Silva v. Estelle, 81-1330

• Decision Date: 05 April 1982
• Docket Number: No. 81-1330,81-1330
• Parties: Lupe Hernandez SILVA, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 457

672 F.2d 457

Lupe Hernandez SILVA, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.

No. 81-1330

Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 5, 1982.

Lupe Hernandez Silva, pro se.

Joe Foy, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, GARZA and TATE, Circuit Judges.

GARZA, Circuit Judge:

Petitioner, Lupe Silva, seeks federal habeas corpus relief pursuant to Section 2254 of Title 28, United States Code. Silva was convicted in a Texas jury trial of the offense of aggravated robbery and sentenced to life imprisonment, his punishment enhanced because of two prior felony convictions. His conviction was affirmed by the Texas Court of Criminal Appeals in an unpublished opinion. After exhausting state remedies, Silva filed the instant application for federal habeas relief. The matter was referred to a U.S. Magistrate, who recommended denial of the relief. The district court adopted the recommendation of the Magistrate and denied petitioner's request.

In his petition for federal habeas relief and on appeal, Silva asserts that his written confession was unlawfully obtained and improperly admitted at trial. Specifically, he claims that his confession was induced by a promise for a lighter sentence and was given without admonishment of Miranda warnings. Our review of the record reveals that his confession was unlawfully obtained.

The record reveals the following facts. On the night of February 5, 1977, Silva entered a convenience store in Grand Prairie, Texas, and having purchased a package of cigarettes, pointed a gun at the attendant behind the counter demanding and receiving cash of approximately $105 from the register. Before daybreak the next morning, petitioner was discovered by an Austin police officer in his automobile parked on the shoulder of Interstate Highway 35. Because he was drunk, Silva was arrested for public intoxication. A radio check revealed an outstanding warrant for the armed robbery of a convenience store. Subsequently, Silva was returned to Grand Prairie where the robbery warrant was issued, later the same day. The next morning he was arraigned before a Magistrate, Judge Ann King, where he was apprised of the charges against him, as well as his Miranda rights. Testimony at trial also revealed that the defendant requested that he be permitted to call his lawyer. There is no indication whether he was ever allowed to make such a call. Approximately an hour after his arraignment, Silva was approached by officer G. M. Morgan, who asked him if he cared to make a statement. The state court found that petitioner agreed to make a statement, and after again being apprised of his rights, dictated the written confession.

Silva has contended throughout his appeal that he requested counsel at both the arraignment and prior to submission of his written confession. At least with respect to the request for counsel at the arraignment, testimony of the state's witness does not significantly dispute this fact. At the Jackson v. Denno hearing in the state trial court, officer Morgan, who was present at the arraignment, testified as follows with respect to Silva's request for counsel:

Q: Now, do you recall at the time of the arraignment Mr. Silva asking Ms. King or Judge King for an attorney?

A: I don't believe it was put like that. She asked Mr. Silva if he had consulted an attorney or called one and he said he had not and she asked him if he wanted to and I believe he said yes.

State Trial Record at 20.

Q: You do recall Mr. Silva asking Judge King to have-that he did want a lawyer, is that correct?

A: Yes, sir.

Id. at 21.

THE COURT: As I understand your testimony, he told Judge King that he wanted to use the telephone to call a lawyer but at no time requested an attorney be appointed, is that correct or not?

A: I believe that is correct. Yes, sir.

Id. at 57.

Q: Now, I understood you a while ago to say that you heard him ask Judge King for a lawyer. Did you hear that?

A: For a phone call, yes, sir.

Q: No, sir. That was not my question. Did you hear Mr. Silva ask Judge King for a lawyer?

A: Judge King asked him if he wanted an attorney and he said that he did.

Q: He did want a lawyer?

A: Yes, sir.

Id. at 60.

THE COURT: Well, was it just the gist of the conversation that he was going to get his own lawyer and that he did not want one appointed?

A: That was my understanding, yes-that he wanted to call one over the phone.

Id. at 61.

It is apparent from the above scenario that at his arraignment, petitioner informed the magistrate of his desire to speak with his lawyer. Such a request can only be construed as an exercise by the defendant of his right to an attorney. It is also undisputed that following this request, Silva was approached by officer Morgan who asked the defendant if he wished to make a statement. Following officer Morgan's request, Silva confessed to the crime.

Recently, in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed. 378 (1981), the Supreme Court addressed the question of whether the Fifth, Sixth, and Fourteenth Amendments require suppression of a post-arrest confession, which was obtained after a defendant had invoked his right to consult counsel before interrogation. The Court, through the pen of Justice White, stated:

(W)e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot 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, ... 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.

Id. at 484, 101 S.Ct. at 1884, 68 L.Ed.2d at 386. In Edwards, the Supreme Court reconfirmed its views set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and its progeny emphasizing that "authorities, at their instance, (may not) reinterrogate an accused in custody if he has clearly asserted his right to counsel." Edwards v. Arizona, supra at 485, 101 S.Ct. at 1885, 68 L.Ed.2d at 387. Furthermore, in construing Miranda the Fifth Circuit has said:

Where there is a request for an attorney prior to any questioning, as in this case, a...