Nichols v. State

• Decision Date: 13 April 1988
• Docket Number: No. 68981,68981
• Citation: 754 S.W.2d 185
• Parties: Joseph Bernard NICHOLS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 185

754 S.W.2d 185

Joseph Bernard NICHOLS, Appellant, v.The STATE of Texas, Appellee.

No. 68981.

Court of Criminal Appeals of Texas En Banc.

April 13, 1988.

E. Neil Lane, Brian W. Wice (on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Richard Anderson, Winston E. Cochran, Jr. and Ira Jones, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

Appeal is taken from a conviction for capital murder.V.T.C.A., Penal Code Sec. 19.03(a)(2).¹After finding appellant guilty, the jury returned affirmative findings to the three special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.We will affirm.

With leave of this Court, appellant has filed two briefs raising a total of twenty-six points of error.²For logistic purposes, we will not address the points of error in numerical order, but will address them in chronological trial order, consolidating points whenever possible.

The relevant facts may be briefly stated.On October 13, 1980, at approximately 9:00 a.m., appellant and Willie Ray Williams entered Joseph's Delicatessen and Grocery with the plan to commit a robbery.As they approached the cash register, both men pulled guns on Claude Shaffer, the seventy year old victim.Shaffer bent down behind the counter, and it is controverted whether he was reaching for an unloaded pistol kept behind the store counter or whether he was simply taking cover.Appellant stated "Don't try it" and opened fire on Shaffer.It is unclear whether appellant's shots hit Shaffer.Appellant and Williams then turned and started to flee.As they reached the door, Williams turned and shot at Shaffer.Again, it is unclear which shot contacted the victim.Both men fled but, after running out of the Deli, Williams stopped and went back into the Deli, alone.Williams took the cash box from behind the counter where the victim had been standing and ran out of the store.Both men were picked up by two females in a blue Toyota.

Although shot in the left temple and shoulder, Shaffer died as a result of a single gunshot wound to his back.Ballistics investigation could not determine which gun caused this wound.Appellant and Williams netted a total of eight or nine dollars from the robbery.

In his eighth point of error, appellant challenges the admissibility of his confession.His argument, while extremely amorphous, can be organized into a three-fold challenge.First, appellant asserts a Sixth Amendment violation, second, an involuntary Miranda ³ waiver and third, a violation of his Fifth Amendment request for counsel.After a careful review of each we find that the confession was properly admitted.

The relevant facts from the suppression hearing are as follows.Pursuant to statements given by other participants in the offense and a photo I.D. made by a witness appellant became a suspect of the instant offense.Officer R.D. Anderson, a detective with the Houston Police Department assigned to the case, learned that appellant would be returning to the home of Eddy Henderson on the evening of October 17, 1980.Officer Anderson and his partner, Dollins, went to Henderson's home at approximately 7:40 p.m. and awaited appellant's arrival.Appellant arrived within 30 minutes, was placed under arrest and read his Miranda warnings.

Appellant was taken to the Houston Police Department where he was once more given his Miranda warnings.Appellant then, after acknowledging that he understood his rights, waived them and gave a tape recorded and written confession to the instant offense.The confession was signed at 10:15 p.m.The face of the confession contains the requisite warning and waiver of rights as required by Art. 38.22, V.A.C.C.P.The confession read as follows:

"My name is Joseph Bernard Nichols.I am 19 years of age.I live at 3922 Prudence with friends.I was born on 9-8-61.I was coming from the motel.I think it was the Act II Motel.I was with Will, Charlotte and Evelyn.We were riding and we got on a conversation about robbing.We came upon this little store off of Fannin Street.Charlotte was driving.We passed by the store the first time and we saw one car parked in front of the store.We all decided that this was all right to hit.

"We parked down the street in front of some apartments.Me and Will went in the store.We pulled out our guns on the dude behind the cash register and told him to put the money in the sack.The man behind the counter started bending over behind the counter.He had bent over so far that we couldn't see him.Then he came up with a pistol.I guess he was getting ready to shoot.He was fixing to shoot us.So we reacted and shot.I was scared cause I just knew that he was fixing to shoot one of us.So we reacted and shot.

"I ran out of the store and through the alley and around to the back of the apartment complex.I ran around to the front of the apartments and I didn't see the car and I stood in the middle of the street looking around for the car, and then they came around the corner.I jumped in the car and we went straight home on Prudence.

"On Wednesday I took the gun back to the dude that I got it from.I don't know his name.He just hangs on the corner of Calumet and Live Oak.I want to say that we did not mean to kill the man.When he come up from behind the counter, he had pulled a gun on us."[/s/]Joseph Nichols.

At the suppression hearing, appellant testified that at approximately 3:00 p.m. on the day of his arrest he injected preludin, drank some beer and smoked marihuana.Tyrone Williams, a friend of appellant's who was with appellant throughout the day of arrest and who also partook of some intoxicants, testified that appellant appeared "high" after initially ingesting the intoxicants.On cross-examination, Williams further testified that appellant was at all times able to walk and talk, knew where he was and was not "out of his head."

At the conclusion of the suppression hearing, the trial court found the confession admissible and made the following findings of fact: appellant was sufficiently warned of his Miranda rights; he voluntarily, knowingly and intelligently waived these rights before confessing; he was not under the influence of any drugs or other intoxicants at the time of giving the confession, and he did not request an attorney.Absent a clear abuse of discretion, such findings by the trial court will be upheld.Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908(1964);Cannon v. State, 691 S.W.2d 664(Tex.Cr.App.1985)cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931(1986).

Appellant first contends that his Sixth Amendment right to counsel was violated by the admission of his confession into evidence.However, at the time appellant signed his confession he was merely under arrest and being questioned.The Sixth Amendment right to the assistance of counsel is not invoked until formal adversary judicial proceedings have been initiated.United States v. Gouveia, 467 U.S. 180, 187-189, 104 S.Ct. 2292, 2296-2298, 81 L.Ed.2d 146(1984);Brewer v. Williams, 430 U.S. 387, 398-399, 97 S.Ct. 1232, 1239-1240, 51 L.Ed.2d 424(1977);Kirby v. Illinois, 406 U.S. 682, 688-689, 92 S.Ct. 1877, 1881-1882, 32 L.Ed.2d 411(1972);Dunn v. State, 696 S.W.2d 561, 565(Tex.Cr.App.1985)cert. denied, 475 U.S. 1089, 106 S.Ct. 1478, 89 L.Ed.2d 732(1986).The mere arrest and subsequent questioning of a person does not constitute sufficient formalization of proceedings to trigger the Sixth Amendment requirement of counsel.Appellant's Sixth Amendment contention is overruled.

Appellant secondly challenges the admissibility of his confession on the ground that because of intoxication, he lacked the capacity to knowingly and voluntarily waive his Miranda rights.Appellant bases this contention on the fact that he consumed preludin, marihuana and beer six to seven hours prior to confessing.Whether appellant was even under the influence of these drugs at the time he gave his confession is disputed.The trial court made a finding of fact that appellant was not, and we find nothing in the record to indicate that this finding was an abuse of discretion.

Even if appellant was under the influence of intoxicants at the time of confessing, this would not automatically render the confession involuntary.Intoxication, while relevant, is not per se determinative of the voluntariness of a confession.United States v. Brown, 535 F.2d 424, 427(8th Cir.1976);Vasquez v. State, 163 Tex.Cr.R. 16, 288 S.W.2d 100, 109(1956).The central question is the extent to which appellant was deprived of his faculties due to the intoxication.Vasquez, supra at 109;Dickey v. State, 284 S.W.2d 901(Tex.Cr.App.1955);Halloway v. State, 162 Tex.Cr.R. 322, 175 S.W.2d 258, 259(1943).If appellant's intoxication rendered him incapable to make an independent, informed choice of free will, then his confession was given involuntarily.Jurek v. Estelle, 623 F.2d 929, 937(5th Cir.1980).

All the witnesses at the suppression hearing testified that appellant was coherent and in control of all his faculties.His speech was not slurred and three experienced police officers testified that appellant did not show any signs of intoxication.A toxicologist testified that, given the amount of drugs appellant testified that he consumed, the time span involved and the offset effect of the depressants and stimulants, appellant would have been rational at the time he confessed.

Appellant himself testified that he knew what he was doing but that he would not have been so easily "persuaded" into giving a confession had he not taken the drugs.He admitted that he was not physically abused or threatened in any manner.Appellant also testified that he was currently on probation for robbery and that as a result of that arrest, he was aware of his constitutional rights.He remembered that his...