Anders v. State

• Decision Date: 28 February 1968
• Docket Number: No. 40922,40922
• Citation: 426 S.W.2d 228
• Parties: William Glenn ANDERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 228

426 S.W.2d 228

William Glenn ANDERS, Appellant, v. The STATE of Texas, Appellee.

No. 40922.

Court of Criminal Appeals of Texas.

Feb. 28, 1968.

Rehearing Denied April 24, 1968.

Jerry P. Childs, Odessa, for appellant.

Jack Tidwell, Dist. Atty., Bruce Bangert, Asst. Dist. Atty., Odessa, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Presiding Judge.

OPINION

The appeal is from a conviction for burglary with punishment, enhanced under Art. 62 P.C., assessed at 12 years.

Appellant's first four grounds of error complain of the admission in evidence of his written statement made to Deputy Sheriff James Brown in which he confessed that he participated in the burglary.

A pre-trial hearing was had at which evidence was adduced on the issue of the voluntariness and admissibility of the confession following which the court made and filed his findings on the issues of fact and law and admitted the confession in evidence.

The grounds of error complain of the admission of the confession over appellant's objections (1) that Art. 15.17 Vernon's Ann.C.C.P. was not complied with; (2) that the magistrate's warning was not adequate or sufficient to apprise appellant of his rights under Art. 15.17 V.A.C.C.P. or under the principles of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; (3) that the confession, on its face, showed a failure to meet the requirements of Art. 38.22 V.A.C.C.P.; and (4) that compliance with Art. 38.22 V.A.C.C.P. did not meet the requirements of the principles set out in Miranda v. State of Arizona, supra.

The trial court found, by other reduced to writing, signed and filed, (1) that appellant made the statement voluntarily after having been apprised of his rights and properly warned; (2) 'that in connection with the defendant having understood his rights with respect to counsel, that he did understand them and he effectively waived counsel,' and (3) 'that the warnings given by the magistrate E. E. Nobles, coupled with the warning given by Mr. Brown, effectively and adequately warned him of his right to counsel and as to other rights under the laws and Constitution.'

The warning portion of the statement dated October 5, 1966, signed by appellant, reads:

'I, William Glenn Anders, have been first duly warned by a magistrate, Judge E. E. Nobles, who is the Justice of the Peace Prec. #3 Odessa, Ector County, Texas, and also by James F. Brown, the person to whom this statement is made, FIRST, that I do not have to make any statement at all, and SECOND, that any statement made by me may be used in evidence against me in the trial or trials of the offense or offenses concerning which this statement is made, and THIRD, that I have a right to hire and talk with a lawyer; and that if I am unable to hire a lawyer that I can ask to have a lawyer appointed, and that I have a right to have an examining trial. I have further been informed by said magistrate of the accusation against me and the affidavit, if any, filed in support of such accusation.

'Nobody has mistreated, threatened, or forced me in any way to make this statement, and nobody gave me anything or promised me anything to make this statement. I do not want to talk to a lawyer before making this statement and I wish to make the following statement of my own free will:

'My name is William Glenn Anders, * * *.'

James Brown, Deputy Sheriff of Ector County, testified at the pre-trial hearing before the court and later before the jury to the effect that appellant was taken before Justice of the Peace Nobles to be warned of his rights, and to have bond set, within minutes after he arrived at the courthouse and jail in Odessa.

He further testified that immediately after warning had been given by the magistrate and bond had been set at $3,000, he took appellant to his office and gave him the warning shown on the confession, following which he interrogated him and obtained the confession which was reduced to writing and signed by appellant within 45 minutes to an hour after he was brought to the courthouse.

We quote from the testimony of Mr. Brown, to whom the confession was made:

'Q. All right. Deputy Brown, would you tell the court the nature of the warning that was given by Judge Nobles to the defendant, William Glenn Anders?

'A. Well, he was told that he didn't have to make a statement, or any statement that he did make could be used against him and he is entitled to a lawyer or have a lawyer appointed for him.

'Q. All right, sir. Now, Judge Nobles asked Mr. Anders if he wanted a lawyer, didn't he, at that time?

'A. Yes, sir.

'Q. What did Mr. Anders say to Judge Nobles in that regard?

'A. Told him that he didn't want a lawyer at that time.

'Q. And what did you do in the course of your conversation with him?

'A. I asked him if there was anyone that he wanted to call, his attorney or anyone else that he wanted to call.

'Q. All right, sir. Now, at that time did you or did you not yourself administer a warning to Mr. Anders concerning his rights in regards to giving a statement?

'A. Yes, sir.

'Q. What did you tell him concerning this warning?

'A. Told him that he didn't have to make any statement, any statement that he did make could be used against him, he was entitled to have his attorney present at the time that he was making the statement if he wished.

'Q. In this warning did you mention anything to him about the fact that he could have a lawyer appointed if he wanted one and couldn't afford to hire one?

'A. Yes, sir.

'Q. All right, sir. What did Mr. Anders answer in regards to this warning that you said you gave him personally?

'A. He said he understood it and he was ready to go ahead and talk.

'Q. Go ahead and give you a statement?

'A. Yes, sir.

'Q. Didn't want a lawyer?

'A. No, sir.

'Q. That was in your office down there on the second floor in the Ector County Courthouse, is that correct, sir?

'A. Yes, sir.

'Q. He at that time then gave you a statement concerning this burglary charge, is that correct?

'A. Yes, sir.

'Q. And you typed it up, I believe, is that right?

'A. Yes, sir.'

On cross-examination:

'Q. Now, your testimony with respect to Mr. Anders and what followed, your testimony is that you carried him before the J.P. and then you did what with him?

'A. After the Judge gave him this warning and set a bond he went back to our office and was offered a telephone to make a call to his attorney or anyone that he wanted to call.

'Q. Could you testify again for us, please, sir, the extent of that warning, or the nature of it so far as you can recall the exact words that you said.

'A. I advised him he didn't have to make any statement at all, any statement that he did make could be used against him, that he could call his lawyer and have him present at the time that the statement was being made.

'Q. Did you at anytime--is that all that you told him?

'A. As far as I can recall, yes, sir.

On re-cross-examination:

'Q. Mr. Brown, again in connection with your warning, this warning that you have read over here that is on the statement given by Mr. Anders, is that substantially the warning that you gave him?

'A. Yes, sir.

'Q. Did you add anything further than that warning?

'A. No, sir.'

On re-direct examination:

'Q. How much time had elapsed between the time he was surrendered to your custody and the time you were through with the statement? In other words, you had taken the statement, he had signed it, Mr. Baker witnessed it and all, the whole shooting match?

'A. I would say approximately forty-five minutes.

'Q. I am talking about from the time he first was surrendered to you, you took him to the magistrate, took the statement from him and took him up and put him in jail, how long was that, how long a period of time?

'A. Approximately forty-five minutes or an hour.'

Judge Nobles testified at the hearing before the court, and his certification as to the warning required by Art. 15.17, supra, which he gave appellant, was introduced in evidence.

The certificate relating to the duties of the magistrate under Art. 15.17, supra (not to be confused with the Examining Trial, Art. 16.01 V.A.C.C.P.) reads:

'This is to certify that on October 5, 1966, at 6 P.M., William Glenn Anders appeared before me in Odessa/City Ector/County Texas, at which time and place I administered to him the warnings required by Article 15.17 of the Texas Code of Criminal Procedure, which becomes effective on January 1, 1966, to-wit: The accusation against him and of any affidavit filed therewith; his right to retain counsel; his right to request the appointment of counsel if he is unable to obtain counsel; his right to have an examining trial; his right not to be required to make any statement or take a polygraph examination; and that any statement made by him might be used against him. I further informed him that he would be granted a reasonable time and opportunity to consult with counsel if he desired.'

Appellant testified at the hearing before the court but did not testify before the jury. His testimony was to the effect that he was arrested at Pittsburg, Texas, by the Sheriff of Camp County under authority of a warrant from Odessa, and a judge told him or read 'a bunch of stuff off and told me he would set my bond at $4000, * * *. I don't remember what it was he told me.' The next day, October 5, 1966 he was brought to Odessa by Ector County Deputy Sheriff Johnson, arriving between five-thirty and six in the afternoon, the distance being more than 400 miles and it being a ten hour drive. Fifteen or twenty minutes after he was 'brought upstairs and put in that room over there across from the jailer's office,' Deputy Brown took him before Justice of the Peace Nobles. Appellant further testified:

'Q. What did Judge Nobles tell you?

'A. I don't remember what all it was.

'Q. Well, he mentioned the fact that you were entitled to a...