Ochoa v. State ( 1978 )

OPINION

BROWN, Commissioner.

This is an appeal from a conviction for the offense of capital murder. Appellant was convicted for the murder of a Yorktown police officer, who was acting in his capacity as a peace officer at the time appellant shot him. On October 18, 1976, the jury answered “Yes” to the special issues submitted under Article 37.071, Vernon’s Ann.C.C.P., and the punishment was assessed at death.

Appellant now contends that the trial court erred in allowing appellant’s written statement to be introduced into evidence at the trial. After a hearing on appellant’s motion to suppress, the trial court entered findings that the confession was voluntarily given, and that appellant had knowingly and voluntarily waived his right to counsel and his right against self-incrimination. The court therefore determined that the statement was admissible. At trial, the charge instructed the jury relative to the law concerning the admissibility of confessions in accordance with Article 38.22, Vernon’s Ann.C.C.P.

Appellant argues that the confession was obtained in violation of the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), and that it thus should not have been used against him at trial.

The State initially contends that appellant has waived this ground of error, since he testified in his own behalf at trial and testified to substantially the same facts as contained in the statement. Where a defendant testifies in his own behalf and admits the truth of the testimony to which he previously objected, he waives his right to claim that he was harmed by the introduction of such evidence over his objection. However, he has not waived his right to claim harm if he introduces rebutting evidence in an attempt to meet, destroy or explain the evidence offered against him. Jackson v. State, 548 S.W.2d 685 (Tex.Cr.App.1977); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973).

In his testimony, appellant challenged the accuracy of several statements in the confession, stating that they were false and that he did not make them. While he admitted shooting the deceased, in his testimony he interjected a claim of self defense, thus seeking to explain his statements in the confession. He also contradicted statements in the confession relating to the sequence in which appellant and the deceased drew their guns. Thus, it appears that appellant has not waived this ground of error.

On July 11, 1976, appellant left a bar in Cuero and drove toward his home in Yorktown. Another driver called the Yorktown police and reported that appellant was weaving back and forth on the road. The deceased, a Yorktown police officer, responding to the report, stopped appellant’s car and asked to see his driver’s license. When handed the license, the deceased stated that he was going to take appellant to the police station. Appellant refused, and got back in his car and drove off. The deceased followed appellant to the driveway of the Ochoa home, where he pulled his car in the driveway behind appellant’s. Appellant got out of his car and started towards the house. The deceased also got out of his ear, and apparently drew his gun. Appellant testified that upon seeing the deceased’s gun he got back into his car and reached under the seat and got his own loaded pistol. Appellant further testified that he shot at the deceased, hitting him twice. The deceased fell, with his own gun beside him. Appellant told his father to get help, and the police arrived a few minutes later.

Appellant was arrested at the scene, at about 11:30 p. m., at which time he was given his Miranda warnings by Sheriff J. R. Adams. He was then handcuffed and taken to the Cuero jail, arriving at about 1:00 a. m. He was taken before a magistrate where he was again read his Miranda rights. Justice of the Peace Albert Ley testified that he explained these rights to appellant, and that appellant stated that he understood his rights and signed a paper.

At this point, the exact sequence of events becomes somewhat confusing. However, as nearly as this Court can ascertain, appellant was then taken to an interrogation room. Robert Post, the County Attorney, testified that he spoke to appellant and advised him of his rights. He stated that appellant did not wish to talk to him at this time, and he felt like appellant was not telling him anything so he left. Apparently, other unidentified officers were present on and off during this short period of time. Appellant testified that he requested an attorney during this interrogation, although Post denies that appellant did so while he was present.

Appellant was then taken to his jail cell. At about 3:30 a. m., Adams got appellant from his cell and took him to the interrogation room. Adams testified that he again read appellant his Miranda rights. Appellant testified that at this point he told Adams that he thought he should talk to an attorney before answering any questions or signing anything. At the hearing on the motion to suppress, Adams testified:

“A [Adams] He [appellant] said that he would talk with me.

“Q [Defense] He did not request an attorney?

“A I think that he had made some mention as to he might possibly want to talk to an attorney. He didn’t press the issue.

[[Image here]]

“Q [Prosecution] Other than the occasion when you testified that at first the defendant was undecided about the lawyer, did he ever ask you to get a lawyer for him or anything of that nature any further?

“A [Adams] No, sir.

[[Image here]]

“Q Did he make any request for an attorney other than when he said that he was undecided there at first, that he might or might not want a lawyer?

“A No, sir, he did not.

[[Image here]]

“Q [Defense] Mr. Adams, you did testify earlier, did you not, that at the beginning of the interrogation he did make some statement about a lawyer, about wanting to talk to a lawyer?

“A [Adams] Yes, sir, he did.

[[Image here]]

“Q [Prosecution] Do I understand that he was undecided at that time whether he wanted one or not?

“A [Adams] He did not make a formal request for a lawyer or say I don’t want to talk to you; I want to see a lawyer first, no, sir.”

Then, at the trial, the following testimony was heard:

“Q [Defense] Well, didn’t [appellant] actually mention wanting to talk to a lawyer to you?

“A [Adams] Yes, sir, he did when we first went into the room. He said that he probably ought to talk to a lawyer or something to this effect or didn’t want to sign anything until he talked to a lawyer, if I recall correctly. He then said something to the effect, ‘Well, I will talk to you, but I don’t want to sign anything.’

“Q And that wasn’t notice to you to get this man a lawyer?

“A No, sir, he did not insist on a lawyer at that time. . . . ”

Apparently, right after appellant made the statement about a lawyer, Adams gave appellant coffee and cigarettes and began talking to appellant about families, horses and children. After they had talked about other matters for about 30 to 45 minutes, they began talking about the murder. Adams admitted that his purpose and intent in discussing marital problems, children and other matters with appellant was to calm and relax him and to “get on his good side,” and to thus get appellant to make a statement. At 6:20 a. m., appellant signed a statement prepared by Adams. Appellant did not read the confession himself, but rather had Adams read it to him. On these facts, the trial court ruled the confession admissible.¹

We conclude that, from the facts shown, the State has not met the heavy burden imposed by Miranda v. Arizona, supra, of demonstrating that appellant knowingly and intelligently waived his right to counsel.

In Miranda, the United States Supreme Court set out procedural requirements for law enforcement officials during in-custody interrogations. The Court made clear the necessity of advising criminal defendants 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. The Court stated:

“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. ... An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we delineate have been given. [Emphasis added.]”

The Court emphasized that once a defendant indicated in any way that he wanted an attorney interrogation must cease altogether. The Court further stated that while a defendant could change his mind once he invoked his right to counsel, if he does so and the interrogation continues, the State bears a heavy burden to demonstrate that the defendant knowingly and intelligently waived his right to counsel.

We read this language in Miranda literally; where a defendant indicates in any way that he desires to invoke his right to counsel, interrogation must cease.

Such literal reading of Miranda is supported by Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 325, 46 L.Ed.2d 313 (1975). In a discussion of the invocation of the analogous right to remain silent and the necessity of a cessation of interrogation at that point, the Supreme Court stated that:

“Resolution of the question turns almost entirely on the interpretation of a single passage in the Miranda opinion . ‘Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.’ ”

See also Hearne v. State, 534 S.W.2d 703 (Tex.Cr.App.1976).

Thus, this Court must conclude that if appellant in any manner indicated his desire to have a lawyer, the continued interrogation was a violation of his Miranda rights and the confession obtained therefrom is inadmissible. We hold that appellant’s statements to Adams concerning an attorney were sufficient to invoke his right to counsel. Although he did not make a “formal request” or absolute demand for a lawyer, he did in some manner indicate to Adams that he wanted to exercise his right to counsel. This was sufficient to require a cessation of interrogation.²

The burden was on the State to show that appellant specifically and affirmatively waived this right to counsel, and it did not do so. The only evidence that he waived his right to an attorney is the fact that subsequent to his conversation with Adams about families and horses he made a confession. In Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), the Supreme Court held that such a showing is not sufficient to show a waiver.

Since the State has not met its burden of showing that a voluntary, knowing and intelligent waiver of the right to counsel was made, the confession was inadmissible. Miranda v. Arizona, supra; Brewer v. Williams, supra.

The State contends that the confession was nevertheless admissible since upon cross-examination, appellant admitted that he voluntarily signed the statement. A confession, in order to meet constitutional standards, must be both voluntary and taken in compliance with Miranda. If it meets one requirement but not the other, it is still inadmissible. Miranda imposes rigid requirements in order to insure the voluntariness of a confession, and these requirements must themselves be satisfied in order for a confession to be admissible.

Accordingly, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

VOLLERS, J., not participating.

1 . Appellant contends that the facts as he related them indicate that more happened in the interrogation room than that to which Adams testified. However, the fact-finder is to resolve conflicting testimony, and apparently the trial court resolved such conflict against appellant.

2 . There is no question that Adams was continuing interrogation by his conversation with appellant. So long as the officer’s statements are designed to elicit incriminating statements from the defendant, as Adams admitted his were here, it is interrogation. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).