“When appellant’s counsel introduced his confession, he waived any complaints that he might have regarding the voluntariness of said confession.”
How later courts described this case
- “When appellant’s counsel introduced his confession, he waived any complaints that he might have regarding the voluntariness of said confession.”
- on Appellant’s Motion for Rehearing
Written by the judges who cited it.
The opinion
ODOM, Judge
(concurring on Appellants’ Motion for Rehearing).
I concur in the results reached by Judge Morrison, but for the reasons expressed herein.
It is apparent to this writer that, when the record is viewed in its entirety, there is a conflict of defenses between the three appellants. The record reveals a confession by Israel Morales admitted into evidence when it was introduced by his counsel. The record further reveals that oral inculpatory statements were made by Brijido Pena, the said oral confession having been admitted into evidence without a hearing on the voluntariness thereof having been conducted as required by Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 , and Art. 38.22, Sec. 2, Vernon’s Ann.C.C.P. The record does not contain a statement made by Juan Morales.
Under these circumstances, counsel had to wear three hats when he represented all three appellants at the trial. This resulted in material harm to appellants Brijido Pena and Juan Morales. If counsel had been successful in his motion for severance he probably could have avoided this conflict, but in a joint trial each of these appellants should have been represented by separate counsel so their respective defenses and individual rights could have been protected.
For these reasons, I would affirm as to Israel Morales; reverse and remand as to Brijido Pena and Juan Morales.
ROBERTS, J., joins in this concurrence.