Garcia v. State

BAIRD, Judge,

dissenting.

On original submission we held the trial judge erred in admitting appellant’s written statement because it failed to meet the statutory requirements of Tex.Code Crim.Proe. Ann. art. 38.22, § 2(b). Today, the majority reverses our prior holding and now finds appellant knowingly, intelligently and voluntarily waived his art. 38.22, § 2(a) rights. I agree with Judge Overstreet that Judge Mansfield’s treatment of this point is erroneous, but write separately to address Judge Keller’s concurring opinion which I believe is equally erroneous. 1

I.

It is the duty of the judiciary to interpret the laws enacted by the Legislature. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). When interpreting a statute we seek to effectuate the intent or purpose of the Legislature. Ibid. (Citing Camacho v. State, 765 S.W.2d 431 (Tex.Cr.App.1989)). We focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of that text at the time of its enactment. 2 Ibid. Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute. Ibid. (Quoting Coit v. State, 808 S.W.2d 473, 475 (Tex.Cr.App.1991)). Only where the application of a statute’s plain language would lead to an absurd result, which the Legislature could not possibly have intended, should we depart from the literal text of the statute. Ibid. We further presume the Legislature intended for all the statutory language to have meaning and effect. Consequently, we interpret the entire statute not just an isolated section. Dillehey v. State, 815 S.W.2d 623, 626 (Tex.Cr.App.1991); and, Tex.Gov’t Code Ann. § 311.021. With this in mind, we are called upon to interpret art. 38.22, § 2.

II.

In Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the Supreme Court held: “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.” Id., 384 U.S. at 444 , 86 S.Ct. at 1612 . In response to Miranda , the *406 Legislature amended art. 38.22 which provides:

Sec. 2. No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:

(a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

* * * * * *

(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

The statute has two procedural safeguards: first, that the accused be advised of his rights; and, second, that he knowingly, intelligently and voluntarily waive those rights. Art. 38.22, § 2(a) and (b). The statute provides that these safeguards are satisfied only if they are “shown on the face of the statement.” Art. 38.22, § 2. Custodial statements which do not comply with the procedures of art. 38.22 are inadmissible. See, art. 38.22; and, Boyle v. State, 820 S.W.2d 122, 130 (Tex.Cr.App.1991).

III.

Judge Keller concludes that appellant waived his Miranda rights because the instant statement establishes on its face that appellant was advised of his rights under art. 38.22, § 2(a). Judge Keller states:

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. The conjunction of these three circumstances thus meets the requirement of Art. 38.22.

Ante, at 404-405 (Keller, J. concurring). This “circumstantial” conclusion is contrary to both the plain language of the statute and United States Supreme Court precedent.

A.

The waiver requirement of art. 38.22, § 2(b) was added in response to Miranda where the Court made it clear that waiver would not be presumed:

... [A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516 , 82 S.Ct. 884, 890 [ 8 L.Ed.2d 70 ] (1962), is applicable here:

Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.

Miranda, 384 U.S. at 475 , 86 S.Ct. at 1628 . 3

As previously noted, when interpreting a statute we focus on the literal text and attempt to discern the fair, objective meaning of that text at the time of its enactment. *407 Boykin, 818 S.W.2d at 785 . The above quoted language from Miranda makes it clear that in 1967, when art. 38.22, § 2(b) was added, the Legislature intended that waiver would not be presumed.

B.

Even if art. 38.22 permitted an inferential waiver no such waiver is present in the instant case.

i.

Since Miranda , the Supreme Court has modified its position on presuming waiver. In North Carolina v. Butler, 441 U.S. 369 , 99 S.Ct. 1755 , 60 L.Ed.2d 286 (1979), the Supreme Court held that “in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” Id., 441 U.S. at 373 , 99 S.Ct. at 1757 . However, the courts must initially presume the defendant did not waive his rights and the prosecution’s burden is great before waiver can be inferred. Butler, 441 U.S. at 374 , 99 S.Ct. at 1757 . See also, Watson v. State, 762 S.W.2d 591, 601 (Tex.Cr.App.1988) (Implied waivers are clearly disfavored.).

In Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), the defendant was “Mirandized” on January 19, and asserted his right to counsel and his right to remain silent. On January 20, different police officers approached the defendant, who was still incarcerated, and began a second interrogation from which a statement was obtained. At trial, the defendant’s attempt to suppress the fruits of the second interrogation failed and he appealed. On appeal the Arizona Supreme Court focused on the vol-untariness of the confession and held that because the defendant voluntarily confessed he had voluntarily waived his right to counsel. 4

The United States Supreme Court reversed, holding the Arizona Supreme Court erred in determining waiver by focusing on voluntariness of the confession. The relevant inquiry is not merely whether the waiver of counsel was voluntary but also whether the waiver constituted an intelligent and knowing relinquishment or abandonment of a known right or privilege. In sum, the determination whether the statement was voluntary is separate from whether there was a voluntary, knowing and intelligent waiver. Edwards, 451 U.S. at 483 , 101 S.Ct. at 1884 . 5 For a waiver of Fifth Amendment rights to be valid, the waiver must be shown by the State to have been knowingly and intelligently made. Ibid. A “valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” Id., 451 U.S. at 484 , 101 5.Ct. at 1885; and Smith v. Illinois, 469 U.S. 91, 100 , 105 S.Ct. 490, 495 , 83 L.Ed.2d 488 (1984). 6

ii.

The facts and circumstances surrounding the instant case demonstrate appellant did not knowingly, intelligently or voluntarily waive his art. 38.22, § 2(a) rights. The instant statement reads in pertinent part:

I have been duly warned and advised by ... a person who has identified himself as an officer of the Plano Police Department, that:

(1) I have the right to remain silent and not make any statement at all and any statement I make will be used against me at my trial;

(2) Any statement I make will be used as evidence against me in court;

(3) I have the right to have a lawyer present to advise me prior to and during questioning;

(4) If I am unable to employ a lawyer, I have the right to have a lawyer appointed (without cost to me) to advise me prior to and during my questioning; and

*408 (5) I have the right to terminate the interview at any time.

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I have read each page of this statement consisting of [#’s omitted] page(s), each page of which bears my signature, and corrections, if any bear my initials, and I certify that the facts contained herein are true and correct. I further certify that I have made no request for the advice or presence of a lawyer before or during any part of this statement, nor at any time before it was finished did I request that this statement be stopped. I also declare that I was not told or prompted what to say in this statement.

Appellant’s initials appear on the statement next to the art. 38.22, § 2(a) rights. At trial, the detective who interrogated appellant testified he “had [appellant] read those rights” and then told appellant “if he understood them I wanted him to initial them, which he did.” Although the instant statement may be read to establish that appellant was notified of his art. 38.22, § 2(a) rights, nowhere on the face of the statement, or in evidence presented at trial is there any indication appellant knowingly, intelligently and voluntarily waived those rights.

Additionally, the record includes an unsigned typewritten statement prepared for appellant’s signature. This unsigned statement contains the express waiver, on its face, of appellant’s right to remain silent. The record does not indicate how the unsigned statement came to be prepared, whether appellant was given the opportunity to sign it, or why it was not signed by appellant. However, we may assume the Plano Police Department was aware of the need for a waiver and obviously had the wherewithal to comply with the statute, but failed to do so.

Accordingly, the instant case does not present an inferential waiver of the art. 38.22, § 2(a) rights.

IV.

The plain language of art. 38.22 provides that in order to be admissible, a custodial statement must show on its face that the accused was advised of his art. 38.22, § 2(a) rights and that he knowingly, intelligently and voluntarily waived them. Anything less renders the statement inadmissible. To interpret this statute otherwise is to ignore its plain language. Today, a majority of this Court in order to reach a palatable result is willing to presume a knowing, intelligent, and voluntary waiver of the 38.22, § 2(a) rights merely from the fact that a statement was eventually obtained. This interpretation renders art. 38.22 meaningless and contradicts Miranda .

With these comments, I join Judge Over-street’s dissenting opinion.

OVERSTREET, J., joins this opinion.

. On original submission Judge Maloney joined the opinion of the Court which reversed the judgment of the trial court. However, he has had a change of heart and offers his concurrence to explain his present position. Today, Judge Maloney argues:

... The final clause states that appellant did not request the advice or presence of an attorney or ask that the statement be stopped. Reading this clause in connection with the warnings at the top of the statement, it is apparent that appellant waived his rights to an attorney and to remain silent, with knowledge as to what those rights are. The statement is titled “Voluntary Statement" and the signature of appellant is labeled as the signature of one "giving a voluntary statement." All of these matters evidence appellant’s knowing, intelligent and voluntary waiver in compliance with Subsection (b). See and compare Cannon v. State, 691 S.W.2d 664, 674 (Tex.Cr.App.1985) (statement titled "Voluntary Statement” and stating that rights were "voluntarily waived” complied with subsection (b)).

Ante, at 403, (Maloney, J. concurring). (Emphasis added.)

Judge Maloney’s position is not supported by Cannon. Although in Cannon, we paused to note the statement was labeled "Voluntary Statement,” that was not our reason for finding compliance with art. 38.22, § 2(b). Instead, we relied upon the fact that the statement showed, on its face, the warnings required by art. 38.22, § 2(a) and immediately thereafter was the following waiver:

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 ... person to whom this statement is being made the following statement....

Ibid. This language evinced a compliance with art. 38.22, not the mere label of "Voluntary Statement.” Cannon, 691 S.W.2d at 674 . Judge Maloney intentionally misstates Cannon in a-feeble effort to justify his result.

. All emphasis is supplied unless otherwise indicated.

. Miranda relied in part on Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938), where the Supreme Court confronted the waiver of the constitutional right to counsel. The Court held:

It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights.”

Johnson, 304 U.S. at 464 4 65, 58 S.Ct. at 1023 .

. State v. Edwards, 122 Ariz. 206 , 594 P.2d 72 (1979).

. The Court reaffirmed this holding in Smith v. Illinois, 469 U.S. 91 , 105 S.Ct. 490 , 83 L.Ed.2d 488 (1984), stating: “Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together.” Id., 469 U.S. at 98 , 105 S.Ct. at 494 .

. Judge Mansfield's treatment of the instant point of error is the same as the erroneous treatment of the Arizona Supreme Court in Edwards.