Zedler, John Fredrick ( 2015 )

NO.
/*M5
ORIGINAL
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
RECEIVED IN
JOHN FREDERICK ZEDLER COURTOFCRIMINAL APPALS
V . DEC 01 2015
THE STATE OF TEXAS
RESPONDENT Abel Acosta, Clerk
NO. CR-12-0771 IN THE
22ND DISTRICT COURT
OF HAYS COUNTY, TEXAS
AND
NO. 03-14-00044-CR
FOR THE
THIRD COURT OF APPEALS
PETITION FOR DISCRETIONARY REVIEW
FILED IN
JOHN FREDERICK ZEDLER
COURT OF CRIMINAL APPEALS
Petitioner, Pro Se
TDCZJ# 01902409
Polunsky Unit
3872 FM 350 South Abel Acosta, Clerk
Livingston, Tx 77351
TABLE OF CONTENTS
Page
IDENTITY OF INTERESTED PARTIES 01
I. INDEX OF AUTHORITIES III
II. STATEMENT REGARDING ORAL ARGUMENT D2
III. STATEMENT OF CASE 02
IV. STATEMENT OF PROCEDURAL HISTORY 02
V. GROUNDS FOR REVIEU 03
VI. ARGUMENT 03
VII. PRAYER FOR RELIEF 1 2
VIII.APPENDIX 1 3
II
I.
INDEX OF AUTHORITIES
U.S. CASES: Page
1. Arizona v. Roberson, 486 U.S. 675,681,10B S.Ct., 2093;-
-100 L. Ed. 2d 704 (1988 j TO
2. Edwards v. Arizona, 45 U.S. 477; 10lS.Ct. 1BBD,68 L.Ed.2d-
-37B (1981) 6,7,8,9^10
3. Minnick v. Mississippi, 498, U.S.146,147, 111 S.Ct.'4B6,-
112 L. Ed. 2d 4B9 (1990) 10
4. Oregon w. Bradshaw, 462 U.S. 1039, 103 S. Ct . 2830,
77 L. Ed. 2d 405 (1983) 11
5. Van Hook v. Anderson, 488 F 3d 411 (6th Cir. 2007) 11
6. U.S. v. Whaley,13F.3d 963(6th Cir.1994) 06
STATE CASES:
1. Cross v. State, 144 S.hJ.3d 527(Tex. Cr.App. 2004) 11
2. McCarthy v. State, 65 S.W.3d 47(Tex. Cr .App . .2001 ) ....11
STATUTES AND RULES:
1. Code of Criminal Procedure-Art . 1.051(c) 11
III
NO.
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
JOHN FREDERICK ZEDLER
PETITIONER
V
THE STATE OF TEXAS
NO. CR-12-0771 in the
22ND DISTRICT COURT
OF HAYS COUNTY, TEXAS
AND
NO. 03-14-00044-CR
THIRD DISTRICT COURT OF APPEALS
PETITION FDR DISCRETIONARY REVIEW
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS
OF TEXAS:
Comes nouj the petitioner, John Frederick Zedler, Pro 5e, in
the above-styled and numbered cause and respectfully urges the
courts to grant discretionary review in this case, Pursuant to
the rules of the court.
(1)
II
STATEMENT REGARDING ORAL ARGUMENT
Oral argument not required.
Ill
STATEMENT OF THE CASE:
Petitioner was indicted for the murder of Mildred Zed.ler, by
asphyxiation.(CR 15) Petitioner plead "NOT GUILTY". (3 R.R. 23-24)
on December 11, 2013, the jury found petitioner guilty. (4 R.R.2)
The next day he was sentenced to 60 years in the INSTITUTIONAL
DIVISION of the Texas Department of Criminal Justice.
IV
STATEMENT OF PROCEDURAL HISTORY:
Petitioner was charged by indictment in this cause on
September 5,2012. Jury selection occurred on December 9, 2013-
-(R.R. II, p.p. 5-25B) On December TO, 2013, after hearing the
evidence and the argument from counsel, the jury deliberated and
returned a verdict of guilty. (R.R. IV, p.87; CR. 20B6-2094)
On December 12, 2013, after hearing the evidence and argument
from counsel, the jury•deliberated and assessed petitioner's
punishment at sixty (60) years imprisonment. (R.R.V, P.30;C.R.-
-2095-209B) The trial court sentenced him that day. (R.R.V,p.32;
-C.R. 2100-2101) The trial court's certification of defendent'a
rights to appeal was filed on December 12, 2013. (C.R. 2099)
A motion for new trial was filed on December 12, 201 31 (C.R.21.0 6)
(2)
Notice of appeal was filed on January 7, 2014,(C.R. 2111-2112)
The Third Court of Appeals rendered its decision affirming
petitioners conviction on July 23, 2015. A motion for
rehearing asking the Court of Appeals to revisit the case was
filed on July 23, 2015. The Court of Appeals denied the motion
for rehearing on September 2, 2015. Motion for extension of time
in which to file the Petition for Discretionary Review was n--:n -
granted on November 2, 2015 by the Court of Criminal Appeals
of Texas.
GROUNDS FOR REVIEW
GROUND ONE:
The Third Court of Appeals erred when it said that the record
did not reflect the length of time between when petitioner's son
told the detective that petitioner would like to speak with him
and when the detective interviewed petitioner the second time:;
GROUND TldO:
The Third Court of Appeals erred when it found that petitioner
re-initiated contact with Law Enforcement:
VI
ARGUMENT
GROUND ONE:
The Court of Appeals erred when it said that the record did
(3)
not reflect the length of timebetween when petitioner's son told
the detective that petitioner would like to speak with him and
when the detective interviewed petitioner the second time.
The Court of Appeals has decided an important question of
State of Federal law that has not been, but should be, settled by
the Court of Criminal Appeals.
In its opinion the panel of the Third Court of Appeals con
cluded that petitioner 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 po-
-lir,->. lice failed to timely act on Zedler's initiation or were re
sponsible 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 petitioner's motion to suppress outside the
presence of the jury on December 9, 2013, immediately after jury
selection. (R.R. II, p.276-328)
During that hearing the court heard testimony from Brandon
Zedler, petitioner's son, who testified that he asked Detective
Floiran to talk to petitioner (his father) a second time. (R.R.-
-IIv pp. 272-282) Detective Floiran also testified during the
hearing and told the court about his two interviews with pet
itioner. He testified that petitioner 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 petitioner the
second time after Brandon told him that his father did not re-
(4)
member a lot about what had happened: and had questions and wanted
to talk to the detective. (R.R. II, pp. 296-29B, 303-304)
During the hearing the trial court watched the video of the
detective's first interview with petitioner. (R.R. II, pp.313-322)
The court then asked the parties about the circumstances of the
second interview and the 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 the 28th
of June'.j but, whatever.
MR. ERSKINE: Right. So a matter of two weeks, approx
imately .
THE COURT: July What?
MS. MCDANIEL: The 11th.
MR..ERSKINE: Of 2012." (R.R. II, pi 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 seen by the jury, noting that the second
interview occurred two weeks after the first interview. (R.R. III-
-, pp. 16-20)
Petitioner 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 petitioner. During this two week
(5)
time span, petitioner made no effort to tell anyone that he wanted
to speak to authorities about his case. Petitioner's actions
during that time certainly do not show a willingness and a desire
to talk to the authorities about his case. Petitioner'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 happ
ened for three weeks. The authorities did not contact
Whaley, and Whaley made no effort to tell anyone - in
cluding agent Anderson- that he wanted to talk about the
case. Whether or not Whaley's exchange with Waggoner ;'
might have at the time constituted and 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 coun
sel present, he violated Whaley's constitutional rights."
13 F . 3d at 968
Petitioner asserts that Whaley should govern his case. The
evidence affirmatively shows that there was a two week delay
(6)
between Brandon's request to the detective and the detective
pulling petitioner out of his cell and taking him in for the
second interview. Petitioner did nothing during this two week
interval to indicate that he had a willingness and desire to
speak to the detective about his case.
Petitioner did not reinitiate contact with the detective.
The detective's second interview with petitioner was in violation
of Edwards v. Arizona,451 U.S. 477, 101 S.Ct.^1880, 6B L.Ed.2d-
-378 (1981). This ground should be granted.
Ground Two :
The Third Court of Appeals erred when it found that petitioner
reinititiated contact with law enforcement.
The Court of Appeals has decided an important question of .'•';•
State or Federal law in a way that conflicts with the applicable
dicisions of the Court of Criminal Appeals and the Supreme Court
of the United Statesl
In its opinion the Third Court of Appeals concluded that
petitioner initiated the second interview with Detective Floiran.
The evidence showed that petitioner invoked his right to counsel
during his first interview with police on the night of his wife's
death. Several days later when he was visited by his son,
petitioner told his son that he did not remember anything from
the night of his wife's death. His son suggested that it would
be helpful to get the detective to tell petitioner what had
happened that night. For that reason petitioner's son contacted
the detective, not at petitioner's request, but rather of his
own volition. The evidence clearly shows that petitioner did
(7)
not initiate contact with the detective. The detective's conduct
in going to meet with petitioner for the second interview was a
clear violation of Edwards v. Arizona, 451 U.S. 477, 101 S.CT.-.
-1BB0, 68 L.Ed.2d 378(1981).
After the jury was selected the trial court conducted a
hearing on petitioner's motion to suppress. (R.R. II, pp. 267-
-328; R.R. Ill, pp. 15-19; C.R. 20-22). Petitioner's son, Brandon,
testified that it was his idea to have petitioner talk to the
detective again. (R.R. II, pp.274-275) .
Brandon testified that he told petitioner that he would ask
the detective to talk to petitioner and tell petitioner what had
happened. Brandon testified that petitioner agreed with this
suggestion. Brandon testified that he contacted Detective Floiran
about talking to petitioner. (R.R. II, pp. 272-275).
On cross-examination, Brandon testified that it was his idea
to have petitioner talk to the detective again:
"QJ. (BY MR.CASE) You testified earlier that he told you
he didn't remember what happened, and that you told him that
you would tell-or ask the detective to go speak to him.
"A. Yes.
"Q. Is that correct? And was that your-so that was your
suggestion?
"A . Y es, I felt that he-he didn't have a good memory of
what exactly happened. He was asking me, you know, for
details of what had happened that-night. . And I told him I
would have the detective tell him in detail because all he
~r: hadrbeehtold was that he had killed his wife." (R.R.II,P.276)
(B)
Brandon testified that after talking with petitioner, he
wanted the detective to tell petitioner what he had done because
petitioner didn't know what happened. (R.R.II,p. 27B)
Brandon testified that he went and told Detective Floiran
of his idea to tell petitioner what happened and that Detective
Floiran told him he'd be sure his father was told what had
happened. (R.R. II,p. 278-279)
Detective Floiran testified that at some point during the
first interview petitioner invoked his rights to counsel.
(R.R. II,pp. 292-295)
Detective Floiran testified that several days later, he
talked to Brandon. Brandon told him that petitioner had
questions about what had happened the night his mother died.
(R.R.pp. 296-298):'^- .
Floiran testified that after that conversation, he went
to the jail, checked petitioner out of the jail and took
petitioner back to his office for a second interview. (R.R.II,-'
-pp. 296-298);(R.R. II, pp. 303-304)
At the conclusion of the testimony, the parties agreed that
the second interview was approximately two weeks after the first
interview. (R.R. II,p.323)
Petitioner argued that with regard to the second inter
view, petitioner did not reinitiate contact with the detective
and thus the second interview should have been suppressed in
accordance with Edwards v. Arizona, 451 U.S. 477, 101 S.CT.
18B0, 68 L.Ed.2d 378(1981). The United States Supreme Court
wrote :
(9)
"We now hold that when an accused has invoked his right to
have counsel present during custodial interrogation, a valid
waiver of that reght can not be
established by showing only that he responded to further police-
initiated custodial interrogation even if he has been advised
of his rights. We further hold that an accused, such as :
Edwards, having expressed his desire to deal with the police
only through counsel, is not subject to further interrogation
by the authorities until counsel has been made available to
him, unless the accused himself initiates further communication
, exchanges, or conversations with the police" Edwards v. -
-Arizona , 101 S.Ct. at 1884-1885 (emphasis added)
To protect the privilege against self-incrimination guar
anteed by the Fifth Amendment, police may not conduct a cust
odial interrogation of a suspect who has requested the assist-
ance'of counsel. Minnick v. Mississippi , 49B U.S. 14 6, 147,-
-111 S.Ct. 486, 112 L. Ed. 2d 489 (1990); Edwards v. Arizona,-
-supra .
When a person subjected to custodial interrogation unam-
biguosly invokes the right to counsel, all questioning must
cease. Interrogation may not be reinitiated by the police,
(of course, if the arrestee reinitiates the conversation, the
Edwards rule is satisfied), at anytime or in any manner unless
the person has consulted counsel. Period. Arizona v. Roberson,
4B6 U.S. 675,681,108 S.Ct. 2093, 100 L.Ed.2d 704(19BB), ID at-
-681-6B2.
To establish a suspect has waived his previously invoked
right to counsel, the courts must prove (1) The suspect himself
(10)
initiated further communication with the authorities and (2)
he thereafter validly waived his right to counsel. Oregon v.
Bradshaw, 462 U.S. 1039, 103 S. Ct. 2B30, 77 L.Ed.2d 405(19B3);
Cross v. State, 144 S.W.3d at 527 .(Tex.Cr.App.2004)
The United States Supreme Courts has not broached the
subject of whether a third party, on behalf of the suspect,
may inititate communications with the police after the suspect
has invoked his Fifth Amendment right to counsel. The Sixth
Circuit Court has held that even with third party communications,
the police are still prohibited from reinitiating questioning.
And the impetus for reinitiation must still- come from the sus
pect. The virtue of specifically identifying rights and
duties is preserved: "Police and Prosecutors" still know,
"What they may do in conducting custodial interrogation".
Van Hook v. Anderson, 488 F3d 411 (6th Cir. 2007)
Applying that analysis to petitioner's case, it is clear
that petitioner himself did not reinitiate contact with
Detective Floiran. It was Brandon, petitioner's son. There
is no evidence in the record whatsoever that it was petitioner'
s idea to reinitiate contact with the detective. Furthermore,
the evidence is clear that Detective Floiran made no attempt,
to determine if petitioner had an attorney so that he could
contact that attorney prior to interrogating petitioner.
McCarthy v. State, 65 S.W.3d 47(Tex .Crim.App.2001 ) . It is
clear by the record that it was approximately two weeks after
the first interview and when petitioner requested counsel,
to when the detective conducted the 2nd interview.
In accordance with CCP Art. , 1 :051 (c) , The courts should have
(11 )
appointed petitioner counsel by^the end of the 3rd working day
of petitioner requesting counsel. Therefore, it was Detective
Floiran's duty to check to see if petitioner had counsel prior
to talking to petitioner.
Conclusion;
Finally, the evidence is clear that it was petitioner's
son's idea to have the detective talk to petitioner, not so
that petitioner could give a statement to the detective, but
rather, so that the detective could tell petitioner what had
happened to his wife (the victim) since petitioner had no
memory of the nights events
Accordingly, the entirety of the second interview with
petitioner, State's Exhibit 31 B, should have been suppressed.
This point of error should be sustained.
VII
PRAYER OF RELIEF
Prayer;
Wherefore, premises considered, petitioner prays
this Honorable Court will reverse the judgment of conviction
for the reason herein alleged and remand for an acquittal,
remand for a new trial, or enter any other relief appropiate
under the facts and the law.
Respectfully Submitted
JOHN FREDERICK ZEDLER
TDCJ# 01902409
PDLUNSKY UNIT
3872 FM 350 SOUTH
LIVINGSTON, TX 77351
(12)
VIII
APPENDIX:
CERTIFICATE OF SERVICE;
I hereby certify that a true and correct copy of Petitioner's
Petition for Discretionary Review was mailed to ;the Court of
Criminal Appeals of Texas, Austin, Texas 78711 on this
19th day of November, 2015.
tf-^UwA &d/w
I0HN FREDERICK ZEDLER
TDCJ# 01902409
I, JOHN ZEDLER, TDCJ# 01902409, being presently incarcerated
in the Polunsky Unit of the Texas Department of Criminal Justice
in Polk County; Texas, verify and declare under penalty of
perjury that the foregoing statements are true and correct.
Executed on this the 19th day of November, 2015.
22=_
JOHN FREDERICK ZEDLER
TDCJ# 01902409
1 3
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00044-CR
John Fredrick Zedler, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-12-0771, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
MEMORANDUM OPINION
Following the denial of his motion to suppress evidence, a jury found appellant
John Zedler guilty ofmurder and assessed punishment at 60 years' imprisonment, and the trial court
renderedjudgment on the jury's verdict. See Tex. Penal Code § 19.02. In two points oferror, Zedler
contends that the trial court should have granted his motion to suppress and that the trial court's
judgment contains an error that should be corrected. We will modify the trial court's judgment and
affirm the judgment as modified.
BACKGROUND
Detective Angelo Floiran and other law enforcement officials interviewed Zedler on
June 27,2012, in connection with the death of Zedler's wife. During the interview, Zedler invoked
his right to counsel. A few days later, Zedler met with his son Brandonand indicated a desire to
speak with the police again. On July 11, 2012, while Zedler was in custody under suspicion for
homicide, Detective Floiran again interviewed Zedler. During this second interview, Zedler waived
his Miranda rights and made self-incriminating statements suggesting that he caused the injuries
discovered on his wife's body. Zedler's subsequent motion to suppress the video recording of the
second interview was denied, and the recording was published to the jury at trial. The jury found
Zedler guilty of murder, and this appeal followed.
STANDARD OF REVIEW
We review a trial court's ruling on a motion to suppress for abuse ofdiscretion, using
abifurcated standard. Goodwin v. State,376 S.W.3d 259,266 (Tex. App.—Austin 2012, pet. refd).
In doing so, we view the evidence in the light most favorable to the trial court's ruling. Johnson v.
State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We give almost total deference to rulings on
application of the law to questions of fact and to mixed questions of law and fact if resolution of
those questions depends on an assessment of credibility and demeanor of witnesses. Arguellez v.
State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). We review de novo pure questions of law
and mixed questions of law and fact that do not depend on evaluating credibility and demeanor.
Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). We will affirm the trial court's
ruling ifthe record reasonably supports it and it is correct on any theory oflaw applicable to the case.
State v. Duran, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013).
DISCUSSION
Motion to suppress
In Edwards v. Arizona, the United States Supreme Court held that an accused,
"having expressed his desire to deal with the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made available to him, unless the accused
himselfinitiates furthercommunication, exchanges, or conversations with the police." 451 U.S. 477,
484-85 (1981); see Cross v. State, 144 S.W.3d 521, 529 (Tex. Crim. App. 2004) ("[T]he critical
inquiry is whether the suspect was further interrogated before he reinitiated conversation with law
enforcement officials. If he was not, Edwards is not violated."). In his first point of error, Zedler
contends that his Fifth Amendment rights articulated in Edwards were violated because Detective
Floiran interviewed Zedler again after he had invoked his right to counsel in his first interview.
Zedler makes two arguments in support of his Edwardsclaim. First, Zedler argues
that he did not reinitiate contact with law enforcement and that it was his son, Brandon, who asked
Detective Floiran to speak to Zedler a second time.1 However, the State contends that Brandon
1 To theextentZedlerargues thatan accused cannever initiate contactwithlawenforcement
under Edwards through a third party, we reject that contention. See VanHookv. Anderson, 488 F.3d
411,423 (6th Cir. 2007) (concluding that under Edwards a suspect "can initiate a discussion with
police through the communication ofa third party"); Owens v. Bowersox, 290 F.3d 960,963 (8th Cir.
2002) ("[W]e do not believe that it was unreasonable for the state court to hold that a defendant may
'evince' a willingness and desire to discuss the crime by communicating with the police through a
third party, especially a close relative."); United States v. Michaud, 268 F.3d 728, 737-38 (9th Cir.
2001) (concluding defendant initiated contact under Edwards through a third party); United States
v. Gaddy, 894 F.2d 1307, 1311 (11th Cir. 1990) (concluding defendant initiated contact through
his aunt). Zedler relies on the Fifth Circuit's decision in UnitedStates v. Rodriguez to support his
argument that his conversation with Brandon did not constitute an initiation under Edwards. See
993 F.2d 1170, 1174 (5th Cir. 1993) (concluding that defendant did not initiate contact under
initiated contact with the detective on Zedler's behalf. Viewing the evidence in the light most
favorable to the verdict, as me must, we determine that there is sufficient evidence in the record to
support this conclusion.
At the hearing on the motion to suppress, Brandon testified that he spoke with Zedler
a few days after the alleged murder. According to Brandon, Zedler stated that he was not sure what
had happened on the night ofthe incident. Brandon suggestedthat Zedler talk to the detective again,
and Zedler agreed and said he wanted to talk to the detective. Although Brandon also testified that
he was unsure whether it was originally his idea or Zedler's idea for Zedler to talk to the detective
again, the trial court was entitled to conclude, as it did, that it was ultimately Zedler's decision to
reinitiate contact with law enforcement and that Brandon acted on Zedler's behalf when he asked
Detective Floiran to speak with Zedler. See St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim.
App. 2007) (in ruling on motion to suppress, "the trial judge is the sole trier of fact and judge of
credibility ofthe witnesses and the weight to be given to their testimony"). Even if it were originally
Brandon's idea that Zedler should speak with Floiran, Brandon's undisputed testimony was that
Zedler agreed with Brandon's suggestion and wanted to speak with the detective. Deferring to the
trial court's determination of the underlying facts, we conclude, as a matter of law, that Zedler
reinitiated contact with law enforcement through Brandon. See Holman v. Kemna, 212 F.3d 413,
Edwards through co-defendant). However, we conclude that Rodriguez does not stand for the
proposition that an accused can never reinitiate contact with law enforcement through a third party.
Instead, the Rodriguez court merely determined that an initiation had not occurred under the facts
of that case. Rodriguez is distinguishable from the present case because, in Rodriguez, the alleged
initiation occurred through a co-defendant, the co-defendant never actually told the officer that
the defendant wished to speak to him, and the evidence of the officer's conversation with the co-
defendant was hearsay. See id.
417 (8th Cir. 2000) (stating that "whether those facts [found by the state court] constitute an
'initiation' underEdwards is a legal question requiring de novo review"); United States v. Whaley,
13 F.3d 963, 968 (6th Cir. 1994) ("While we accept, unless clearly erroneous, the facts that the
district court found,whether those facts together constitutean 'initiation' under Edwards is a legal
question we review de novo").
Second, Zedler argues that "the time lapse between [Brandon's] conversation with
the detective and the detective's visit to the jail" indicates that Zedler did not wish to initiate contact
with the police. In other words, Zedler is arguing that, even if his conversation with Brandon
constituted an initiation under Edwards, that initiation had become ineffective or stale by the time
Detective Floiran returned to interview Zedler.
In support of this argument, Zedler cites United States v. Whaley. In that case, the
defendant told an officer that he would like to discuss his case, and a different officer interviewed
the defendant over three weeks later. Whaley, 13 F.3d at 964-65. The Sixth Circuit concluded that,
"[w]hether or not Whaley's exchange with [the officer] might have at the time constituted an
Edwardsinitiation, 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 his case." Id. at
968. The court therefore reversed Whaley's conviction. Id. at 969.
Zedler has not called our attention to any Texas case holding, as Whaleydoes, that
an accused's initiation under Edwards can become invalid merely because of the passage of time,
and we have found no such case. Even assuming without deciding that an initiation can expire over
time, we conclude that Zedler's initiation remained valid when Detective Floiran conducted the
second interview. 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.
Under the specific facts of this case, we cannot conclude that Floiran's second interview with
Zedler demonstrated "police overreaching" of the type Edwards was intended to discourage. See
Griffin v. Lynaugh, 823 F.2d 856, 861 (5th Cir. 1987); see also id. at 862 (stating that "these
[Supreme Court] cases are clearly indicative to us that in the absence of some police interference
with the exercise of the right to counsel of the accused, the Edwards rule is to be strictly and
narrowly applied"). We therefore hold that because Zedler reinitiated contact with law enforcement
through Brandon, the second interview with Detective Floiran did not violate Zedler's rights under
Edwards. Accordingly, we overrule Zedler's first point of error.
Error in the judgment
In his second point of error, Zedler contends that the trial court's judgment contains
an error that should be corrected. We agree. On the first page of the judgment, in the blank labeled
"Findings on Deadly Weapon," the entry is "N/A". However, the jury made an affirmative finding
that Zedler used a deadly weapon during the commission of the murder, a fact noted on the
judgment's secondpage. Accordingly, we sustain Zedler's secondpoint of error and modify the
judgment to reflect on the first page that the jury found Zedler used a deadly weapon. See Tex. R.
App. P. 43.2(b).
CONCLUSION
We affirm the judgment of conviction as modified.
Scott K. Field, Justice
Before Justices Puryear, Pemberton, and Field
Modified and, as Modified, Affirmed
Filed: July 23,2015
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