Russell v. State

• Decision Date: 01 April 1987
• Docket Number: No. 685-86,685-86
• Citation: 727 S.W.2d 573
• Parties: Harold RUSSELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 573

727 S.W.2d 573

Harold RUSSELL, Appellant, v. The STATE of Texas, Appellee.

No. 685-86.

Court of Criminal Appeals of Texas En Banc.

April 1, 1987.

Robert G. Estrada, Wichita Falls, for appellant.

Barry Macha, Dist. Atty. & Charles J. Mason, Jr., Asst. Dist. Atty., Wichita Falls, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was convicted of murder and sentenced to twenty-five years' incarceration in the Texas Department of Corrections. The Fort Worth Court of Appeals affirmed appellant's conviction, holding that he had not invoked his right to counsel after being informed of that right through the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Russell v. State, 706 S.W.2d 824 (Tex.App.--Ft. Worth, 1986). Thus, the Court of Appeals held appellant's twenty-eight page confession was properly admitted.

We granted appellant's petition for discretionary review to determine whether the Court of Appeals was correct in finding that appellant's inquiry, as to the interrogating officer's opinion of the necessity of having counsel present during questioning, was not an invocation of his right to counsel.

The record reflects that on June 13, 1984, firefighters from the Wichita Falls Fire Department discovered the body of Richard Dupree locked in the trunk of a burning automobile. Medical testimony revealed that Dupree suffered several blows to the head, that he was placed in the trunk while still alive and that he died as a result of carbon monoxide poisoning.

Subsequent investigation led police to the home of appellant's sister, Delia Taylor. Dupree and Taylor apparently had been living together several months prior to the incident. Taylor contacted appellant, who voluntarily talked with Detective Shephard of the Wichita Falls Police Department. Appellant also volunteered to go to the morgue to identify the body.

On January 20, 1985, a voluntary statement was taken from appellant by Detective Shephard. Prior to this statement being given, appellant was taken before Justice of the Peace R.L. Stewart who informed him of his rights.

On January 21, 1985, appellant was treated at the Wichita Falls General Hospital for a self-inflicted gunshot wound. Appellant told persons present that he shot himself because everyone believed he killed Dupree.

Appellant was arrested on February 7, 1985 and was given his Miranda warning at least twice that day. He was also warned twice on February 8th. On February 9, 1985, Detective Shephard again read appellant his rights and proceeded to review the evidence gathered in the case. After hearing this, appellant decided to give a statement. Judge Stewart was again called in to warn appellant.

Prior to giving his statement appellant asked the officers present, Detective Shephard and Sergeant Smith, whether they thought the presence of an attorney was necessary. Detective Shephard replied that he would not advise appellant as to whether an attorney was necessary but did advise him that he had the right to have one present during questioning. Detective Shephard then asked appellant if he wished to continue and appellant replied affirmatively.

Approximately ten minutes later appellant again asked the officers if they thought an attorney was necessary. They responded in like fashion that they would not give an opinion. However, they again explained that appellant had the right to have an attorney present. The officers again asked appellant if he wanted to continue and again he responded affirmatively. The same question was asked by appellant a third time resulting in the same replies from the interrogating officers.

Not surprisingly, appellant's version of the facts differs slightly. He asserted that he only gave a statement because he was scared of the officers and believed they would physically abuse him if he refused. He stated that when he asked them whether they thought he needed an attorney, they responded, "I wouldn't recommend one," and, "Well, if we do get you one it would take a week or two weeks."

Notwithstanding this, the trial judge made the following findings of fact: Appellant never requested an attorney; he never stated he wanted to stop the interview; he voluntarily gave his statement; and he never indicated that he did not want to give a statement. The trial court concluded that appellant knowingly and intelligently waived his constitutional rights and that his inquiry into the interrogating officer's opinion did not constitute an invocation of his right to counsel.

Initially, we point out that the trial court is the sole judge of the credibility of the witnesses in a pre-trial hearing. Absent a showing of an abuse of discretion the findings of the trial court will not be disturbed on appeal. Hawkins v. State, 613 S.W.2d 720 (Tex.Cr.App.1981). The trial court obviously chose to believe the version of the facts propounded by the interrogating officers and resolved the conflicts in their favor. We find nothing in the record to indicate that this was an abuse of discretion.

In Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), the United States Supreme Court explained that the admissibility of a confession depends on two distinct inquiries. First, the court must determine whether the accused actually invoked his right to counsel. Then, if the court finds that the right to counsel has been invoked, the court must determine whether the accused validly waived that right. We are concerned with the first inquiry here.

Appellant argues that his questions to the interrogating officers constituted a clear invocation of his right to counsel, such that any further interrogation should have ceased. We do not agree.

Appellant's argument is based on a misconception of this Court's holding in Ochoa v. State, 573 S.W.2d 796 (Tex.Cr.App.1978). In Ochoa, supra, we held that "where a defendant indicates in any way that he desires to invoke his right to counsel, interrogation must cease." In Ochoa, while the defendant was being interrogated, he told the officer involved that he would like to talk to an attorney. The officer proceeded to make "idle" conservation with the defendant and then resumed questioning about the offense. No attorney was contacted. We held that there are no magic words required to invoke a right to counsel. However, nor will any mention of the word "lawyer" suffice. ¹ The facts and circumstances in Ochoa, namely, the defendant's statement that he wanted to talk to an attorney, constituted a clear invocation of his right to counsel. Therefore, further interrogation should have ceased.

Ochoa, supra, is consistent with Miranda, supra, and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The Supreme Court said in Miranda that, "if however, [the defendant] indicates in any manner and at any stage of the proceedings that he wishes to consult with an attorney before speaking there can be no questioning ..." In Edwards, supra, the Court emphasized that "it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." Edwards, supra, 451 U.S. at 485, 101 S.Ct. at 1885, 68 L.Ed.2d at 387. (emphasis added). An accused can invoke his right to have counsel present during interrogation in any manner and interrogation must immediately cease. However, the invocation must be clearly asserted. This is far from saying, as appellant contends, that the mere mention of the word "lawyer" is sufficient to invoke that right. Recently, in Collins v. State, 727 S.W.2d 565 (Tex.Cr.App.1987), we held that there are no magic words required to invoke an accused's right to counsel and the mere mentioning of the word "lawyer" does not constitute an automatic invocation. Each case must be looked at individually to determine whether, under all the facts and circumstances present, the accused's statement can be construed as being an invocation of his right to counsel. See Massengale v. State, 710 S.W.2d 594 (Tex.Cr.App.1984); Porier v. State, 662 S.W.2d 602 (Tex.Cr.App.1984); Curtis v. State, 640 S.W.2d 615 (Tex.Cr.App.1982); Kelly v. State, 621 S.W.2d 176 (Tex.Cr.App.1981); Ochoa, supra.

In the instant case appellant's inquiry into the officer's opinion as to the necessity of counsel being present during interrogation cannot be viewed as a clear invocation of his right to counsel because his question asking another's opinion does not indicate his own assertion of his right. Appellant merely asked for an opinion, presumably to assist him in making his own decision. The officers obviously knew that appellant was referring to the presence of counsel during interrogation and sought to clarify the question to determine if appellant actually wanted an attorney at that time. Appellant's seeking of an opinion concerning a decision to have an attorney present created an ambiguous situation which the officers properly sought to clear up. Appellant did not, by his question, demonstrate that he desired an attorney. Cf Ochoa, supra; Porier, supra; Castillo v. State, 616 S.W.2d 620 (Tex.Cr.App.1981).

However, even when an accused has not clearly invoked his right to counsel, his comments may constitute an "equivocal" invocation of his right requiring that further interrogation cease until the invocation issue is clarified. ² This position is consistent with Miranda, supra, where the Supreme Court specifically approved the F.B.I.'s policy that: "if a suspect is indecisive in his request for counsel, there may be some question of whether he did or did not waive counsel. Situations of his kind must necessarily be left to the judgment of the interviewing agent." Miranda, supra, 384 U.S. at 485, 86 S.Ct. at 1633.

In Nash v. Estelle, 597 F.2d 513 (5th Cir.1979), the Circuit Court of...