Torres v. State , 1968 Tex. Crim. App. LEXIS 883 ( 1968 )

OPINION

WOODLEY, Presiding Judge.

The offense is burglary; the punishment, 12 years.

The indictment alleged burglary of a house occupied and controlled by Roy A. Vannoy on or about March 26, 1966.

The state’s evidence reflects that Mr. Vannoy was nightwatchman and, as such, in custody and control of the building and all property of the White House Department Store in El Paso while on duty.

He came on duty at 1 A.M. on March 26, 1966, and shortly thereafter checked the store and found it completely secured. He checked the store again, starting on the third floor, at 2:30 A.M. and found that the cash registers had been broken into. He immediately went to the first floor and to the front of the building and called the police. While waiting for the police he saw a person wearing a small black hat and a dark three-quarter length coat in front of the elevators on the main floor.

A short time later appellant was brought to the store by one of the officers and Mr. Vannov testified: “This time he still had on a small hat and a black short coat, a three-quarters coat.”

Upon further investigation it was discovered that cash registers on the mezzanine and the fourth floor had been broken into, a desk on the fifth floor had been rifled; and a window, outside of which was a fire escape leading to the McCoy Hotel, had been broken.

Jesse Ramirez, one of the police officers who responded to the call, saw appellant running and pursued him in the patrol car and then on foot; apprehended him as he got inside the Paso del Norte Hotel, and despite his resistance, took him into custody.

After appellant was returned to the White House Department Store he was searched and in excess of $500.00 in American money; more than one hundred pesos in Mexican money, and “White House Script” printed by the White House Department Store and given to customers as a cash credit for a returned article, were taken from his pockets.

The state’s testimony further reflects that 19 of the drawers of the cash registers each contained $40.00 in cash and $10.00 in Script, totalling $950.00. $1.88.24 in cash and $190.00 in Script was found on the floor and in the broken drawers after the burglary.

The state offered in evidence the written confession of the defendant and the court, after hearing evidence as to its voluntariness and admissibility, entered an order finding:

“That the said confession was made after statutory warning having been given the Defendant by Justice of the Peace Ben Mejia, Precinct No. 8, of El Paso County, Texas, and Detective Armando Nava of the El Paso Police Department, the person to whom the confession was given, and the Court further finds that said confession was freely and voluntarily given by the Defendant and the Defendant was not induced or caused by any person to give such statement by threats, persuasion, compulsion, intimidation, violence, promises, unlawful detention or anything else other than the free and voluntary act of the Defendant;

“That the said confession was signed by the Defendant after being translated from English to Spanish by Sgt. Ignacio Garcia of the El Paso Police Department and that thereafter it was voluntarily signed by the Defendant and the said confession is held admissible as a matter of law and fact by the Court after a hearing in the absence of the jury.

“It is further ORDERED, ADJUDGED and DECREED that the Defendant’s objection to the admission of such confession is hereby overruled.”

Appellant’s second ground of error is that the purported confession obtained from him was inadmissible and its admission in evidence constitutes reversible error.

In support of such contention appellant refers to his testimony to the effect that he was forced to sign the confession by various officers of the El Paso Police Department ; that he was not given the proper and required warnings and that at the time of his giving the confession he was in an intoxicated condition and had not slept for quite some time.

All of this testimony was refuted by the testimony of police officers.

Citing Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, decided after the confession was made but before the trial at which it was admitted in evidence, appellant contends in part:

“In the present case, there is no testimony whatsoever that the Appellant was advised of his rights to counsel during said interrogations, and therefore, the Appellant’s rights guaranteed by the Fifth Amendment to the United States Constitution were clearly and wilfully violated.

“It cannot be argued that the Appellant’s silence or failure to ask for a lawyer during the interrogation constitutes a waiver of this requirement. * * ”

The record of the hearing before the court on the voluntariness and admissibility of the confession reflects that the following warning was given appellant as shown in the written confession made after it was given.

“El Paso Police Department, El Paso, Texas, Date: March 26, 1966; Time Commenced, 9:15 A.M.; Time Completed, 10:00 A.M.

“I, Hilario Rodriguez Torres, after being duly warned by Ben Mejia, Judge, who is the Justice of the Peace, Precinct 8 of El Paso County, Texas, at 4:28 A.M., at Judge Ben Mejia’s office on March 26, 1966, of the accusation against me and the affidavit, if any, filed in support of such accusation, that I have a right to retain counsel, that if I am unable to obtain counsel that I can request the appointment of counsel, that I have a right to an examining trial, that I am not required to make any statement at all and that any statement I do make may be used against me; and Detective Armando Nava, the person to whom this statement is made, also warned me that I do not have to make any statement at all, and that any statement made by me may be used in evidence against me in the trial or trials of the offense or offenses concerning which this statement is made, do hereby make the following voluntary statement. I have also been advised by the person taking this statement of my right to consult an attorney before making this statement, but I do not wish to'do so.” Initials, “H.R.T.”

The confession having been admitted in evidence and read to the jury, the issues raised by the evidence adduced before the jury as to its voluntariness were submitted to the jury.

We overrule the contention that the warning given appellant was insufficient or that procedural safeguards effective to secure appellant’s privilege against self incrimination were not used.

Our holding that the confession was properly admitted in evidence disposes of appellant’s remaining ground of error which relates to the sufficiency of the evidence to identify appellant as the burglar.

The judgment is affirmed.