Green v. State

• Decision Date: 21 March 1984
• Docket Number: No. 727-82,727-82
• Parties: John Terry GREEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 528

667 S.W.2d 528

John Terry GREEN, Appellant, v. The STATE of Texas, Appellee.

No. 727-82.

Court of Criminal Appeals of Texas,

En Banc.

March 21, 1984.

William B. Hardie, Jr., El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and R. Bradford Stiles, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

On an indictment that accused John Terry Green, appellant, of committing the offense of murder, the jury found him guilty of committing the offense of voluntary manslaughter and assessed his punishment at twenty (20) years' confinement in the penitentiary.

In his first ground of error on direct appeal, appellant made the following assertion: "The trial court erred in admitting appellant's confession, [that was given to El Paso police officer John Guerrero], as evidence upon a showing that appellant had been denied assistance of counsel." The State countered: "Appellant made an effective waiver of his right to counsel prior to giving his written confession."

On June 30, 1982, the El Paso Court of Appeals unanimously affirmed appellant's conviction, overruling, inter alia, appellant's ground of error, and on July 28, 1982, unanimously overruled appellant's motion for rehearing without opinion. Green v. State, 641 S.W.2d 272 (Tex.App.--El Paso 1982).

In overruling appellant's ground of error, the Court of Appeals relied heavily upon the trial court's findings, namely, "that the [appellant] fully understood all his rights," and "the statement was made by [appellant] of his own free will and volition and was completely voluntary." The Court of Appeals concluded: "[T]he evidence supports those findings, and that it shows that [appellant] understood his right to counsel and intelligently and knowingly relinquished it."

We granted appellant's petition for discretionary review to make the determination whether the Court of Appeals correctly overruled appellant's above ground of error. ¹ We find and hold that the State did not establish in the trial court that before appellant gave his written confession to Guerrero he knowingly and intelligently waived his right to counsel. We reverse the judgment of the Court of Appeals and remand the cause to the trial court.

The facts reflect that the decedent, a friend of appellant's, met her untimely death during the night of November 12, 1977, after she, appellant, appellant's sister and others had been "partying". The record indicates that appellant was the last person who saw the decedent when she was alive. For reasons not reflected in the record of appeal, after the decedent's body was found, the case became inactive and remained in that state until September or October, 1979, when Detective John Guerrero of the El Paso Police Department was assigned the responsibility of ascertaining who caused the death of the decedent. By that time, appellant was living and working in Houston as a plumber's helper for the same employer he had previously worked for in El Paso.

On November 12, 1979, an affidavit for an arrest warrant for appellant's arrest was presented to a County Court at Law Judge of El Paso County, who was apparently then acting as a magistrate. On November 14, 1979, the judge issued a warrant for appellant's arrest. Because neither the affidavit nor the warrant of arrest are in the record of appeal we are unable to state what either reflects.

On either the 19th or 20th of November, Guerrero, a Detective Bonilla and a Sergeant Spencer, who were also members of the El Paso Police Department, drove to Houston to execute the warrant of arrest. On November 20th, near the noon hour, appellant was arrested in Houston at his place of employment.

Appellant was immediately taken before a municipal court judge of Houston who gave him a legal warning, ² after which appellant was additionally warned by Guerrero, ³ who then attempted to interrogate appellant and find out what he knew about the decedent's death. However, Guerrero's attempts were unsuccessful because "[appellant] refused to answer [any of Guerrero's questions]." Guerrero tells us through his testimony that "the interview was terminated at that point ..." Guerrero also testified that "the interview terminated [because he] was not going to talk to us ... He wanted to counsel with an attorney." Appellant was then placed in the Harris County jail.

The next day, November 21, 1979, appellant was transported by the three El Paso police officers to El Paso. During the twelve to fourteen hour trip from Houston to El Paso no efforts were made by either Guerrero, Bonilla, or Spencer to interrogate appellant about the murder of the decedent. After arrival in El Paso, appellant again told Guerrero: "[B]efore he talked to us he did want to talk to an attorney [of his choice]."

Thereafter, appellant was given the opportunity to contact and employ an attorney of his choice. The record reflects that while incarcerated, but before he signed his written confession, appellant was contacted by three different attorneys, but was unable to employ any of them because he could not afford their respective attorney's fee.

Neither the State nor appellant had any of the attorneys testify at the hearing on appellant's motion to suppress. Thus, we must depend upon appellant's testimony, which was uncontradicted on this point, as to what transpired when he was contacted by the attorneys. The gist of his testimony is that each attorney contacted him, quoted him a fee, and, after determining appellant could not afford to pay the fee, then terminated the visit and never had any further contact with appellant. However, it appears that before each attorney left appellant, each gave appellant the following gratuitous advice: "Don't give a statement."

It is undisputed that after appellant was unable to employ either of the first two attorneys, because he could not afford the fee that each had quoted, he then twice sought to have the county court at law judge who had issued the warrant of arrest appoint him counsel because of indigency. However, on each occasion the judge refused his request because he did not believe appellant was indigent. Nevertheless, the judge also gave appellant some gratuitous advice; continue trying to find an attorney he could afford. The record reflects that appellant did continue to try to employ counsel. However, his efforts were again unsuccessful. Appellant testified as follows regarding the visit he had with the last attorney: "He [the attorney] was asking too much money and also he said he would talk with my father about the case and that's the last I heard about it."

The record also reflects that on November 22, 1979, the day after appellant arrived in El Paso from Houston and was booked into jail, without appellant requesting his presence, but on his own volition, Guerrero "went and talked to [appellant]." However, as he had done previously, appellant "stated [to Guerrero] ... before he talked to us he did want to talk to an attorney."

Notwithstanding appellant's persistent refusals to talk to Guerrero about the accusation, and his continued requests for counsel, in addition to the above, the record also reflects that each day thereafter Guerrero would summon appellant from his cell to Guerrero's office, "to talk." Guerrero testified that this was done pursuant to what he described as "an agreement," which he testified was made after the first meeting he had with appellant after appellant was returned from Houston. "We would talk. We would discuss and then we would agree to meet the following day, yes, sir. Then [each day thereafter] we would go get him and bring him back to our office."

The record also reflects that at the very last meeting that occurred before appellant gave his written confession to Guerrero, appellant again told Guerrero, "he wanted to talk to an attorney before he made it ⁴ a written statement."

As previously pointed out, appellant did thereafter have contact with an attorney, but, and as also previously pointed out, he was unable to employ that attorney to represent him because he could not afford the attorney's fee.

Appellant tells us through his testimony that was adduced at the hearing held on the motion to suppress why he ultimately signed the written confession:

Well, by that time I was worried about the capital murder charge, ⁵ also the fact that I was not going to be able to get an attorney to help me with any reasonable amount of time and I didn't--I was feeling pressured from the detectives, so I just decided to go ahead and give them a statement.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), in interpreting the Fifth Amendment prohibition against compelled self-incrimination, the Supreme Court of the United States held that if the accused indicates he wishes to remain silent, "the interrogation must cease," and, if the accused requests counsel, "the interrogation must cease until an attorney is present."

[The defendant] has a right to the presence of an attorney, either retained or appointed [prior to giving a confession]. The defendant may waive effectuation of these rights provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning [by the police]. 384 U.S. at 444, 445, 86 S.Ct. at 1612.

Subsequently, in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), ⁶ the Supreme Court held that once the accused had invoked his right to counsel, further interrogation in counsel's absence is forbidden unless the accused initiates conversation with the police. Also see, Porier v. State, 662 S.W.2d 602 (Tex.Cr.App.1984); Evans v. State, 659 S.W.2d 405 (Tex.Cr.App.1983); Wilkerson v. State, 657 S.W.2d 784 (Tex.Cr.App.1983); ...