Ex parte Bertsch, 38092

• Decision Date: 16 June 1965
• Docket Number: No. 38092,38092
• Citation: 395 S.W.2d 620
• Parties: Ex parte Edwin Marious BERTSCH.
• Court: Texas Court of Criminal Appeals

Page 620

395 S.W.2d 620

Ex parte Edwin Marious BERTSCH.

No. 38092.

Court of Criminal Appeals of Texas.

June 16, 1965.

Rehearing Denied Oct. 20, 1965.

Second Motion for Rehearing Denied Dec. 1, 1965.

Clyde W. Woody, Houston; John P. Farra, Houston, on rehearing, for relator.

Wallace T. Barber, Dist. Atty., San Marcos, Gilbert Pena, Asst. Atty. Gen., Austin, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Judge.

This is a post-conviction proceeding initiated by the Honorable James Noel, Judge of the United States District Court for the Southern District of Texas by order dated February 3, 1965, Bertsch v. Beto, 242 F. Supp. 52, which was made subsequent to the affirmance of petitioner's conviction by this Court. Bertsch v. State, Tex.Cr.App., 379 S.W.2d 657. On March 19, 1965, this Court directed the trial court to hear evidence and to certify to this Court the facts relative to the following grounds alleged by petitioner in his application before Judge Noel:

'(1) The Jackson v. Denno [378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908] proscribed submission of the question of the voluntariness of a confession to the jury determining innocence and guilt, without a prior determination of that voluntariness.

(2) The admission into evidence of petitioner's confession which was procured without compliance with Rule 5a of the Federal Rules of Criminal Procedure, alleged to be applicable to the State of Texas.

(3) The failure of the State to afford the petitioner effective assistance of counsel at all stages of the prosecution, particularly at the stage when the confession was obtained from him.'

This Court also required the trial court to hear evidence as to whether or not petitioner had been deprived of due process in his trial because of the association of the Sheriff with the jury under the rule announced in Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424. This question will be discussed under our paragraph no. (4) later in this opinion.

A hearing was had and petitioner was present and was represented by counsel of his own choosing.

We shall discuss the record before us in the light of the above four questions.

(1) Judge Dittert stated at a hearing in answer to petitioner's attorney's question as follows: 'This Court always makes an initial determination of the voluntariness of the confession before it is admitted into evidence, and that was done in this case.' This is almost the exact language commended by Judge Noel in Smith v. State of Texas, D.C., 236 F.Supp. 857. In addition, Judge Dittert has sent to this Court a certification of the voluntariness of this confession in which he certified that he found initially as a matter of law that the confession was voluntarily made and that he further resolved, determined and decided conflicting and disputed issues of fact, and found beyond a reasonable doubt, without regard to the truth or falsity of the confession, that the confession was freely and voluntarily made.

(2) He further found and the record of the hearing discloses that petitioner was arrested between 5:30 and 6:30 p. m. on Sunday night and placed in jail, that he was interrogated by no one until the following morning and that the local Justic of the Peace being sick or deceased, no magistrate was available until later that day subsequent to the making of the confession, when a Justice of the Peace from an adjoining precinct came to the courthouse and petitioner was carried before him.

This Court is not inclined to accept as binding upon us the five minute rule announced in Alston v. United States, D.C. Cir., 348 F.2d 72. We know of no case in which a state court case has been decided under the Alston rule.

(3) Judge Dittert certified and the record supports the fact that appellant made no request to see an attorney or have one appointed for him prior to the making of the confession. This Court has recently held in Marion v. State, Tex.Cr.App., 387 S.W.2d 56, that where a telephone was nearby and the accused was told that he might use it to call a lawyer that the confession thereafter made was admissible under the rule in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Recently, in Corry v. State, Tex.Cr.App., 390 S.W.2d 763 (May 26, 1965) we held that where the accused testified on the trial, as did petitioner in his case, and failed to mention the fact that he had requested an attorney prior to making the confession, the Escobedo rule had no application. We adhere to our prior holding. We do not view the action of the Supreme Court of the United States (June 1, 1965) 85 S.Ct. 1765, in denying review without written opinion to the ruling of the Supreme Court of California in People v. Dorado, 40 Cal.Rptr. 264, 394 P.2d 952, as requiring that in all state court cases an attorney must be made available to an accused whether he asks for one or not.

(4) We have examined the record made in Judge Dittert's Court with care and have concluded that a serious question would be presented were Turner v. State of Louisiana, supra, held to operate retroactively. It must be remembered that the matter before us here is not an appeal, but a collateral attack. As we view the recent opinions of the Supreme Court of the United States in Linkletter v. Walker, 85 S.Ct. 1731 (June 7, 1965) and Angelet v. Fay, 85 S.Ct. 1750 (June 7, 1965), it is the view of the Supreme Court that only those cases of the type set forth therein have been held to have retroactive application. We adopt the following phraseology from Linkletter: 'The past cannot always be erased by a new judicial declaration.' If this be a correct interpretation, then Turner v. State of Louisiana, supra, is not to be given retroactive application and cannot be the basis for the granting of the writ in the case at bar.

The writ of habeas corpus is denied.

WOODLEY, J., concurs in the denial of the petition to this Court for writ of habeas corpus.

ON PETITIONER'S MOTION FOR REHEARING

McDONALD, Presiding Judge.

Petitioner's able counsel has filed an exhaustive brief in support of his motion for rehearing herein. He again complains of the trial judge's determination and certification that he found initially as a matter of law that the confession was voluntarily made. We have with great care reviewed the entire record in the trial of this cause which was before us in Bertsch v. State, Tex.Cr.App., 379 S.W.2d 657, as well as the record on this habeas corpus proceeding. We reiterate, as stated in our original opinion, that no objection was taken to the confession at the time it was admitted in evidence at the trial of this cause. No proof was adduced as to any coercion, no issue was raised or created as to the voluntary nature of the confession. While learned counsel insists that Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, required an instruction from the Court to the jury on the voluntariness of the confession, we disagree. Such an instruction, in the state of the record before us, would have had the effect of submitting to the jury for their determination the exact question condemned by the U. S. Supreme Court in the Jackson v. Denno case. There was no factual basis, no issue, in the evidence that even remotely required the submission of such an issue to the jury. Additionally, Judge Dittert, the trial judge, made an independent determination and finding, as shown by the record, that the confession was voluntarily made, and he so held that it was voluntary as a matter of law. We overrule petitioner's contention once more.

Petitioner relies heavily upon the opinion of the 5th Circuit Court of Appeals in the case of Collins v. Beto, 348 F.2d 823, and correctly states that the 5th Circuit adopted the rule announced by the California Supreme Court in People v. Dorado, 40 Cal.Rptr. 264, 394 P.2d 952, which two cases hold that a request for counsel is immaterial. However, we observe that in both of these cases neither petitioner nor defendant was apprised of his right to counsel. In the case at bar, petitioner was told of this right by Deputy Sheriff Adamcik, a witness for the defense, as shown from the testimony on the voluntary nature of the confession:

Q: 'But you did let him know that if he wanted to get an attorney, not talking about the Court appointing him an attorney, but if he wanted to get an attorney at that time he could?'

A: 'Yes, sir, that was the first question I asked him, if he has got an attorney.'

Later on in his testimony Deputy Adamcik testified, 'He understood that when I first asked him the question about if he has got an attorney. We went through that.' The record reflects that appellant made no type of request whatever for an attorney, either to be employed by him, or appointed for him by the Court. It is significant to observe that upon his trial petitioner was represented by two attorneys of his own choosing, employed by him. Petitioner here is not in the category of Collins. In that case Judge Tuttle said, 'Petitioner was not advised of his right to consult a lawyer.' Here, petitioner was advised by Adamcik of his right to be represented by an attorney. Adamcik, the record shows, was his friend of a lifetime, and he talked with petitioner in both the English and Czech language so that petitioner would fully understand all that Admacik told him. We find no basis to apply the two foregoing holdings to the facts in this case. This contention is again respectfully denied.

Lastly, petitioner urges that our holding on original submission of this cause was in error wherein we gave application to the rule retrospectively announced in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, to Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424. While this writer is inclined to the view that petitioner is correct in his contention that Linkletter does not preclude the giving of a retroactive interpretation to Turner...