DeLeon v. State, 46376

• Decision Date: 19 September 1973
• Docket Number: No. 46376,46376
• Citation: 500 S.W.2d 862
• Parties: Raymond R. DeLEON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 862

500 S.W.2d 862

Raymond R. DeLEON, Appellant, v. The STATE of Texas, Appellee.

No. 46376.

Court of Criminal Appeals of Texas.

Sept. 19, 1973.

Rehearing Denied Nov. 7, 1973.

F. B. Godinez, Jr., Lubbock, Richard R. Devon, San Antonio, for appellant.

William B. Mobley, Jr., Dist. Atty., Russ Henrichs, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of heroin. Punishment was assessed by the jury at 32 years.

On March 8, 1970, Corpus Christi officers, armed with a search warrant, went to the residence of appellant and his parents to search for narcotics. The officers discovered covered several containers of heroin on the premises, and the appellant, three of his brothers, and later his father were placed under arrest. Later on the same day, appellant gave a written statement in which he admitted possession and ownership of the contraband.

Appellant's first contention is that he statement, which was reduced to writing and signed by him, was illegally obtained in violation of the Fifth and Fourteenth Amendments and therefore inadmissible as evidence.

A Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, type hearing was held prior to trial. See Article 38.22, Vernon's Ann.C.C.P. The trial court entered findings of law and fact that the confession was voluntary and the order appears in the record before us.

During the trial, the appellant renewed his objection to the statement and introduced evidence before the jury concerning the voluntariness of the confession. The court instructed the jury that the confession could not be considered by them unless they found it had been freely given, without compulsion or persuasion, and only after the mandatory warnings were understood by appellant.

Officers Bell and Freeman testified that when they arrived at appellant's residence to conduct the search appellant's mother told them he was not there, and while other officers commenced the search Bell and Freeman drove to a local tavern appellant was known to frequent. They found him outside the tavern, informed him of the warrant and the search then in progress, and they asked if he wanted to go with them. Appellant responded, 'Let's go,' and they returned with him in the police vehicle to the residence.

Several officers testified that while the search continued appellant remained in the living room with other members of his family. Shortly after appellant returned, Sergeant Perez discovered a package buried under a storage shed behind the house, and he carried the aluminum foil package, still wrapped, into the living room. When appellant saw Perez with the package, appellant stated, 'You got me; that's mine; let's go.' The package was opened and found to contain heroin.

Officers Bell and Perez testified that they drove appellant to the home of Municipal Judge O. E. Cannon, and there appellant was given the Miranda warning. ¹ Both Perez and Bell testified they had previously spoken in English to appellant on many occasions and that he could understand English reasonably well. They testified that Judge Cannon gave the warning in English, and Perez said that during the drive back to the police department, at appellant's request, he explained the warning in Spanish. Judge Cannon testified that he remembered the occasion 'very vaguely,' that he always takes care to be sure an accused understands the warning, and that he remembered no difficulty in making this determination in the instant case. He testified that it is his signature on State's Exhibit No. 2, the form he read to appellant.

Perez testified that he conversed with appellant in both Spanish and English about the heroin. He had appellant's statement reduced to writing, read the warning and the statement to appellant, and then appellant signed the statement about thirty minutes after leaving Judge Cannon's house. Perez testified appellant never asked to have the statement read to him in Spanish and never asked for an attorney. He denied making any threats to obtain the statement, and he said at no time did appellant's lawyer ask to speak to appellant until after the statement was signed.

Other police officers testified that they had numerous conversations in English with appellant, and that in their opinion he could understand English. The State introduced into evidence a handwriting sample given by appellant six years earlier in which he had copied names and sentences in English.

Captain Freeman and other officers testified they saw Attorney Tony Canales in the police department on the day of appellant's arrest. All denied having spoken to Canales or refused to allow him to see appellant.

Appellant testified that he made no oral confession at his house, that he did not possess the heroin or know to whom it belonged. He stated the only reason he signed the paper was because of police threats to arrest his sick mother and to further charge his father and brothers whom he knew had been taken to jail with him.

He testified that he could not speak English, could read no English, and that he did not know what was in the warning form or the statement that he signed. He denied that Perez had explained the warning in Spanish and said he asked Perez to read it in Spanish, but the officer refused and laughed at him. Two of appellant's former employers testified that he could not read English.

Appellant stated that he asked for a lawyer nine or ten times, and that while he was being booked into jail he talked to Tony Canales and asked Canales to represent him to which Canales agreed; however, the police later refused to permit him to talk to the lawyer until after he signed the statement.

Tony Canales, who had not previously represented appellant, testified that he spoke to appellant at the booking desk on March 8, 1970, and agreed to represent appellant. Canales then drove to his office to call another lawyer requested by appellant, and when he returned to the jail a few minutes later the police refused to permit him to see appellant by saying they did not know where he was.

Appellant contends that Figueroa v. State, Tex.Cr.App., 473 S.W.2d 202, is in point and requires reversal of his conviction. In Figueroa, this Court said the trial judge erred in not conducting a separate hearing and announcing his findings on the voluntariness of the defendant's written confession. The instant case differs from Figueroa because here the court did conduct a hearing prior to trial and did with specificity announce its findings on the voluntariness issue. Evidence regarding the voluntariness of the confession was presented to the jury, and the jury was instructed in accordance with Article 38.22(a), Sec. 2, V.A.C.C.P., that they must believe beyond a reasonable doubt that the statement was voluntarily made in order to consider the statement as evidence.

We find the court and jury had sufficient evidence to support the conclusion that the confession was voluntarily given. Bizzarri v. State, Tex.Cr.App., 492 S.W.2d 944; Willis v. State, Tex.Cr.App., 479 S.W.2d 301.

The findings of the trial court that appellant waived his right to counsel are also supported by the evidence. The warning administered by Judge Cannon informed appellant that he had a right to counsel and to have the attorney present before and during any questioning by peace officers. The statement taken by Sergeant Perez also advised appellant of his right to counsel before and during any questioning; it further states appellant consented to questioning without a lawyer's presence. In light of the evidence of appellant's knowledge of his right to counsel, the testimony of Judge Cannon and the four police officers that appellant did not seek counsel, the court's finding that appellant was not denied access to counsel during questioning following his arrest is supported by the evidence. See Hill v. State, Tex.Cr.App., 429 S.W.2d 481.

We reject appellant's contention that the court erred in admitting appellant's confession for the reason that the confession was not in the actual words of the appellant. So long as a confession is voluntarily made, it is admissible, though on reducing it to writing the identical words of the accused are not used. Garcia v. State, 162 Tex.Cr.R. 594, 288 S.W.2d 513.

Appellant contends the confession was inadmissible for the reason that the warning was given appellant by a person other than the one whose name appears on the written confession. The confession reflects that the warning was given appellant by a Judge Bunning and A. P. (Officer) Perez. The evidence, however, reflects that Judge Cannon and Officer Perez warned appellant of his rights. No authority is cited in support of appellant's contention. Article 38.22, V.A.C.C.P., as amended (effective August 28, 1967), does not require that the warning be on the face of the confession to be admissible. Hassler v. State, Tex.Cr.App., 473 S.W.2d 513. In addition to the testimony of the officers and Judge Cannon relative to Judge Cannon giving appellant the warning, a certificate of Judge Cannon bearing the same date of the confession reflects that appellant was warned of his rights on the date in question by Judge Cannon. The record reflects that appellant was adequately warned of his constitutional rights prior to giving his written confession. We perceive no error.

Appellant contends the court erred in not granting his motion to have a portion of the confession deleted before it was read to the jury. Appellant's complaint is directed to that portion of the statement which reads, 'I realize that it is a violation of the law to sell heroin, but the heroin that was found at my house belongs to me, and my family has nothing to do with it.' Appellant argues that the reference to sale of heroin prejudiced the jury in thinking that appellant was selling...