Fernandez v. Beto

• Decision Date: 06 March 1968
• Docket Number: Civ. A. No. 5-345.
• Citation: 281 F. Supp. 207
• Parties: Jessie FERNANDEZ, also known as Jessie Fernandez, Jr., Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Texas

281 F. Supp. 207

Jessie FERNANDEZ, also known as Jessie Fernandez, Jr., Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent.

Civ. A. No. 5-345.

United States District Court N. D. Texas, Lubbock Division.

March 6, 1968.

J. Douglas McGuire, San Antonio, Tex., for petitioner.

Crawford C. Martin, Atty. Gen. of Texas, Austin, Texas, Robert Darden, Asst. Atty. Gen., for respondent.

OPINION

WILLIAM M. TAYLOR, Jr., District Judge.

This is a habeas corpus case presenting the question of whether a confession made by the petitioner and introduced against him at his state trial was accorded a determination of voluntariness as prescribed by the Supreme Court in Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. This court is of the opinion that the procedure followed by the trial judge did not adequately resolve the issue of voluntariness.

In 1961, Jessie Fernandez was convicted of murder with malice in the district court in Crosby County, Texas. His appeal of that conviction was affirmed by the Texas Appeals Court. Fernandez v. State, 172 Tex.Cr.R. 68, 353 S.W.2d 434.

In the course of petitioner's trial the state introduced his written confession to the offense. Defense counsel objected to the introduction of the confession on the ground that it was involuntary, whereupon the trial court retired the jury. The sheriff of Crosby County, who was on the witness stand at this time, testified to the facts surrounding the making of the confession by Fernandez. Petitioner then testified to his version of these facts. At the conclusion of petitioner's testimony the trial court stated, "I'm going to overrule the objection and admit the statement, if the proper predicate has been laid and I don't remember whether it has or not."¹ The jury returned, the sheriff resumed his testimony and the facts surrounding the confession were developed for the benefit of the jury. The petitioner testified on his own behalf.

The trial court then charged the jury as follows:

Although you may find and believe from the evidence that a written statement was made by the defendant and signed by him, yet, if you find and believe from the evidence, or have a reasonable doubt that he was forced or induced to make or sign said statement by reason of any threats, coercion, persuasion or by promise of immunity, or any other improper influence, on the part of the witness, A. C. Ratheal, or any other person, then, you will wholly disregard the written statement, if any, and not consider it for any purpose whatsoever.

In 1965, subsequent to the decision in Jackson v. Denno, supra, Fernandez filed a writ of habeas corpus in the Texas Court of Criminal Appeals alleging that he was deprived a determination of the voluntariness of his confession in accordance with the dictates of that case. The appeals court directed the trial court to "certify whether or not at the time of petitioner's trial he found petitioner's confession to have been voluntarily made." In response to this order the trial court submitted that,

As will be noted by the reading of the Statement of Facts in relation to the voluntary nature of the confession there was no specific statement by the Court with reference to whether or not the petitioner's confession was voluntarily made, but I do hereby certify that after hearing the evidence presented in relation to the confession, out of the presence of the jury that it was my belief that said confession was voluntary and it was admitted into evidence as a result of my opinion.

Upon receipt of this certification from the trial court, the Court of Criminal Appeals denied the writ of habeas corpus without written opinion.

While the trial judge's statement at the time he admitted the confession appears to address itself to the objection that the confession was involuntary, an understanding of the nature of the procedure followed by the Texas courts prior to Jackson v. Denno for determining the admissibility of a confession contested as involuntary dispels the apparent relevancy of the court's ruling to the issue of involuntariness. The Texas procedure was in fact identical to that followed by the New York courts prior to Jackson, but was so commingled with a homespun rule on admissibility of confessions that the ruling by the trial court on this latter issue appeared to be a ruling on the question of voluntariness. The Texas Court of Criminal Appeals, prior to Jackson v. Denno, had not defined the Texas procedure in terms of its relation to procedures followed in other jurisdictions and had no occasion to distinguish the two rules in their application to any one trial. Consequently, federal courts in Texas have been inconsistent in their efforts to define the practice followed by the Texas courts in assessing the question of voluntariness as it existed prior to Jackson v. Denno.

In Burns v. Beto, 5 Cir. 1966, 371 F.2d 598, 603, it was observed that Texas followed the New York rule. In Smith v. State of Texas, S.D.Tex.1965, 236 F. Supp. 857, the district court stated that,

Texas Courts have had no occasion to categorize or label its procedure for determining the voluntariness of a confession. It would appear that the Wigmore or Orthodox procedure is not used or recognized in Texas. Without labeling the Texas procedure as the equivalent of either the New York or Massachusetts procedures (as such are labeled in Jackson), an examination of the pertinent Texas cases reveals that it is within the discretion of the trial judge to determine which of these two procedures he will follow." 236 F.Supp. at 861.

Smith was followed by the Fifth Circuit in Hackathorn v. Decker, 1966, 369 F.2d 150, and the same rationale is evident in the district court's opinion in Crow v. Beto, S.D.Tex.1964, 237 F.Supp. 19.

In deference to by brethren who authored the opinions in Smith and Crow this Court is compelled to conclude that for more than 65 years prior to Jackson the Texas courts employed a procedure identical to that employed by the New York courts. Texas' homespun rule on admissibility of confessions has caused misinterpretation of this procedure.

Texas was the only state which, prior to the decision of Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, had enacted a statute which prescribed that before a written confession which was made by an accused while he was under arrest could be used against him in a criminal prosecution it was incumbent upon the prosecution to establish that the accused had been warned, prior to making the confession, that he did not have to make a statement and that any statement made by him could be used in evidence against him. Article 727,² Texas Code of Criminal Procedure, (1925), 4 Vernon's Ann. C.C.P. art. 38.22, p. 486 (1965). Proof that the warnings had been given was a necessary predicate for the admissibility of any written confession and a failure of such proof rendered the confession inadmissible as a matter of law. Brown v. State, 55 Tex.Cr.R. 572, 118 S.W. 139 (1909); Brown v. State, 71 Tex.Cr.R. 45, 158 S.W. 533 (1913); Chism v. State, 71 Tex.Cr.R. 389, 159 S.W. 1185 (1913); Prata v. State, 76 Tex.Cr.R. 60, 172 S.W. 974 (1915); Hanus v. State, 104 Tex.Cr. R. 543, 286 S.W. 218 (1926). It was incumbent upon the trial court to rule on this question of law before admitting the confession. Collins v. State, 57 Tex.Cr. R. 410, 123 S.W. 582 (1909); Rains v. State, 33 Tex.Cr.R. 294, 26 S.W. 398 (1894); White v. State, Tex.Cr.App., 38 S.W. 169 (1896); Carlisle v. State, 37 Tex.Cr.R. 108, 38 S.W. 991 (1897); Fowler v. State, 71 Tex.Cr.R. 1, 158 S.W. 1117 (1913). When a disputed issue of fact arose as to whether the warning was given or whether the warning given was adequate, it was proper for the court to overrule the objection to the admissibility of the confession and submit the issue to the jury for their determination. Cantu v. State, 141 Tex.Cr.R. 99, 135 S. W.2d 705 (1940), cert. den. 312 U.S. 689, 61 S.Ct. 617, 85 L.Ed. 1126; Reese v. State, 142 Tex.Cr.R. 254, 151 S.W.2d 828 (1941); Ward v. State, 144 Tex.Cr.R. 444, 158 S.W.2d 516 (1941), rev. on other grounds, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663.

Hence, in those cases in which a confession was offered in evidence and was contested as involuntary, the trial court ruled on the admissibility of the confession as heretofore discussed, but such ruling was inapposite to the issue of voluntariness.

In Jackson, the Supreme Court found inadequate the New York procedure for determining the voluntariness of a confession whereby the trial court did not resolve disputes in the evidence on the issue of voluntariness, but submitted the issue to the jury to decide at the same time they passed on the guilt or innocence of the accused. The only instance in which the trial judge was required to exclude the confession was when the evidence was uncontroverted that it was involuntary. The Supreme Court then approved the Wigmore and Massachusetts procedures. Under the Wigmore method the trial court is the sole assessor of the voluntary nature of the confession. Under the Massachusetts procedure, the trial court passes on the issue of voluntariness and admits the confession only after resolving disputes in the evidence and determining that the confession was voluntary. Nonetheless, the court thereafter submits the voluntariness issue to the jury and instructs them to disregard the confession if they find it involuntary.

The Texas procedure for admitting the confession contested as involuntary apparently developed independently of the New York rule although essentially the same.³ The rule finds its genesis in the early case of Morris v. State, 39 Tex.Cr. R. 371, 46 S.W. 253 (1898), wherein the Court of Criminal Appeals stated,

There being an issue on the admissibility of the confession, sharp and decisive, as to whether or not the confessions were voluntarily made after proper caution, the court

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