Easley v. State, 42493

• Citation: 448 S.W.2d 490
• Decision Date: 07 January 1970
• Docket Number: No. 42493,42493
• Parties: Aubrey Joe EASLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 490

448 S.W.2d 490

Aubrey Joe EASLEY, Appellant, v. The STATE of Texas, Appellee.

No. 42493.

Court of Criminal Appeals of Texas.

Jan. 7, 1970.

Donald D. Koons, Dallas (on appeal only), for appellant.

Henry Wade, Dist. Atty., and William Hill, Jim Barklow, John B. Tolle, Camille Elliott and James P. Finstrom, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is rape; the punishment, 99 years.

Appellant was clearly identified by the complaining witness as the man who grabbed her on a Dallas County public street on September 15, 1967, forced her into a nearby garage and raped her. The State also offered appellant's written confession.

Court appointed counsel on appeal poses the following two questions:

'1. Whether Appellant knowingly, intelligently, and voluntarily waived his constitutional rights so as to make a written confession admissible in evidence against him.

'2. Whether the record shows sufficient compliance with Article 15.17 Texas Code of Criminal Procedure dealing with the taking of a Defendant before a magistrate, before Appellant was questioned about any alleged rape; the record reflecting that he was arrested for offenses other than those for which he was tried.'

Appellant commences his argument by contending the dissent in Charles v. State, Tex.Cr.App., 424 S.W.2d 909, cert. den. 392 U.S. 940, 88 S.Ct. 2319, 20 L.Ed.2d 1401, properly interpreted the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, as to the requisite warnings and affirmative waiver of rights. Conceding that even if the majority's position in Charles was correct that the warnings under Articles 15.17 and 38.22, Vernon's Ann.C.C.P., 1965, then in effect, were as 'fully effective' as Miranda without regard to waiver, appellant calls attention to the 1967 amendments to Articles 15.17 and 38.22, supra, particularly with reference to the requirements of Article 38.22, supra, as to waiver.

Article 38.22, Sec. 1(c)(3) provides in part:

'The defendant must knowingly, intelligently, and voluntarily waive these rights prior to and during the making of the statement.'

Appellant contends that whatever interpretation may be given to the Miranda requirement as to waiver the above quoted portion of Article 38.22, supra, must now be considered with regard to the admissibility of any confession.

He claims the record before us does not show that he affirmatively waived his rights and the court erred in admitting, over objection, his confession.

The record shows appellant was arrested on October 14, 1967. While not as clear as it should be, the record reflects that on the following day (October 15) appellant was taken before a magistrate and given the warnings required by Article 15.17, supra, as to a theft charge upon which he was being held. Later that day Officer Babb of the Dallas Police Department began to interrogate this 23 year old appellant, who had attended high school and who was on probation for burglary. Prior thereto he gave the appellant warnings in accordance with Miranda and Article 38.22, supra. The appellant acknowledged that he understood his rights and the interrogation commenced. Within 45 minutes appellant confessed to the rape charged. The confession was then reduced to writing and read along with the warnings contained therein to the appellant in the presence of a newspaper reporter. The appellant followed the reading thereof and acknowledged the confession was true and correct. Thereafter he signed the confession which was witnessed by the news reporter.

Following the rather complete warnings in the written confession, the following statement is found:

'I do not want to consult with a lawyer prior to or during the answering of any questions or the making of this statement and I do hereby knowingly and voluntarily waive my above explained rights and I do make the following voluntary statement to the aforementioned person of my own free will and without any promises or offers of leniency or favors, and through no fear, coercion or threat of physical harm by any person or persons whomsoever.'

While it may not be determinative thereof, such statement in the confession is a...