Andino v. State

• Decision Date: 05 January 1983
• Docket Number: No. 3-82-070-CR,3-82-070-CR
• Citation: 645 S.W.2d 615
• Parties: Juan Figuero ANDINO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 615

645 S.W.2d 615

Juan Figuero ANDINO, Appellant, v. The STATE of Texas, Appellee.

No. 3-82-070-CR.

Court of Appeals of Texas Austin.

Jan. 5, 1983.

Gerald M. Brown, Carroll, Brown & Hibbs (Court-appointed), Temple, for appellant.

Arthur C. Eads, Dist. Atty., James T. Russell, Administrative Asst., Belton, for appellee.

Before SHANNON, POWERS and GAMMAGE, JJ.

POWERS, Justice.

The jury, against appellant's plea of not guilty, found him guilty of the aggravated robbery of Lawrence Richardson, imposing punishment of seventy years imprisonment and a $10,000 fine. Appellant challenges his conviction on two grounds of error, both of which are directed at the action of the trial court in admitting into evidence, over appellant's objection and his pre-trial motion to suppress, certain incriminating statements which appellant had made to a grand jury. We will affirm the judgment of the trial court.

The record reveals that appellant was confined in the Bell County jail following his conviction for an unrelated criminal offense. While there, he was, in response to a subpoena, taken before a grand jury of the county. He was there advised by an assistant district attorney that the grand jury were investigating the aggravated robbery of Horace O'Rear, alleged to have occurred in the City of Killeen, Bell County, Texas on August 22, 1981. He was further advised that he was entitled to remain silent, to terminate his testimony at any time, to have a retained or court-appointed lawyer assist him, and that any statement made before the grand jury could be used against him. Appellant expressly waived his right to remain silent, his right to counsel, and his right to terminate the interview. In response to questions asked by the assistant district attorney, appellant then gave testimony which tended to absolve him of the aggravated robbery of O'Rear.

The assistant district attorney then advised appellant that the grand jury were also investigating the murder of Charles Steven Jones, alleged to have occurred in Killeen on May 28, 1981. Although appellant was again advised in the manner described above, he again waived his pertinent rights and privileges and made to the grand jury exculpatory statements regarding the murder of Jones. These statements were made in response to questions by the assistant district attorney, which concluded with a question about a man named McClain, who was known both to Jones and appellant. The colloquy continued as follows:

Q. Have you heard anything else about uh about [Jones's] murder?

A. No sir.

Q. Do you know a guy by the name of Richardson? You know a guy that goes by the name Richardson?

A. Richardson, the old man? Yes sir.

Q. Have you an [sic] he ever had any problems?

A. Yes sir.

Q. Have you ever, have you ever stole things from Richardson?

A. I beat him one time.

Q. Do what?

A. I beat him one time out of some money.

Q. How did you do that? How did you do that?

A. With a pistol.

Q. Do you remember when that was?

A. No I don't remember, this was [sic] it was this year, but I don't know what month.

Q. It was in 1981?

A. Yea.

Q. Tell me how that happened.

Appellant proceeded to describe his aggravated robbery of Richardson, at the conclusion of which the assistant district attorney, stating that he wanted "to make totally sure" that appellant understood "everything," again advised appellant of his right to remain silent, his right to counsel, his right to terminate the interview, and warned appellant that his statements could be used against him. Stating that he understood such matters, appellant expressly waived his rights and privileges in that regard and in response to further questions, recited in greater detail his aggravated robbery of Richardson.

Appellant's testimony before the grand jury was recorded on magnetic tape and played before the petit jury which found him guilty of the aggravated robbery of Richardson. Appellant contends this was error, such evidence being inadmissible because: (1) in his testimony before the grand jury he was not initially informed that he was accused or suspected of the aggravated robbery of Richardson, nor of the time and place of its occurrence, as required by the provisions of Tex.Code Cr.P.Ann. art. 20.17 (1977); ¹ and (2) the warnings and advice which were given him by the assistant district attorney, in appellant's appearance before the grand jury, were initially focused on crimes other than the aggravated robbery of Richardson. We will discuss the two grounds of error together.

Under appellant's grounds of error, his counsel argues ably that a person suspected or accused of a criminal offense, that is, a putative, de facto, or virtual defendant, when he is involuntarily required to appear before the grand jury, possesses a right to be informed of the nature of the offense and the time and place of its commission before being interrogated about it. Appellant asserts this as a statutory right, given by the provisions of art. 20.17 to putative defendants, but argues that it is a constitutional right as well, being essential to fundamental fairness in the grand jury's interrogation of a putative defendant and therefore required as an element of procedural due process of law, guaranteed by the Fourteenth Amendment to the Constitution of the United States. He also contends that the right rests upon the Fifth Amendment of the Constitution of the United States, foreknowledge of such matters being essential to a putative defendant's intelligent and meaningful decision whether to invoke or waive his privilege against self-incrimination, a privilege guaranteed by the amendment. In elaboration of this last contention, appellant argues that appellant was entitled to a "Fifth Amendment warning" which specifically identified the Richardson robbery as the context for such warning; that the required "warning" consisted in the matters of which a defendant must be advised and warned under the holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and that the requisite advice and warning, when given to appellant during his appearance before the grand jury, came too late when it was given after appellant had admitted his complicity in the Richardson robbery, but before he reiterated his complicity in greater detail, appellant's theory being that an incurable injury had already been sustained, that is, "the damage had already been done." As a corollary to his reference to the Fifth Amendment privilege against self-incrimination, appellant contends that the grand jury proceeding is a "critical stage" of a criminal proceeding when a putative defendant, who appears involuntarily, must make a crucial decision before that body to invoke or waive his privilege; and he is therefore entitled to the assistance of counsel in that proceeding as a matter of right under the Sixth Amendment to the Constitution of the United States, such assistance being required for a meaningful exercise of his privilege against self-incrimination. Hence, the requisite advice to a putative defendant must apprise him of his right to retained or appointed counsel, as under Miranda.

Appellant's propositions are skillfully advanced. We point out in the beginning, however, that they rest in large degree upon the implicit premise that a grand jury's interrogation of a putative defendant, like his questioning while in police custody, is an "interrogation of persons suspected or accused of a crime (that) contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. " Miranda Id. 384 U.S. at 467, 86 S.Ct. at 1624 (emphasis added). We will initially assume appellant's implied premise for the purpose of discussion; however, we will point out at this point that whatever "coercive" aspects pervade a grand jury's interrogation of a putative defendant, it has not been decided whether any advice or warning must be given him; a fortiori, it has not been determined that any advice and warning must comply with those mandated by Miranda, supra; United States v. Washington, 431 U.S. 181, 186, 97 S.Ct. 1814, 1818, 52 L.Ed.2d 238 (1977); which is to say, it has not been decided that a grand jury proceeding "contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely."

It is admitted and obvious that the Fifth Amendment is operable when a putative defendant appears involuntarily before a grand jury for interrogation. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). It is settled that the Fifth Amendment privilege against self-incrimination is protected by the Fourteenth Amendment against abridgment by the States. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Moreover, we agree that one apparent purpose of art. 20.17 is to effectuate the putative defendant's privilege against self-incrimination when he involuntarily appears before a grand jury; and we freely concede the familiar corollary that one's intelligent and meaningful exercise of his privilege against self-incrimination may require the assistance of counsel. Another purpose of art. 20.17 appears to be that of effectuating the safeguards of the Fourth Amendment to the Constitution of the United States. See, Ex parte Gould, 60 Tex.Cr.R. 442, 132 S.W. 364, 365-66 (1910). Notwithstanding these general principles, we are unable to agree with the conclusions which appellant draws from them in this particular case.

In arts. 20.17 and 20.18, the Legislature distinguishes between two classes of grand jury witnesses: those who are suspected or accused of a criminal offense and those who are not. In reference to the former class, art. 20.17 provides:

The grand jury, in propounding questions to the person accused or suspected, shall first state the offense...