# Garcia v. State > Court of Criminal Appeals of Texas · March 27, 1996 · 919 S.W.2d 370 URL: https://www.frixlaw.com/law-library/cases/9777555 ## Case - **Full name:** Gustavo Julian GARCIA, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 27, 1996 - **Citations:** 919 S.W.2d 370; 1996 Tex. Crim. App. LEXIS 35; 1994 WL 706957 - **Precedential status:** Published - **Opinion:** Concurrence by Keller - **Judges:** Mansfield, Maloney, Keller, Clinton, McCormick, Campbell, White, Meyers, Overstreet, Baird - **Cited by:** 396 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/9777555 ## How later opinions describe it (automated extraction) - holding that, in light of the fact that Garcia received a “Penry” instruction (included in the amended Texas special issues - holding that the appellant failed to satisfy the Partida test where he failed to present any evidence of (1) the percentage of Hispanics in the county where he was indicted; (2) the racial composition of the grand jury that indicted him; or (3) the disparity between the percen… - stating that “[a] promise made by a law enforcement officer may render a confession involuntary if it was positive, made or sanctioned by someone with apparent authority, was of some benefit to the defendant and was of such a character as would likely cause a person to speak u… - holding that the defendant “affirmatively waived his right to be present” under Article 33.03 during part of voir dire, and he “was not denied his right to be present—he waived it” - holding the in-court identification of the appellant’s co-defendant, who was dressed in jail clothes, wearing shackles, and escorted by two deputy sheriffs when he entered the courtroom, was relevant and admissible because he was present when the appellant was arrested ## Opinion text KELLER, Judge, concurring. My understanding of appellant’s claim under point of error forty-two differs somewhat from what appears to me to be the majority’s understanding. The issue, as I perceive it, is not whether appellant waived the rights set out in Art. 38.22 See. 2(a), but whether his statement shows on its face that he did so. The directive that a statement show a waiver on its face requires a discussion of the rights listed under Sec. 2(a). Sec. 2(b) requires waiver of the “rights set out in ... Subsection (a).” Sec. 2(a), however, designates only four of the five matters in that section as rights. Subsection (2) states: “Any statement I make may be used as evidence against me in court.” Unlike the rights listed in the other subsections, which are explicitly designated as “rights,” the matter listed in subsection (2) is not a right of the defendant; it is, if anything, a right belonging to the State. It is not susceptible to waiver by a defendant. For this reason, and because Sec. 2(b) specifically requires waiver only of the “rights” in Sec. 2(a), Art. 38.22 does not require a waiver associated with subsection (2). I turn now to the question of whether appellant’s statement shows on its face a waiver of the rights listed in subsections (1), • (3), (4), and (5). Subsection (1) explains the right to remain silent and not make any statement at all. It also includes an admonition that any statement may be used against the defendant in court. This latter part, like that in Sec. 2(a)(2), does not identify a right susceptible to waiver by a defendant. The issue thus becomes whether appellant’s statement shows on its face that he waived his “right to remain silent and not make any statement at all.” Appellant’s written statement shows on its face that: (a) appellant was fully informed of the right to remain silent, (b) he acknowledged that he had this right (appellant initialed the warnings), and (c) he thereafter did not remain silent. This shows actual waiver, and it shows it on the face of the statement. 1 The conjunction of these three circumstances thus meets the requirements of Art. 38.22. The next question is whether the statement shows on its face that appellant waived his right to have a lawyer, and to have one appointed if necessary. In his written statement, appellant declares that he “made no request for the advice or presence of a lawyer before or during any part of this statement.” Since the written statement shows that appellant was informed that he had a right to a lawyer and a right to have a lawyer appointed, the above statement establishes, on the face of the statement, that appellant waived these rights. The final question is whether the statement shows on its face that appellant waived his right to terminate the interview. The written statement shows that appellant was informed of that right. His statement includes an explicit affirmation that he did not request that the statement be stopped at any time before he was finished. This fact establishes that the requirements of Art. 38.22 were met with regard to subsection (5). *405 In light of the foregoing, I concur in the judgment of the Court. McCORMICK, P.J., and WHITE, J., join in the disposition of point of error 42 and otherwise join the judgment of the Court. . The dissent relies upon Supreme Court cases for the proposition that an accused’s post-wam-ing silence (i.e., lack of explicit waiver) combined with a confession are not enough to establish waiver. But the cases cited by the dissent deal with waiver of the right to counsel. The fact that a person speaks after being told that he has a right not to speak is, as a matter of common sense, directly probative of waiver of the right to remain silent, whereas the fact that a person speaks after being told that he has a right to counsel is not. Even in the area of right to counsel, though, the Supreme Court has held that, "in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” North Carolina v. Butler, 441 U.S. 369, 373 , 99 S.Ct. 1755, 1757 , 60 L.Ed.2d 286 (1979). In order to draw that inference, the Court suggests the importance of evidence of (1) an understanding by the accused of his rights and (2) a course of conduct indicating waiver. Both components exist in the present case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777555. Public record. Not legal advice.