Ex parte Bagley, 48289

Citation509 S.W.2d 332
Decision Date15 May 1974
Docket NumberNo. 48289,48289
PartiesEx parte William Eugene BAGLEY.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Luther E. Jones, Jr., Corpus Christi, for appellant.

William B. Mobley, Jr., Dist. Atty., John M. Potter, Asst. Dist. Atty., Corpus Christi, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

This is a post-conviction habeas corpus proceeding brought under the provisions of Article 11.07, Vernon's Ann.C.C.P., by the petitioner, an inmate of the Texas Department of Corrections.

Petitioner was convicted in a jury trial in Cause No. 12,692 in the 105th District Court of Nueces County on June 14, 1967, of murder with malice, and his punishment was assessed by the court at 35 years confinement. He appealed to this Court, and his conviction was affirmed. Bagley v. State, Tex.Cr.App., 425 S.W.2d 656.

The present proceeding is a second application by petitioner under Article 11.07, V.A.C.C.P. In this proceeding he urges for the first time the federal constitutional claim that his conviction is void because there was used against him a confession 1 given, petitioner alleges, without his ever being warned of his Miranda 2 right to presence of counsel during interrogation.

The record of the main trial in which petitioner was convicted of murder reflects that the trial started on June 12, 1967, a day less than one year after the Supreme Court delivered its opinion in Miranda, supra. 3 At the trial, a hearing was had outside of the presence of the jury, at the request of the State, to determine the admissibility of the confession. There was no objection raised as to the voluntariness of the confession. After hearing testimony in regard to the warnings which were given and the various statements which had been taken, the court ruled the confession to be admissible. No objection was made at the time. Later, the confession was introduced in evidence before the jury. The only objection to its admission was as follows: Mr. Fagan (Defense Counsel) 'Of course, I object to it at this time, if the court please.' There was No objection that the confession was involuntarily made, or that appellant was not properly warned of his right to counsel.

Furthermore, the record also reveals that there was no complaint made on the appeal of the conviction concerning the introduction of the confession in evidence. See Bagley v. State, supra. No such complaint was made in the first habeas corpus proceeding.

This Court has consistently held that in order to complain about the admissibility of a confession, even in regard to a violation of Miranda, and other federally guaranteed constitutional rights, there must be an objection in the trial court. Aldrighetti v. State, Tex.Cr.App., 507 S.W.2d 770 (1974); Spead v. State, Tex.Cr.App., 500 S.W.2d 112; Jones v. State, Tex.Cr.App., 501 S.W.2d 308; Taylor v. State, Tex.Cr.App., 489 S.W.2d 890; Rawlinson v. State, Tex.Cr.App., 487 S.W.2d 341; Moore v. State, Tex.Cr.App., 480 S.W.2d 728; Clark v. State, Tex.Cr.App., 470 S.W.2d 869; Green v. State, Tex.Cr.App., 467 S.W.2d 481; Mason v. State, Tex.Cr.App., 459 S.W.2d 855; Evans v. State, Tex.Cr.App., 444 S.W.2d 641. Furthermore, the objection, if any, must have called the attention of the trial court to the particular complaint raised on appeal. Rawlinson, supra; Salas v. State, Tex.Cr.App., 486 S.W.2d 956; Hinkle v. State, Tex.Cr.App., 442 S.W.2d 728; Lawhon v. State, Tex.Cr.App., 429 S.W.2d 147.

The same rule as to the necessity of an objection to complained of evidence has been applied by this Court in habeas corpus cases. Ex parte Roberts, Tex.Cr.App., 502 S.W.2d 802; Ex parte Kirby, Tex.Cr.App., 492 S.W.2d 579; Ex parte Kelly, Tex.Cr.App., 484 S.W.2d 773; Ex parte Kirk, Tex.Cr.App., 478 S.W.2d 503; Ex parte Selby, Tex.Cr.App., 442 S.W.2d 706; Ex parte Meadows, Tex.Cr.App., 418 S.W.2d 666; Ex parte Bertsch, Tex.Cr.App., 395 S.W.2d 620.

Recently this Court in a habeas corpus proceeding passed upon a problem similar in some respects in Ex parte Casarez, 508 S.W.2d 620 (1974). Evidence of three prior convictions for aggravated assault was admitted in evidence without objection at the punishment stage of a trial for burglary of a private residence at night. It was shown on the habeas corpus hearing that each of the three misdemeanor convictions was void because in each case the defendant had not been represented by counsel, was indigent, and had not waived his right to counsel. See Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; Ramirez v. State, Tex.Cr.App., 486 S.W.2d 373. In each case, the punishment included imprisonment in jail. In setting aside the conviction and granting the relief sought, we said:

'Petitioner's trial resulting in the challenged conviction as stated above was had on May 12, 1967, over five years before the decision in Argersinger v. Hamlin, 407 U.S. 25 (92 S.Ct. 2006, 32 L.Ed.2d 530) (June 15, 1972), upon which our opinion in Ramirez, supra, was grounded. Consequently, counsel's failure to object upon a ground not yet established as a defect of constitutional magnitude did not constitute a waiver.'

The basis for granting the writ in Casarez is not applicable here. As heretofore stated, the trial of petitioner Bagley for murder was had year After the decision in Miranda, supra, had become the law of the land. As was said by the Supreme Court in discussing Miranda in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882,

'Future defendants will benefit fully from our new standards governing incustody interrogation, while past defendants may still avail themselves of the voluntariness test. Law enforcement officers and trial courts will have fair notice that statements taken in violation of these standards may not be used against an accused.'

Notwithstanding the finding of the trial court at the hearing on this habeas corpus proceeding, based on the testimony of petitioner's counsel at the murder trial, that counsel's failure to object was not a product of deliberate trial strategy and was not accompanied by any intention to bypass or circumvent Texas procedural laws, 4 we hold that counsel was put on notice of the standards of Miranda, which at the time of the trial had been in effect for a year.

We, therefore, hold that the contemporaneous objection rule serves a legitimate State interest in this question, and that the failure of petitioner, as defendant, to object at the trial, and to pursue vindication of a constitutional right of which he was put on notice on appeal, constitutes a waiver of the position he now asserts. In so holding we are not suggesting that petitioner is correct in his contention that the standards of Miranda were not complied with in the taking of the confession in question. Although the waiver would cause us to deny the writ, we shall nevertheless reconsider petitioner's said contention.

Petitioner's contention in this proceeding is limited to his claim that his confession, admitted in evidence as State's Exhibit 16, is void because at the time of making it he had not been warned that he had a right to have an attorney present during the interrogation productive of such confession.

Petitioner alleged in his writ of habeas corpus that,

'An important part of the State's proof in the trial in this court in which said conviction was obtained was a written confession given by him in response to custodial interrogation after various warnings were made to him. Those warnings did not include, and nobody at any time ever gave him, a warning that he had a right to have an attorney present with him during the interrogation productive of said confession. Because of the total lack of any warning of that kind petitioner makes the contention, in reliance on Miranda v. Arizona, 384 U.S. 436 (86 S.Ct. 1602, 16 L.Ed.2d 694) (1966) and Sanchez v. Beto, 467 F.2d 513 (5th Cir. 1972), that the action of this Court admitting said confession into evidence before the jury subjected him to a deprivation of his federally secured constitutional right . . .' (Emphasis ours)

In response to the above pleading the trial court in its findings of fact and conclusions of law found,

'Nobody before commencement of that interrogation warned petitioner of his right to have an attorney present with him during that interrogation.'

This Court is not bound by the findings of the trial court in a habeas corpus proceeding and may make contrary findings when the record will not support the trial court's findings. Ex parte Williams, Tex.Cr.App., 486 S.W.2d 566; Ex parte Young, Tex.Cr.App., 479 S.W.2d 45.

Petitioner in his hearing introduced in evidence as a part of the record the statement of facts reflecting the evidence given in the original trial at which he was convicted. We find from such record that the petitioner received the specific warning that he had a right to have an attorney present with him during the interrogation not only once, but twice before the complained of confession was taken.

The record reflects that the petitioner was arrested on the night of January 16, 1967. The following morning, at approximately 10:30 o'clock, the petitioner was taken before Assistant District Attorney Kenneth Yarbrough. At this time Yarbrough warned petitioner that he had a right to retain counsel, that if he was unable to do so, counsel would be appointed to represent him, that he had a right to an examining trial, right to have bail set, and a warning that any statement he made could be used against him. The testimony does not reflect petitioner was warned of his right to have counsel present during the interrogation.

Prior to this meeting petitioner had been warned by the arresting officers and taken before a magistrate to be warned pursuant to Art. 15.17, V.A.C.C.P., as it then existed. These warnings were also deficient in that they failed to apprise petitioner of his right to have counsel during interrogation. See Sanchez v. Beto, 467 F.2d...

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