Jernigan v. State
Decision Date | 19 October 2011 |
Docket Number | No. 06-10-00221-CR,06-10-00221-CR |
Parties | BROCK JERNIGAN, Appellant v. THE STATE OF TEXAS, Appellee |
Court | Texas Court of Appeals |
Before Morriss, C.J., Carter and Moseley, JJ.
Brock Jernigan was placed on deferred adjudication community supervision for five years after pleading guilty to the offense of evading arrest with a vehicle. Capias issued prior to the expiration period pursuant to the State's motion to adjudicate guilt based upon an alleged "Battery First Degree" committed by Jernigan in Arkansas. The trial court found Jernigan failed to abide by the condition of community supervision that he "commit no offense against the law of this or any State," adjudicated him guilty of evading arrest with a vehicle, and sentenced him to two years' confinement. Jernigan appeals the judgment adjudicating guilt on grounds that the trial court erred in: (1) denying a motion to suppress his confession in the Arkansas case; (2) not awarding Jernigan "his back time"; and (3) denying Jernigan an appellate bond. We affirm the trial court's judgment because: (1) we find that the trial court properly overruled the motion to suppress; (2) the record does not reveal the amount of time Jernigan spent in jail entitling him to the specific credit he seeks; and (3) we lack jurisdiction over the order denying the appeal bond.
The State called Officer Wayne Easley with the Texarkana, Arkansas Police Department, who testified that Jernigan's fifteen-month-old stepdaughter was admitted to a Little Rock Hospital for Easley brought Jernigan in for questioning. After advising him of his rights, Easley obtained Jernigan'ssignature stating that he understood the Miranda1 warnings that were issued and that he wished to waive his rights.2
The State sought to introduce Jernigan's confession during the interrogation. Contending "that in the middle of the interview [Jernigan] invoked his right to counsel," Jernigan's counsel asked "that any statement that Brock Jernigan made that day be suppressed." Counsel's voir dire examination of Easley produced the following transcript:
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); McDonald v. State, 179 S.W.3d571, 576 (Tex. Crim. App. 2005). Under this standard, an appellate court should not disturb the trial court's decision if the ruling was within the zone of reasonable disagreement. De La Paz, 279 S.W.3d at 343-44; Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). If a suspect requests counsel at any time during a custodial interview, "he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation." Davis v. United States, 512 U.S. 452, 459 (1994). This secondary Miranda right to counsel is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Id. at 458. "A suspect who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present." Id. However, in the context of invoking the Miranda right to counsel, a suspect must do so "unambiguously." Berghuis v. Thompkins, _U.S._, 130 S.Ct. 2250, 2259-60 (2010). "[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights. Davis, 512 U.S. at 459.
The trial court reviewed the following conversation between Jernigan and the interrogating officers which transpired after Jernigan was asked to take a polygraph examination:
Jernigan proceeded with the interview and confessed to the details of the battery.
In Davis the defendant stated, "Maybe I should talk to a lawyer," and the United States Supreme Court found that was not an unambiguous request for counsel. Id. at 462. The Texas Court of Criminal Appeals has likewise required an unambiguous assertion of the right to counsel.Davis v. State, 313 S.W.3d 317 (Tex. Crim. App. 2010) ( ). Here, the trial court found that there was "not a clear, unambiguous invocation of the right to counsel." We agree with the trial court's ruling.
The transcript of the interrogation reveals that Jernigan first asked "do I need to get a lawyer, I mean?" The officers explained that was his right and that he could "stop this thing at any time." Jernigan then stated, "I don't think I need one, but, I mean," and finally asked, "Can I talk to one first?" The first statement merely asked about his right to counsel or asked the officers their opinion on whether he should obtain counsel, and thereafter Jernigan stated he did not think he needed counsel. Finally, he asked if he "could talk to one [lawyer] first." Jernigan never expressly stated that he wanted a lawyer. We are to evaluate whether Jernigan's right to counsel was invoked based on the totality of the circumstances surrounding the statement. Id. at 339. Based on precedent from the United States Supreme Court and the Texas Court of Criminal Appeals, we find that Jernigan did not clearly and unambiguously invoke his right to counsel and that a reasonable officer in light of the circumstances would have understood only that Jernigan "might be invoking the right to counsel." Davis, 512 U.S. at 459. Because Jernigan did not unambiguously request counsel, the trial court properly overruled the motion to suppress.
We overrule Jernigan's first point of error.
The trial court granted Jernigan "credit for any time that he's served since his date of arrest on the motion to revoke probation in this matter." Jernigan claims that the trial court erred when it only gave him a twenty-six-day credit in the final written judgment. He complains that the officer's return on the capias was executed on September 16, 2010, that the trial was held "on or about November 10, 2010," and that therefore he should be entitled to a credit of fifty-seven days. The record contained an "order modifying bond and conditions of bond" signed on October 13, 2010. Aside from these documents, there is no other indication from the record as to the actual number of days Jernigan spent in jail.
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