Holloway v. State

TEAGUE, Judge,

dissenting.

I write on what appears to me to be the most glaring thing wrong with the majority opinion, which concerns the disposition that is made of appellant’s claim that his confession was inadmissible evidence at his trial. However, my limited remarks should not be interpreted to mean that the majority opinion has otherwise correctly disposed of all of appellant’s other contentions, because I find it has not done so.

The majority opinion informs us that appellant was “magistrized” several times, after which, inferentially at least, when he appeared before the last magistrate, and after appellant had invoked his right to counsel, the last magistrate appointed him counsel. The State, through one of its agents and representatives, was thereafter put on notice that appellant had been appointed counsel and then had counsel representing him. Nevertheless, the State, through other agents and representatives, initiated interrogation and thereafter its agents and representatives successfully obtained from appellant a confession. Appellant, at that moment in time, although represented by lawfully court appointed coun *619 sel, was without the assistance of his lawfully appointed counsel.

It is or should be axiomatic by now that once a magistrate or judge has appointed the accused counsel, and thereafter he consults with that counsel, that this amounts to an invocation of the right to counsel guaranteed by the Federal and State Constitutions. The burden is then upon the State to demonstrate an affirmative waiver of the right to counsel by the accused before further interrogation may be instituted. See Wilkerson v. State, 657 S.W.2d 784 (Tex.Cr.App.1983).

“[I]t is inconsistent with Miranda and its progeny for the authorities, at their instance, to [interrogate or] reinterrogate an accused in custody if he has clearly asserted his right to counsel.” See Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), which held in part 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.” Also see Coleman v. State, 646 S.W.2d 937 (Tex.Cr.App.1983); Phifer v. State, 651 S.W.2d 774 (Tex.Cr.App.1983); and Wilkerson v. State, supra.

When contact by the police with the accused is not initiated by the accused, as happened in this instance, and at that moment in time the accused has invoked his right to counsel and has counsel appointed to represent him, before a confession that is thereafter obtained can become admissible evidence, the prosecution must establish a knowing and intelligent relinquishment or abandonment of the right to counsel, “which depends in each case ‘upon the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused,’ ” Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938). This indeed is an extremely heavy burden' that the prosecution must sustain, which I find in this instance that they did not sustain.

Thus, for this reason, if no other, appellant’s conviction should be set aside.

I respectfully dissent.