Charles v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Appellant’s motion for rehearing urges that we set aside this conviction on the ground that the requirements of Miranda v. State of Arizona, supra, were not met.

As we understand the holding of the Supreme Court in Miranda, the specific warnings referred to in Judge Onion’s dissenting opinion must be employed “unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it”.

The Supreme Court stated its holding in Miranda in the following words:

“Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does *920 not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”

The view of the majority is that the Texas Statutes quoted in Judge Dice’s opinion, enacted after and under the impact of the Supreme Court’s opinion in Escobedo v. State of Illinois, supra, supply such effective means and the facts in this case, which are undisputed, reflect that such means were employed.

Even lawyers specializing in the defense of criminal cases who greeted the Miranda decision with such exclamations as “Isn’t it wonderful,” would not agree to exchange the Texas Statutes for others providing only the protection of the rights of an accused afforded by the due process clause of the Constitution of the United States.

The statutes quoted in Judge Dice’s opinion required two warnings, one by the magistrate and another by the person to whom the confession is made. The confession must be reduced to writing and signed and the written confession must show that both warnings had been given.

The undisputed facts of this case furnish further support for our conclusion that appellant was not deprived of his constitutional right to the assistance of counsel during his interrogation.

Appellant cooperated with the officers conducting the search for the person that shot Judge Roe, “with the exception, of course, that he was not telling the truth” about his activities on the evening in question.

After having been advised of his right to obtain counsel and, if unable to obtain counsel, to request the appointment of counsel and he had consented to take a polygraph test, appellant was not in custody for several days.

Before he signed the written confession he was again warned of his rights as required by the Texas Statutes and he read aloud the written confession which showed the warnings quoted in Judge Dice’s opinion. His attention was in this way again directed to his right to counsel after he had orally confessed.

The Texas Statutes, but not the due process clause of the Constitution, required that the written confession showing the warning be signed by appellant, an exception being that in connection with said confession he made “statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed * * (Art. 38.22(a) 3, C.C.P.196S)

The testimony introduced by the state without objection shows that after appellant made and signed the confession he was taken by the officers to the scene of the crime and to the home of appellant (both of which, interestingly, were in the town or community of “Uncertain” in a wooded area on the banks of Caddo Lake, in deep East Texas, and within sight of the caretaker’s house where the shot was heard and a searchlight was promptly used in an attempt to ascertain who fired it.)

Appellant’s father was called as a defense witness and on cross-examination testified without objection:

“Q. You were present at home in bed on the night of March 17th this year, when Alton, the Sheriff and myself and others came to your house, weren’t you?

“A. Yes, sir.

“Q. What did Alton say to you and your wife about killing Judge Roe ?

“A. After you all brought him home, we asked where was Alton, and Mr. Shivers, I think, told my wife that he was outside, and she asked him if there was anything wrong with him, he said ‘no, there wasn’t nothing wrong with him, he was just in a *921 little trouble/ and she wanted to see him, and he brought him in, and they told him to tell his mother what he had did.

“Q. He told your wife that he killed Judge Roe, didn’t he?

“A. Yes, sir, sho’ did.

“Q. And, did he get the gun out of the closet and give it to the Sheriff ?

“A. Yes, sir.

“Q. Did you ask him why in the World he did such a thing?

“A. Yes, sir, sho’ did.

“Q. That gun right there, was that in your house on March 17th ?

“A. Yes, sir.

“Q. Is that the gun that Alton got out of the closet and gave the Sheriff, and told the Sheriff that was the one he killed Judge Roe with?

“A. Yes, sir.”

The judges of this court are fully aware of their duty to protect the rights of the accused and of the binding effect of new concepts of due process announced by the Supreme Court of the United States. Ex parte Young, Tex.Cr.App., 418 S.W.2d 824 .

To set aside this conviction and lay the blame on Miranda v. State of Arizona, supra, would give no effect to its language: “unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, * * * ”; would expand the new concept of the meaning of due process announced by the Supreme Court after appellant confessed that he was the one who shot Judge Roe, and do so by an opinion which is not subject to review by the Supreme Court.

We remain convinced that appellant was not denied any constitutional right and that the court did not err in admitting in evidence his voluntary confession.

As to Jackson v. Denno, supra, we point out that at the hearing on the admissibility of the confession the witnesses were called and examined by appellant’s, counsel in support of his contention that appellant should have been taken before a magistrate and “re-warned” in Dallas because the warning given him by the magistrate in Marshall was not “after arrest” and he was not arrested until he was interrogated in Dallas.

We further point out that there was no material disputed fact issue as to the admissibility of the confession, appellant’s contention being that the confession showing the warnings given was “void on its face.”

Also we point out that this court has not held that the provision of Art. 38.22(b) V.A.C.C.P. (1965), which provided that the court enter an order stating his findings, was mandatory and we decline to so hold. In any event, such is not required by Jackson v. Denno, supra.

When this death penalty conviction joins a score and more of others affirmed by this court which are now pending in the federal courts, we have utmost faith that the rights of appellant as well as the rights of society will be protected and the Supreme Court, in doing so, will not fail to take into consideration the fact that the Texas Statutes afford even greater procedural safeguards than those required by any of .its decisions construing the due process clause of the Constitution of the United States.

Appellant’s motion for rehearing is overruled.