Meza v. State
| Decision Date | 24 January 1979 |
| Docket Number | No. 1,No. 56206,56206,1 |
| Citation | 577 S.W.2d 705 |
| Parties | Raul MEZA, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Stephen W. Russell, Austin on appeal only for appellant.
Ronald D. Earle, Dist. Atty., Austin, for the State.
Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
Appeal is taken from a conviction for aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. Punishment was assessed at twenty years.
In three grounds of error, appellant challenges the admission of his oral confession.
We note that in Meza v. State, 543 S.W.2d 189 (Tex.Civ.App. Austin, 1976, no writ), the appellant challenged the admission of this confession in his appeal of the juvenile court's transfer of jurisdiction to the district court. 1 The Court of Civil Appeals held that the confession was properly admitted. 543 S.W.2d at 192. The admission of the confession is now challenged on different grounds.
On December 31, 1975, the appellant and three other juveniles robbed the night manager of a U-Totem convenience store in Austin. In the course of the robbery the manager was taken into a cooler in the rear of the store and shot in the back by the appellant.
On January 3, 1976, at 9:30 a. m., the appellant was arrested pursuant to an arrest warrant by Sergeant Schwettman of the Austin Police Department. While still in appellant's residence, Schwettman read the appellant his Miranda rights 2 in the presence of Pat Castro, the appellant's step-father. Schwettman read these warnings from a "blue card," and then asked if appellant understood or had any questions. Schwettman stated that he did not interject anything between the warnings, but read the card without interruption.
Appellant was then taken to the Youth Services facility at the police station, arriving at approximately 10:00 a. m. after the officers had first stopped and taken another suspect in the robbery into custody. Appellant was not taken before a magistrate until 3:40 p. m., however.
Sergeant Gambrell, who was also present when the appellant was arrested, did not accompany appellant and the other officers back to the station, but instead continued his investigation. He returned to the station between 12:00 and 1:00 p. m. with other evidence gathered in his investigation. Gambrell then called the municipal court, and when informed that no judge was present, asked that a judge be contacted. He then took the appellant from the Youth Services department and brought him to his office in the Armed Robbery detail.
Gambrell read the appellant his Miranda rights, pausing between each statement and inquiring whether the appellant understood. He also warned the appellant that he could be certified as an adult by the juvenile court and tried as an adult for the offense. Appellant responded that he understood each of those rights, and in response to questioning made the oral confession that is the subject of this appeal.
From Gambrell's office the appellant was taken to the residence of another juvenile involved in the robbery. At that residence, he directed the officers to the inculpatory evidence discovered as a result of his confession. Appellant was returned to the police station at 3:40 p. m. and taken before a magistrate. The magistrate warned the appellant of his rights out of the presence of the police officers. No other statement was made by the appellant, and he was transferred to Gardner House, a juvenile detention center.
Appellant's mother testified that about noon on the day in question she called Gambrell and asked the officer if the appellant needed "a lawyer or anything." She stated that Gambrell responded, "No, he doesn't," and that he would call her when the appellant was transferred to Gardner House. She again called at about 3:30 p. m. and asked if she needed to go to the police station. She stated that she was told that she did not need to go to the police station and that she would be informed when a transfer to Gardner House occurred.
Pat Castro, appellant's step-father, testified that he did not think that the appellant paid attention while being read his Miranda rights at the residence. He further stated that he had listened to his wife as she made two calls to the police station.
The trial court entered findings after a pre-trial hearing that appellant's waiver was knowingly and intelligently made and that the confession was freely and voluntarily made.
Appellant initially contends that the trial court erred in finding that the appellant knowingly and intelligently waived his right to counsel and to remain silent. The circumstances cited by the appellant as showing that his waiver was not knowing and intelligent are:
1. Appellant's age;
2. The length of time that he was alone with police;
3. The absence of a showing that he was asked whether he wished to assert any of his rights;
4. The isolation from his family and friendly adult advice;
5. The failure to warn the appellant in Spanish;
6. The length of time before he was taken before a magistrate and warned.
Whether a defendant knowingly and intelligently waived his right to counsel and to remain silent is determined from the totality of the circumstances surrounding that waiver. Castro v. State, 562 S.W.2d 252; McKittrick v. State, 541 S.W.2d 177; Estes v. State, 507 S.W.2d 216. Although the age of the defendant is one factor to be considered, the fact that the defendant was a juvenile at the time of his arrest is not controlling. Moreno v. State, 511 S.W.2d 273. Nor does this waiver have to be express. Moreno v. State, supra. Each case must be considered on its own facts to determine if the waiver was knowingly and intelligently made.
In the present case, the appellant was given the Miranda warnings twice before the oral confession was made. He was not questioned continuously for an extended period of time, nor was there any showing that oppressive, abusive, or coercive tactics were used in that questioning.
Appellant did not testify at either the suppression hearing or at trial. We can only judge his maturity and ability to understand his rights from the testimony in the record before us. The officers' testimony that the appellant acknowledged that he understood his rights is, in effect, uncontradicted.
The officers' statements to appellant's mother do not, standing alone, show a deliberate isolation of the appellant. At no time did the officers state that no one could see the appellant, nor is there a showing that they actually prevented access to the appellant.
We cannot say from the record before us that the delay in taking appellant before a magistrate was unreasonable or intentional. Sergeant Williams attempted to contact a magistrate before questioning appellant, and the record indicates that no magistrate was available at that time.
There is no evidence indicating that the delay was calculated to coerce a confession from the appellant. The officer who questioned the appellant had continued his investigation, and immediately upon concluding the investigation attempted to contact a magistrate.
We find that the evidence supports the trial court's findings that appellant knowingly and intelligently waived his rights and that the confession was freely and voluntarily made.
Appellant also contends that the confession was obtained while the appellant was in custody in violation of V.T.C.A. Family Code, Sec. 52.02. He maintains that unless Sec. 52.02 was complied with any detention was illegal, and hence any confession during that detention would be tainted. 3
As pertinent to this ground of error, Sec. 52.02(a)(3), provides that:
On cross-examination, appellant's counsel elicited the following from Sergeant Gambrell:
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Dixon v. State
...then article 38.22, Sec. 1(e), for guidance in interpreting Sec. 51.09(b)(2). In the Matter of R.L.S., supra; Meza v. State, 577 S.W.2d 705, 708 (Tex.Cr.App.1979). The former article 38.22 read, in pertinent part, that a statement "made while the defendant was in jail or other place of conf......
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Darden v. State
...the accused juvenile is not informed that if he is unable to employ counsel, a lawyer will be appointed for him. In Meza v. State, 577 S.W.2d 705 (Tex.Cr.App.), the juvenile defendant urged that Sec. 51.09(b)(2), supra, is unconstitutional because it permits police to take oral confessions ......
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In The Matter Of J. A. B.
...been followed when applying the juvenile statute. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(c) (West 2005); see Meza v. State, 577 S.W.2d 705, 708 (Tex. Crim. App. 1979); S.D.J. v. State, 879 S.W.2d 370, 374-75 (Tex. App.—Eastland 1994, writ denied); Salazar v. State, 648 S.W.2d 421, 422 (......