Carter v. State , 1983 Tex. Crim. App. LEXIS 983 ( 1983 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

Trial was before the jury upon appellant’s plea of not guilty of capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). After the jury found appellant, a juvenile, guilty, the court assessed punishment at life. The conviction was affirmed by the Court of Appeals for the Fourteenth Supreme Judicial District. We granted appellant’s petition for discretionary review in order to examine the Court of Appeals’ holding that the magistrate’s certification complied with the provisions of V.T.C.A. Family Code, Sec. 51.09.

Appellant was convicted of intentionally causing the death of Michael Underwood by beating, hitting, and striking him with a shotgun in the course of committing aggravated kidnapping and aggravated robbery against Underwood, and aggravated rape against K_B_

Appellant contends that his written confession was improperly admitted into evidence in that the magistrate’s certification did not comply with the provisions of Sec. 51.09, supra.¹

Sec. 51.09, supra, reads in pertinent part:

“(b) Notwithstanding any of the provisions of Subsection (a) of this section, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:

“(1) When the child is in a detention facility or other place of confinement or in the custody of an officer, the statement is made in writing and the statement shows that the child has at some time prior to the making thereof received from a magistrate a warning that:

“(A) he may remain silent and not make any statement at all and that any statement he makes may be used in evidence against him;

“(B) he has the right to have an attorney present to advise him either pri- or to any questioning or during the questioning;

“(C) if he is unable to employ an attorney, he has the right to have an attorney to counsel with him prior to or during any interviews with peace officers or attorneys representing the state;

“(D) he has the right to terminate the interview at any time;

“(E) if he is 15 years of age or older at the time of the violation of a penal law of the grade of felony the juvenile court may waive its jurisdiction and he may be tried as an adult; and

“(F) the statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present. The magistrate must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily. If such a statement is taken, the magistrate shall sign a written statement verifying the foregoing requisites have been met.

“The child must knowingly, intelligently, and voluntarily waive these rights prior to and during the making of the statement and sign the statement in the presence of a magistrate who must certify that he has examined the child independent of any law enforcement officer or prosecuting attorney and determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights.”

Appellant, a juvenile at the time, was taken before Magistrate Joe L. Draughn on April 12,1978. Judge Draughn gave appellant the warnings required under Sec. 51.09, supra.

Appellant then made a confession to police officers. The confession was typed, but before appellant signed it, he was taken before Magistrate Henry E. Doyle. Judge Doyle examined appellant apart from police officers and prosecuting attorneys. Appellant signed the confession in Judge Doyle’s presence. Judge Doyle’s certification states:

“This statement was signed by Allen Ray Carter, Jr. in my presence on the 12th day of April, 1978, at 11:15 o’clock A.M., at which time no law enforcement officer or prosecution attorney was present. I am fully convinced that this person understands the nature and contents of this statement, and further, that this person is signing this statement voluntarily.

Henrv E. Dovle

Magistrate

April 12, 1978”

Appellant’s signed confession, the statutory warnings, and the magistrate’s certification were all on one sheet of paper which was admitted as State’s Exhibit Number 43.

The magistrate’s certification is virtually a verbatim reproduction of the language in Subsection (F), but omits the certification required by the subsequent paragraph.

In addition to Exhibit 43, Judge Doyle identified Exhibit 42 which was admitted into evidence by the trial court. Judge Doyle testified as follows regarding this exhibit.

“A. ... then I took this form and this form says that ‘On this date Allen Ray Carter, Jr.’, and it shows his race to be N, sex to be M, age to be 16, ‘personally appeared before me in the custody of J.T. Gonzalez, a peace officer of the City of Houston Police Department, Harris County, Texas, and I, Henry E. Doyle, the undersigned Magistrate, gave the said arrested person the statutory warning required by Section 5109 of the Texas Family Code, Title 3. I hereby certify I have examined Allen Ray Carter, Jr., out of the presence of and independently of any law enforcement officer or any prosecuting attorney and have determined that this person understands the nature and content of the statement and has knowingly and voluntarily waived his statutory rights.’ And I signed by name, ‘Henry E. Doyle’ before the line that says ‘Magistrate’ and put the date on it, ‘April 12th, 1978’, and the time, ‘11:15 a.m.’. Also on the bottom of this same statement in my own handwriting I wrote the following: ‘I talked with Allen Ray Carter, Jr. I, based upon his responses to general and specific questions about his activities and background, I believe he is fully competent to make the confession which he, this day, signed in my presence’ and I signed that with my initials, ‘H.E.D.’ ”

Apparently the Court of Appeals did not take into account this additional certification which was read into the record by Judge Doyle. When the magistrate’s certificate in Exhibit 43 is coupled with the additional certificate read from Exhibit 42, we find only one required word missing from the certification paragraphs. The finding that appellant has “intelligently” waived his rights is missing.

The adjectives knowing and intelligent are often defined as being synonymous. It is also true, however, that the word intelligence sometimes denotes a higher degree of mental capacity than does the word knowledge. For example, Webster’s New Collegiate Dictionary (1979) defines intelligence as, “the ability to apply knowledge to manipulate one’s environment.”

In Grayson v. State, 438 S.W.2d 553, 555 (Tex.Cr.App.1969), the defendant contended that he was incapable of intelligently waiving his right against self-incrimination and right to counsel. A competency hearing had been held at which the defendant was found competent to stand trial. This Court stated:

“It is difficult to see how one accused of crime may lack sufficient intelligence to waive his right against self-incrimination and to counsel, yet be competent to stand trial; to understand the nature of the charge against him and to assist his counsel in preparing a rational defense.”

Here, the magistrate certified that after an extensive examination he found the appellant fully competent to make a confession. He also certified that appellant knowingly waived his statutory rights. These two findings complied with the requirement that the magistrate certify an intelligent waiver of rights. Thus, Exhibits 42 and 43 when considered together show compliance with the certification provisions of Sec. 51.09, supra.

The judgment of the Court of Appeals is affirmed.

TEAGUE, J., concurs in result.

1 . Sec. 51.09, supra, prevails as an exception to Art. 38.22, V.A.C.C.P., where applicable. Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975).