Nash v. State

• Decision Date: 11 January 1972
• Docket Number: No. 44421,44421
• Citation: 477 S.W.2d 557
• Parties: Ira NASH, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 557

477 S.W.2d 557

Ira NASH, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 44421.

Court of Criminal Appeals of Texas.

Jan. 11, 1972.

Rehearing Denied March 1, 1972.

Kenneth R. Barron, Mike Hatchell, Tyler, for appellant.

Curtis L. Owen, Dist. Atty., and John E. Trube, Asst. Dist. Atty., Tyler, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder where the punishment was assessed by the jury at 100 years.

On February 20, 1969, at approximately 4:30 p.m., Henry Moore was found shot to death in his taxi cab on 33rd Street, a lonely unimproved road just outside the city limits of Tyler. His watch and money were missing. The State relied principally for conviction upon the testimony of one witness who placed the appellant in the taxi cab a short time before Moore's body was discovered and appellant's extrajudicial confessions of June 2 and June 3, 1969.

All of appellant's grounds of error relate to these extrajudicial confessions. Appellant contends that his pre-interrogation request for counsel on June 2 affirmatively secured his right thereto and rendered his subsequent statements inadmissible as a matter of law. He urges that under these circumstances waiver was impossible. The theory is also advanced that if waiver was permissible, then the evidence does not reflect a voluntary and intelligent waiver of counsel nor show that the State established 'beyond a reasonable doubt' that the confessions were voluntary. Appellant further contends that without the confessions the evidence was insufficient to sustain the conviction.

The record reflects that sometime in March, 1969, the appellant was taken into custody by Smith County officers and taken before a magistrate and then questioned about the murder. He agreed to take a lie detector test, was advised of his rights, and after the test was released. On May 26, 1969, he was arrested by virtue of an arrest warrant for the offense charged and was taken before a Justice of the Peace and warned as required by Article 15.17, Vernon's Ann.C.C.P. and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The appellant signed the written 'warning by magistrate' acknowledging he had been so warned. Appellant was then placed in jail.

At approximately 11 or 11:30 p.m. on May 30, 1969, appellant was interrogated by Deputy Sheriff Carlson and in the early morning hours of May 31 they went to appellant's home for a watch taken in the robbery-murder but did not find it under the house where appellant stated he had hidden it. The interrogation continued, first by Carlson, then by Chief Deputy Massey and later by Deputy Lyons, and appellant was returned to his cell for breakfast. Sometime later, it not being clear from the record, but apparently on June 1, 1969, the appellant was taken from the jail in company with Deputy Massey and others. While in the vicinity of the alleged crime appellant orally stated he had committed the alleged offense.

On the morning of June 2, 1969, the appellant was taken to the district attorney's office where he was warned by Assistant District Attorney F. R. Files, Jr. in accordance with Article 38.22, V.A.C.C.P., and Miranda v. Arizona, supra. Files then determined that the appellant understood the warnings and wanted to talk to him. It was at this point that Files brought forth a written waiver form. While the prosecutor was explaining the form, reiterating the warnings already given which were also printed on the instrument, the appellant indicated he desired to have a lawyer appointed. Files then stated that ' we are going to have to stop right now.' The appellant immediately stated 'I kinda want to talk about it. Kinda get it straight.' Files replied that '. . . if you want a lawyer well I am going to have to quit talking, I can't talk to you. Now it is your life.' Thereafter the appellant stated he would talk and did not want a lawyer at that time. The taped recording of the conversation introduced into evidence before the court then reflects:

'FILES: You are absolutely certain of that?

'NASH (Appellant): Yes, sir.'

Thereafter appellant signed and dated a separate written waiver of his rights which included the statement 'I do not want to have a lawyer present at this time.' The written waiver, which also contained the 'officer's warning' was witnessed by Files and Deputy Sheriff Noble. Appellant then gave and signed a written confession detailing the offense and his flight from the scene. At the conclusion of the instrument is found the following:

'Before I made this statement, I told Mr. Files that I understood that I didn't have to tell him anything and that what I did say could be used in court against me. I told him I did not want to have a lawyer present at the time I made the statement.'

The next day, June 3, the appellant was taken to the sheriff's office where he was again warned of his rights by Files and indicated he desired to waive his constitutional rights and executed another separate written waiver. Thereafter he gave another written statement giving other details of the offense. Such statement contained the same provisions as to waiver as did the statement of June 2.

Testifying at the hearing on the motion to suppress the appellant, apparently in his early twenties, related that after his arrest on May 26, he was placed in a windowless 7 11 'hole' in the county jail with steel bunk, toilet, and a bright light and that his food was pushed 'through a hole' to him; that on May 30 Deputy Carlson, who weighed 290 pounds, commenced to interrogate him, called him a liar and other names, shoved or pushed him down on the floor, took him to his house to look for a watch which was not found; that thereafter he was continually interrogated by Carlson and others; that on June 1 he orally admitted the crime while in the vicinity where it occurred; that on June 2 he had asked for an appointed attorney while talking to Files. He stated that his statements to Carlson about the watch, his oral statement and everything in his written confessions were 'lies' which he had 'made up.' ¹

Appellant admitted he did not complain or tell anyone about Carlson's acts until he talked to his sister in September, 1969. And he acknowledged he had been convicted of burglary in 1963 in Dallas County receiving a five year probated sentence, and that in that case he had given a confession to a prosecuting attorney.

Other defense evidence showed that the appellant had a low IQ and was easily persuaded, although he was legally sane. He was shown to have suffered from muscular dystrophy or polio and to have fallen out of a tree when he was 8 years old and rendered unconscious.

Deputy Carlson testified he took the appellant from his cell only after he indicated his willingness to talk about the case. He denied any assault, threats or any type of abuse or coercion. Chief Deputy Massey testified there were no 'holes' in the Smith County jail but that appellant was in an individual cell which was frequently requested by inmates for 'physical and other reasons'; that such cells were far more desirable than the other cells in the jail. He related that when he reported for work after the Carlson interrogation appellant made no complaint to him and he saw no marks, bruises, etc. on the appellant. He stated he did not abuse or mistreat the appellant. Files testified he made no promises to the appellant or used threats or coercion. Appellant himself corroborated Files' testimony. Files related that after appellant stated his desire for an attorney he apparently changed his mind and 'he went ahead and visited with me at that time.' Files denied he used any tricks, etc. to get the appellant to change his mind.

At the conclusion of the pre-trial hearing on the motion to suppress the trial court found the waivers to have been affirmatively made and the confessions to have been given voluntarily and then commendably filed exhaustive findings of fact and conclusions of law in support thereof. See Article 38.22, V.A.C.C.P. The court found that the appellant did in fact state on June 2 he would like for an attorney to be appointed to represent him and that any 'evidence seeking interrogation' ceased and did not commence again until the appellant indicated he wished to waive his constitutional rights and executed a written waiver of such rights.

In his findings the court noted that appellant, who left high school in his senior year, had previously been convicted of burglary in 1963 and had in that case given a written confession to an assistant district attorney. The court found that the appellant's IQ was 'somewhat below normal' but having heard the taped conversation of June 2 and having heard the appellant testify at the pre-trial hearing, and noting that the appellant in said statements 'related in detail the events leading up to, during and following the killing would be well nigh impossible to memorize from suggestions of others and in so doing related incidents no one else could know except he had been there' 'with no prompting and a very few questions' by the prosecutor, concluded that the waivers were knowingly, intelligently and voluntarily made; ² that the confessions were freely and voluntarily made without persuasion or compulsion, or threats or promises having been made.

After the evidence raised the issues at the trial on the merits the question of the voluntariness of the confessions was submitted to the jury and it was required to find beyond a reasonable doubt the confessions were freely and voluntarily given before the same could be considered by the jury.

It is appellant's first contention, as we understand it, that once the appellant indicated his desire for counsel there could be no further interrogation or effort to obtain waiver until such counsel had been made available for consultation.

The appellant relies upon the Miranda de...