Charles v. State

DISSENTING OPINION ON APPELLANT’S MOTION FOR RE-HEARING

ONION, Judge.

The majority simply refuses to come to grips with the fact that this record does not reflect that appellant affirmatively waived *922 his rights and his privilege against self-incrimination prior to his statement. Repeated warnings, even though fully complying with the Miranda decision, are of no avail unless the State goes further and shows a “voluntary, knowing, and intelligent” waiver.

In its original opinion the majority with absolutely no mention of the waiver requirements of Miranda said: “Under the record, we find that the confession was not obtained in violation of the rules prescribed by the Supreme Court in Miranda v. State of Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 , wherein the Court summarized its holdings in Gideon v. Wainwright and Escobedo v. Illinois, and overrule the first ground of error.”

In its opinion on re-hearing, no reference is made to the above statement.

The majority appears to shift its position and again, without any discussion of waiver, places its reliance upon other means “fully effective” as the Miranda requirements.

Even a casual reading of the Texas statutes referred to demonstrate that such statutes do not come up to the standard of the Miranda warnings and are, therefore, not as fully effective. This is, of course, without regard to the additional and essential requirement of an affirmative waiver. Such Texas statutes in effect at the time of appellant’s statement did not require any waiver. How such Texas statutes, in effect at the time of the appellant’s statement, afford even greater procedural safeguards than any United States Supreme Court decision construing the due process clauses of the Federal Constitution as claimed by the majority is beyond the comprehension of this writer.

What the majority still fails to grasp, the Legislature was quick to realize. The Legislature recognized that the statutes in effect at the time of appellant’s statement, enlightened as they may have been when enacted, did not meet the requirements of the Miranda decision, nor were as fully effective. The 1967 amendments to Articles 15.17 and 38.22, V.A.C.C.P., provide for warnings comparable to Miranda and Article 38.22, supra, now includes the requirements of a waiver.

In attempting to sustain their original position, the majority points out an admission of guilt offered by the appellant himself. It is apparent they overlook the holding of the United States Supreme. Court in Haynes v. State of Washington, 373 U.S. 503 , 83 S.Ct. 1336 , 10 L.Ed.2d 513 , where the Court said:

“In reaching the conclusion which we do, we are not unmindful of substantial independent evidence tending to demonstrate the guilt of the petitioner. As was said in Rogers v. Richmond, 365 U.S. 534, 541 , 81 S.Ct. 735, 740 , 5 L.Ed.2d 760 , [766]:

“ ‘Indeed, in many of the cases in which the command of the Due Process Clause has compelled us to reverse state convictions involving the use of confessions obtained by impermissible methods, independent corroborating evidence left little doubt of the truth of what the defendant had confessed. Despite such verification, confessions were found to be the product of constitutionally impermissible methods in their inducement.’

“Of course, we neither express nor suggest a view with regard to the ultimate guilt or innocence of the petitioner here; that is for a jury to decide on a new trial free of constitutional infirmity, which the State is at liberty to order.”

Further, in Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 , the Court said :

“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Rich *923 mond, 365 U.S. 534 , 81 S.Ct. 735 , 5 L.Ed.2d 760 , and even though there is ample evidence aside from the confession to support the conviction. Malinski v. People of State of New York, 324 U.S. 401 , 65 S.Ct. 781 , 89 L.Ed. 1029 ; Stroble v. State of California, 343 U.S. 181 , 72 S.Ct. 599 , 96 L.Ed. 872 ; Payne v. State of Arkansas, 356 U.S. 560 , 78 S.Ct. 844 , 2 L.Ed.2d 975 .”

As to Jackson v. Denno, supra, the majority makes the assertion without any reasoning that the provisions of Article 38.22, (b), V.A.C.C.P., 1965 (now Article 38.22, Section 2), which requires the court to enter an order stating his findings after a hearing on the admissibility of the confession, is not mandatory. The history and the very wording of the statute itself clearly indicate otherwise. 1 Even if there was no statute at all, Jackson v. Denno, supra, requires that the trial court’s conclusion must appear from the record with unmistakable clarity. See Sims v. State of Georgia, 385 U.S. 538 , 87 S.Ct. 639 , 17 L.Ed.2d 593 . The Supreme Court of Georgia took the position the majority now takes and found a bottomless pit.

It appears further that the majority feels that this death penalty conviction should not be set aside by this Court because to do so would deprive the United States Supreme Court of an opportunity to review this conviction and the effectiveness of the Texas statutes now since repealed as a substitute for the Miranda requirements.

Since there is no such automatic review, let us hope that this indigent appellant will have available to him the funds to give the Court on the Potomac that opportunity.

For the reasons stated, and more particularly the reasons set out in my original dissenting opinion, I vigorously but respectfully dissent to the overruling of appellant’s motion for re-hearing.

MORRISON, J., joins in this dissent.

. Article 38.22(b), Y.A.C.C.P.1965, in effect at the time of appellant’s trial, reads: “If the confession or statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, he shall enter an order stating his findings which shall be filed among the papers of the cause but not exhibited to the jury. Only thereafter may evidence pertaining to such matter be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that such confession or statement was voluntarily made, the jury shall not consider such statement or confession for any purpose nor any evidence obtained as a result thereof.” (Emphasis supplied)