De La Rosa v. State of Tex.

• Decision Date: 09 October 1984
• Docket Number: No. 84-1362,84-1362
• Parties: Jesse De La ROSA, Petitioner-Appellant, v. STATE OF TEXAS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 299

743 F.2d 299

Jesse De La ROSA, Petitioner-Appellant, v. STATE OF TEXAS, Respondent-Appellee.

No. 84-1362.

United States Court of Appeals Fifth Circuit.

Oct. 9, 1984.

Ronald P. Guyer, San Antonio, Tex., for petitioner-appellant.

Jim Mattox, Atty. Gen., Enforcement Div., Paula C. Offenhauser, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, RANDALL and WILLIAMS, Circuit Judges.

REAVLEY, Circuit Judge:

A Texas jury found Jesse De La Rosa guilty of committing capital murder in the course of a robbery and determined that he would probably "commit criminal acts of violence that would constitute a continuing threat to society." Tex.Code Crim.Proc.Ann. Art. 37.071 (Vernon 1981). The trial court then sentenced De La Rosa to death pursuant to article 37.071(e). After a hearing, the trial court denied a motion for new trial. The Texas Court of Criminal Appeals affirmed the conviction and sentence on direct appeal, De La Rosa v. State, 658 S.W.2d 162 (Tex.Crim.App.1983) (en banc), and the Supreme Court denied a petition for writ of certiorari. --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 175 (1983). The trial court scheduled De La Rosa's execution for April 27, 1984. He petitioned for a writ of habeas corpus and for a stay of execution, which were denied on April 13, 1984. Ten days later the Texas Court of Criminal Appeals denied a stay and habeas relief. De La Rosa applied in federal district court for a stay and for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, which were denied on April 24, 1984. The next day the district court issued a certificate of probable cause, and this court granted a stay of execution so that De La Rosa could address the merits of his appeal. We now affirm the district court's denial of habeas relief.

I. Facts

In the early morning of August 22, 1979, De La Rosa and a companion robbed two convenience stores in San Antonio. With a .32 caliber pistol, De La Rosa shot the clerk at each store. At the 7-11 store Masoud Ghazali, age 27, died from two wounds to his head. At the Stop & Go store, Patricia Johnson was also shot twice, but she survived to identify De La Rosa. His fingerprints were found on a beer can near the cash register at the 7-11 store, and another print was taken from the door handle of the cooler in which Ghazali's body was found. De La Rosa confessed to these crimes.

II. Admissibility of the Confession--Miranda

A. Erroneous Explanations

De La Rosa does not claim that he did not receive Miranda warnings. Rather, his principal contention is that police officers, after reading the standard Miranda rights card, proceeded to explain what the recited language meant in a manner that was misleading and inadequate. De La Rosa argues that the paraphrased Miranda warnings improperly linked his right to have an attorney to some point in the future. See, e.g., United States v. Garcia, 431 F.2d 134 (9th Cir.1970). He also suggests that his intelligence, evaluated as between borderline retarded and dull normal, heightened the inadequacy of the warnings because he could not fully understand the formal, recited language and therefore relied on explanations. De La Rosa ultimately argues that he made no knowing waiver of his rights prior to making his confession.

The findings to the contrary by the state district judge are supported by overpowering evidence. Several police officers possessing an arrest warrant entered a house, looking for De La Rosa. De La Rosa exited through a rear window, to encounter and be arrested by Officer Vaquera. De La Rosa was handcuffed and taken to a police car. Vaquera was carrying a card with Miranda rights printed in English and in Spanish. He first read De La Rosa the warnings in Spanish, and then repeated them in "street-type Spanish" to ensure that all was understood.

Detective Michalec, who had known De La Rosa for several months, then took over, reciting the Miranda warnings in English. Michalec also explained De La Rosa's rights in "common everyday language." After De La Rosa was taken to the police station, Michalec asked him if he wanted to give a confession and he replied that he did not know. Michalec asked him if he wanted an attorney present, and De La Rosa said that he would rather talk to his brother, who was also at the police station in another room. After De La Rosa met with his brother and a friend, he told Michalec that he wanted to tell him everything. Michalec initially took a statement about the shooting and robbery at the Stop & Go store, and then typed up a second statement concerning the Ghazali killing. Before each statement, Michalec again read Miranda rights to De La Rosa, who later signed each statement before two witnesses.

The state trial court found that De La Rosa knowingly, intelligently, and voluntarily waived his Miranda rights and that he was never mistreated, threatened, coerced, or promised anything. The court concluded that he freely confessed to the capital murder of Ghazali.

Dr. Charles Bisbee, a psychologist called by De La Rosa, testified that his verbal I.Q. indicated borderline intelligence, falling above mentally retarded but below dull normal. Bisbee stated that an examination of De La Rosa revealed no thought disorder. He indicated that De La Rosa would have difficulty comprehending written Miranda warnings, but that he would understand them better, although not completely, if given orally. Bisbee also stated that De La Rosa could understand the warnings if they were explained to him in simple language.

Dr. Betty Schroeder, a psychologist called by the prosecution, gave Miranda warnings to De La Rosa in a test situation. She stated that he understood them completely then and would have comprehended them at the time of his arrest, even under stress. She tested De La Rosa on the Wechsler Adult Intelligence Test; his verbal I.Q. was evaluated as borderline, and his performance I.Q. was "well within normal limits."

De La Rosa's brief focuses on testimony by Michalec that, while explaining Miranda rights, he stated that "it will take some time" before a lawyer would be appointed. Because of this statement, De La Rosa argues that this case is like others in which Miranda explanations were ruled inadequate because "the right to appointed counsel was linked to some future point in time after the police interrogation." California v. Prysock, 453 U.S. 355, 360, 101 S.Ct. 2806, 2810, 69 L.Ed.2d 696 (1981) (per curiam). See United States v. Garcia, 431 F.2d 134 (9th Cir.1970) (per curiam); Lathers v. United States, 396 F.2d 524, 534-35 (5th Cir.1968).

We disagree. The cases De La Rosa relies on share the deficiency that the Miranda warnings failed "effectively [to] convey to the accused that he is entitled to a government-furnished counsel here and now." Lathers, 396 F.2d at 535; see, e.g., Gilpin v. United States, 415 F.2d 638, 640-41 (5th Cir.1969). For example, in Garcia, "[o]n no occasion was a warning given fully complying with Miranda." 431 F.2d 134. "The warnings failed adequately to inform Garcia of her right to counsel before she said a word." Id. Similarly, in Lathers, the message "indicated only that a judge or commissioner somewhere down the line would appoint a lawyer for him if he so requested." 396 F.2d at 535.

By contrast, the warnings given to De La Rosa were not characterized by this deficiency. Officer Vaquera informed him in Spanish, "You have a right to have a lawyer present to advise you before and during any questioning by police officers or attorneys representing the State." De La Rosa was also told: "You may have your own lawyer present or if you are too poor to hire a lawyer, the court will appoint a lawyer for you free of charge now or at any other time." Detective Michalec gave him the same warnings in English. We cannot accept the position that would have us ignore the repeated full and accurate warnings to focus only on the remark that appointing an attorney would take some time. The cumulative effect of the repeated incantations of Miranda and explanations in simpler language was such that De La Rosa was fully informed of his constitutional rights. This case is governed by California v. Prysock, 453 U.S. 355, 356, 101 S.Ct. 2806, 2807, 69 L.Ed.2d 696 (1981), and not by cases in which "the reference to appointed counsel was linked to a future point in time after police interrogation." Id. at 360, 101 S.Ct. at 2810.

The state trial court found as historical fact that De La Rosa was given Miranda warnings along with explanations four times before he confessed. This finding has far more than fair support in the record, and is entitled to a presumption of correctness under 28 U.S.C. Sec. 2254. See, e.g., Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); Maggio v. Fulford, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983) (per curiam).

B. Delay In Appearing Before The Magistrate

Police officers arrested De La Rosa at approximately 5:30 p.m. on August 27, 1979 and they arrived at the police station about 30 minutes later. Detective Michalec took the first confession between 6:45 p.m. and 8:00 p.m., and the second between 8:00 p.m. and a little after 10:00 p.m. De La Rosa was taken before the magistrate for an initial appearance at approximately 10:30 p.m. De La Rosa claims that the delay in appearing before the magistrate was unreasonable, rendering his confession inadmissible.

The night magistrate was scheduled to come on duty at 8:00 p.m. De La Rosa concedes that no magistrate was available until that time, but contends that Michalec should have then stopped taking the confession and gone before the magistrate. Michalec testified that, in accordance with practice, he did not interrupt the confession to take De La Rosa to a magistrate.

Even assuming that the time gap between arrest and initial appearance was unreasonable, the claim...