John Fredrick Zedler v. State ( 2015 )

ACCEPTED
03-14-00044-CR
6228262
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/27/2015 10:10:50 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00044-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE AUSTIN, TEXAS
THIRD SUPREME JUDICIAL DISTRICT OF TEXAS 7/27/2015 10:10:50 AM
AT AUSTIN JEFFREY D. KYLE
Clerk
_____________________________________________________________
NO. CR-12-0771
IN THE 22ND DISTRICT COURT
OF HAYS COUNTY, TEXAS
_____________________________________________________________
JOHN FREDERICK ZEDLER,
APPELLANT
V.
STATE OF TEXAS,
APPELLEE
_____________________________________________________________
APPELLANT’S MOTION FOR REHEARING
_____________________________________________________________
LINDA ICENHAUER-RAMIREZ
ATTORNEY AT LAW
1103 NUECES
AUSTIN, TEXAS 78701
TELEPHONE: 512-477-7991
FACSIMILE: 512-477-3580
EMAIL: ljir@aol.com
SBN: 10382944
ATTORNEY FOR APPELLANT
GROUND FOR REHEARING NUMBER ONE
THE COURT OF APPEALS ERRED WHEN IT SAID THAT THE
RECORD DID NOT REFLECT THE LENGTH OF TIME BETWEEN
WHEN APPELLANT’S SON TOLD THE DETECTIVE THAT
APPELLANT WOULD LIKE TO SPEAK WITH HIM AND WHEN
THE DETECTIVE INTERVIEWED APPELLANT THE SECOND
TIME.
In its opinion the panel of the Third Court of Appeals concluded that
appellant initiated the second interview with Detective Floiran. The panel
then wrote the following:
“There was no evidence presented at trial concerning the length
of time between when Brandon told Floiran that Zedler would
like to speak with him and when Floiran interviewed Zedler the
second time. Therefore, there was no evidence that the
police failed to timely act on Zedler’s initiation or were
responsible for any delay in conducting Zedler’s second
interview.” (slip opinion, p. 6)
This statement is totally wrong. The record reflects that a hearing was
held on appellant’s motion to suppress outside the presence of the jury on
December 9, 2013, immediately after jury selection. (R.R. II, p. 267-328)
During that hearing the court heard testimony from Brandon Zedler,
appellant’s son, who testified that he asked Detective Floiran to talk to
appellant (his father) a second time. (R.R. II, pp. 272-282) Detective
Floiran also testified during the hearing and told the court about his two
interviews with appellant. He testified that appellant invoked his counsel
during the first interview. (R.R. II, pp. 285-295) During his testimony
he testified that he went to the jail to talk to appellant the second time after
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Brandon told him that his father did not remember a lot about what had
happened and had questions and wanted to talk to the detective. (R.R. II,
pp. 296-298, 303-304) During the hearing the trial court watched the
video of the detective’s first interview with appellant. (R.R. II, pp.
313-322) The court then asked the parties about the circumstances of the
second interview and following occurred:
“THE COURT: And what’s the time frame between
this event where he says he wants his lawyer to when the
second interview takes place?
“MR. ERSKINE: The second interview took place –
“THE COURT: What’s the time frame?
“MS. MCDANIEL: From the 22nd of June to the 11th of
July.
MR. ERSKINE: Thank you. Correct.
MS. MCDANIEL: Or maybe after midnight. Maybe
th
the 28 of June, but, what ever.
MR. ERSKINE: Right. So a matter of two weeks,
approximately.
THE COURT: July what?
MS. MCDANIEL: The 11th.
MR. ERSKINE: Of 2012.” (R.R. II, p. 323)
The next morning the trial court watched the video of the second interview
and then ruled that it would allow the video of the second interview to be
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seen by the jury, noting that the second interview occurred two weeks after
the first interview. (R.R. III, pp. 16-20)
Appellant asks the Court to re-examine his case in light of the fact that
the record does contain evidence that there was a two week delay between
Brandon’s conversation with the detective and the detective talking to
appellant. During this two week time span, appellant made no effort to tell
anyone that he wanted to speak to authorities about his case. Appellant’s
actions during that time certainly do not show a willingness and a desire to
talk to the authorities about his case. Appellant’s situation is very similar
to the situation in United States v. Whaley, 13 F.3d 963 (6th Cir. 1994). In
Whaley, there was a three week interval between Whaley making an
ambiguous request to talk to an officer about his arrest and then being
re-interviewed by law enforcement during which he made a statement.
On appeal, the issue before the Sixth Circuit was whether or not Whaley’s
request to talk to the officer was an actual re-initiation of contact with law
enforcement. The deciding factor for the Sixth Circuit was the length of
time between Whaley’s request and the second interview coupled with
Whaley’s conduct during that three week interval:
“However, in the present case, we do not need to decide this
question, because after this exchange nothing happened for
three weeks. The authorities did not contact Whaley, and
Whaley made no effort to tell anyone – including agent
Anderson – that he wanted to talk about the case. Whether or
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not Whaley’s exchange with Waggoner might have at the time
constituted an Edwards initiation, given that Whaley did
nothing else during the succeeding three-week period, his
actions certainly do not show a willingness and a desire to
speak generally about the case. Therefore, as in Edwards,
when Anderson removed Whaley from his cell and interrogated
him without counsel present, he violated Whaley’s
constitutional rights.” 13 F.3d at 968.
Appellant asserts that Whaley should govern his case. The evidence
affirmatively shows that there was a two week delay between Brandon’s
request to the detective and the detective pulling appellant out of his cell and
taking him in for the second interview. Appellant did nothing during this
two week interval to indicate that he had a willingness and desire to speak to
the detective about his case.
Appellant did not reinitiate contact with the detective. The
detective’s second interview with appellant was in violation of Edwards v.
Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). This
ground for rehearing should be granted.
Respectfully submitted,
/s/ Linda Icenhauer-Ramirez
LINDA ICENHAUER-RAMIREZ
ATTORNEY AT LAW
1103 NUECES
AUSTIN, TEXAS 78701
TELEPHONE: 512-477-7991
FACSIMILE: 512-477-3580
EMAIL: ljir@aol.com
SBN: 10382944
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ATTORNEY FOR
APPELLANT ON APPEAL
CERTIFICATE OF COMPLIANCE
I hereby certify that this motion for rehearing contains 1,051 words, as
calculated by the word count function on my computer and is prepared in
Times New Roman 14 point font.
/s/ Linda Icenhauer-Ramirez
LINDA ICENHAUER-RAMIREZ
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Appellant’s Motion for
Rehearing was e-served to the Hays County District Attorney’s Office on
this the 27th day of July, 2015.
/s/ Linda Icenhauer-Ramirez_
LINDA ICENHAUER-RAMIREZ
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