson, Puryear and Henson)
03-07-00329-CV
Clinton Finney v. Vanderbilt Mortgage and Finance, Inc.
Appeal from 21st District Court of Bastrop County
FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 26,212, HONORABLE H. R. TOWSLEE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Clinton Finney appeals a summary judgment that was signed on March 9, 2007. Appellee Vanderbilt Mortgage and Finance filed an amended motion to dismiss for want of jurisdiction because the notice of appeal was not timely filed. Notice of appeal was due 30 days from the date of the decree. Tex. R. App. P. 26.1. Notice of appeal in this case was not filed in the trial court until May 21, 2007. On March 21, 2007, Finney filed a request for findings of fact and conclusions of law. Filing a request for findings of fact and conclusions of law extends the time for filing a notice of appeal to 90 days from the date of the decree, but only "if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court." Tex. R. App. P. 26.1(a)(4). Findings of fact and conclusions of law following summary judgment are not required by the rules or properly considered by the appellate court, and therefore "a request for findings in a case concluded by summary judgment does not extend appellate deadlines." IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997); see also Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). Because this case was resolved by summary judgment, Finney's request for findings of fact and conclusions of law failed to extend appellate deadlines, making his notice of appeal due 30 days from the date of the decree. Because the notice of appeal was not timely filed, this appeal is dismissed for want of jurisdiction.
Diane Henson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed for Want of Jurisdiction
Filed: January 30, 2008
DISMISSED FOR WANT OF JURISDICTION: Opinion by Justice Henson (Before Justices Patterson, Puryear and Henson)
03-07-00329-CV
Clinton Finney v. Vanderbilt Mortgage and Finance, Inc.
Appeal from 21st District Court of Bastrop County
FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 26,212, HONORABLE H. R. TOWSLEE, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Clinton Finney appeals a summary judgment that was signed on March 9, 2007. Appellee Vanderbilt Mortgage and Finance filed an amended motion to dismiss for want of jurisdiction because the notice of appeal was not timely filed. Notice of appeal was due 30 days from the date of the decree. Tex. R. App. P. 26.1. Notice of appeal in this case was not filed in the trial court until May 21, 2007. On March 21, 2007, Finney filed a request for findings of fact and conclusions of law. Filing a request for findings of fact and conclusions of law extends the time for filing a notice of appeal to 90 days from the date of the decree, but only "if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court." Tex. R. App. P. 26.1(a)(4). Findings of fact and conclusions of law following summary judgment are not required by the rules or properly considered by the appellate court, and therefore "a request for findings in a case concluded by summary judgment does not extend appellate deadlines." IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997); see also Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). Because this case was resolved by summary judgment, Finney's request for findings of fact and conclusions of law failed to extend appellate deadlines, making his notice of appeal due 30 days from the date of the decree. Because the notice of appeal was not timely filed, this appeal is dismissed for want of jurisdiction.
Diane Henson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed for Want of Jurisdiction
Filed: January 30, 2008
Pro se criminal defendant's conviction reversed
AFFIRMED: Opinion by Justice Patterson (Before Justices Patterson, Puryear and Pemberton)
03-07-00089-CR
Greg S. Daniels v. The State of Texas--Appeal from County Court at Law No. 3 of Travis County
FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
NO. 729323, HONORABLE DAVID CRAIN, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Greg S. Daniels was charged by information with misdemeanor assault. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2007). Appellant pleaded not guilty, and a jury found him guilty as charged. (1) The trial court sentenced appellant to one year confinement in the Travis County jail and a $2,000 fine, but suspended imposition of sentence and placed him on community supervision for two years. In five issues, appellant challenges a variance between the pleadings and the proof, the adequacy of the admonishment regarding self-representation, and the failure of the trial court to instruct the jury on self-defense. For the reasons that follow, we affirm the judgment of conviction.
On January 30, 2006, Austin Police Officer Heather Schouest responded to an assault report by appellant's next-door neighbor, Douglas Huyck. Testimony at trial showed that appellant had engaged in feuds with Huyck and other neighbors concerning automobiles parked in appellant's driveway and other issues that led to litigation. When Huyck appeared at a hearing to testify against appellant, tensions escalated.
On the afternoon of January 30, Huyck exited his house to go jogging when he saw appellant and a friend in appellant's front yard. Appellant yelled an obscenity at Huyck and, pointing at his friend, called out, "Here's someone to kick your ass. Come over here. Here's somebody who will kick your ass." Huyck approached appellant and his friend. According to Huyck's report to the police and his testimony at trial, appellant indicated to Huyck with his middle finger. Appellant testified that he pointed at Huyck with his index finger. As Huyck approached the two men on the sidewalk easement of appellant's drive, appellant told Huyck to get off his property. With his finger, appellant poked Huyck twice in the eye. In response, Huyck hit appellant twice in the shoulder area. Appellant's friend separated the two men, and Huyck withdrew into his house. Huyck suffered pain and injury from the incident, and his wife observed that his eye was "red and puffy and watery." The Huycks reported the incident to the police.
Shortly thereafter, Officer Schouest arrived at the scene and interviewed the Huycks as well as appellant and his friend. Appellant acknowledged that he poked Huyck in the eye. Schouest's police report stated, "[Appellant] admitted to pointing his finger at close range on Huyck's face, striking Huyck in the left inner eyeball with his index finger." Schouest observed redness in appellant's eye. Appellant later told the investigating police officer, Detective Brendon Hanly, that Huyck walked into his finger.
In his first three issues, appellant contends that the State failed to prove that appellant caused bodily injury to Huyck "by striking [him] on and about the head with [his] hand," that a variance between the pleadings and the proof existed and failed to give appellant notice of the charge, and that the variance exposes appellant to a subsequent prosecution for the same offense. Specifically, appellant complains that the evidence is legally insufficient because there is a variance between the material allegations in the charging instrument and the evidence presented at trial. (2)
The information alleged that appellant, "on or about January 30, 2006, did then and there intentionally, knowingly, and recklessly cause bodily injury to Douglas Huyck by striking Douglas Huyck on and about the head with the Defendant's hand." Appellant argues that, because "there is no evidence that [appellant] struck Mr. Huyck on or about his head with his hand," but rather that the evidence was that appellant "poked Mr. Huyck's eye with his finger," there is no evidence that the complainant was "struck" with appellant's "hand." Although a finger is part of a hand, and the eyes are located in the head, appellant insists that "a hand-to-head allegation does not necessarily include a finger-to-eye allegation."
A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (reaffirming fatal variance doctrine and adopting materiality test). A variance arises when the State proves the defendant guilty of a crime but proves its commission in a manner that varies from the allegations in the charging instrument. Id. (citing 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 31.81, at 178 (1995)). A variance that is not prejudicial to a defendant's "substantial rights" is immaterial. Id. at 248. To determine whether a defendant's substantial rights have been prejudiced, we ask whether (i) the charging instrument informed the defendant sufficiently to allow him to prepare an adequate defense at trial, and (ii) prosecution under the deficiently drafted instrument would subject the defendant to the risk of being prosecuted later for the same crime. Id. A variance is fatal only if "it is material and prejudices the defendant's substantial rights." Id. at 257.
Applying these principles to this case, the question is whether proof that appellant poked the complainant in the eye with a finger is a fatal variance from the charging instrument's allegation of "striking [complainant] on or about the head with the hand." Asking the questions posed by Gollihar, then, "Did the indictment inform appellant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and would the indictment subject appellant to the risk of being prosecuted later for the same crime?"
The incident was described by the witnesses who testified at trial interchangeably as both poking and striking. In his opening statement, appellant argued, "The poke in the eye was not with the middle finger. It was with your pointing finger. Your pointing finger, okay. That's what the evidence is going to show. Not the middle finger." Appellant then denied that he "poked" the complainant in the eye, but admitted that he "touched [complainant's] nose," and it was possible that when the complainant leaned forward, that his finger "touched [complainant's] eye." Huyck testified that appellant's "finger hit me twice"; that "I was struck twice"; "[appellant] then reaches out, and at that point, pokes me in the eye, right in there"; "[h]e reached up and was, again, continuing to comment, 'Don't f--- with me,' and pokes me in the eye"; and "he poked me again." Officer Schouest testified that appellant told her:
there had been basically a yelling match between the two of them regarding the recent case for which [appellant] had been taken to trial. And that Mr. Huyck had approached on the public sidewalk to Mr.--in front of [appellant]'s residence. The argument had become a little bit more heated. And at some point, [appellant] had gotten very close to Mr. Huyck's face with his finger and had poked Mr. Huyck in his left eye.
Detective Hanly testified that appellant told him that Huyck "walked into his finger." Appellant testified on his own behalf that he was pointing his finger at Huyck " to get him away from me," but that "my finger touched his slimy nose, and I remember the touch of his slimy nose." During his cross-examination of the complainant, appellant stated, "Let's just go ahead and say you were poked in the eye. I only felt [like] poking you in the nose. But you say I poked you in the eye."
Thus, appellant's defense strategy was that he "touched" appellant on his nose and not his eye and that it was done with his index finger and not his middle finger. Appellant specifically denied doing that of which he now claims he had no notice. A review of the record shows that appellant was not misled by the charge and understood exactly with what he was charged. By his own testimony and questioning of other witnesses, appellant was on notice of the charge. Moreover, the record makes clear for what conduct appellant was charged. Appellant is in no danger of being prosecuted again for the assault. See Gollihar, 46 S.W.3d at 258 (citing United States v. Apocada, 843 F.2d 421, 430 n.3 (10th Cir.) (entire record, not just indictment, may be referred to in protecting against double jeopardy in event of subsequent prosecution), cert. denied, 488 U.S. 932 (1988)). We hold that there was no variance, let alone a fatal variance, between the allegations in the information and the evidence adduced at trial.
Even assuming there is a variance in any respect, we conclude that it is not material. The record does not show that appellant was surprised at trial by the State's evidence. Appellant was able to prepare his defensive theory, to call witnesses, and to cross-examine the State's witnesses. His testimony and cross-examination clearly showed he understood the charge. Furthermore, there is no possibility that the variance placed appellant at risk of double jeopardy. Any variance between the charging instrument and the evidence is not material. We overrule appellant's first three issues.
In his fourth issue, appellant asserts that he was denied his right to counsel because he was never admonished about the dangers of self-representation. The rights to assistance of counsel and to self-representation are protected by the Sixth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment. See Faretta v. California, 422 U.S. 806, 818-21 (1975); see also United States v. Cronic, 466 U.S. 648, 653-55 (1984). "The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment." Faretta, 422 U.S. at 807. In Faretta, the Supreme Court held that the Sixth Amendment not only affords an accused facing an adversarial criminal proceeding the right to a defense, but the Sixth Amendment also "grants to the accused personally the right to make his defense." Id. at 819. The Court reasoned:
Although not stated in the Amendment in so many words, the right to self-representation--to make one's own defense personally--is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
Id. at 819-20 (footnote omitted). The Court explained that it is for the defendant personally to decide whether assistance of counsel in his particular case is to his advantage, and his choice must be honored out of "'that respect for the individual which is the lifeblood of the law,'" even if his choice may not be prudent. Id. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970) (Brennan, J., concurring)). Certainly the tension between the right to assistance of counsel and to self-representation is a delicate one and creates difficulty for trial courts.
A decision to represent oneself must be made knowingly, intelligently, and voluntarily. Id. at 835. Although the Supreme Court has not prescribed any formula or script to determine if a defendant wishes to forego counsel and represent himself, the record must establish that the accused knows what he is doing and his choice is made with his eyes open. Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim. App. 1988). The information a defendant must have to make an intelligent election "will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding." Iowa v. Tovar, 541 U.S. 77, 88 (2004). Courts look at the totality of the particular facts and circumstances of a case in deciding whether the defendant's decision was knowing, intelligent, and voluntary. Id. at 92. The State cannot force a defendant to have a lawyer. See Faretta, 422 U.S. at 820-21. A defendant has a constitutional right to represent himself. Id. at 819-20. We must determine whether, under the particular facts and circumstances of this case, appellant made his decision voluntarily, knowingly, and intelligently. See id. at 835.
Appellant made his choice to represent himself on the record. The record shows that on May 8, 2006, appellant was admonished in open court of his right to representation by counsel and his right to appointment of counsel free of charge if he was indigent. Appellant signed a waiver of his right to counsel. The trial court found that appellant understood his right to have an attorney appointed and the dangers and disadvantages of self-representation. The court made a finding that the waiver was knowingly and intelligently made.
Eight months later, on the day appellant's trial was scheduled to begin, the trial court ascertained that appellant was aware of the charge of which he was accused and the range of punishment. Appellant informed the trial court "you know, I know what's going on." The trial court again inquired into appellant's decision to defend himself. Outside the presence of the venire panel, the following colloquy took place:
Court: In any event, you decided to represent yourself in this case, right?
Appellant: Oh, yeah. Yeah.
Court: And you've been told that you have a right to an attorney, right?
Appellant: Sure.
Court: And as far as I remember or recall, you never said that you're indigent. In fact, I think you said you were not indigent and you wanted to represent yourself. I don't remember. If I'm wrong, say it.
Appellant: Well, I didn't think the indigency thing came up, but I'm not indigent.
Court: Okay. So you have not requested that because of your indigency, that you're poor, that you need to have a court-appointed attorney.
Appellant: Absolutely correct.
Court: So you desire completely to represent yourself?
Appellant: That's right.
Court: And you understand that if things don't go your way, there could be jail time involved.
Appellant: Yes, I understand.
Court: Now, you understand I can't--and I'm the judge here and I can't--I can't take sides. So I can't go over and, you know, correct you if you're doing something wrong or tell you, "Don't ask that question," or "Don't say that." Although if there are objections from Mr. Prosecutor here, then I'm going--I might just say, "I'll grant your objection," or "Overrule your objection." But if I grant his objection, and he's objecting to something you're saying because you're saying it out of turn, or something like that, then you have to comply with my ruling.
Appellant: Of course.
Court: So, you know, do you know what voir dire means?
Appellant: Certainly.
As the trial court began to explain jury selection to him, appellant assured the judge, "I've done this before." The record also shows that appellant was familiar with jury settings and that a setting on the trial date did not necessarily mean that his case would be reached. Appellant represented himself through the trial and did not seek assistance or equivocate in his insistence that he represent himself. A review of the entire record shows that appellant was a small business owner and that he had engaged in litigation on prior occasions--both with representation and with self-representation. The record also shows that this was not appellant's first experience with the criminal justice system as he claimed he had been wrongly accused by his neighbors on prior occasions, had gone to court, and had prevailed. It is clear that appellant intended to represent himself and had done so on a prior occasion.
Appellant's invocation of his right to self-representation was clear and unequivocal. No effort was made to persuade the trial court that appellant's decision was uninformed or involuntary. Considering the totality of the facts and circumstances in this case, we conclude that appellant's clear and unequivocal exercise of his constitutional right to represent himself was an informed and voluntary decision.
After reviewing the entire record, we conclude that the trial court's failure, if any, to admonish appellant more thoroughly about the dangers and disadvantages of self-representation before appellant decided to represent himself would not have resulted in a different outcome of appellant's trial. Appellant adequately prepared his own defense, participated in cross-examination, produced a witness, and was steadfast in his decision to represent himself. Even assuming there was error in the trial court's admonishment, we hold beyond a reasonable doubt that any inadequacy in the admonishment did not contribute to appellant's conviction or punishment. See Tex. R. App. P. 44.2(a). We overrule appellant's fourth issue.
In his fifth issue, appellant complains that he suffered egregious harm by the trial court's omission of an instruction on self-defense in the jury charge. Though it is undisputed that he did not request the instruction, appellant argues that the trial court should have included the instruction sua sponte. We disagree.
A person is justified in "using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31(a) (West Supp. 2007). A defendant is entitled to an instruction on every defensive issue raised by the evidence, whether it is strong, weak, unimpeached or contradicted. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Because appellant did not object to any jury charge error--or request a charge--appellant must show that he was egregiously harmed. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
A review of the record shows that appellant's theory of the case and his strategy at trial did not rest on a justification of self-defense. No witness testified that appellant used force against his neighbor to protect himself. The evidence showed that appellant pointed his finger in Huyck's direction. The dispute rested on whether appellant then poked Huyck in the eye--or nose--or Huyck walked, leaned or lunged forward and appellant accidently caused the resulting injury. Appellant's theory of the case was that the injury was an incident or an accident brought about by the neighbor's own actions. Rather than raise the justification of self-defense, the evidence at trial, at most, raised a question as to whether appellant intended to injure Huyck. Appellant argued in his opening statement that it was not his intent to "touch" Huyck's eye. We conclude that the trial court did not err in failing sua sponte to include a self-defense instruction in the jury charge. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (holding Article 36.14 does not impose "a duty on trial courts to sua sponte instruct the jury on unrequested defensive issues"). Even if we assume appellant was entitled to a self-defense instruction, there has been no showing that appellant was egregiously harmed by the omission. We overrule appellant's fifth issue.
Having overruled appellant's issues, we affirm the judgment of conviction.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: January 30, 2008
Do Not Publish
1. At trial, appellant represented himself. He is represented by counsel on appeal.
2. The court of criminal appeals has observed that some courts treat variance claims as a notice-related claim, and others as insufficiency of the evidence claims, but that Texas courts have "routinely treated variance claims as insufficiency of the evidence problems." Gollihar v. State, 46 S.W.3d 243, 246-47 (Tex. Crim. App. 2001). Because appellant raises both claims, we will address them both.
03-07-00089-CR
Greg S. Daniels v. The State of Texas--Appeal from County Court at Law No. 3 of Travis County
FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
NO. 729323, HONORABLE DAVID CRAIN, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Greg S. Daniels was charged by information with misdemeanor assault. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2007). Appellant pleaded not guilty, and a jury found him guilty as charged. (1) The trial court sentenced appellant to one year confinement in the Travis County jail and a $2,000 fine, but suspended imposition of sentence and placed him on community supervision for two years. In five issues, appellant challenges a variance between the pleadings and the proof, the adequacy of the admonishment regarding self-representation, and the failure of the trial court to instruct the jury on self-defense. For the reasons that follow, we affirm the judgment of conviction.
On January 30, 2006, Austin Police Officer Heather Schouest responded to an assault report by appellant's next-door neighbor, Douglas Huyck. Testimony at trial showed that appellant had engaged in feuds with Huyck and other neighbors concerning automobiles parked in appellant's driveway and other issues that led to litigation. When Huyck appeared at a hearing to testify against appellant, tensions escalated.
On the afternoon of January 30, Huyck exited his house to go jogging when he saw appellant and a friend in appellant's front yard. Appellant yelled an obscenity at Huyck and, pointing at his friend, called out, "Here's someone to kick your ass. Come over here. Here's somebody who will kick your ass." Huyck approached appellant and his friend. According to Huyck's report to the police and his testimony at trial, appellant indicated to Huyck with his middle finger. Appellant testified that he pointed at Huyck with his index finger. As Huyck approached the two men on the sidewalk easement of appellant's drive, appellant told Huyck to get off his property. With his finger, appellant poked Huyck twice in the eye. In response, Huyck hit appellant twice in the shoulder area. Appellant's friend separated the two men, and Huyck withdrew into his house. Huyck suffered pain and injury from the incident, and his wife observed that his eye was "red and puffy and watery." The Huycks reported the incident to the police.
Shortly thereafter, Officer Schouest arrived at the scene and interviewed the Huycks as well as appellant and his friend. Appellant acknowledged that he poked Huyck in the eye. Schouest's police report stated, "[Appellant] admitted to pointing his finger at close range on Huyck's face, striking Huyck in the left inner eyeball with his index finger." Schouest observed redness in appellant's eye. Appellant later told the investigating police officer, Detective Brendon Hanly, that Huyck walked into his finger.
In his first three issues, appellant contends that the State failed to prove that appellant caused bodily injury to Huyck "by striking [him] on and about the head with [his] hand," that a variance between the pleadings and the proof existed and failed to give appellant notice of the charge, and that the variance exposes appellant to a subsequent prosecution for the same offense. Specifically, appellant complains that the evidence is legally insufficient because there is a variance between the material allegations in the charging instrument and the evidence presented at trial. (2)
The information alleged that appellant, "on or about January 30, 2006, did then and there intentionally, knowingly, and recklessly cause bodily injury to Douglas Huyck by striking Douglas Huyck on and about the head with the Defendant's hand." Appellant argues that, because "there is no evidence that [appellant] struck Mr. Huyck on or about his head with his hand," but rather that the evidence was that appellant "poked Mr. Huyck's eye with his finger," there is no evidence that the complainant was "struck" with appellant's "hand." Although a finger is part of a hand, and the eyes are located in the head, appellant insists that "a hand-to-head allegation does not necessarily include a finger-to-eye allegation."
A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (reaffirming fatal variance doctrine and adopting materiality test). A variance arises when the State proves the defendant guilty of a crime but proves its commission in a manner that varies from the allegations in the charging instrument. Id. (citing 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 31.81, at 178 (1995)). A variance that is not prejudicial to a defendant's "substantial rights" is immaterial. Id. at 248. To determine whether a defendant's substantial rights have been prejudiced, we ask whether (i) the charging instrument informed the defendant sufficiently to allow him to prepare an adequate defense at trial, and (ii) prosecution under the deficiently drafted instrument would subject the defendant to the risk of being prosecuted later for the same crime. Id. A variance is fatal only if "it is material and prejudices the defendant's substantial rights." Id. at 257.
Applying these principles to this case, the question is whether proof that appellant poked the complainant in the eye with a finger is a fatal variance from the charging instrument's allegation of "striking [complainant] on or about the head with the hand." Asking the questions posed by Gollihar, then, "Did the indictment inform appellant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and would the indictment subject appellant to the risk of being prosecuted later for the same crime?"
The incident was described by the witnesses who testified at trial interchangeably as both poking and striking. In his opening statement, appellant argued, "The poke in the eye was not with the middle finger. It was with your pointing finger. Your pointing finger, okay. That's what the evidence is going to show. Not the middle finger." Appellant then denied that he "poked" the complainant in the eye, but admitted that he "touched [complainant's] nose," and it was possible that when the complainant leaned forward, that his finger "touched [complainant's] eye." Huyck testified that appellant's "finger hit me twice"; that "I was struck twice"; "[appellant] then reaches out, and at that point, pokes me in the eye, right in there"; "[h]e reached up and was, again, continuing to comment, 'Don't f--- with me,' and pokes me in the eye"; and "he poked me again." Officer Schouest testified that appellant told her:
there had been basically a yelling match between the two of them regarding the recent case for which [appellant] had been taken to trial. And that Mr. Huyck had approached on the public sidewalk to Mr.--in front of [appellant]'s residence. The argument had become a little bit more heated. And at some point, [appellant] had gotten very close to Mr. Huyck's face with his finger and had poked Mr. Huyck in his left eye.
Detective Hanly testified that appellant told him that Huyck "walked into his finger." Appellant testified on his own behalf that he was pointing his finger at Huyck " to get him away from me," but that "my finger touched his slimy nose, and I remember the touch of his slimy nose." During his cross-examination of the complainant, appellant stated, "Let's just go ahead and say you were poked in the eye. I only felt [like] poking you in the nose. But you say I poked you in the eye."
Thus, appellant's defense strategy was that he "touched" appellant on his nose and not his eye and that it was done with his index finger and not his middle finger. Appellant specifically denied doing that of which he now claims he had no notice. A review of the record shows that appellant was not misled by the charge and understood exactly with what he was charged. By his own testimony and questioning of other witnesses, appellant was on notice of the charge. Moreover, the record makes clear for what conduct appellant was charged. Appellant is in no danger of being prosecuted again for the assault. See Gollihar, 46 S.W.3d at 258 (citing United States v. Apocada, 843 F.2d 421, 430 n.3 (10th Cir.) (entire record, not just indictment, may be referred to in protecting against double jeopardy in event of subsequent prosecution), cert. denied, 488 U.S. 932 (1988)). We hold that there was no variance, let alone a fatal variance, between the allegations in the information and the evidence adduced at trial.
Even assuming there is a variance in any respect, we conclude that it is not material. The record does not show that appellant was surprised at trial by the State's evidence. Appellant was able to prepare his defensive theory, to call witnesses, and to cross-examine the State's witnesses. His testimony and cross-examination clearly showed he understood the charge. Furthermore, there is no possibility that the variance placed appellant at risk of double jeopardy. Any variance between the charging instrument and the evidence is not material. We overrule appellant's first three issues.
In his fourth issue, appellant asserts that he was denied his right to counsel because he was never admonished about the dangers of self-representation. The rights to assistance of counsel and to self-representation are protected by the Sixth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment. See Faretta v. California, 422 U.S. 806, 818-21 (1975); see also United States v. Cronic, 466 U.S. 648, 653-55 (1984). "The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment." Faretta, 422 U.S. at 807. In Faretta, the Supreme Court held that the Sixth Amendment not only affords an accused facing an adversarial criminal proceeding the right to a defense, but the Sixth Amendment also "grants to the accused personally the right to make his defense." Id. at 819. The Court reasoned:
Although not stated in the Amendment in so many words, the right to self-representation--to make one's own defense personally--is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
Id. at 819-20 (footnote omitted). The Court explained that it is for the defendant personally to decide whether assistance of counsel in his particular case is to his advantage, and his choice must be honored out of "'that respect for the individual which is the lifeblood of the law,'" even if his choice may not be prudent. Id. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970) (Brennan, J., concurring)). Certainly the tension between the right to assistance of counsel and to self-representation is a delicate one and creates difficulty for trial courts.
A decision to represent oneself must be made knowingly, intelligently, and voluntarily. Id. at 835. Although the Supreme Court has not prescribed any formula or script to determine if a defendant wishes to forego counsel and represent himself, the record must establish that the accused knows what he is doing and his choice is made with his eyes open. Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim. App. 1988). The information a defendant must have to make an intelligent election "will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding." Iowa v. Tovar, 541 U.S. 77, 88 (2004). Courts look at the totality of the particular facts and circumstances of a case in deciding whether the defendant's decision was knowing, intelligent, and voluntary. Id. at 92. The State cannot force a defendant to have a lawyer. See Faretta, 422 U.S. at 820-21. A defendant has a constitutional right to represent himself. Id. at 819-20. We must determine whether, under the particular facts and circumstances of this case, appellant made his decision voluntarily, knowingly, and intelligently. See id. at 835.
Appellant made his choice to represent himself on the record. The record shows that on May 8, 2006, appellant was admonished in open court of his right to representation by counsel and his right to appointment of counsel free of charge if he was indigent. Appellant signed a waiver of his right to counsel. The trial court found that appellant understood his right to have an attorney appointed and the dangers and disadvantages of self-representation. The court made a finding that the waiver was knowingly and intelligently made.
Eight months later, on the day appellant's trial was scheduled to begin, the trial court ascertained that appellant was aware of the charge of which he was accused and the range of punishment. Appellant informed the trial court "you know, I know what's going on." The trial court again inquired into appellant's decision to defend himself. Outside the presence of the venire panel, the following colloquy took place:
Court: In any event, you decided to represent yourself in this case, right?
Appellant: Oh, yeah. Yeah.
Court: And you've been told that you have a right to an attorney, right?
Appellant: Sure.
Court: And as far as I remember or recall, you never said that you're indigent. In fact, I think you said you were not indigent and you wanted to represent yourself. I don't remember. If I'm wrong, say it.
Appellant: Well, I didn't think the indigency thing came up, but I'm not indigent.
Court: Okay. So you have not requested that because of your indigency, that you're poor, that you need to have a court-appointed attorney.
Appellant: Absolutely correct.
Court: So you desire completely to represent yourself?
Appellant: That's right.
Court: And you understand that if things don't go your way, there could be jail time involved.
Appellant: Yes, I understand.
Court: Now, you understand I can't--and I'm the judge here and I can't--I can't take sides. So I can't go over and, you know, correct you if you're doing something wrong or tell you, "Don't ask that question," or "Don't say that." Although if there are objections from Mr. Prosecutor here, then I'm going--I might just say, "I'll grant your objection," or "Overrule your objection." But if I grant his objection, and he's objecting to something you're saying because you're saying it out of turn, or something like that, then you have to comply with my ruling.
Appellant: Of course.
Court: So, you know, do you know what voir dire means?
Appellant: Certainly.
As the trial court began to explain jury selection to him, appellant assured the judge, "I've done this before." The record also shows that appellant was familiar with jury settings and that a setting on the trial date did not necessarily mean that his case would be reached. Appellant represented himself through the trial and did not seek assistance or equivocate in his insistence that he represent himself. A review of the entire record shows that appellant was a small business owner and that he had engaged in litigation on prior occasions--both with representation and with self-representation. The record also shows that this was not appellant's first experience with the criminal justice system as he claimed he had been wrongly accused by his neighbors on prior occasions, had gone to court, and had prevailed. It is clear that appellant intended to represent himself and had done so on a prior occasion.
Appellant's invocation of his right to self-representation was clear and unequivocal. No effort was made to persuade the trial court that appellant's decision was uninformed or involuntary. Considering the totality of the facts and circumstances in this case, we conclude that appellant's clear and unequivocal exercise of his constitutional right to represent himself was an informed and voluntary decision.
After reviewing the entire record, we conclude that the trial court's failure, if any, to admonish appellant more thoroughly about the dangers and disadvantages of self-representation before appellant decided to represent himself would not have resulted in a different outcome of appellant's trial. Appellant adequately prepared his own defense, participated in cross-examination, produced a witness, and was steadfast in his decision to represent himself. Even assuming there was error in the trial court's admonishment, we hold beyond a reasonable doubt that any inadequacy in the admonishment did not contribute to appellant's conviction or punishment. See Tex. R. App. P. 44.2(a). We overrule appellant's fourth issue.
In his fifth issue, appellant complains that he suffered egregious harm by the trial court's omission of an instruction on self-defense in the jury charge. Though it is undisputed that he did not request the instruction, appellant argues that the trial court should have included the instruction sua sponte. We disagree.
A person is justified in "using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31(a) (West Supp. 2007). A defendant is entitled to an instruction on every defensive issue raised by the evidence, whether it is strong, weak, unimpeached or contradicted. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Because appellant did not object to any jury charge error--or request a charge--appellant must show that he was egregiously harmed. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
A review of the record shows that appellant's theory of the case and his strategy at trial did not rest on a justification of self-defense. No witness testified that appellant used force against his neighbor to protect himself. The evidence showed that appellant pointed his finger in Huyck's direction. The dispute rested on whether appellant then poked Huyck in the eye--or nose--or Huyck walked, leaned or lunged forward and appellant accidently caused the resulting injury. Appellant's theory of the case was that the injury was an incident or an accident brought about by the neighbor's own actions. Rather than raise the justification of self-defense, the evidence at trial, at most, raised a question as to whether appellant intended to injure Huyck. Appellant argued in his opening statement that it was not his intent to "touch" Huyck's eye. We conclude that the trial court did not err in failing sua sponte to include a self-defense instruction in the jury charge. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (holding Article 36.14 does not impose "a duty on trial courts to sua sponte instruct the jury on unrequested defensive issues"). Even if we assume appellant was entitled to a self-defense instruction, there has been no showing that appellant was egregiously harmed by the omission. We overrule appellant's fifth issue.
Having overruled appellant's issues, we affirm the judgment of conviction.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: January 30, 2008
Do Not Publish
1. At trial, appellant represented himself. He is represented by counsel on appeal.
2. The court of criminal appeals has observed that some courts treat variance claims as a notice-related claim, and others as insufficiency of the evidence claims, but that Texas courts have "routinely treated variance claims as insufficiency of the evidence problems." Gollihar v. State, 46 S.W.3d 243, 246-47 (Tex. Crim. App. 2001). Because appellant raises both claims, we will address them both.
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