Nehman v. State

• Decision Date: 05 November 1986
• Docket Number: No. 426-85,426-85
• Citation: 721 S.W.2d 319
• Parties: Wade Alan NEHMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 319

721 S.W.2d 319

Wade Alan NEHMAN, Appellant, v. The STATE of Texas, Appellee.

No. 426-85.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 5, 1986.

On Rehearing Dec. 17, 1986.

Michael B. Charlton, Houston, for appellant.

Danny E. Hill, Dist. Atty., Ebelardo Lopez and David Hamilton, Asst. Dist. Attys., Amarillo, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was found guilty by a jury of the offense of murder. See V.T.C.A. Penal Code, § 19.02(a)(1). The jury assessed punishment at ninety-nine years confinement in the Texas Department of Corrections. Appellant appealed the conviction to the Fort Worth Court of Appeals, which affirmed in an unpublished opinion. Nehman v. State, No. 2-84-155-CR, delivered March 7, 1985. We granted appellant's petition for discretionary review to consider two issues concerning whether he had waived his request for counsel when he initiated a conversation with police officers, and whether appellant had knowingly waived counsel after one was appointed. We note that only federal law is implicated; appellant raises no issues under the Texas Constitution. We will reverse the case on the basis of appellant's second ground of review.

In order to address the merits of this case, a brief recitation of the relevant facts is necessary. We borrow liberally from the Court of Appeals' opinion. On April 22, 1982, the body of Charles Baldwin was discovered in Potter County. Amarillo Police Department Detectives Collins and Richardson removed several documents from the deceased's body, including a bill of sale for a pick-up truck. Information regarding the truck was entered into the National Crime Information Center (N.C.I.C.) computer, which handles all relevant information regarding stolen vehicles and warrants and makes that information available on a nationwide basis. Collins also entered into the computer records a request that the vehicle and all occupants be held for trace evidence in a homicide investigation in Potter County, Texas.

On May 6, 1982, Iowa State Patrol Sergeant Fritz Langen noticed a red 1977 Toyota pick-up truck bearing California plates parked in an unusual position at an Interstate rest area in Iowa. He entered the license plate number into the N.C.I.C. computer and requested a license check. He received a reply that the truck was a stolen vehicle and was wanted in Amarillo, Texas in connection with a homicide investigation. The Iowa authorities verified the information with the Amarillo Police Department, whereupon Sergeant Langen approached the truck and arrested appellant. On May 6, 1982, a warrant was issued in Potter County for appellant's arrest for the murder of Charles Baldwin.

Detectives Collins and Richardson went to Iowa in order to escort appellant back to Potter County. They arrested appellant on May 11, 1982, in Iowa and informed him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (hereinafter referred to as Miranda ). Appellant acknowledged that he understood his rights, and Collins informed him that the warnings would be in effect until their arrival in Amarillo.

During the drive back to Texas, Collins once attempted to question appellant about the murder, but appellant stated that he did not wish to talk anymore until he could talk to a lawyer. At that point, all interrogation ceased. The next day, as the three men were traveling through Oklahoma City, another conversation took place between Collins and appellant, lasting about an hour. Appellant testified that Collins initiated this conversation, and Collins testified that appellant first began the conversation. The record contains no details of the conversation, other than that it apparently concerned the murder. ¹

Upon arrival in Amarillo, appellant and the police officers had further conversations whereupon appellant indicated that he wished to give a written statement and also volunteered to retrace his activities concerning the murder. Collins and Richardson testified that appellant agreed to give a written statement, but as it was being typed and before appellant signed it, the scheduled time for appellant's Art. 15.17 "warning hearing" arrived.

At the Art. 15.17 "warning hearing", the justice of the peace informed appellant of his Miranda rights and, upon appellant's request, appointed an attorney to represent appellant. The attorney was not present at the time. After Art. 15.17 "warning hearing", appellant was returned to the police department where he reviewed the typed statement and signed it. Appellant testified that he told the officers that he wanted to speak to his attorney before signing the statement, and the officers testified that he made no such request.

Before the Fort Worth Court of Appeals, appellant argued that admission of the written statement was improper since the State failed to show a valid waiver of his Fifth Amendment right to counsel during interrogation, and the securing of the written statement was in violation of his Sixth Amendment right to counsel.

As will be later developed, we need only address appellant's Sixth Amendment right contention. The United States Supreme Court recently issued an opinion concerning a similar issue. In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), the defendants were charged with unrelated murders. Both had requested appointment of counsel at their arraignments. Before they had an opportunity to consult with their attorneys, and after being advised of their rights under Miranda, the police officers questioned them and obtained statements. Both defendants were convicted over objections to the admission of the confessions into evidence. The Michigan Supreme Court considered the cases together, and held that the confessions were improperly obtained in violation of the Sixth Amendment. The United States Supreme Court granted certiorari to consider both cases in tandem.

In holding that the confessions should have been suppressed, Justice Stevens, writing for the Court, cited Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), where it was stated:

"[an accused person in custody who has] expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."

Id. 451 U.S. at 484-5, 101 S.Ct. at 1884-5. Justice Stevens referred to Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984) where the Court held that:

"Edwards established a bright-line rule to safeguard pre-existing rights," id. [465 U.S.] at 646 "once a suspect has invoked the right to counsel, any subsequent conversations must be initiated by him." Id. at 641 .

The Court then found that:

"The Sixth Amendment guarantee of the assistance of counsel also provides the right to counsel at postarraignment interrogations. The arraignment signals 'the initiation of adversary judicial proceedings,' and thus the attachment of the Sixth Amendment, United States v. Gouveia, 467 U.S. 180, 187, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984); thereafter, government efforts to elicit information from the accused, including interrogation represent 'critical stages' at which the Sixth Amendment applies." [footnotes omitted]

Jackson, 106 S.Ct. at 1407-8. In concluding that the Michigan Supreme Court had properly held that the confessions were invalid, the Supreme Court stated:

"We thus hold that, if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid."

Id. 106 S.Ct. at 1411.

In the case before this Court, appellant requested appointment of an attorney at the Art. 15.17 "warning hearing". There is no question that adversarial proceedings had been initiated, and thus, that appellant's Sixth Amendment right to counsel had attached. We must now determine whether appellant validly waived his right to counsel subsequent to the Art. 15.17 "warning hearing".

At this point, we must pause to take note of the proper posture to assume when determining whether a defendant has waived his right to counsel under federal standards. This Court "must indulge every reasonable presumption against waiver of fundamental constitutional rights." Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), cited in Jackson, supra, 106 S.Ct. at 1409. Thus, the State bears the burden of proof and must show that a valid waiver was obtained. As stated in Jackson, 106 S.Ct. 1409:

"Doubts must be resolved in favor of protecting the constitutional claim. This settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant's request for counsel--we presume that the defendant requests the lawyer's services at every critical stage of the prosecution." [footnotes omitted]

With these rules in mind, we turn to the facts of the case before us. Prior to signing the confession used against him at trial, appellant invoked his right to counsel in front of the justice of the peace at Art. 15.17 "warning hearing" and in fact was appointed an attorney. After that, appellant was returned to the police department, read the statement which had been typed, and signed it. He was in custody of the arresting officers the entire time. Other than the boilerplate written waivers on the confession coupled with the routine police testimony concerning those waivers, there is no evidence either that appellant rescinded his request for counsel prior to signing the confession or that he made clear any knowing and intelligent intention to waive his right to counsel.

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