Randolph v. State, 46176

• Decision Date: 01 May 1973
• Docket Number: No. 46176,46176
• Parties: Sylvester RANDOLPH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 869

493 S.W.2d 869

Sylvester RANDOLPH, Appellant, v. The STATE of Texas, Appellee.

No. 46176.

Court of Criminal Appeals of Texas.

May 1, 1973.

V. G. Kolius, Amarillo, for appellant.

Tom Curtis, Dist. Atty., Amarillo, Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for murder with malice wherein the punishment was assessed at 99 years. ¹

The State's evidence reflects that while en route from Florida to California appellant and one Earl Mabry stopped in a Gulf Service Station in Amarillo with the intention of committing a robbery and, during the course of said robbery, Mabry shot and killed the service station attendant, LeRoy Thompson. Both men fled the scene and drove into New Mexico. The appellant was apprehended in Albuquerque, New Mexico, and returned to Amarillo.

At the outset, appellant contends the court erred in admitting into evidence his extra-judicial confession 'in that there was no evidence that said confession was voluntarily given, and the introduction thereof into evidence violated the Constitutional rights of the Appellant as protected by the Fifth and Fourteenth Amendments.'

Prior to trial, the trial judge conducted a separate hearing on the confession's voluntariness in accordance with Article 38.22, Vernon's Ann.C.C.P., and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Thereafter, he filed findings of facts and conclusions of law in which he concluded the confession was admissible. At the trial, the issue of voluntariness was submitted to the jury under appropriate instructions.

It appears to be appellant's contention that the confession was involuntary because his request for counsel was not honored.

The record reflects that the appellant was duly warned of his rights in New Mexico by both a Texas officer and a New Mexico officer and no effort to interrogate him was made. Upon his return to Amarillo, he was taken at 3:25 p.m. on April 28, 1971 before Municipal Judge Jim Blair who warned the appellant in accordance with Article 15.17, Vernon's Ann.C.C.P. It was at this point that appellant indicated to the judge he desired the appointment of a lawyer. The judge announced that he did not appoint counsel and that this would have to be done by a Justice of the Peace. The appellant was then taken to a nearby room where Officer Bevers again warned him in accordance with Article 38.22, supra, and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant then signed the written confession at 4:00 p.m. Officer Bevers testified that, after the warnings, the appellant stated he did not want a lawyer and wanted to tell 'his side of the story.' The written statement also contained a waiver of counsel.

At the separate hearing, the appellant did not offer any evidence. The trial court found that, although the appellant had requested the appointment of counsel when appearing before the magistrate, he subsequently changed his mind and voluntarily and intelligently waived the right to counsel. The record supports the findings.

At the trial, after the confession was admitted, the appellant, who had finished the eighth grade, was 26 years old at the time of the confession, and who had had numerous brushes with the law, testified that he was told by Officer Bevers that counsel would be appointed after he gave a statement. After his testimony, no effort was made to have the confession withdrawn, and the issue of voluntariness was submitted to the jury.

While extreme care must be exercised in taking a confession after request for counsel has been made unless a subsequent waiver of counsel is made, we find here that the State sustained its burden in demonstrating that the appellant knowingly and intelligently waived his privilege against self-incrimination and the right to counsel. See Hill v. State, 429 S.W.2d 481 (Tex.Cr.App.1968).

Appellant makes much of Officer Bevers' testimony on cross examination that he had been instructed by the magistrate to take the appellant before a Justice of the Peace for the appointment of counsel and that instead he took the appellant to a nearby room for interrogation. This was not the officer's testimony on re-direct examination nor is this contention supported by the magistrate's testimony. Under any circumstances, it does not prevent the finding of a valid waiver.

Appellant's first ground of error is overruled.

Appellant also complains of the admission of the confession into evidence on the ground that the State had failed to show probable cause for his arrest, that he had been illegally arrested and detained prior to the making of the confession.

There was no objection to the confession on this ground when offered and nothing is presented for review. No question of the legality of the arrest was raised during the trial and the circumstances under which appellant's arrest took place were not related. Still further, an illegal arrest will not normally vitiate a confession. Lacefield v. State, 412 S.W.2d 906 (Tex.Cr.App.1967).

Next, appellant complains of the court's failure to charge the jury that, if he had entered into a common plan or design with Mabry to rob the deceased but, prior to the time of the robbery, had abandoned or withdrawn from the commission of the plan, they should acquit.

This defensive theory should be given if supported by the evidence, but in the case at bar it was not. The appellant testified that he never agreed with Mabry to commit a robbery so there was no common design or plan to be abandoned.

Appellant also complains that the court 'erred in failing to instruct the jury that if the Appellant's co-defendant was acting outside of the common design of the parties, and if the Appellant had no knowledge of the intent of his co-...