Petition — Texas v. Faulder
Supreme Court brief1980
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Supreme Court, U.S,
FILS2y
80-127 JUL 28 1980
NO. | ICHAGL RODAK, st, CUB
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1980
x * *
THE STATE OF TEXAS,
Petitioner
¥
JOSEPH STANLEY FAULDER,
Respondent
a ak a
PETITION FOR A WRIT OF CERTIORARI TO
THE TEXAS COURT OF CRIMINAL APPEALS
* * *
ALVIN G. KHOURY MARK WHITE
Assistant Criminal Attorney General
District Attorney
‘ JOHN W. FAINTER, JR.
ODIS R. HILL First Assistant
Criminal District Attorney
TED L. HARTLEY
Gregg County Courthouse EXECUTIVE ASSISTANT
Longview, Texas 75601
(214) 758-6181 P.O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 475-3281
COUNSEL FOR PETITIONER
ya
QUESTION PRESENTED
Has an adult suspect who, during custodial
interrogation after being fully and frequently apprised
of his rights, expresses a desire for a “couple of days to
get this straight” or “to think about this”, thereby
invoked his right to remain silent under the Fifth
Amendment as interpreted by Miranda v. Arizona, 484
U.S. 436 (1966), in a manner intelligible to a reasonable
auditor thus requiring the cessation of further
interrogation and the suppression of his confession
obtained shortly thereafter following his written waiver
of this right?
efi-
TABLE OF CONTENTS
RISA OR ER RINT Oe RIED fos DARL E S 1
ad | saan Cag abadenckoguiuuamanamikeniivaliaaie 1
CONSTITUTIONAL PROVISIONS INVOLVED .................... 2
OF. WOU CAMMMNE scnsscikesciudebdzupssindsdabteoneesintonscahanaaals 2
1. Statement of the proceedings .................ccccccccccssccscccsees 2
2. Facts material to the question presented ..................0 ‘
2. Facts material to the question presented ................00+ 3
REASONS FOR GRANTING THE WRIT .............cc ee eeceeeeee eee 6
1. The Texas Court of Criminal Appeals Has Im-
properly Interpreted Miranda v. Arizona So
As To Ignore the Requirement That A Sus-
pect’s Invocation of His Right to silence Be Ex-
pressed In Some Manner Which Would Be So
Understood By A Reasonable Person. ...............seeee00e8 6
2. In Finding That Respondent Did Not Waive His
Rights Under Miranda v. Arizona the Texas
Court of Criminal Appeals Has Misinterpreted
ee II GE PIU G UIE boccrecivcveccisetsccnrseccpnssantcnoksmeces 9
3. The Decision of The Court of Criminal Appeals
Rests Solely on Federal Constitutional Authority
and Conflicts With Respect To a Matter of Great
Importance Not Only With the Decisions of This
Court But Also With the Decisions of Other State
Courts of Last Resort and a Federal Court of
EER ES CR A ERS NE NOL PRR NPR OO ns ONS 10
ia sieasaianinaacapmnaaeaenaeeeenaalengin 10
REE ceiacinnenlipnaindeaapsnensbanedeiniell A-1
I TTC oa inedphisiniensiaddnbacesenecaniaaereia B-1
TIE iciiehsicijidsetideciiiisdonscvesnnasssdaissantontensbubinbianspineeleldiembeel C-1
-iii-
TABLE OF AUTHORITIES
Cases Page
Fare v. Michael C., 442 U.S. 701 (1979) .........ssssssssssssssesseeees 7,10
Frazier ¥V. Cupp, 304 U.S. 731 (29GB) n.ccoscccvscsesccsccossscosessscccssesseeoes 7
Hearne v. State, 534 S.W.2d 703
tI, BIE nodes cvsdehes «Gidneninsbansndepesiosedisdiebnimyacdanss 10
Lamb v. Commonwealth, 217 Va. 307,
ee Fee eT ntaeash bes sstcerishdoninsssesseniieenieiansecion ivaitvass 11
Miranda v. Arizona, 384 U.S. 436 (1966) ..............ccccceessesssrseeees 6,9
Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979),
cert. denied, ___ U.S. —___, 100 S.Ct. 485 (1980) .......... eee 7
North Carolina v. Butler, 441 U.S. 369 (1979) .................ccce0e 7,10
Ochoa v. State, 573 S.W.2d 796 (Tex.Ct.Crim.App. 1978) ....... 10
CS Se SEE Ge 27a FPO T DE kacssvensecdecnivsacenisonssdintonsncorsans 11
Rhode Island v. Innis, __.. U.S. ____ , 100 S.Ct. 1682 (1980) .... 7
State v. House, 54 Ohio St.2d 297, 376 N.E.2d 588 (1978) ....... 11
State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977),
Cort, Gamied, 455 U.5. GOS COTE) .cccessscccovssscsvsssccscesesissnsecessscesss 11
State v. Nichols, 212 Kans. 814, 512 P.2d 329 (1978)................ 11
United States v. Hodge, 487 F.2d 945 (5th Cir. 1978) .............. 10
United States v. Phester, 544 F.2d 353 (9th Cir. 1976),
TE, a Se Ba RT CITED sadabtkttsnkecidcadanccccsctanssieasncocccees i)
United States v. Rodriguez-Gastelum, 569 F.2d 482,
ORE, I, SE Fe. Ee LITE wniecsdacccbvscovennrsecasncieckaninescnsceadins 7
-jv-
Statutes
United States Code, Title 28, Section 1257(3) ........cssssseseseseeees
Texas Code of Criminal Procedure Art. 37.071 ........sccsccssseeesees
UE CRONE CRITI oo iccss ere ccinvcnnixensessceinenioanippenkeniinaaaan
PRE Eee FRIIS issabinivndadnas..crwecintasaverinenaieciaediaaubiaatgiiania
BEE FI avins Coocidesnickikscarkiedonninteeaamions
The Petitioner State of Texas respectfully prays thata
writ of certiorari issue to review the judgment of the
Texas Court of Criminal Appeals entered in these
proceedings on February 6, 1980.
OPINIONS BELOW
The presently unreported majority and dissenting
opinions of the Texas Court of Criminal Appeals
overruling the State’s motion for rehearing, in Faulder
v. State, No. 60,554 are set forth as appendix A to this
petition. The Court’s order of February 26, 1980
denying the State’s motion for leave to file a second
motion for rehearing is set forth as appendix B. The
various presently unreported opinions of that court
denying the application of the respondent herein for a
writ of prohibition and granting, for thirty days, the
state’s motion for a stay of mandate, delivered July 2,
1980, are set forth as appendix. C.
JURISDICTION
Petitioner invokes the jurisdiction of this Court under
Title 28, United State Code, section 1257(3) to review a
judgment of the Texas Court of Criminal Appeals which
was delivered and entered on February 6, 1980.
The present petition for writ of certiorari is filed
within the time limits as extended by Mr. Justice Powell
by his order of May 21, 1980 to extend to and include
July 25, 1980. The delay in filing this petition was
necessitated by the Court of Criminal Appeals’
consideration of the question of the state’s right to seek
such review and the application by the respondent
herein for a writ to prohibit the state from doing so. On
July 2, 1980 this issue was decided by the Court of
Criminal Appeals in favor of the State. See appendix C.
The judgment, review of which is sought, is a final
decision rendered by the highest court of the State of
Texas having criminal jurisdiction and is one
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interpreting rights under the United States
Constitution.
CONSTITUTIONAL PROVISIONS INVOLVED
United States Constitution. Amendment V:
“No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury,
except in cases arising in the land or naval
forces, or in the Militia, when in actual service
in time of War of public danger; nor shall any
person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be
compelled in any crimina! case to be a witness
against himself, nor be deprived of life, liberty,
or property, without due process of law; nor
shall private property be taken for public use,
without just compensation.”
United States Constitution, Amendment XIV, in
relevant part:
“Section 1. All persons born or naturalized in
the United States, and subject to the
jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No
State shall make or enforce any law which shall
abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive
any person of life, liberty, or property, without
due process of law; nor deny to any person
within its jurisdiction the equal protection of
the laws.”
STATEMENT OF THE CASE
1. Statement of the Proceedings
Respondent was convicted upon trial by jury in the
188th District Court of Gregg County, Texas of capital
x
murder, the indictment having charged that he killed
the victim while in the course of committing or
attempting to commit aggravated robbery. At the
punishment hearing the jury answered each of the three
questions set out in Article 37.071 of the Texas Code of
Criminal Procedure in the affirmative, and respondent
was sentenced to death.
Respondent’s appeal to the Texas Court of Criminal
Appeals did not directly challenge the sufficiency of the
evidence but did, inter alia, claim error in the decision
of the trial judge to admit into evidence his confession to
the crime which respondent claimed was taken in
violation of Miranda rights. The trial judge’s decision
came after a lengthy suppression hearing at which the
respondent testified. Initially, the Court of Criminal
Appeals unanimously agreea with respondent and
reversed and remanded. The state moved for rehearing
and the Court of Criminal Appeals reconsidered and
delivered a new opinion, with three dissenters,
overruling that motion on the grounds that respondent’s
confession had been given after he had invoked his right
to silence which right had not been honored, and that he
had not subsequently waived that right.
2. Facts Material to the Question Presented.
On the morning of July 9, 1975, the bound and gagged
body of Inez Phillips, a 75 year old widow, was
discovered in the bedroom of her ransacked home in
Gladewater, Texas. The back of her skull had been
crushed by a blunt instrument and a large knife had
been driven deep into her chest. No suspect was known
to the authorities.
On April 18, 1977, the respondent was arrested in
the State of Colorado upon a warrant charging him with
theft over $200 in an unrelated incident alleged to have
been committed in Gregg County on July 4, 1975. After
being advised by a Colorado judge of his rights,
including that to appointed counsel (471-82), respondent
=e
waived extradition and was returned to Gregg County
on April 20. The next day he was advised of his rights
regarding the theft charge by a magistrate and
acknowledged the warnings by his signature. He did not
request an attorney because he planned to enter a guilty
plea and felt he did not need one (485). The following
day, April 22, he was interviewed by Captain Bill Roach
of the Gregg County Sheriff's Department and Texas
Ranger Glen Elliott. He was advised of his Miranda
rights and, after a brief discussion of the theft, informed
that he was a suspect in the capital murder of Mrs.
Phillips. (Respondent had come under suspicion
because of information provided by one James Moulton
who had worked at the victim’s home and been aware of
the presence there of a floor safe; information he had
given respondent some weeks prior to the murder.)
Respondent was asked if he would agree to a polygraph
examination. He did, and arrangements were made for
one to be conducted at 2:00 p.m. on April 25 at the
headquarters of the Department of Public Safety, in
Tyler, Texas. On that date, at approximately the
appointed time, the polygraph operator, Officer Marvin
McLeroy conducted a “pre-test interview” and
explained the operation of the test and that it was
voluntary. He also told respondent that “if he knew he
could not pass the test that my advice to him would be
not to take the test.” (367) Respondent then refused to
sign the polygraph consent form, and Officer McLeroy
asked him “Well, do you want to talk to me about why
you’re down here?” The response was “I just as well talk
to you; I’ve talked to just about everybody else.” (394)
Officer McLeroy then read respondent his Miranda
rights. In the course of his thirty minute conversation
with Elliott, respondent indicated that “he would like to
have a couple of days to get this straight in his mind.”
(296) Ranger Elliott left to get coffee and Captain Roach
entered the room and spoke to respondent for about
fifteen minutes during which time he indicated that “he
had knowledge of the crime. ..but he wasn’t ready to talk
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about it.” (299-300) Officer McLeroy’s response to this
was to say: “You don’t need a couple of days to get this
straight. You know right now, today, as to whether or
not you could pass a polygraph test; isn’t that correct?”
He said, “Yes.” (405) At about 4:30 p.m. Captain Roach
brought respondent a piece of paper on which were
written the names of other suspects in the robbery-
murder. This was given to respondent to read while
Captain Roach asked him about each. When Captain
Roach reached the name of the woman later named in
respondent’s confession as his accomplice, respondent
said “I can’t at this time tell you about it, but if you’ll give
me a piece of paper, I’ll try to write it down.” Captain
Roach did, and respondent at about 5:00 p.m. wrote a
brief confession, handed it to Captain Roach and “told
him ... to read that...” and said “I can talk about it
now.” (307) Captain Roach then gave respondent
another waiver of rights form which respondent read
and signed (at 5:47 p.m.) after reading aloud, at Captain
Roach’s request, the line “an attorney would be called to
assist me and no question would be asked me until the
attorney arrived.” (428-29) Respondent then proceeded
to draw diagrams of the victim’s home and to dictate a
full confession which was typed for his signature which
was affixed at 7:22 p.m.
The trial judge found that respondent had made no
request for counsel and the Court of Criminal Appeals
was bound by that finding. Nor was there any dispute
that defendant had received multiple repetitions of his
rights, that he understood them, that he had been
allowed to drink, smoke and use the restroom, that
firearms had not been displayed and that respondent
had neither been mistreated nor been subjected to overt
threats. (466, 481-82, 487, 499) Nevertheless, the court
held that respondent had invoked his right to silence by
his request for time and did not subsequently waive the
rights so invoked. Thus, the confession, the
indispensable piece of evidence at respondent’s trial,
Y 3
without which no retrial for this crime will be possible,
was to be suppressed.
REASONS WHY A WRIT OF CERTIORARI
SHOULD BE GRANTED
1. The Texas Court of Criminal Appeals has
Improperly Interpreted Miranda v. Arizona, So As
To Ignore The Requirement That A Suspect’s
Invocation of His Right To Silence Be Expressed
In Some Manner Which Would Be So Understood
By A Reasonable Person.
“Confessions remain a proper element in law
enforcement. Any statement given freely and
voluntarily without any compelling influences
is, of course, admissible in evidence.” Miranda
v. Arizona, 384 U.S. 436, 478 (1966).
In Miranda v. Arizona, supra, this Court expressed
its concern that the process of custodial interrogation
posed dangers to the protection of a defendant’s Fifth
and Fourteenth Amendment privilege against
compulsory self-incrimination which required special
procedural safeguards. These included the requirement
that prior tosuch questioning the state warn the accused
of his right to remain silent and of his right to have
counsel, retained or appointed, present during
interrogation. Following such warnings, the procedure
to be observed by the interrogating officers is clear.
“If the individual indicates in any manner, at
any time prior or during questioning, that he
wishes to remain silent, the interrogation must
cease. At this point he has shown that he intends
to exercise his Fifth Amendment privilege; any
statement taken after the person invokes his
privilege cannot be other than the produce of
compulsion, subtle or otherwise.” 384 U.S. 436,
473-74.
-
This case does not bring into question the values
underlying the Miranda decision nor the prophylactic
techniques set forth therein. It does sharply pose the
issue of how a peace officer and a reviewing court are to
recognize that a suspect has indicated a desire to remain
silent. As is indicated by the quotation from Miranda
which opens this section, this Court recognized the
importance of interrogation and confessions to the
apprehension and conviction of criminals. In three
recent cases this Court has reiterated this view and
rejected expansive interpretations of Miranda which
would have, as in the instant case, sharply restricted the
use of statements given by suspects in custody. Rhode
Island v. Innis, __— U.S. —-— , 100 S.Ct. 1682 (1980);
Fare v. Michael C., 442 U.S. 707 (1979); and North
Carolina v. Butler, 441 U.S. 369 (1979).
The Miranda opinion is, and must be, predicated on
some act of communication by the suspect. The
interrogating officer must be apprised in some manner
of the suspect’s desire to remain silent so that he may
cease the interrogation or attempt, should the meaning
of the suspect’s statements be unclear, to clarify his
desires. See United States v. Rodriguez-Gastelum, 569
F.2d 482 (9th Cir.), cert. denied, 486 U.S. 919 (1978).
Without a requirement of communication the peace
officer is left in a world of half-light, without guidance,
and in constant danger of inadvertently jeopardizing
the case against the suspect and, thereby, the
vindication of our society’s criminal proscriptions. Trial
judges required to rule on motions to suppress
statements taken in alleged violation of the Miranda
rules witli be similarly confused.
As was recently noted in Nash v. E’stelle, 597 F.2d 513
(5th Cir. 1979)(en banc), cert. denied, ___ U.S. ____, 100
S.Ct. 485 (1980), the Miranda opinion anticipated
situations of unclear communication by a suspect. There
this Court quoted with approval the letter of the
Solicitor General describing the interrogation practices
of the Federal Bureau of Investigation including:
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“If [a suspect] is indecisive in his request for
counsel, there may be some question on
whether he did or did not waive counsel.
Situations of this kind must necessarily be left
to the judgment of the interviewing agent.” 384
U.S. 436, 485.
In a very similar context in «;azier v. Cupp, 394 U.S.
731, 739 (1969), this Court recognized the difficulties
posed by an ambiguous invocation of rights and refused
to treat such as adequately informing the officer so as to
require the cessation of interrogation. There the suspect
had said “I think I had better get a lawyer before I talk
anymore.” The officer replied “you can’t be in any more
trouble than you are in now.” /d., at 738. Questioning
continued and the suspect answered, yet this Court
found the suspect’s invocation of his right to counsel
inadequate. Here, the suspect’s statement that he would
like a couple of days to think about the matter was taken
by the officers as a mere evasion, similar to “I don’t
remember” or “I don’t know”, or an effort to avoid
implicating others. Such evasions from a suspect who
has been fully advised of his rights and is knowledgeable
about their exercise cannot be viewed as invocations of
the right to silence if, statements given during custodial
interrogation are to continue to contribute to the fact-
finding process in the manner envisioned by Miranda,
Butler and Fare.
It is posited that Miranda requires an invocation of
rights which would be so understood by a reasonable
person under the attendent circumstances. Here,
respondent had been advised of his right to silence and
to counsel by a magistrate on April 21, by the police on
April 22, and twice more on April 25, before making his
statement about “a couple of days.” He understood these
rights and twice specifically declined counsel. His
request for “a couple of days” carried no suggestion that
he was operating under a misunderstanding of the
nature and extent of his rights or the manner in which
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they were to be exercised as was arguably present in
Butler, (“I will talk to you but I am not signing any
form.” 441 U.S. 369, 371) or Fare where the juvenile
requested that his probation officer be present. The
decision of the Court of Criminal Appeals that the
request for “a couple of days” constituted an invocation
of the right to silence can only be seen as ignoring the
requirement of Miranda that the suspect must invoke
his rights in an intelligible manner.
2. In Finding That Respondent Did Not Waive His
Rights Under Miranda v. Arizona the Texas Court
of Criminal Appeals Has Misinterpreted The
Decisions of This Court.
If respondent’s ambiguous request for “a couple of
days” were interpreted as an invocation of his right to
silence, his subsequent responses to questioning and
express written waiver was, under the totality of the
circumstances, a knowing and voluntary decision to
forego that right. Although it is recognized that when a
suspect has invoked his right to silence the government
bears a “heavy burden . . . to demonstrate that the
defendant knowingly and intelligently waived his
privilege”, Miranda, supra, 384 U.S. at 475, the State
has done so here.
Respondent’s statements came after repeated
warnings in an atmosphere free of physical or other
coercion and approximately one and a half hours after
the alleged but totally ambiguous invocation of his right
to silence. Respondent’s decision to make a statement
appears to have been triggered by the written list of
other suspects which included the name of the woman
implicated by his subsequent confession as his
accomplice. Presentation of such additional evidence
has been found by at least two Circuit Courts of Appeal
to be legitimate law enforcement technique which is not
precluded by Miranda’s ban on further interrogation.
United States v. Pheaster, 544 F.2d 353 (9th Cir.1976),
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cert. denied, 429 U.S. 1099 (1977), and United States v.
Hodge, 487 F.2d 945 (5th Cir. 1973). Respondent’s
writing of a brief confession followed by his signing of
his second written waiver of the day, was done by a
mature adult who had acknowledged that he understood
the rights which had been so frequently repeated to him
and that he was neither threatened nor promised
anything nor mistreated in any way. The decision by the
Court of Criminal Appeals that respondent’s waiver was
not effective represents a gross misreading of the
decisions of this Court in Fare v. Michael Co., 442 U.S.
707 (1979), and North Carolina v. Butler, 441 U.S. 369
(1979).
3. The Decision of The Court of Criminal Appeals
Rests Solely on Federal Constitutional Authority
and Conflicts With Respect To A Matter Of Great
Importance Not Only With The Decisions of This
Court But Also With The Decisions of Other State
Courts of Last Resort and A Federal Court of
Appeals.
As has been indicated in Sections 1 and 2 supra, the
decisions of the Court of Criminal Appeals both as to the
respondent’s alleged invocation of his right to silence
and the absence of effective waiver of that right are
misinterpretations of the controlling decisions of this
Court. In reaching its decision the Court of Criminal
Appeals relied solely upon federal constitutional
authority. The state cases cited in support of its view,
Ochoa v. State, 573 S.W.2d 796 (Tex.Ct.Crim.App. 1978)
and Hearne v. State, 584 S.W.2d 703 (Tex.Ct.Crim.App.
1976), are both interpretations of Miranda and contain
no independent state grounds for decision.
The misinterpretations by the Court of Criminal
Appeals, if uncorrected, would have the effect in
practice of violating the clear principle that “a State
may not impose greater restrictions as a matter of
federal constitutional law when this Court specifically
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refrains from imposing them.” Oregon v. Hass, 420 U.S.
714, 719 (1975). If uncorrected, the Fifth Amendment
will have in practice a different meaning on each bank
of the Sabine River, and law enforcement officers in
Texas, our nation’s third most populous state, will be
forced to operate under constraints more severe than
are constitutionally required; a consideration of greater
importance practically, if not emotionally, than the fact
that a particular, brutal, self-confessed and convicted
murderer will escape punish. 1ent.
Moreover, the decision of the Court of Criminal
Appeals which negates the requirement that the
invocation of Miranda rights be intelligible as such toa
reasonable auditor is in conflict with the decision of the
Fifth Circuit Court of Appeals in Nash v. Estelle, 597
F.2d 513 (1979)(en banc) cert. denied, __. U.S. ____ ,
100 S.Ct. 485 (1980), as well as with decisions of the
Supreme Courts of Arizona, Kansas, Ohio, and
Virginia. See State v. Knapp, 114 Ariz. 531 562 P.2d 704
(1977), cert. denied, 435 U.S. 908 (1978)(the point at issue
being raised, as here, in the context of a death penalty
case), State v. Nichols, 212 Kans. 814, 512 P.2d 329
(1973), State v. House, 54 Ohio St.2d 297, 376 N.E.2d 588
(1978), and Lamb v. Commonwealth, 217 Va. 307, 227
S.E.2d 737 (1976).
CONCLUSION
For the foregoing reasons, petitioner submits that a
writ of certiorari should issue to review the decision of
the Texas Court of Criminal Appeals.
Respectfully submitted,
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant
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TED L. HARTLEY
Executive Assistant
P.O. Box 12548, Captiol Station
Austin, Texas 78711
(512) 475-3281
ALVIN G. KHOURY
Assistant Criminal
District Attorney
ODIS R. HILL
Criminal District Attorney
Gregg County Courthouse
Longview, Texas 75601
(214) 758-6181
Counsel for Petitioner
APPENDIX A
JOSEPH STANLEY FAULDER, Appellant
NO. 60,554 v. Appeal from GREGG County
THE STATE OF TEXAS, Appellee
OPINION ON STATE’S
MOTION FOR REHEARING
On original submission a unanimous Court reversed
this cause on the ground that the written statement
confessing to this capital murder was taken under
coercive circumstances rendering such statement
inadmissible under the authority of Mirandav. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 313 (1975),
Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46
L.Ed.2d 313 (1975) and cases decided by this Court. We
denied leave to file the State’s Motion for rehearing;
however, the factual recitation and consequently, the
legal conclusions evidenced by the opinion on original
submission were vigorously questioned by the dissent to
the denial of the State’s leave to file and a majority of this
Court therefore ordered a stay of the mandate, as well as
the State’s leave to file.
The only seriously disputed fact issue revealed by this
record is whether appellant advised the interrogating
officers that he desired the advice of counsel. Because
the trial court as the sole trier of fact, found that nosuch
request was made, this Court is not at liberty to disturb
such finding. McKittrick v. State, 541 S.W.2d 177
(Tex.Cr.App. 1976). All of the officers observed through
a one-way mirror the conversations had by each of the
other officers with appellant, unless otherwise
indicated. The following recitation is of relevant facts
and circumstances adduced at the hearing on the motion
to suppress which are substantially uncontradicted
unless so designated.
On April 20, 1977, appellant was extradited from
Colorado on a warrant for his arrest for the offense of
A-2
theft in the amount of $320.00. The next morning, he
was taken before Justice of the Peace Charles Cashell,
who advised appellant he was charged with the offense
of theft, read appellant his magistrate’s warning and set
his bond at $50,000.00. Appellant understood the
warning and did not at that time request the assistance
of counsel because he intended to enter a guilty plea to
the theft and felt he did not need one. The next morning,
a Friday, appellant met with Captain Bill Roach of the
Gregg County Sheriff's Department and Department of
Public Safety Texas Ranger Glen Elliott in Roach’s
office in the Gregg County Courthouse. He was advised
of his Miranda rights and a brief discussion of the theft
offense ensued.
According to Elliott, he and Roach “then informed
[appellant] that [they] were investigating a homicide in
Gladewater ..., which was a capital offense, and that
[they] were interested in his activities on or about July 8,
1975.” Appellant advised the officers of where he
thought he had been, and they in turn asked whether he
would be willing to submit to a polygraph examination
regarding the capital murder. Upon appellant’s
agreement, Elliott arranged the polygraph for April 25,
the following Monday, at 2:00 p.m. in Tyler. Roach,
Elliott and appellant.arrived in Tyler at approximately
1:45 p.m. on the appointed day after a forty five minute
trip in which the murder was not discussed.
On arrival at D.P.S.'! headquarters in Tyler, appellant
was placed in a holdover cell for a short while during
which Elliott and Roach briefed the polygraph
examiner, Officer Marvin McLeroy, on the subject to be
examined. McLeroy then brought appellant into the
polygraph room? and spent approximately 30 minutes
\Department of Public Safety.
2Testimony of McLeroy described the polygraph room thus:
A-3
with appellant completing a “pre-test interview” in
which he obtained personal data, such as appellant’s
general health, physical condition that morning,
education, criminal record and the like. McLeroy then
explained the process of a polygraph test and advised
appellant:
I told him that polygraph tests were simply a
voluntary test, that he could not be forced to
take it, that if he knew that he could not pass the
test that my advice to him would be to not take
the test. I told him that there were basically
three things which could probably make him
fail the polygraph test. I told him, number one,
that if he actually did do what it was that he was
suspected of doing that he would probably fail
the test; that if he knew for a fact who did do
what he was suspected of doing or if he was
or 2. ?
And your statement is that that room is isolated from the rest
of the building.
That room is isolated, closed off, yes, sir.
O.K. And it’s closed off to the extent that there’s a one-way
mirror, a lie detector table, an inter-com system between the
two rooms and it’s actually towards the back. You have to walk
through the lab to get back to it, do you not?
You walk down a hall.
Walk down a hall and the lab is on the right-hand side?
Yes, sir.
So, that’s not a place where the public freely wanders around
getting driver’s license is it?
That’s correct.
All right. Would you then say that the interrogation of the
Defendant in t've lie detector room was in a pretty secluded,
out-of-the-way spot?
Yes.
A-4
intentionally withholding knowledge from me
about, or from the investigators about what he
was accused of doing, that this would probably
make him fail this polygraph test. At this point
in time the subject indicated to me that he
better not take the polygraph test, that it was
his desire, that it was his wish that he did not
take the polygraph test.
Appellant refused to sign the polygraph consent form.
McLeroy then asked appellant whether he would talk
to him about why he, appellant, was there. According to
McLeroy appellant replied: “I just as well talk to you;
I’ve talked to just about everybody else.” McLeroy then
read appellant his rights and apparently it was at this
point that a discussion of the electric chair commenced,
the content of which was disputed.? According to
McLeroy, he then began interrogation of appellant
regarding the murder which lasted for approximately
30 more minutes. McLeroy was asked:
Q: He didn’t talk to you about that, did he?
So, in essence, he did not... talk to you or
answer any questions of yours concerning this
accusation, did he?
A: No.
McLeroy left appellant in the room and explained to
the other officers that appellant had refused to consent
to taking the polygraph. Ranger Elliott then went into
the room with appellant.
3According to appellant, McLeroy described for him the physical
effects on the human body of the administration of electrocution.
While admitting he discussed the electric chair with appellant
“prior to the first interview,” McLeroy denied that its effects on the
human body were discussed, and testified that the discussion was
based upon his asking appellant what he thought should happen to
the person who committed the murder.
A-5
Elliott warned appellant and asked him why he did
not want to take the polygraph. According to Elliott,
appellant “said he’d never had a test before and he
wasn’t sure it was the right thing to do.” Elliott then told
appellant he was investigating this capital murder and
asked about appellant’s associates in Longview. Elliott
testified:
I tried to get better acquainted with him. I tried
to get a little bit closer to him so he could talk
freely to me and during this conversation he
indicated to me that he would like to have a
couple of days to get this straight in his mind,
and I talked to him.
On cross examination, Elliott was asked:
Q: Did you ask him any facts concerning this
capital murder in Gladewater?
A: Yes, sir, I asked him.
©
Did he want to talk to you about it at that time?
A: He indicated that he knew about the murder
and that he just, but he wanted to wait a
little but, a little while, a couple of days to put
it down.
Q: He wanted to wait a couple of days in regard
to giving a statement about it?
A: That’s the way I took tt.
After 20 to 30 minutes of interrogation in which
appellant continued to give no incriminating
information, Elliott left.
Captain Roach then entered the polygraph room and
orally advised appellant of his rights. According to
Elliott‘, who was observing through the mirror:
‘The witness Roach gave very little testimony about this
interview other than it was short, lasting about 15 minutes.
A-6
[This interview] was along the same lines. Stan
had already -- Mr. Faulder had already
indicated to us that he -- to me that he had
knowledge of the crime that we were talking
about, but he wasn’t ready to talk about it. And
Mr. Roach started his interview along the same
lines that I did, to get better acquainted with him
and trying to persuade him to go ahead and tell
us his story about what happened on July the 8th,
1975, over at Mrs. Inez Phillips’ home in
Gladewater.
After approximately 15 minutes, Roach left and
McLeroy re-entered.’ The only salient testimony
regarding the content of this portion of interrogation
was elicited on cross examination from McLeroy:
A: -- subject then told me orally, J said to him,
I said, “You don't need a couple of days to
get this straight. You know right now, today, as
to whether or not you could pass a polygraph
test; isn’t that correct?” He said, “Yes.”
Q: All right. What brought up the couple of days?
Why did you say, “You don’t need a couple of
days?” Hadn’t Mr. Faulder told you that he
wanted a couple of days to think --
A: I overheard him tell Roach or Elliott that he
needed a couple of days.
After approximately 15 minutes, McLeroy left and
Elliott came back into the room with appellant for about
15 minutes. According to Elliott,
A: I went back in and talked to him again
briefly, myself.
5It is unclear whether Ranger Elliott did not witness all or only
portions of McLeroy’s second interview with appellant.
A-7
Q: All right. And what then occurred?
A: Well, he still said that he just would like to
think about it and get it all a little bit
clearer in his mind, all the details, and this was
about the only thing that he said about the
crime to me. He indicated, as I said, testified
before, that he had knowledge, but he just wasn’t
quite ready to discuss tt.
After Elliott left, Roach re-entered the room. It was
about 4:30 p.m. According to Roach, appellant had at
this point made no incriminating statements, and had
given no indication that he wanted to talk with anyone
about his involvement in the murder. Roach took into
the polygraph room a pad of paper on which he had
written the date: “July 8, 1975.” Roach testified that he
then turned the note pad around and wrote the names of
six people, names he had obtained from Elliott. He
questioned appellant about each item on the paper.
Roach state, “when I got to the name Stormie Summers,
Stan sat there for a minute. He said, ‘I can’t at this time
tell you about it, but if you’ll give mea piece of paper, I’!]
try to write it down’.” Roach provided the requested
items and appellant wrote one long paragraph.® Roach
continued, “He handed the paper to me. He told me to
read it and said, ‘After you read this I think I can talk to
,»”
you about it’.
After Roach read the paragraph, he brought
appellant out of the polygraph room into McLeroy’s
outer office and went outside to his car to get Gregg
County statement and waiver forms. Back inside, Roach
filled out the waiver, read it to appellant, handed it to
appellant and had appellant recite a line of the content
6All three officers testified that appellant wrote “one long
paragraph.” However, this writing, identified as State’s Exhibit
No. 4, reveals two short paragraphs.
A-8
in order to confirm that appellant was literate.
Appellant signed the waiver of rights form.
Appellant then drew a diagram of the house in which —
the capital murder occurred and began relating the
details of the offense. Roach chronicled the events by
hand, had it typed, and at 7:22 p.m., after appellant had
both been read the statement, including warnings at the
top, and had himself read the statement, he signed,
dated and wrote down the time on it. Ranger Elliott
testified that appellant “seemed relieved.”
Appellant, as well as the three law enforcement
witnesses, testified that he had been advised of his rights
several times through the day, that he understood his
rights, that he had been allowed to drink, smoke and use
the restroom, that no firearms had been displayed, no
overt threats were used ” and that appellant was in no
way mistreated. Additionally, it is uncontradicted that
appellant had refused to involve himself in the murder
and never gave any indication that he wanted to talk
about his involvement during what was described by the
witnesses as “continuing interrogation.” The officers all
agreed that they had not “taken” appellant’s statements
regarding “needing a couple of days. . .” as a request to
stop interrogation, but rather, an expression of his lack
of desire to give a final statement at that time.’ On cross
examination, the prosecutor asked appellant whether
the “real” reason for his having wanted “a couple of
days” was that he was wondering “who all” to implicate.
Appellant acknowledged that this had been a
7Appellant did testify that McLeroy had discussed with him the
prison social structure in which McLeroy allegediy told him that he
would be the object of sexual assaults. McLeroy, however, testified
that he did not “recall” such a conversation but conceded that he
“could have” had it.
8A reason offered by Elliott for this interpretation was that
appellant continued to answer his questions. Elliott admitted,
however, that appellant gave him no incriminating information.
A-9
consideration but denied that it was the prime reason.®
Appellant was asked why he signed the statement and
he replied that he thought it was the only way to “get out
of there.” The prosecutor asked appellant, “Did you tell
them I’d like to think about it and get it clear in my mind
before I sign that page [of the statement] after you read
it?” Appellant replied, “I spent the whole afternoon
telling them that and it didn’t do any good.”
In Miranda, supra, the Supreme Court of the United
States expressed its concern for the atmosphere of
custodial interrogation of criminal suspects, in which no
overt physical coercion nor patent psychological ploys
have been applied. Identifying as its goal the
specification of proper limitations upon custodial
interrogations, the Court set out procedural
requirements to be therein employed by law
enforcement officials. The Court made clear the
necessity of advising persons criminally accused of their
right against self-incrimination and their right to
counsel, and the requirement that once a defendant
invokes a Miranda right, all interrogation must cease.
Stated the Court at 1612 S.Ct.:
The defendant may waive effectuation of these
rights, provided the waiver is made
voluntarily, knowingly and intelligently. If,
however, he indicates in any manner and at any
stage of the process that he wishes to consult
with an attorney before speaking there can be
no questioning. Likewise, if the individual is
alone and indicates in any manner that he does
not wish to be interrogated, the police may not
question him. The mere fact that he may have
answered some questions or volunteered some
statements on his own does not deprive him of
%Appellant testified that one reason was that he wanted legal
advice.
A-10
the right to refrain from answering any further
inquiries until he has consulted with an
attorney and thereafter consents to be
questioned.
In Michigan v. Mosley, supra, the Supreme Court
was confronted with a question as to whether the
Miranda guidelines had been violated where the
accused invoked his right to remain silent regarding
some robbery offenses, and after a two hour interval, on
being again advised of his rights, implicated himself in
an unrelated homicide. The Court stated in this regard:
“A reasonable and faithful interpretation of the
Miranda opinion must rest on the intention of
the Court in that case to adopt ‘fully effective
means ... to notify the person of his right of
silence and to assure that the exercise of the right
will be scrupulously honored .. . .’ [citations
omitted] The critical safeguard identified in the
passage at issue 7s a person’s ‘right to cut off
questioning.’ [citations omitted] Through the
exercise of his option to terminate questioning
he can control the time at which questioning
occurs, the subjects discussed, and the duration
of the interrogation. The requirement that law
enforcement authorities must respect a
person’s exercise of that option counteracts the
coercive pressures of the custodial setting. We
therefore conclude that the admissibility of
statements obtained after the person in custody
has decided to remain silent depends under
Miranda on whether his ‘right to cut off
questioning’ was ‘scrupulously honored’.”
Mosley at 326 S.Ct.
Where the facts are in dispute, the trial court is the
sole judge of the credibility of the witnesses and the
Hereinafter cited as Mosley.
A-11
weight to be given their testimony; however, the
threshold question presented here is not one regarding
credibility of the interrogating officers, nor of the good
faith of the officers in their subjective interpretations of
appellant’s uncontradicted assertions of wanting “to
wait a couple of days...,” but whether appellant “in any
manner” invoked his right to remain silent and, if so,
whether such right was “scrupulously honored.”
We believe that the inescapable conclusion from the
verbatim testimony of the law enforcement officers
recited ante, is that appellant did “indicate” in “some
manner” his “desire” to invoke his right against self
incrimination. Appellant’s refusal to incriminate
himself in some three hours of continuous interrogation
is an additional ciréumstance which corroborates his
assertion that his statements of “needing” or “wanting a
couple of days .. .” were intended to indicate in some
manner that he was invoking his right to remain silent.
Further support for this conclusion is found in
testimony showing that Captain Roach deemed it
necessary to try to “persuade[appellant] to go ahead and
tell... hisstory about what happened...,” as well as that
Marvin McLeroy felt obliged to argue with appellant
about his need for a couple of days. [See, ante, at 6.]
Finally, it is clear that even if we agreed with the
officers’ asserted interpretation of appellant’s
statements - that he was not requesting that
interrogation cease, but rather, expressing his desire to
wait a couple of days before giving a final statement - no
different conclusion would be impelled. In Brewer v.
Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424
(1977), the Supreme Court concluded that the
accused’s “statements .. . that he would tell the whole
story after seeing [his lawyer] were the clearest
expressions by Williams himself that he desired the
‘\Hereinafter cited as Brewer.
A-12
presence of an attorney before any interrogation took
place.” Brewer at 1242 S.Ct. [Emphasis original.] See
also Hearne v. State, 534 S.W.2d 703 (Tex.Cr.App.
1976).
Likewise, we are unpersuaded by the State’s assertion
that appellant’s reason for “wanting a couple of days...”
was to give him time to decide “who all” to implicate.
Even if this were established by the record, which it is
not, there is nothing inherent in such a consideration
which negates the accused’s desire to refrain from
incriminating himself.
We hold that this appellant did indicate to the
interrogating officers that he wished to invoke his right
against self incrimination, and there is no dispute that
thereafter, the interrogation did not cease. Accordingly,
appellant’s right was not “scrupulously honored” and
the guidelines specified by Miranda were thereby
violated. Brewer; Mosley; Ochoa v. State, 573 S.W.2d 796
(Tex.Cr.App. 1978); Hearne v. State, supra.
The State nevertheless urges that appellant
ultimately waived his Fifth Amendment right and his
statement was thereby rendered admissible. The State
points to the facts found by the trial court that appellant
never requested an attorney and never stated: “I request
that the interrogation cease,” or words to that specific
effect. Furthermore, according to the State’s assertion,
appellant signed two documents entitled “Waiver of
Rights Form” -- one at 2:30 p.m. and another at 5:47 p.m.
-- which reflect his acknowledgement that he was given
all warnings required by Miranda; additionally, when
appellant signed the typed statement admitting his
guilt, such statement included a specific waiver of his
rights. Finally, the State assigns great significance to
the fact that appellant, after approximately three hours
of interrogation advised Captain Roach that “I can’t at
this time tell you about it, but if you’ll give me a piece of
paper, I'll try to write it down,” citing North Carolinav.
A-13
U.S. __ , 99 S.Ct. 1755, 60 L.Ed.2d 286
Butler,
(1979). 2
In Butler, the accused refused to sign a waiver of
rights form offered him by F.B.I. agents at the outset of
interrogation. Upon ascertaining that Butler
understood his rights, the agents advised him they
would like to talk, and the accused replied “I will talk to
you but I am not signing any form.” Thereafter Butler
incriminated himself. The Supreme Court discussed the
concept of waiver at length: “(In Miranda] this Court
said that
If the interrogation continues without the
presence of an attorney [a request for which
invoked the Fifth Amendment right to silence
per se] and astatement is taken, a heavy burden
rests on the government to demonstrate that
the defendant knowingly and _ intelligently
waived his privilege against self incrimination
and his right to. . . counsel. [citations omitted]
Further interpreting Miranda’s waiver prescriptions
the Court in Butler continued at 1757 S.Ct.:
An express written or oral statement of waiver
of the right to remain silent or of the right to
counsel is usually strong proof of the validity of
that waiver, but is not inevitably either
necessary or sufficient to establish waiver. The
question is not one of form, but rather whether
the defendant in fact knowingly and
voluntarily waived the rights delineated in the
Miranda case. As was unequivocally said in
Miranda, mere silence is not enough. That does
not mean that the defendant’s silence coupled
with an understanding of his rights and a
'2Hereinafter cited as Butler.
A-14
course of conduct indicating waiver, may never
support a conclusion that a defendant has
waived his rights. The courts must presume that
a defendant did not waive his rights; the
prosecution’s burden is great; but in at least
some cases waiver can be clearly inferred from
the actions and words of the person
interrogated.
The Court concluded that “the question of waiver must
be determined on ‘the particular facts and
circumstances surrounding that case, including the
background, experience, and conduct of the accused.’
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023,
82 L.Ed.2d 1461... .” Butler at 1758. See also Fare v.
Michael C., U.S. ____, 99 S.Ct. 2560, 61 L.Ed.2d 197
(1979).}8
Initially we observe that the trial court found as a fact
that appellant waived his constitutional rights.'4 The
question of waiver, however, is not a question of fact, but
an issue of Federal Constitutional Law. Brewer. It is
apparent then that the trial court applied an incorrect
constitutional standard in determining the issue of
waiver by which this Court is not bound. Jd.
Applying these principles to the circumstances of this
case, it is clear that the State has failed to meet its
“srreat” burden of showing a relinquishment of the right
'83Hereinafter cited as Fare.
4A lso found as a fact was that appellant waived his rights under
Article 38.22, V.A.C.C.P. As a conclusion of law in these regards,
the trial court stated:
“Joseph Stanley Faulder, after repeated warnings,
knowingly, intelligently, and voluntarily waived his
rights under Art. 38.22, V.A.C.C.P., including his right
to counsel, and his right to remain silent, prior to and
during the making of the statement.”
A-15
to silence on the part of this appellant. The only evidence
of waiver contained in this record is the appellant’s
signed confession which included a waiver recitation at
the top, and which followed his statement that he could
not talk about it, but would “try to write it down.”
Miranda teaches that no weight is to be given a failure
on the part of the accused to specifically request an
attorney’s assistance or that interrogation cease in the
exact language of that case, or, for that matter, at all;
likewise, “the mere fact” that appellant answered the
officers’ questions raises no presumption of waiver.
Here, appellant indicated his intention to invoke his
Fifth Amendment right soon after the outset of
interrogation, but was denied a “full and fair
opportunity to exercise that option.” See Miranda; cf.
Mosley. Unlike Mosley the case before us is one “where
the police failed to honor a decision . . . to cut off
questioning .. . by refusing to discontinue the
interrogation upon request [and] by persisting in
repeated efforts to wear down [appellant’s] resistance
and make him change his mind.” Jd. at 327 S.Ct. In
contrast to the circumstances shown by both Fare and
Butler, there has been no showing that appellant
“clearly” indicated a_ willingness to waive his
constitutional right against self incrimination.
Having found no evidence to support the trial court’s
finding that appellant did not invoke his Fifth
Amendment right against self incrimination, and
having rejected the standard applied by the trial court
in concluding that the State met its burden of proving
appellant waived such right, we hold that the trial court
committed reversible error through its failure to
suppress appellant’s statement obtained in violation of
his right to remain silent.
The State’s motion for rehearing is overruled.
CLINTON, Judge
(Delivered February 6, 1980)
EN BANC
A-16
JOSEPH STANLEY FAULDER, Appellant
No. 60,554, v. Appeal From Gregg County
THE STATE OF TEXAS, Appellee
DISSENTING OPINION ON STATE’S
MOTION FOR REHEARING
The prior dissenting opinion is withdrawn.
The majority overrules the State’s motion for
rehearing on the ground that appellant asked the
officers for two days to get things straight in his mind
before talking to them. Appellant testified that the
reason he did not want to talk at that time was that he
did not know who to involve in the crime. When he later
determined that the officers knew who were invuvived in
the crime, he was ready to confess. He wrote the
confession in his own handwriting.
The Supreme Court of the United States has held that
the totality of the circumstances should be considered in
determining if a confession were voluntarily made. His
reason to remain silent no longer existed when he found
out that the officers knew the others who were involved.
He then voluntarily wrote the confession in his own
handwriting.
The majority does not apply the holdings of North
Carolina v. Butler, _. U.S. ___._ ,99 S.Ct. 1755, 60
L.Ed.2d 286 (1979), and Fare v. Michael C., __—. U.S.
_<_, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), which are the
most recent Supreme Court interpretations of Miranda.
In Butler, the defendant was interrogated by FBI
agents in New York concerning a North Carolina
robbery. The agents established that the suspect had an
eleventh grade education and was literate. He then was
given the Bureau’s “Advice of Rights” form. The
defendant stated that he understood his rights but he
refused to sign the waiver at the bottom of the form. The
A-17
agents then stated that they would like to talk with him
further, and he replied: “I will talk to you but I am not
signing any form.” He then made _inculpatory
statements.
In holding the inculpatory statements admissible, the
Supreme Court stated:
“An express written or oral statement of
waiver of the right to remain silent or of the
right to counsel is usually strong proof of the
validity of that waiver, but is not inevitably
either necessary or sufficient to establish
waiver. The question is not one of form, but
rather whether the defendant in fact
knowingly and voluntarily waived the rights
delineated in the Miranda case. As was
unequivocally said in Miranda, mere silence is
not enough. That does not mean that the
defendant’s silence, coupled with an
understanding of his rights and a course of
conduct indicating waiver, may never support
a conclusion that a defendant has waived his
rights. The courts must presume that a
defendant did not waive his rights; the
prosecution’s burden is great; but in at least
some cases waiver can be clearly inferred from
the actions and words of the person
interrogated. [footnote omitted ]
“.. This is not the first criminal case to
question whether a defendant waived his
constitutional rights. It is an issue with which
courts must repeatedly deal. Even when the
right so fundamental as that to counsel at trial
is involved, the question of waiver must be
determined on ‘the particular facts and
circumstances surrounding that case,
including the background, experience, and
conduct of the accused.’ Johnson v. Zerbst, 304
A-18
U.S. 458, 464. See also United States v.
Washington, 431 U.S. 181, 188; Schneckloth v.
Bustamonte, 412 U.S. 208; Frazier v. Cupp, 394
U.S. 731, 739.”
In Fare v. Michael C., supra, a juvenile was warned of
his rights under Miranda v. Arizona. He asked if he
could have his probation officer present. The officers did
not get his probation officer and the juvenile confessed.
The Supreme Court of the United States reversed the
Supreme Court of California which had held that the
request for the probation officer to be a per se violation
of the minor’s Fifth Amendment rights in the same way
the request for an attorney was found in Miranda to be,
regardless of what the interrogation otherwise might
reveal.
The Supreme Court discussed North Carolina v.
Butler, supra, and held that the asking for the probation
officer did not invoke Miranda. The Court applied the
totality of the circumstances test and held the confession
to be admissible.
In the present case, Faulder did not ask for an
attorney; he asked for time “... to get it straight” and
then confessed in his own handwriting.
On Friday, April 22, 1977, Captain Bill Roach of the
Gregg County Sheriff's Department gave appellant the
standard Miranda warning. Appellant stated that he
understood his rights and did not want an attorney. He
did agree to take a polygraph test concerning the
murder in question.
On Monday, April 25, 1977, Roach, Texas Ranger
Glenn Elliott and appellant arrived in Tyler at
approximately 2:00 p.m. for the polygraph
examination. Appellant then declined to be tested.
Marvin McLeroy, the polygraph examiner, testified
that after appellant’s refusal he terminated the test and
asked appellant, “Would it be all right if I interviewed
A-19
him pertaining to this particular case myself. Subject
indicated to me that it would. At that point in time,
before any questions were asked, I told him the standard
Miranda warning, read it to him, and subject read it
and signed it.” He signed the waiver form three times.
McLeroy informed appellant that the police were
planning to question him regarding the instant murder.
After a fifteen minute interview, McLeroy left and
Ranger Elliott continued the interview at 2:30 p.m.
Elliott initially read appellant his rights again. “During
this talk, the defendant indicated to me that he would
like a couple of days to get this straight in his mind, and I
talked to him.” This need to get things straight was
brought up twice by appellant, and during cross-
examination Elliott agreed that he took it to mean that
appellant wanted to wait a couple of days in regards to
giving a statement about the murder. Appellant never
asked any of the officers to stop questioning him and all
of them testified that appellant was fully cognizant of
his rights.
Elliott’s first interview lasted thirty minutes and he
was followed by Roach who also initially questioned
appellant for thirty minutes. McLeroy, Elliott and
Roach all interviewed appellant a second time. Each
officer warned appellant before conducting the
interview.
Later, Roach read a list of names to appellant. In a
situation very similar to that in the Butler case,
appellant told Captain Bill Roach of the Gregg County
Sheriff's Department that “I can’t at this time tell you
about it, but if you’ll give mea piece of paper, I’1] write it
down for you.” Thereafter, appellant confessed his
participation in the murder in his own handwriting.
Roach left and returned with confession forms.
Appellant was brought into the reception area of the
building at 5:0C r.m. and signed the waiver of rights
form at 5:47 p.) >. He read aloud the portion of the waiver
A-20
regarding his right to counsel and initialed it. Appellant
then drew a diagram of the victim’s house while the
statement was typed. The statement was read by
appellant, read to him by the officers and he was given
an opportunity to make corrections before signing it.
The confession was signed at 7:22 p.m. Two of the five
hours appellant was in Tyler were consumed by
appellant giving the details of the confession and typing
it.
During the interview appellant had been allowed to
smoke cigarettes, drink coffee and use the bathroom.
Although the most of the interview occurred in the
polygraph room which is relatively secluded, that office
was accessible to the other departments at the Tyler
DPS office including: Weight and Motor Vehicle
Inspection, Narcotics, Intelligence, Auto Theft,
Rangers, Patrol, Laboratory and Driver’s License. The
bathroom used by appellant was in a hall by the driver’s
license facility and “some citizens were coming in and
out of the area.”
Roach stated that each time he orally warned
appellant he asked appellant if he understood his -
rights. The officers testified that appellant never
requested to see an attorney nor did he ask that the
questioning cease. Appellant received his Miranda
warnings six times during the interviews.
Appellant, on the other hand, testified that he
requested an attorney while being interviewed and
remembered telling the officers he needed time to think
about things. He said he made these requests “ten or
twelve times.” He admitted that he had not asked for an
attorney when he was brought in front of a magistrate
prior to and the day after his confession. He conceded
that it was possible that he had received warnings from
Roach and Elliott. He stated that he understood his
rights and knowingly signed the confession.
The polygraph room in which the interview was
A-21
conducted is equipped with a one-way mirror, an
intercom and a polygraph machine on a table in the
middle of the room. As noted above, although somewhat
secluded, it was fairly accessible to other areas of the
building. It was not a hidden room as described in the
original opinion. No weapons were exhibited during the
interview.
In the opinion on original submission, speaking of the
officers, it is written:
“All three ignored the request to remain
silent and chose to continue interrogation.”
There is no testimony to that effect. It is a conclusion
on the part of the writer.
There is disputed testimony concerning appellant’s
request for a lawyer. Appellant testified that he stated
that he wanted a lawyer. Three officers testified that he
never stated that he wanted a lawyer and one testified
that appellant stated that he did not want a lawyer.
There is no evidence of a “hidden room.” This was
shown to be a room where the polygraph operator had
the machine and when the confession was given it was
outside in the lobby of the office of the polygraph
operator.
The justice of the peace warned appellant of his
Miranda rights. Captain Roach warned him of his
rights and that he had a right to stop the interview at
any time. Appellant agreed to take the lie detector test.
Roach mentioned Stormie Summers’ name and that of
another person. Appellant said, “I can’t talk about it but
if you will give me a pencil and a piece of paper [ can
write it down”, and later he stated that the reason he
wrote it down was because he had to think about what he
wanted to put in the confession. He stated that he really
wanted to see who he would involve in the confession.
A-22
ihe names given him by Captain Roach were some of
those that were involved in the discussion or in the
commission of the crime.
Roach read the confession aloud and all of appellant’s
rights were listed on it. Appellant then read the
warning which contained the statement that he could
end it at any time and he signed his name. Appellant had
an opportunity to make changes in the confession and he
did so. Appellant testified that he knew he had aright to
a lawyer and knew that he had a right to stop the
conversation and that he had a prison record.
Concerning the taking of the polygraph examination,
McLeroy testified that he told appellant not to take the
test unless he thought he could pass it. After that,
appellant refused to take the test.
There is no statement in the record that he asked to
remain silent or that he asked them not to interrogate
him. He said that he wanted a couple of days to get it
straight in his mind. With the above qualifications, that
he wanted to see who he would involve in the confession
and that he had rather write it down than to tell it, it
goes to the totality of the circumstances that he never
demanded to end the interrogation, that he never asked
to end the interview, that he never indicated that he
wished to end the interview.
After he read what he had written down personally,
he said that he thought he could talk about it then.
Appellant testified that he knew that he had aright to
a lawyer; that he could stop the interrogation at any time
and he understood the other rights; that he did not
request the appointment of an attorney. He admitted
that he told Roach that “I can’t talk to you about it but I
will write it down”; that it was easier to write down than
it was to talk about it.
After he refused to take the polygraph examination,
A-23
he was asked by McLeroy if he wanted to talk about it.
He replied: “I just as well talk to you. I’ve talked to just
everybody else.” McLeroy testified that appellant freely
talked to him but he did not readily admit his
implication.
When one reads the record and under the totality of
the circumstances, the refusal to take a lie detector test
is not a request for the interrogation to cease. It should
be remembered that the operator of the polygraph
machine stated to the appellant not to take the test
unless he thought he could pass it. Then immediately
thereafter appellant said that he might as well talk to
him (the operator) because he had talked to everyone
else.!
It appears that the two days that he wanted to get it
straight in his mind was not a request to stop the
interrogation but apparently to not implicate all the
people that were involved in the burglary and homicide.
In North Carolina v. Butler, supra, Butler told the
officers: “I will talk to you but I’m not signing any form.”
The Court held in that case that the totality of the
circumstances showed that he vaived his rights. The
Court held:
“ ..[B]ut in at least some cases waiver can be
clearly inferred from the actions and words of
the person interrogated.”
and
“. the particular facts and circumstances
surrounding that case, including the
background, experience, and conduct of the
\Since there is a different interpretation in the evidence relied
upon by the majority and in this opinion, a more detailed statement
of the testimony with references to the page numbers is set out as an
appendix.
A-24
accused.’ Johnson v. Zerbst, 304 U.S. 458, 464,
58 S.Ct. 1019, 1028, 82 L.Ed. 1461. See also
United States v. Washington, 431 U.S. 181, 188,
97 S.Ct. 1814, 1819, 52 L.Ed.2d 238;
Schneckloth v. Bustamonte, 412 U.S. 218, 93
S.Ct. 2041, 36 L.Ed.2d 854; Frazier v. Cupp,
394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22
L.Ed.2d 684.”
In Fare v. Michael C., supra, the Supreme Court of the
United States applied the totality of the circumstances
test. The juvenile who was on probation at the time
asked to see his probation officer. The Supreme Court
held that there was sufficient evidence under the
totality of the circumstances to show that he waived his
right to remain silent.
In Williams v. State, 566 S.W.2d 919 (Tex.Cr.App.
1976), this Court held that although under the totality of
the circumstances the State must prove “an intentional
relinquishment of a known right,” an express waiver is
not required. See Michigan v. Mosley, 423 U.S. 96, 96
S.Ct. 321, 46 L.Ed.2d 313 (1975); Moreno v. State, 511
S.W.2d 273 (Tex.Cr.App. 1974). Where the facts are in
dispute, the trial judge as the fact finder can accept or
reject all or any part of the testimony of any witness,
including the defendant. Williams v. State, supra;
McKittrick v. State, 541 S.W.2d 177 (Tex.Cr.App.
1976).
The majority has not only refused to reexamine this
case in light of North Carolina v. Butler, supra, and
Fare v. Michael C., supra, but its opinion goes so far as
to hold the vague and ambiguous statement about a need
to “get things straight in my mind” by a defendant fully
cognizant of his rights renders a subsequent confession
inadmissible. This is contrary to the two recent United
States Supreme Court cases cited above and to sound
reasoning.
A-25
The State’s motion for rehearing should be granted
and the judgment should be affirmed.
Douglas, Judge
(Delivered February 6, 1980)
En Banc
Dally, J., and W.C. Davis, J., join in this dissent
A-26
APPENDIX
I. Chronological Summary of Facts
Wednesday and Thursday, April 20 and 21, 1977
Appellant was arrested and returned to Longview on
a warrant issued in connection with an unrelated theft
case. He arrived in Longview at about 9:00 p.m., April
20. (463) At 10:30 a.m. the following morning, appellant
was taken before J.P. Charles Cashell and given his
magistrate’s warning. (231) Appellant testified at the
suppression hearing that he understood his rights at this
time and that he did not request a lawyer because he felt
that he did not need one. (484)
Friday, April 22, 1977
At 9:10 a.m., appellant met with Deputy Bill Roach
and Ranger Glen Elliott in Roach’s office in the Gregg
County Courthouse. Prior to any discussion, appellant
was advised of his Miranda rights. (282, 417) According
to the officers, appellant’s rights were discussed at
length and he answered negatively when asked if he
wanted a lawyer. (283, 343, 418) The officers discussed
the theft case briefly, then informed appellant he was a
suspect in this capital murder case. This interview
lasted until 10:43 a.m. (288, 418) Appellant agreed to
take a polygraph test, and an appointment for the test
was made. (286) Appellant’s version of this interview
conforms with that of the officers. (486-491)
Monday, April 25, 1977
Elliott, Roach, and appellant left Longview at 1:00
p.m. and drove to Department of Public Safety
headquarters in Tyler where the polygraph test was to
take place. (288, 418) They arrived at about 1:45. (327,
363) Appellant was placed ina lock-up for a few minutes
while Elliott and Roach briefed Marvin McLeroy, the
polygraph operator. (291, 363)
A-27
McLeroy’s office consisted of a large outer office, in
which his desk was located, and two smaller adjoining
rooms. The polygraph was in one of these rooms. The
other room was an observation room; the polygraph
room was wired for sound and there was a two-way
mirror. (292) Throughout the afternoon, only one officer
was in the polygraph room with appellant at any given
time; the other two were usually in the observation
room.
Appellant was brought to the polygraph room at
about 2:00 p.m., and McLeroy began his “pre-test
interview,” consisting of various personal questions.
(363) McLeroy then explained the test to appellant, and
advised him not to take it if he was guilty or if he had any
information that he wanted to conceal. (367) Appellant
then told McLeroy that he did not want to take the test.
This had taken about 30 minutes, which would make the
time 2:30. (395)
Up to this point, there is no dispute between the
officers and appellant as to the events on April 25.
After appellant refused the test, McLeroy “asked the
subject would it be all right if I interviewed him
pertaining to this particular case, myself. Subject
indicated to me that it would. At that point in time,
before any questions were asked, I told him the standard
Miranda warning, read it to him, and subject read it and
signed it (a waiver of rights form, SX 8, 1479).” (368,
lines 18-24) McLeroy asked appellant if he needed a
lawyer, and appellant said, “No.” (371, 403) McLeroy
and appellant then talked until about 3:00; appellant’s
answers to McLeroy’s questions were uninformative.
(372, 394, 366)
McLeroy left the polygraph room at 3:00 and Elliott
entered. (294, 372) Elliott again informed appellant of
his rights, and talked to appellant for about thirty
minutes. (294, 373) During this conversation, appellant
told Elliott, “I need a couple of days to get it all straight,”
A-28
or words to that effect. (296, 329) This interview lasted
about thirty minutes. Elliott then left and Roach
entered the polygraph room; the time would now be
about 3:30. (296, 375)
Roach also talked to appellant for thirty minutes.
(375) Before he began, he also informed appellant of his
rights. (343, 421) During these first conversations with
Elliott and Roach, appellant was questioned generally
about his activities and associates at the time of the
murder. (295, 296)
At 4:00, McLeroy reentered the polygraph room,
followed by Elliott at 4:15 and Roach at 4:30. It is not
clear from the record whether the three officers again
advised appellant of his rights before beginning their
second conversations. (299, 300; 375, 376,; 422) During
his second conversation with Elliott, appellant again
said he needed time to think and get it all clear in his
mind. (299)
As of 4:30, when Roach entered the polygraph room
for the second time, appellant had made no
incriminating statements. (409) During this second
conversation, Roach showed appellant a list of names he
had written on a note pad and asked him about each of
the names. “When I got to the name Stormie Summers,
Stan sat there for a minute. He said, ‘I can’t at this time
tell you about it, but if you’ll give mea piece of paper, I’1]
try to write it down.’ ” (424, lines 4-7; also 301, 376)
Roach gave appellant a pen and paper, and he wrote a
short two-paragraph statement (SX 4, 1454) describing
the events at the Phillips house from the time appellant
and Summers entered until he hit the deceased with the
blackjack. (304, 376, 424) Appellant handed Roach this
statement and said, “After you read this I think I can
talk to you about it.” (425, lines 10 and 11; also 307)
It was now approximately 5:00 p.m. (332) Roach
immediately went to his car for waiver of rights and
A-29
custodial statement forms. (427) Meanwhile, appellant
was moved to McLeroy’s outer office so that all three
officers could observe his statement. (307, 377, 427)
Roach filled out a waiver of rights form and read it to
appellant. Appellant then read the waiver and signed it
at 5:47 p.m. (SX 5, 1476, 308, 309; 377, 378; 428)
Appellant was again asked if he wanted an attorney; he
replied that he did not. (308, 453, 454)
After signing the waiver, appellant drew a rough
diagram of the Phillips house. (SX 6, 1326; 310, 4380)
Then appellant dictated his confession to Roach. (SX 7,
1348; 314, 379, 482) After the statement was typed,
appellant read it, initialed some corrections, and signed
it; the time was 7:22 p.m. (816, 380, 433). The entire
statement, including the printed warning at the top of
the first page, was read to appellant before he signed. |
(316, 380, 433)
McLeroy, Elliott, and Roach repeatedly testified that
appellant never asked for an attorney and never asked
that the interrogation be ended. Elliott and Roach
testified that they did not interpret appellant’s
statement that he needed time to think as a request for
all questioning to cease. (330, 452)
Appellant testified that after McLeroy explained the
polygraph examination, he told McLeroy that he
wanted a lawyer and would not take the test until he
could talk to a lawyer. (464) He also testified that Elliott
and Roach did not advise him of his rights and that he
repeatedly asked that the questioning be stopped and an
attorney appointed. (469, 470, 472, 476). Appellant was
not able to recall clearly when he signed the two
waivers, but admitted that the signatures were his. (474,
500, 502)
On cross-examination, appellant admitted that one
reason he needed time to think was to give him time to
decide who else to involve in the murder, but asserted
that it was also to allow him to get legal counsel. (384)
A-30
Appellant also admitted making the statement “I can’t
talk about it, but I can write it down,” and then making
the first handwritten statement. (495, 501) Appellant
stated that he signed the formal confession only because
he thought that “it was the only way to get out of there.”
(505, lines 24, 25)
Tuesday, April 26, 1977
Appellant was taken before Judge Cashell to receive
his magistrate’s warning with regard to the murder
charge. Appellant did not request an attorney. (519)
Timetable For Monday Afternoon, April 25, 1977 :
2:00 McLeroy begins pre-test interview.
2:30 Appellant declines test, but agrees to talk;
signs first waiver of rights.
3:00 Elliott begins first conversation; gives
Miranda warning. Appellant says he needs
time to “get things straight.”
3:30 Roach begins first conversation; gives Miranda
warnings.
4:00 McLeroy returns.
4:15 Elliott returns; appellant again says he needs
time to think.
4:30 Roach returns with list of names; appellant
says he can’t talk, but he will write it out.
5:00 Appellant indicates he is ready to talk about the
murder; is moved to outer office and again
advised of rights.
5:47 Appellant signs second waiver of rights; begins
confession.
7:22 Confession signed.
APPENDIX B
B-1
NO. 60,554
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
JOSEPH STANLEY § STATE’S MOTION FOR LEAVE
FAULDER . TO FILE SECOND MOTION
FOR REHEARING AND
MOTION TO STAY MANDATE
PENDING APPLICATION FOR
WRIT OF CERTIORARI TO THE
U.S. SUPREME COURT
AND
APPELLANT'S MOTION
FOR LEAVE TO FILE
PETITION FOR WRIT OF
PROHIBITION
ORDER
The State’s Motion for Leave to File Second Motion for
Rehearing is denied.
V.
THE STATE OF TEXA
7
WP? WP? WO? LP QP Wr >? “OP? Dr Gr
The State’s Motion to Stay Issuance of Mandate
Pending Application for Writ of Certiorari to the U.S.
Supreme Court shall be filed in this Court and be set for
submission to the Court En Banc on March 26, 1980.
Oral argument may be requested.
Appellant’s Motion for Leave to File Petition for Writ
of Prohibition is granted and said Petition for Writ of
Prohibition shall be filed in this Court and be set for
submission to the Court En Banc on March 26, 1980.
Oral argument may be requested.
It is so ordered this 26th day of February, 1980.
PER CURIAM
En Banc
B-2
(Judges Odom and Phillips dissent to the filing and
setting of the State’s Motion to Stay the Mandate and
Appellant’s Petition for Writ of Prohibition.)
APPENDIX C
C-1
JOSEPH STANLEY FAULDER, Appellant
NO. 60,554 vs. Appeal from Gregg County
THE STATE OF TEXAS, Appellee
JOSEPH STANLEY FAULDER, Relator
Ancillary to No. 60554 vs. Original Application for
Writ of Prohibition
ODIS R. HILL, CRIMINAL DISTRICT
ATTORNEY, GREGG COUNTY,
Respondent
OPINION
Appellant Faulder was convicted of capital murder
and received the death penalty. On appeal this Court
reversed the conviction. The State, by and through
Gregg County Criminal District Attorney Hill has filed
a motion to stay the mandate of reversal in order that
review may be sought in the United States Supreme
Court pursuant to 28 U.S.C. Sec. 1257(c). Faulder has
filed an application for writ of prohibition to prevent
Hill from seeking such review.
The power of this Court to issue writs of prohibition is
granted in Art. 5, Sec. 5, of the Texas Constitution:
“Subject to such regulations as may be
prescribed by law, regarding criminal law
matters, the Court of Criminal Appeals and the
Judges thereof shall have the power to issue the
writs of habeas corpus, mandamus,
procedendo, prohibition, certiorari, and such
other writs as may be necessary to protect its
jurisdiction or enforce its judgments.”
The function of a writ of prohibition was stated in State
ex rel. Vance v. Clawson, 465 S.W.2d 164, 168:
C-2
“It has been said that ‘a writ of prohibition is
that process by which asuperior court prevents
inferior courts, tribunals, officers, or persons
from usurping or exercising jurisdiction with
which they have not been vested.’ 73 C.J.S.
Prohibition Sec. 1, p. 9.”
If the State, through the office of its Criminal District
Attorney of Gregg County, is preparing to seek review of
this Court’s decision in Faulder’s case, and if such action
is beyond the jurisdiction or power of that office, then a
writ of prohibition would be available to prevent such an
usurpation of authority.
Faulder argues the proposed action by Hill is outside
the power of his office because of the prohibition of
Article 5, Sec. 26, of the Texas Constitution, which
provides:
“The State shall have no right of appeal in
criminal cases.”
Faulder also relies on the similar provision of the Code
of Criminal Procedure, Art. 44.01, and on the plurality
dictum and concurring opinion in White v. State, 543
S.W.2d 366.
Hill replies with the argument that by virtue of the
supremacy clause of the United States Constitution,
Article VI, the provision of the Texas Constitution relied
on by Faulder must yield to 28 U.S.C. 7 1257(c),
which provides:
“Final judgments or decrees rendered by the
highest court of a State in which a decision
could be had, may be reviewed by the Supreme
Court as follows:
“cc
“(3) By writ of certiorari, ... where any
C-3
title, right, privilege or immunity is specially
set up or claimed under the Constitution,
treaties or statutes of, or commission held or
authority exercised under, the United States.”
We reject at the outset the notion that the supremacy
clause and Sec. 1257(c) play a significant role in the
analysis of whether a writ of prohibition should issue.
The federal statute relied on by Hill is concerned with
the jurisdiction of the Supreme Court to hear a case, i.e.,
with the power of that Court. We do not, nor could we,
propose to rule on what cases that Court may or may not
hear. The issue raised by Faulder, in contrast, is not one
of the power of the Supreme Court, but of the power of
the Criminal District Attorney of Gregg County.
Before jurisdiction may be exercised, it must be
legally invoked. State v. Olsen, 360 S.W.2d 398, 400.
Faulder challenges the capacity of the Criminal District
Attorney, as a state officer, to invoke the jurisdiction of
any court to review a criminal case. The powers of that
office, argues Faulder, are restricted by the provision of
the Texas Constitution which declares “The State shall
have no right of appeal in criminal cases.”
A simple example should illustrate the distinction
between questions of the power of the Supreme Court to
hear a case and the power of the State prosecutor to
request that Court to exercise jurisdiction. It is well
established that a party to a law suit, including a
defendant in a criminal case, may waive the right of
appeal, as well as many other rights and protections. If
the party waives that right, then his attorney is without
authority to pursue the appeal even though courts exist
with jurisdiction to hear an appeal in the case, if brought
before it. Denial to the attorney by the client of the
power to seek review is wholly distinct and independent
of the power of the reviewing court to hear the case. See
generally Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436,
50 L.Ed.2d 632 (1976). If Art. 5, Sec. 26, supra, were
C-4
construed as an instruction to the attorneys
‘representing the State in criminal cases, from their
client, the people of Texas, that the purpose for which
they are retained does not include seeking an appeal,
i.e., aS an instruction that they shall not appeal in
criminal cases, the parallel to our example of waiver
would be complete. The parallel, however, is drawn here
merely for purposes of illustrating the distinction
between the issue of the jurisdiction of the Supreme
Court, and the issue of authority of the prosecuting
attorney under State law. Having sharpened that
distinction, we reiterate that the former issue is not in
this case, and move on to the latter.
Faulder’s argument, simply stated, is that this is a
criminal case, action by respondent seeking review of
his case by the Supreme Court would constitute an
appeal, and the express prohibitions of Art. 5, Sec. 26,
supra, and Art. 44.01, V.A.C.C.P., would be violated by
such action on the part of respondent Hill. The plurality
dictum expressed in White v. State, supra, correctly
concluded, and respondent does not dispute, that a case
such as this one is a criminal case, and that review of the
case, whether denominated an appeal, a writ of error, a
writ of certiorari, or any other name, is still an appeal.
Beyond this part with which we agree, the plurality in
White concluded “that a petition for certiorari in the
Supreme Court in a case such as this one is an appeal of a
criminal case,” and therefore prohibited by Art. 5, Sec.
26, supra. Today we reach a different conclusion, based
on the scope of the prohibition of Section 26, as
considered in light of the constitutional context of that
prohibition.
Article 5 of the Texas Constitution is entitled
“Judicial Department.” It establishes the structure,
powers, and responsibilities of the judicial branch of the
State of Texas. As such, it is addressed to the derivation,
characteristics, and internal relations of that system,
and does not speak to the relation of that system or a part
C-5
of that system to entities beyond, such as the federal
judiciary. In this context, we construe the outer limits of
the prohibition of Section 26 to be a restriction on the
permissible operations within the Texas judicial
system. This holding on the outer limits of the scope of
Sec. 26 is sufficient to support our conclusion that no
violation of that provision would occur by respondent
filing application for writ of certiorari in the Supreme
Court to review our decision in appellant-relator’s case.
Consequently, in deciding this case it is unnecessary to
make further examination of Sec. 26 with respect to the
exact scope of its restriction within the Texas judicial
system.
For these reasons, we hold Art. 5, Sec. 26, of the Texas
Constitution does not prohibit respondent from seeking
review of our decision in this case by application for writ
of certiorari in the Supreme Court of the United States.
The application for writ of prohibition is denied.
It is the practice of this Court to issue a stay of
mandate for thirty days when review of a decision of this
Court is sought by an unsuccessful appellant in a death
penalty case. We similarly issue such a stay in this case.
The motion to stay the mandate is granted for thirty
days.
It is so ordered.
ODOM, Judge
(Delivered July 2, 1980)
En Bane
C-6
JOSEPH STANLEY FAULDER, Appellant
No. 60,554, v. Appeal from Gregg County
THE STATE OF TEXAS, Appellee
JOSEPH STANLEY FAULDER, Relator
JOSEPH STANLEY FAULDER, Relator
Ancillary to No. 60,554, v. Original Application for Writ
of Prohibition
ODIS R. HILL, Criminal District
Attorney, Gregg County, Respondent
CONCURRING OPINION
I concur for the reasons in the dissent to the plurality
opinion in White v. State, 543 S.W.2d 366, 370
(Tex.Cr.App. 1976), on remand from the Supreme Court
of the United States.
The question is answered in 1914 in Harrison v. St.
Louis & S.F.R. Co., 232 U.S. 318, 34S.Ct. 333, 58 L.Ed.
621.
The St. Louis and San Francisco Railroad Company
was a corporation chartered under the laws of Missouri.
It operated in interstate commerce and had hundreds of
miles of railroads in Oklahoma. In 1980 the company
was sued by a resident of Oklahoma in a state court. On
the ground of diversity of citizenship the railroad
company filed to remove the case to a federal court. The
acting Secretary of State for Oklahoma under a state
statute declared the license of the railroad company
forfeited because it had filed to remove the case to
federal court. The Supreme Court wrote:
“It may not be doubted that the judicial
power of the United States as created by the
Constitution and provided for by Congress
pursuant to its constitutional authority is a
power wholly independent of state action, and
C-7
which therefore the several states may not by
any exertion of authority in any form, directly
or indirectly, destroy, abridge, limit, or render
inefficacious. The doctrine is so elementary as to
require no citation of authority to sustain tt.
Indeed, it stands out so plainly as one of the
essential and fundamental conceptions upon
which our constitutional system rests, and the
lines which define it are so broad and so
obvious, that, unlike some of the other powers
delegated by the Constitution, where the lines
of distinction are less clearly defined, the
attempts to transgress or forget them have
been so infrequent as to call for few occasions
for their statement and application.”
(Emphasis supplied)
It can be readily seen that the Texas Constitutional
Provision as construed by the dissenters would prevent
the State of Texas seeking relief upon a federal question
as the Supreme Court wrote in the Harrison case the
judicial power of the United States as created by the
Constitution of the United States is a power wholly
independent of state action and the states may not
destroy, abridge or limit that power.
The dissenting opinion in the present case would have
sounded more reasonable after Texas had seceded from
the United States and before the questions were settled
in the war between the states, but that war has been over
for quite a few years and we are now a part of the United
States. The Constitution of the United States applies to
all states.
The Constitution of the State of Texas can no more
prevent the State from seeking relief in our federal
courts than it could prevent a defendant in a criminal
case from seeking to exert a federal right in a federal
court.
C-8
There has been some hesitancy on the part of
prosecutors to exert the rights of citizens of Texas to the
highest court of our land because of the plurality opinion
in White v. State, supra. It would be helpful for that
court to say again what it said in the Harrison case.
Douglas, Judge
(Delivered July 2, 1980)
En Bane
C-9
JOSEPH STANLEY FAULDER, Appellant
NO. 60,554 v. Appeal from GREGG County
THE STATE OF TEXAS, Appellee
JOSEPH STANLEY FAULDER, Relator
Ancillary to No. 60554 v.Original Application for
Writ of Prohibition
ODIS R. HILL, Criminal District
Attorney, Gregg County,
Respondent
CONCURRING OPINION
I concur in the result reached by the majority;
however, I am unwilling to concede that “appeal” as
used in Art. 5, Sec. 26 of the State Constitution includes
review by writ of error or writ of certiorari.
DALLY, Judge
(Delivered July 2, 1980)
En Bane
C-10
JOSEPH STANLEY
FAULDER, Relator
[Ancillary to No. 60,554] vs. Original Application for
Writ of Prohibition
ODIS R. HILL, Criminal District
Attorney, Gregg County
Respondent
CONCURRING AND DISSENTING OPINION
ae
A majority of the Court apparently agree on the
threshold questions in this case: that this Court has
jurisdiction to issue a writ of prohibition, that petitions
to the Supreme Court for writs of certiorari are
“appeal[s] in criminal cases,”! and that this case involves
the constitutional powers of the State of Texas rather
than the supremacy clause in Article VI of the United
States Constitution.2 With these holdings I concur. On
the remaining, crucial question the Court is unable to
speak with a majority voice.
IT.
“The State shall have no right of appeal in criminal
cases.” Texas Constitution, Article V, Section 26. I
believe that this provision means what it says. White v.
State, 543 S.W.2d 366 (Tex.Cr.App. 1976)(opinion of
Roberts, J.). Its meaning has been accepted for a
hundred years. When a constitutional provision is so
clear and unequivocal, and its meaning is so well settled,
its apparent command should be overridden by only the
most compelling considerations. The majority have not
‘Only Judge Dally does not agree with this holding.
2Only Judge Douglas does not agree with this holding.
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advanced any compelling argument to support their
result.
The opinion for a plurality? of three judges would hold
that Article V, Section 26, applies only to appeals among
the courts of our state. And what is the support for this
assertion? It is that,
“Article 5 of the Texas Constitution is
entitled ‘Judicial Department.’ It establishes
the structure, powers, and responsibilities of
the judicial branch of the State of Texas. As
such, it... does not speak to the relation of that
system or a part of that system to entities
beyond, such as the federal judiciary.
Of course, that assumes the very thing that is at issue:
whether part of Article V does speak to the relation of
Texas to the federal judiciary. In logic this fallacy is
called petitio principvi -- begging the question. Even on
its own terms the argument fails. Consider Article IV of
our Constitution; it is entitled “Executive Department,”
and it establishes the structure, powers, and
responsibilities of the executive branch of the State of
Texas. Nonetheless it does speak to the relation of that
system to entities beyond; see Texas Constitution,
Article IV, Section 10.4 The drafters of the Constitution
evidently did not think that the title “Executive
3If “plurality” were used in its root sense of “more,” the true
plurality would be the four dissenting judges who share a common
view that Section 26 forbids further appeal. By custom “plurality”
also refers to the opinion on the prevailing side which has the most
support. In this case, as in White v. State, 543 S.W.2d 366
(Tex.Cr.App. 1976), the leading opinion does not have majority
support on the meaning of our constitution; to borrow Judge Odom’s
phrase, it is “plurality dictum.”
4“ The Governor]...shall conduct, in person, or insuch manner as
shall be prescribed by law, al] intercourse and business of the State
with other States and with the United States.”
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Department” limited the scope of Article IV to
intrastate matters; why should the title “Judicial
Department” limit the scope of Article V? That would be
to decide an important constitutional question on
irrelevant, superficial grounds.
Even worse, the plurality opinion ignores the will of
the people who adopted the Constitution of 1876. If
today’s plurality opinion were followed, the State would
be forbidden to appeal a directed verdit of not guilty (for
example) to this Court, but it could appeal to the
Supreme Court of the United States. Can the plurality
believe that the Constitution of 1876, which declares in
its very first section that “the maintenance of our free
institutions and the perpetuity of the Union depend
upon the preservation of the right of local self-
government, unimpaired to all the States,” was
designed to allow the State to turn to a federal court
more easily than to the state courts? Can the plurality
believe that the voters of 1876, who had lately seceded
from the United States and who were repealing the
reconstruction Constitution of 1869, intended to submit
to a federal court questions which they would not
entrust to their state courts? The plurality opinion
ignores this history, as it ignores the century of
agreement on the meaning of the plain words in Section
26. Its reasoning does not even support, much less
compel, its result.
A fourth judge reiterates his view which he expressed
in White v. State, 543 S.W.2d 366, 370 (Tex.Cr.App.
1976)(opinion of Douglas, J.), that states have federally-
created rights to appeal which cannot be denied even by
their own constitutions. He is alone in that view of
constitutional law. Harrison v. St. Louis & S.F.R.R., 232
U.S. 318 (1914) is irrelevant. There a state tried to
prevent a separate entity (a corporation) from
exercising its right to litigate in federal court. Had the
corporation simply chosen not to litigate, no federal
question would have been presented. The question
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before us is whether the State of Texas has chosen, in its
Constitution, never to appeal a criminal case. No
separate entity would be prevented from doing
anything;® the question is one of internal choice, not
external coercion as in Harrison.
The final opinion that would deny the writ of
prohibition does not concede that “appeal” as used in
Section 26 includes review by writ of certiorari. Because
that opinion is the deciding one, it effectively
determines the law. Our holding today, therefore, is that
the State can petition the United States Supreme Court
for a writ of certiorari; we have not decided whether the
State can appeal. In effect the meaning of our state
constitution turns on the procedural vagaries of Title 28
of the United States Code. I cannot believe that the
Constitution of 1876 was intended to grant or deny an
organic power on such an extraneous basis.
An important constitutional question has come before
us. The Court has effectively rewritten our constitution,
without the approval of the voters, by accumulating two
inadequate reasons and one misunderstanding of
constitutional law. This is not a bright day in the history
of this Court.
To the denial of the writ of prohibition, I dissent.
ROBERTS, Judge
DELIVERED: July 2, 1980
EN BANC
5Misunderstanding of this elementary fact is revealed in the
concurring opinion’s statement: “The Constitution of the State of
Texas can no more prevent the State from seeking relief in our
federal courts than it could prevent a defendant...” This is tospeak
of the State as though, like a defendant or a railroad, it were an
entity apart from the Constitution of the State of Texas. The
question cannot be whether the State has an inherent power which
it is being prevented from using; it is whether Article V, Section 26,
means that it is without a power to appeal this case.
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JOSEPH STANLEY
FAULDER, Relator
[Ancillary to No. 60,554] vs. Original Application for
Writ of Prohibition
ODIS R. HILL, Criminal District
Attorney, Gregg County,
Respondent
DISSENTING OPINION
Courts are reluctant to decide constitutional questions
and they should be passed on only when raised and when
the necessity arises. 12 Tex.Jur.2d, Constitutional Law,
§ 14, p. 362. I am convinced there is no necessity to pass
on the constitutional question here involved. A statute
answers the question. Further, if the constitutional
question is to be reached, I have concluded the majority
opinion, which ignores the rules of constitutional
construction and uses artificial and simplistic
reasoning, is wrong, dead wrong. For these reasons, I
dissent.
The relator, Faulder was convicted of capital murder
and received the death penalty. On appeal his conviction
was reversed in a 6-3 decision because his extrajudicial
confession, which was admitted into evidence, was
obtained in violation of his Fifth Amendment, United
States Constitution, rights, and in violation of Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46
L.Ed.2d 313 (1975), and cases decided by this court. See
also Article 38.22, V.A.C.C.P.
The State, by and through its Criminal District
Attorney of Gregg County, the Honorable Odis R. Hill,
has filed a motion to stay this court’s mandate of reversal
in order that the State may obtain review of this court’s
decision in the United States Supreme Court pursuant
to 28 U.S.C., §1257(c). Respondent Hill is candid. He
makes no pretenses, and by pleading and oral argument
makes clear he wants to appeal the decision of this court.
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Relator Faulder has filed an application for a writ of
prohibition to prevent Hill from seeking such review.
Relator relies upon Article V, §26 of the Texas
Constitution and Article 44.01, V.A.C.C.P., which
prohibit appeal by the State in criminal actions or cases.
Germane to this discussion is the official oath
prescribed by the Texas Constitution (Article XVI, §1),
which the Respondent Hill and the members of this
court have taken. It prescribes in part:
“I... will to the best of my ability preserve,
protect, and defend the Constitution and laws of
the United States and of this State; ... .”
(Emphasis supplied.)
The remedy sought by the relator is a writ of
prohibition. Under the 1977 amendment to Article V, §5
of the Texas Constitution this court, subject to such
regulations as may be prescribed by law, has,
“regarding criminal law matters,” the power to issue
writs of prohibition and the same is not limited to a writ
necessary to protect this court’s jurisdiction or enforce
this court’s judgment. Thomas v. Stevenson, 561 S.W.2d
845 (Tex.Cr.App. i978)(Concurring Opinion).
In Vance v. Clawson, 465 S.W.2d 164, 168
(Tex.Cr.App. 1971), this court stated:
“It has been said that ‘a writ of prohibition is
that process by which asuperior court prevents
inferior courts, tribunals, officers, or persons
from usurping or exercising jurisdiction with
which they have not been vested.’ 73 C.J.S.
Prohibition §1, p. 9.”
It seems that if the Respondent Hill in his official
capacity as the Criminal District Attorney of Gregg
County is seeking, as he claims, an appeal or review of
this court’s decision in the Fiaulder case, and if such
action is beyond the jurisdiction or power of his office,
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then a writ of prohibition would be available to prevent
such a usurpation of authority.
Next to be considered is whether the action the
Respondent Hill seeks to take -- review of this court’s
judgment by writ of certiorari in the United States
Supreme Court -- is an appeal in a criminal action or
case. There can be no question but that the offense of
capital murder, V.T.C.A., Penal Code, §19.03, for which
Relator Faulder was tried and convicted and assessed
the death penalty, is a penal offense. And it is further
noted his appeal was to this court, which is the only court
in the state with appellate jurisdiction in all criminal
cases. Article V, §5, Texas Constitution. Thus, there is
no quarrel that we are dealing with a criminal action or
case.! Is, however, the action sought to be taken by
Respondent Hill an “appeal”?
Long prior to the adoption of the 1876 Constitution
the Supreme Court of the Republic of Texas in Republic
v. Smith, Dallam, 407, 408, 409, defined an appeal as “a
complaint to a superior court of injustice done by an
inferior one.” See also Cottrell v: Board of County
Commissioners of Paulding County, Ohio, 24 Ohio N.P.,
N.S. 281.
Certiorari is a remedy well known to common law asa
writ issued from a superior court directing an inferior
court to transmit to it the record of some proceedings for
review. Zamora v. Garza, 117S.W.2d 165(Tex.Civ.App.
- San Antonio, 1938); City of San Angelo v. Boehme
Rakery, 144 Tex. 281, 190 S.W.2d 67 (1945); Ashworth v.
1In Ex parte Wolters, 144S.W.531(Tex.Cr.App. 1911), this court
quoting from Taylor v. Goodrich, 25 Tex.Civ.App. 109, 40S.W. 515,
524 (1897), stated:
“A ‘criminal case’ is defined to be an action, suit, or
cause instituted to secure a conviction and punishment
for crime, or to punish an infraction of the criminal law.”
C-17
Hatcher, 98 W.Va. 323, 128S.E. 93 (1924). In Shapleigh
Hardware v. Brumfield, 159 Miss. 175, 130 So. 98
(1930), it was held that certiorari is an appellate pro-
ceeding for reexamination of the action of an inferior
tribunal. And it has been said appeal and certiorari are
analogous proceedings. Curry v. Terrell, 1 White & W..,
Civ. case, Ct.App., §239.?
And in White v. State, 548 S.W.2d 366, 368
(Tex.Cr.App. 1976), the plurality opinion stated in part
“... it seems clear that a petition for certiorari, like a
writ of error in Texas practice, is an ‘appeal,’ albeit a
discretionary one. Hart v. State, supra (13 Tex.App.
555, Galveston Term 1883)... Durham v. United States,
401 U.S. 481, fn. at 483, 91 S.Ct. 858, 28 L.Ed.2d 200
(1971). To say that review by certiorari does not
constitute an appeal is to make a distinction without
substance, since such a review necessarily involves an
attemnt to persuade a superior court to correct the error
of the lower court.”
The Respondent Hill admits the action he seeks to take
is an appeal, and I do not understand the majority to
question that the action the respondent seeks to take is
an appeal.’
There does not appear to be any question that what the
Respondent Hill seeks to do is to appeal acriminal action
or case.
2In Gould v. Klabunde, 63 N.E.2d 258, 262, 326 Ill.App. 643
(1945), it was held an “appeal” is a review by asuperior tribunal, the
method of which review may be called either “certiorari” or
“appeal ”
3Judge Dally in a brief concurring opinion is, however, unwilling
to concede that “appeal” as used in Article V, § 26 of the State
Constitution includes review by writ of certiorari, but regrettably
he does not elaborate.
C-18
Article 44.01, V.A.C.C.P. (1965), found in Chapter 44
of the Code of Criminal Procedure, entitled “Appeal and
Writ of Error,” provides:
“The State shall have no right of appeal in
criminal actions.”
This article has remained unchanged at least since
Article 836 of the 1879 Code of Criminal Procedure
which was enacted by the 16th Legislature on February
21, 1879 and became effective July 24, 1879. Said
Article became Article 871 in the 1895 Code of Criminal
Procedure, Article 893 in the 1911 Code of Criminal
Procedure and Article 812 in the 1925 Code of Criminal
Procedure. Thus, the voters of this state, through their
elected representatives, have for over a hundred years
repeatedly re-affirmed by statute independent of any
constitutional provision a broad, firm public policy that
the State shall have no right to appeal in criminal
actions.
The language in the statute is definite, direct, simple
and unambiguous, eliminating any need for judicial
construction. The statute legally blocks Respondent
Hill’s efforts to seek review in the United States
Supreme Court by writ of certiorari in this court’s
decision ir the Faulder case. For this reason and for this
reason alone the writ of prohibition should issue. This
should end the matter.
The majority, however, ignores the precedent that
courts should avoid deciding constitutional questions
unless the necessity arises. It rushes to judgment and
decides the constitutional question with only a mention
and absolutely no consideration of Article 44.01,
V.A.C.C.P., in the decision making process. Surely the
statute must be considered in some way before the
majority agrees that the application for writ of
prohibition should be denied. The bench and the bar,
and if you please, the public, are at least entitled to this
C-19
much.
Since the 5-4 majority decides the question on the
basis of the state Constitution without regard to the
statute, this necessitates showing why that decision,
independent of the statute, is even in error.
Article V, §26, Texas Constitution, provides:
“The State shall have no right of appeal in
criminal cases.”
The Interpretive Commentary to said constitutional
provisions provides a brief history of the right of the
State to appeal in criminal cases. It state in part:
“Although the present Texas constitution
denies the state any appeal whatever, an
examination of earlier constitutions reveals
that there has been no consistent regard for the
defendant in this respect. The Constitution of
the Republic of Mexico charged the General
Congress with the duty of prescribing the
procedure of the courts in criminal matters.
The Constitution of 1836 of the Republic of
Texas merely provided that the common law
should be the rule of decision in criminal cases.
The first state constitution left the matter of
criminal procedure to the legislature, and the
legislature in providing for criminal appeals
did not confer a right of appeal upon the state
until 1856.
“Although the Constitution of 1845 provided
that a defendant could not be again put on trial
for the same offense after a verdict of not guilty,
the provision adopted in 1856 permitted the
state to appeal from asustained exception of the
defendant to the indictment or information and
from a sustained motion of the defendant in
arrest of judgment.
C-20
“The provisions of the Constitution of 1845
were incorporated into the Constitution of 1861.
The statute of 1856, permitting a limited
appeal by the state, ceased to be operative upon
the adoption of the Constitution of 1869,
following which the prosecution was afforded a
right to appeal apparently equal to that
accorded the defendant in felony cases. This
development was of brief duration, however,
inasmuch as the present restriction came into
being with the adoption of the Constitution of
1876.” (Emphasis supplied.)
The constitutional prohibition represents a broad and
firm public policy that has endured for over one
hundred years with due observance from its public
officials in accordance with their constitutional oath
except for the aberration that is White v. State, supra. It
is stated in definite, plain, simple and unambiguous
language and is easily understandable. It needs no
judicial construction. It has long been considered as
prohibiting any and all kinds of appeal by the State in
criminal cases. Citing the constitutional provision 5
Tex.Jur.2d, Appeal and Error -- Criminal, § 16, p. 37,
states, “The State has no right of appeal in any criminal
case.” (Emphasis supplied.) And the article “Should the
State Have an Appeal in Criminal Cases?” 1 S.W.L.J.
152 (1947) viewed the constitutional provision as
denying “the state any appeal whatsoever.”
The Constitution is the fundamental law containing
the principles on which the state government rests,
regulating the three branches of government, and
directing how each department shall exercise its
powers. Texas National Guard Armory Board v.
McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939). The
provisions of the Constitution, unless the contrary
appears therefrom, are mandatory and not merely
directory. Ex Parte Anderson, 46 Tex.Cr.R. 372, 81
S.W. 973 (1904). The courts and prosecutors must be
C-21
obedient to its commands; Ex parte Anderson, supra,
and neither executive officers nor the judiciary can law-
fully act beyond the constitutional limitations.
Traveler’s Ins. Co. v. Marshall, 76 S.W.2d 1007 (Tex.
1934).
Turning to the rules of constitutional construction, it
is observed that constitutional provisions which are not
ambiguous and are not open to more than one
construction or interpretation must be given their full
effect without regard to the consequences. Cramer v.
Sheppard, 167 S.W.2d 147 (Tex. 1942); Rawlins v.
Drake, 291 S.W.2d 349 (Tex.Civ.App. - Dallas 1959);
Bexar County Hospital District v. Crosby, 320 S.W.2d
247, 253 (Tex.Civ.App. - San Antonio 1958); Keller v.
State, 87 S.W. 669 (Tex.Cr.App. 1905); Koy v.
Schneider, 110 Tex. 369, 218 S.W. 479, 221 S.W. 880
(Tex. 1920). And constitutional provisons will not be
construed to be ambiguous and contradictory if such
construction is avoidable. Holman v. Broadway
Improvement Co., 300 S.W.15 (Com.App. 1927). And
when the signification of a phrase or clause is plainly
discoverable from the words thereof, there is no reason
to resort to rules of construction and effect should be
given to the meaning thus ascertained. Words will be
considered to have been used in their natural sense and
ordinary significance unless the context indicates the
contrary. 12 Tex.Jur.2d, Constitutional Law, § 14, pp.
362-363. The language used must be presumed to have
been carefully selected and the words used are to be
understood as people generally understood at the time of
the adoption of the Constitution. Cramer v. Sheppard,
167 S.W.2d 147 (Tex. 1942); City of Amarillo v. Love, 356
S.W.2d 325 (Tex.Civ.App. - Amarillo 1962),
err.ref.n.r.e.; Leander Ind.Sch.Dist. v. Cedar Park
Water Sup. Corp., 479 S.W.2d 908 (Tex. 1972). See
Markowsky et al. v. Newman et al., 136 S.W.2d 808
(Tex. 1940). And if a term appears to have received a
judicial construction prior to its use in a constitutional
C-22
provision, the inference is that it bears this signification.
12 Tex.Jur.2d, Constitutional Law, § 14, p. 363; Carr v.
Tucker, 42 Tex. 330 (1875).4
It seems clear to this writer that the meaning of said
§26 of Article V is plainly discoverable from the words
themselves and there is no reason to resort to rules of
construction to ascertain the meaning.® It should be
given effect as written for when the meaning of the
language selected by the framers of a constitution is
clear, this controls the court in interpreting it. Ex parte
Myer, 207 S.W. 100 (Tex.Cr.App. 1918).
It is also noted that whenever the language employed
in a constitution is prohibitory, such as in § 26 of Article
V, it is intended to be a positive and unequivocal
negation. Ex parte Anderson, 46 Tex.Cr.R. 372, 81S.W.
973 (1904).
Strong as a conclusion may be drawn from the plain
and unambiguous language of a constitutional pro-
vision it may still derive support from other sources. It is
an historical fact that for over a hundred years courts
and lawyers, law professors and the public have viewed
and construed the prohibition against the State’s right
to appeal in a criminal case as being absolute and as
applying to any type of appeal. Thus where there has
been acquiescence in a practical construction for a long
period of time this should be asafe guide as to the proper
4‘As earlier noted, the word “appeal” had received a judicial
construction prior to the adoption of the 1876 Constitution. In
Republic of Texas v. Smith, Dallam 407 (1840), the Supreme Court
of the Republic defined an appeal as a “complaint to a superior
court of injustice done by an inferior one.”
5] f the drafters of anew Constitution sought to prohibit the State’s
right of appeal in criminal cases, how could plainer language be
found than is now contained in Article V, § 26 of the present
Constitution?
C-23
interpretation. See and cf. Walker v. Baker, 196S.W.2d
324, 327 (Tex. 1946). General public acceptance of and
acquiescence in a certain construction of the
Constitution extending over a long period of time gives
rise to the doctrine that affords to such acceptance
persuasiveness akin to precedent. Sheppard v. San
Jacinto Junior College Dist., 363 S.W.2d 742 (Tex. 1962).
“A constitution should receive a consistent
and uniform interpretation, so that it is not to
be taken to mean one thing at one time and
another thing at another time when the
circumstances may have so changed as perhaps
to make a different rule in the case seem
desirable.” 12 Tex.Jur.2d, Constitutional Law,
§ 17, p. 365.
The primary rule of interpreting and construing the
Constitution is to ascertain the intention of the people in
adopting it and give effect to that intention. Cox v.
Robison, 150 S.W. 1149 (Tex. 1912); Collingsworth
County v. Allred, 40 S.W.2d 13 (Tex. 1931); Ferguson v.
Wilcox, 28 S.W.2d 526 (Tex. 1930); Farrar v. Bd. of
Trustees of Emp. Retirement System of Tex., 243
S.W.2d 688 (Tex. 1951). The meaning of a Constitution is
fixed when it is adopted and is not different at any
subsequent time. Cox v. Robison, supra; Jones v. Ross,
173 S.W.2d 1022 (Tex. 1943). And in interpreting the
Constitution courts may look to the conditions existing
at the time of adoption, general spirit of times, and
prevailing sentiment. Mumme v. Marrs, 40 S.W.2d 31
(Tex. 1931).
6In Walker v. Baker, supra, it was noted that where for 100 years
the State Senate did not construe the State Constitution as
conferring on it power to convene at will to consider Governor’s
recess appointment gives weight to the construction that the
Constitution does not authorize.
C-24
The courts, in construing the Constitution, must give
effect to the intent of the people in adopting it as found in
the instrument itself, and it will be presumed that the
language thereof has been employed with sufficient
precision to convey such intent, and where such
presumption prevails nothing remains except to enforce
such intent. Holley v. State, 14 Tex.App. 505 (1883).
Turning to 1876 we find that the people of Texas had
only recently gone though a war among the states,
witnessed the occupation of the state by federal troops,
endured a Reconstruction Era with its carpetbaggers,
and had briefly experimented with the unlimited right
of appeal by the State in criminal cases. By
constitutionally prohibiting the State the right of appeal
in criminal cases, it is obvious they were disenchanted
with their experiment. It is reasonable to assume under
the circumstances of the times that the framers of the
Constitution and then the voters intended to prevent
prosecutors from appealing within their own state
judicial system and yet somehow to permit these same
prosecutors the right to appeal the same state criminal
cases to the United States Supreme Court? It is not
reasonable, in fact it is absolutely unreasonable, to so
conclude, given the spirit of the times. And certainly a
constitutional provision must be reasonably construed
in a manner not repugnant to common sense. First
National Bank v. City of Port Arthur, 35 S.W.2d 258
(Tex.Civ.App. - Beaumont 1931). Further, my research
has failed to reveal that it was ever the practice of state
prosecutors at the time to appeal state criminal cases to
the United States Supreme Court even when the State
had the unlimited right of appeal.
Without any claim that the constitutional prohibition
is ambiguous, without resort to any rules of
construction, without consideration of the history of the
times and without any citation of authority or
precedent, the majority simply states that since the
constitutional prohibition, age 104, is found in that
C-25
portion of the Constitution entitled “Judicial
Department” that the prohibition on appeals by the
State is a restriction only within the state judicial
system. What the majority overlooks is that in every
earlier state constitution there was a division thereof
entitled “Judicial Department” and the mere fact that
the prohibition was placed for the first time under
“Judicial Department” in the 1876 Constitution cannot
be said, without more, to be an adoption of a public
policy of a limited prohibition of the right of the State to
appeal in criminal cases. In order to reach the desired
result, the majority has by its own edict amended the
Constitution by adding to § 26 of Article V the words
“within the state judicial system.” I find no justification
for such action.’
It is not for courts to undertake to amend or rewrite »
the Constitution by judicial decision. Rawlins v. Drake,
291 S.W.2d 349, 350 (Tex.Civ.App. - Dallas 1956). Only
the people can do that. Moore v. Edna Hospt. Dist., 449
S.W.2d 508 (Tex.Civ.App. - Corpus Christi 1969),
ref.n.r.e. Those called upon to construe the Constitution
are not authorized to ree into the Constitution
language not contained therein or by construing the
Constitution differently from its plain meaning.
Cramer v. Sheppard, 167 S.W.2d 147 (Tex. 1942).
Constitutional provisions may not be bent to meet a
beneficent purpose however noble the design may be.
Ex parte Smythe, 120 S.W. 200 (Tex.Cr.App. 1909).
Courts are not to be concerned with the wisdom or lack
of wisdom of a constitutional provision and need not
exert their ingenuity to find reasons to thwart the
intention of the people as clearly expressed in the
’This is a classical example of raw judicial power--pure muscle.
C-26
Constitution. Carpenter v. Sheppard, 145 S.W.2d 562
(Tex. 1940).8
Even if it can be seriously argued that the prohibition
in § 26 of Article V of the Texas Constitution is limited to
the state judicial system, Respondent Hill still faces the
hurdle of Article 44.01, V.A.C.C.P. Even if he can
successfully bypass that barrier without violating his
official oath, then by what authority does he have the
right to “appeal” to the United States Supreme Court?
There is no constitutional or statutory authority
permitting such an “appeal,” and acommon law appeals
by the State were unknown. See United States v.
Sanges, 144 U.S. 310, 312 (1892).
If the majority today establishes the right to the
State to appeal criminal cases to the United States
Supreme Court, then it will have opened Pandora’s box.
Every state trial court order granting a motion to sup-
press evidence will raise the possibility of an “appeal”
direct to the United States Supreme Court for 28 U.S.C.,
§ 1257(c), authorizes reviews of final judgments or
decrees rendered by the highest court of astate in which
a decision could be had. While prohibition against
appealing would still apply within the state judicial
8It is true that appellants in this court apply almost weekly by
applications for writ of certiorari to the United States Supreme
Court after a decision of this court, and there is no question of their
right to do so. It may seem unfair that the State cannot do so
likewise. Our Constitution and ‘laws must be changed only,
however, in the manner prescribed by law and not by judicial
whim. As a legislator, I would vote to give the citizens an
opportunity to change the Constitution in this regard (review by the
United States Supreme Court). Today we must vote as judges and
not as legislators, however. We must follow the Constitution and the
laws as writterr. And further, we must avoid a grandstand play
designed to win popular support today for a position opposed by a
constitutional provision adopted over a century ago or any other
time.
C-27
system, the wraps would be off as far as applying to the
United States Supreme Court from such orders as the
orders would be rendered by the highest court of the
state in which a decision could be had. Speedy trials will
not be speedy and the finality of judgment in a criminal
case will again be lengthened.
For the reasons stated, I dissent.
ONION, Presiding Judge
Roberts, J., joins in this dissent except for the discussion of Article
44.01, V.A.C.C.P.
(Delivered July 2, 1980)
En bane
C-28
JOSEPH STANLEY FAULDER, Appellant
NO. 60,554 v. Appeal from GREGG County
THE STATE OF TEXAS, Appellee
JOSEPH STANLEY FAULDER, Relator
Ancillary to No. 60,554 v. Original Application for Writ of
Prohibition
ODIS R. HILL, CRIMINAL DISTRICT
ATTORNEY, GREGG COUNTY, Respondent
DISSENTING OPINION
The determination by the Constitutional Convention
of 1875 to take from the State its right of appeal in
criminal cases and impose a constitutional prohibition
against an appeal by the State in such cases was made in
light of historical experiences with a variety of
treatments prescribed by preceding constitutions and
laws. ‘Thus. as one researcher has reported:!
“The Texas experience began with the
Constitution of the Republic of Mexico, which
charged the General Congress with the duty of
prescribing court procedure in criminal
matters. The 1836 Constitution of the Republic
of Texas merely provided that the common law
should be the rule of decision in criminal cases.
The first state constitution in 1845 delegated
matters of criminal procedure to the
legislature, but it provided that a defendant
could not be tried again for the same offense
after a verdict of not guilty. In 1856 the
legislature granted to the State a statutory
right of appeal in two limited circumstances.
'Tschoepe, “Limited Right of Appeal for the State,” 14 Hou. L.R.
735 at 736; see also Interpretive Commentary following Article V.,
Section 26, 2 Vernon’s Texas Constitution 323 at 325-326.
C-29
The 1861 constitution incorporated the
provisions of the 1845 constitution, but the
statute of 1856, which permitted limited appeal
by the State, became inoperative with the
adoption of the 1869 constitution. The Texas
Constitution of 1869 apparently gave the State
and the defendant equal rights of appeal in
felony cases. However, this development was of
brief duration because the present restriction
came into being with the adoption of the 1876
constitution.” [Footnotes omitted]
That the convention proposed and the people of Texas
later adopted, for the first time ever in their own history,
a specific denial of right of appeal to the State is clear
expression of a considered and deliberate public policy.
Speculation as to reasons for embedding that policy ina
constitution, indulged in interestingly by our State’s
Attorney, is an academic exercise in futility for, as he
has discovered, a contemporary “legislative history” is
not reflected in the convention journals.? Yet, the
uncontrovertible fact is that within a relatively brief
span of seven years after the “Reconstruction
Constitution” of 1869 gave the State and the defendant
2However, a most tantalizing theory is suggested by the temper of
the period and the’contemporaneous holding of the Supreme Court
_ of the United States in Twitchell v. The Commonwealth, 7 Wall. 321,
324, 19 L.Ed. 223 (1868) that statutory provisions for exercise of its
appellate jurisdiction did not make any distinction between civil
and criminal cases “in respect to the revision of the judgments of
State courts by this spect to the revision of the judgments of State
courts by this court,” and its harsh and thorough denunciation of
Confederate Texans in Texas v. White, 7 Wall. 700, 704-708, 722-
732, 19 L.Ed. 227 (1868). See Daniel v. Hutcheson, 86 Tex. 62, 22
S.W. 933, 938 (1893) for an account of occupation of our State’s
courts by the federal military government until 1870, written by
Chief Justice John W. Stayton who, perhaps no so coincidentally,
had been a member of the 1875 Constitutional Convention that
produced our Constitution of 1876.
C-30
“equal rights of appeal in felony cases, ”? the people of
Texas stripped the State of its equality in that respect.
The State has remained unequal to this day - 104 years
later.
A firm public policy, widely accepted and steadfastly
sustained for that period of time against aggressive
challenges, ‘earns for itself a degree of invulnerability
that demands a considerable amount of respect from, as
well as this Court, the Attorney General of Texas and the
district and county attorneys who are its officers and
legal representatives of the State within their respective
bailiwicks. Each is, after all, a constitutional officer
within the Judicial Department, Article V, Section 21,5
except the Attorney General who is placed in the
Executive Department by Article IV, Section 22.° The
powers conferred by the Constitution upon them are
exclusively theirs and the Legislature may neither
assign those powers to others nor interfere with the
8Tschoepe, supra, at 736, note 24.
‘The most recent venture was undertaken in 1976. See Tschoepe,
supra, 14 Hous.L.R. at 743, note 95, and accompanying text.
5“The County Attorneys shall represent the State in all cases in
the District and inferior courts ir. their respective counties; but if
any county shall be included in . district in which there shall be a
District Attorney, the respective duties of District Attorneys and
County Attorneys shall in such counties be regulated by the
Legislature.” As to those respective duties, see generally for a
district attorney Articles 321 et seq., especially 327, 332-341,
V.A.C.S. and Article 2.01, V.A.C.C.P., and for a county attorney
Articles 329 et seq., especially 332-341, V.A.C.S. and Article 2.02,
V.A.C.C.P.
“The Attorney General. . .shall represent the State in all suits
and pleas in the Supreme Court of the State in which the State may
be a party. ..He shall. . .give legal advise in writing to the Governor
and other executive officers, when requested by them, and perform
such other duties as may be required by law.” As to his duties, see
generally Articles 4394-4413a, V.A.C.S.
C-31
right to exercise them, Maud v. Terrell, 109 T. 97, 200
S.W. 375, 376 (1918); Hill County v. Sheppard, 142 T.
358, 178 S.W.2d 261, 264 (1944). Despite that feature of
exclusivity, however, there is “no authority to perform
an act in respect to which no duty has been made to
devolve upon him,” Duncan v. State, 67 S.W. 903, 905
(Ct.Civ.App. 1902). As to our respondent, particularly,
his duties are prescribed in Article 199 (124), V.A.C.S.
and include, inter alia, the “duty to represent the State
of Texas in all cases both criminal and civil in any and
all cases wherein it is the duty of a District Attorney to
represent the State of Texas that may arise in Gregg
County ...,”’ id., §21. Just as in the case of the Attorney
General, we believe, powers and duties of attorneys for
the State are “limited to those so prescribed, and may
not be enlarged on by the courts,” State v. Harney, 164
S.W.2d 55, 56 (Tex.Civ.App. - San Antonio 1942) error
refused.
Given, then, that an “appeal” is “a complaint to a
superior court of injustice done by an inferior one,”
Republic of Texas v. Smith, Dallam 407 (Tex. 1841) and,
as our respondent and State’s Attorney both concede,
that a petition for writ of certiorari presented to the
Supreme Court of the United States to review a decision
of this Court is an appeal, the question is whether the
proposed appeal to the Supreme Court by respondent
offends the well settled public policy pointedly
enunciated by Article V, Section 26, of the Constitution
of Texas. In its rich historical context and the literal
language of the prohibition, merely to pose the question
is at once to answer it.
The prohibition is a self-imposed denial, succinct and
direct, without qualification - it admits not exception or
exemption. In another vernacular, the State of Texas
7All emphasis is supplied throughout by the writer of this opinion
unless otherwise indicated.
C-32
commands itself: “Thou shalt not appeal.” Thus, as
officers and agents of the State of Texas, its Attorney
General, its district attorneys, its county attorneys and
all other like officials with a representative capability
are similarly shorn of that power and authority that
their principal, the State of Texas, has denied to itself:
the right of appeal in criminal cases.
The constitutional prohibition is initially
implemented at the trial court level but remains
operative throughout the appellate hierarchy. The
public policy considerations underlying the
constitutional determination are equally compelling at
every stage of the appellate process. There has not been
suggested a satisfactory rationale for removing the bar
blocking appeal by the State from a trial court
resolution of an issue adversely to the State so as to
permit an appeal by the State from an appellate court
resolution of an issue against it toa superior court.? In all
reason, a State that has deprived itself of power and
authority to appeal ab initio sutfers the same
deprivation in extenso until it has restored them to itself.
The State Prosecuting Attorney urges that Section 26
“does not purport to say what rights the State has to
appeal in federal courts nor does it prohibit State
*The plurality opinion construes “the outer limits of the
prohibition of Section 26 to be a restriction on the permissible
operations within the Texas judicial system” simply because
Article V is entitled “Judicial Department” and “does not speak to
the relation of that system or a part of that system to entities
beyond, such as the federal judiciary.” That analysis, if correct,
dooms the proposed venture of our respondent for, as a
constitutional officer within the Judicial Department, Neal v.
Sheppard, 209 S.W.2d 388, 391 (Tex.Civ.App. - Texarkana 1948)
error refused, he too is confined by Article V, Section 21, to
performing such duties as therein and validly by the Legislature
provided, Neal v. Skeppard, supra; Hill County v. Sheppard, 142
Tex. 358, 178 S.W.2d 261, 263 (1944). Appealing to the Supreme
Court of the United States is not one of them.
C-33
officers from appeal into federal courts.” But, as if not
too confident, he then asks, “If it did, why is the State
appealing so many federal habeas corpus cases?” The
plain and simple answer to what does not seem to be a
rhetorical question is that federal habeas corpus is civil
in nature, Fay v. Noia, 372 U.S. 391, 423-424, n. 34, 83
S.Ct. 822, 9 L.Ed. 837 (1963), so that state officers do not
take any such appeal denied them in criminal cases.
Even more plain and simple, however, a constitutional
statement that the State shall have no right to appeal in
criminal cases purports to say just that - no right of
appeal “period.” Its purport is to deny that right of
appeal to every appellate forum, anywhere, any place,
any time.
Accordingly, the writ of prohibition should issue.®
CLINTON, Judge
(Delivered July 2, 1980)
EN BANC
Roberts, J. and Phillips, J. join
A writ that prohibits respondent in his official capacity of
Criminal District Attorney from seeking review of our decision in
this case does not, of course, preclude him or any other citizen,
- individually, from claiming “the right to seek certiorari. . .with or
without the consent of the State whose judgment is sought to be
reviewed,” Ross v. Moffitt, 417 U.S. 600, 617 (1974), once he
structures the proper lawsuit in an accessible court.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.