# Harris v. State

> Court of Criminal Appeals of Texas · December 18, 1974 · 516 S.W.2d 931

URL: https://www.frixlaw.com/law-library/cases/9777423

## Case

- **Full name:** Johnny Leroy HARRIS, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 18, 1974
- **Citations:** 516 S.W.2d 931; 1974 Tex. Crim. App. LEXIS 1977
- **Precedential status:** Published
- **Opinion:** Concurrence by Onion
- **Judges:** Roberts, Onion
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9777423

## Opinion text

ONION, Presiding Judge
(concurring).
In the instant case appellant vigorously urges by brief and in oral argument that his extrajudicial confession was improperly admitted into evidence since he timely re *935 quested the presence of his employed counsel, which request was ignored by the police who took the statement. He relies upon Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).
Since the trial court’s order after a hearing on the motion to suppress the confession made no detailed findings of fact as to waiver of the right to counsel and only generally concluded that the appellant waived his rights, and since a close question is presented, I feel compelled to state my reasons for concurring in the result reached.
At the hearing on the motion to suppress the confession the record reflects that the 26 year old appellant was arrested for robbery on January 12, 1973, by Officers Weilbacher and Nickolajczyk and others. It appears that Officer Nickolajczyk read to the appellant his rights and appellant said he understood. Thereafter, he was taken to the police station where the first of three lineups was conducted. He was then taken before a magistrate who advised him that he was charged with robbery, set bail and advised him of his rights in accordance with Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and Article 15.17, Vernon’s Ann.C. CP. Sometime thereafter, he was allowed to make a phone call and contacted a friend of his mother’s. On this same date, although it is not exactly clear as to order of the sequence of events, it appears that Lt. Virgil Roberson also gave appellant warnings in accordance with Miranda and Article 38.22, Vernon’s Ann.C.C.P. At this point the appellant requested counsel, and a phone call was made by Roberson to Legal Aid. No attorney ever appeared, but' no interrogation followed this request for counsel. The following day, January 13, Attorney Jesse Gamez appeared at the jail, told appellant his mother had requested he visit with the appellant, and he advised appellant not to say anything. The attorney was present during the subsequent two lineups. On January 16, 1973, the appellant was taken from jail to the robbery office because Vivian Carter, who was in police custody for another robbery, had requested to see him. It appears she was appellant’s girlfriend. Roberson was in and out of the room where the two were talking and was stopped on one occasion by appellant and told that he wanted to tell about “the job” (the murder of Officer Jacobs) and was ready to give a statement. Roberson then had the appellant taken to the homicide office where Detective Castil-lon warned the appellant in accordance with Miranda and Article 38.22, Vernon’s Ann.C.C.P. A confession was then taken from appellant which was signed in the presence of a witness after the appellant had read the same and made a correction in the same. The appellant, after making the confession, was then taken before a magistrate with regard to the murder charge.
Testifying in his own behalf, appellant stated that while he was charged with robbery Officer Weilbacher had mentioned the shooting of the policeman to him, and he knew the officers were interested in both offenses. He related that when he had been booked at the jail on January 12, 1973, he had been beaten by some of the officers there, with one saying that the deceased Jacobs had been his friend. He testified on January 16 he was brought to the robbery office where he talked with Vivian Carter, who told him she was charged with robbery; that Roberson repeatedly explained the difference between murder with and without malice to him and told him that “he could cut the girl loose” if he confessed and “to be a man.” He testified that he requested a lawyer at this point and Roberson told him Gamez was in court. He related that Castillon gave him no warnings and had part of the confession already typed. He said he was afraid being in jail, surrounded by officers, while being suspected of killing a police officer, and was told by the officers, “I’ll be glad when Barlow (Judge) gets his hands on you and stuff.” He testified that when given an opportunity to make corrections on the confession he was going to throw the confession in the trash basket, but he then saw Officer Weilbacher at the door *936 and, knowing his reputation, thought he was going to be beaten again, and he did not throw the confession away. He then asserted that the confession was signed out of fear.
Appellant relies upon that part of the Miranda decision which reads:
“Once warnings have been given, the subsequent procedure is clear If the individual states he wants an attorney, the interrogation must cease until an attorney is present. At that time the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” 384 U.S. at p. 474 , 86 S.Ct. at p. 1627 .
This court has been confronted with a number of cases involving the similar contention advanced by the appellant. In those cases we have made clear that the request or express desire for counsel will not forever bar the police from interrogating the accused, regardless of the circumstances. Waiver is possible if the prosecution meets its heavy burden in this regard. See, i. e., Gunter v. State, 421 S.W.2d 657 (Tex.Cr.App.1967); Hill v. State, 429 S. W.2d 481 (Tex.Cr.App.1968); Lee v. State, 455 S.W.2d 316 (Tex.Cr.App.1970) ; Miller v. State, 468 S.W.2d 818 (Tex.Cr.App.1971); Nash v. State, 477 S.W.2d 557 (Tex.Cr.App.1972) ; Randolph v. State, 493 S.W.2d 869 (Tex.Cr.App.1973); Mitchell v. State, 503 S.W.2d 562 (Tex.Cr.App.1974); Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974) ; Sweiberg v. State, 511 S.W.2d 50 (Tex.Cr.App.1974). We have not implied, however, that once an accused, subject to custodial interrogation, has requested counsel or indicated a desire to consult counsel the law enforcement authorities may continue to interrogate despite the expressed wish. Nor may they threaten, trick or cajole an accused into a waiver of his constitutional rights in order to be able to continue the interrogation.
Examining the record for evidence of waiver after appellant had requested counsel and had in fact consulted counsel, it is noted that Lt. Roberson testified appellant initiated the conversation with him as to giving a statement about “the job.” Waiver in such cases as the instant one is more easily determined when the subsequent conversation is initiated by the suspect followed by a clear-cut waiver of counsel prior to the second or subsequent conversation or interrogation. See Nash v. State, supra, 477 S.W.2d at p. 561 and cases there cited. This, however, is only one factor to consider.
Further, it is observed that shortly after saying he wanted to give a statement he did in fact give a statement which he read, corrected and signed, the record showing he was 26 years old, a high school graduate who could read and write the English language. The signed confession reads in part as follows:
“I, Johnny Harris after first being duly warned by Det. Frank Castillon, at 12/50 PM. at Homicide Office — Police Hdqs. on January 16, 1973, that I have the right to have a lawyer present to advise me either prior to any questioning or during any questioning; and that if I am unable to employ a lawyer, I have the right to have a lawyer appointed to counsel with me prior to or during any questioning; and that I have the right to remain silent and not make any statement at all; and further, that any statement I make may be used in evidence against me at my trial; that if I decide to talk with any one, I can, and that I can stop talking to them at any time I want; The above rights are continuing rights which can be urged by me at any stage of the proceedings, and I do hereby voluntarily waive these rights and give to the said Det. Frank Castillon the person to whom this statement is being made, the following statement: . . . (Emphasis supplied)
The mere signing of a boilerplate statement to the effect that an accused is knowingly waiving his rights will not discharge *937 the prosecution’s burden of showing waiver, but certainly is a factor to be considered in determining if the accused affirmatively waived his rights. See McCandless v. State, 425 S.W.2d 636 (Tex.Cr.App. 1968); Torres v. State, 422 S.W.2d 741 (Tex.Cr.App.1968) (Concurring Opinion).
In the instant case we have a 26 year old appellant with a high school education who has been repeatedly given the warnings required by law, who has consulted with counsel, and who initiates the conversation which leads to the confession, is again warned of his rights by the person taking the statement, and then signs a statement containing a written waiver. When the “totality of the circumstances” is considered, I conclude that the evidence is sufficient to show the State discharged its burden and the appellant made a constitutionally permissible waiver as required by Miranda .
The issue of voluntariness was also submitted to the jury and, by their verdict, they rejected the claim of involuntariness.
I concur in the result reached.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777423. Public record. Not legal advice.