Garcia v. State

OVERSTREET, Judge,

dissenting.

In point of error number forty-two, appellant contends that the trial court erred in admitting into evidence a ■written statement of the accused, because it did not meet the requirements of Texas Code of Criminal Procedure Article 38.22. Article 38.22, § 2, 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, intel *409 ligently, and voluntarily waived the rights set out in the warning prescribed by subsection (a) of this section.

The evidence at trial revealed that once arrested, appellant was taken to the Plano Police Department, where his Miranda warnings were read to him. Subsequently, appellant confessed both orally and in writing to the instant murder, as well as an extraneous murder. 1 At the top of the page on which appellant’s written statement was contained, the following information appeared:

I have been duly warned and advised by [the detective], 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

(4) [sic] I have the right to terminate the interview at any time.

* * * * * *

I have read each page of this statement consisting of [number omitted] pages, 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.

In Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991), we held that when the language of a statute is clear and unambiguous, “the Legislature is constitutionally entitled to expect that [we] will faithfully follow the specific text that was adopted.” It is only when the plain language of the statute would lead to an absurd result that we should not apply the statutory language literally. Unquestionably, the language of Article 38.22, § 2(b) is both clear and unambiguous. Consequently, in order for an accused’s statement to be admitted into evidence, the police must follow the law as set out in 38.22, and ensure that evidence of waiver is on the face of the document.

After reviewing the statement in question, there is no doubt that this statement did meet all of the requirements of article 38.22, § 2(a), since the rights enumerated in § 2(a) are present on the face of the statement. The problem arises from the fact that the requirements of § 2(b) of this same article were undoubtedly not met. Article 38.22, § 2(b) mandates that the accused knowingly, intelligently, and voluntarily waive his rights, and that this waiver must be on the face of the statement in order for that statement to be admissible as evidence. Despite the majority’s holding, there is no evidence on the face of this statement that appellant waived his rights. The majority suggests that we give due deference to the findings of the trial judge who overruled appellant’s motion to suppress, and found that appellant’s initialing of the rights, constituted a waiver of those rights. Although it is true that we generally do not disturb the factual findings of the trial judge, White v. State, 779 S.W.2d 809 (Tex.Cr.App.1989), in this case the judge’s findings are not supported by the record. While it is true that appellant did initial each of the warnings, the majority erroneously interprets this action as a waiver of these rights. The only reasonable inference that can be drawn from this action is that appellant was made aware of his rights. This act in no way demonstrates that he also waived these rights, since there is no language of waiver *410 present anywhere on the statement for him to initial.

Because I think that the majority failed to follow the law as it is explicitly set out in Article 38.22, I respectfully dissent for the following reasons. The majority holds that because appellant was informed of his rights, it can be inferred that he understood these rights. Such is not logical. Next, the majority holds that because appellant signed each page, such reinforces the inescapable conclusion that he knew, understood, and waived his rights.

Finally, the majority holds that they find § 2(b) does not require specific language of waiver to appear on a written confession but, rather requires evidence of waiver of § 2(a) rights. The majority then decides to use (for the first time) the totality of the circumstances test to determine whether appellant knowingly, intelligently, and voluntarily waived his § 2(a) rights in a manner consistent with § 2(b).

The only inescapable conclusion is that the majority goes to great length to uphold a violation of the clear, unequivocal language of a statute. The majority refuses to apply the clear language of unless it is shown on the face of the statement. The majority fads to point to any evidence, written or testimonial that shows conclusively that appellant understood and waived his rights. It is not enough to show that he received them. The majority suggests that it is an undue burden on law enforcement officials to provide evidence of understanding and waiver other than by inference. I offer that it is not difficult for the official taking the written statement to include in writing a provision that appellant understands and waives his rights or at least testify that appellant said he understood and waived.

In a last ditch effort the majority would have us affirm the trial court’s decision of admission based on giving deference to the trial court’s finding, when they themselves were based on inferences. Such a conclusion that appellant understood and waived his rights cannot be logically drawn from the record before us or the trial court. The rights are prophylactic and should be reviewed from the standpoint of protection of the citizen and not the protection of the government.

The majority refuses to recognize the legislature’s express intent to protect the rights of citizens. Instead, the majority embarks on an effort to whittle away at the rights of citizens accused. I refuse to join them in this blatant effort. The state’s motion for rehearing should be overruled and this Court’s original decisions should be affirmed.

BAIRD, J., joins.

. Appellant’s oral confession was videotaped, but the tape was never admitted into evidence at trial.