Sanchez v. State, 42561
Decision Date | 11 March 1970 |
Docket Number | No. 42561,42561 |
Citation | 454 S.W.2d 210 |
Parties | Guadalupe Ortiz SANCHEZ, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Gary Norton, Corpus Christi, for appellant.
William B. Mobley, Dist. Atty., and Douglas Tinker, Asst. Dist. Atty., Corpus Christi, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is murder; the punishment death.
In his first three grounds of error, appellant asserts that he was not properly warned of his right to counsel, and his right to terminate questioning as set forth in Miranda v. Arizona, 384 U.S. 426, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.
Appellant was arrested, and his confession taken on May 4, 1966, before the decision in Miranda, supra, which was effective as of June 13, 1966, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Appellant's trial began on April 10, 1967.
The record reflects that appellant was repeatedly warned of his rights in accordance with Article 15.17, Vernon's Ann.C.C.P., 1 and Article 38.22, V.A.C.C.P., 2 then in effect.
Appellant was taken into custody on May 3, 1966, after Police Officers had accosted him while investigating reports of a prowler. Appellant was immediately taken to the Police Station, where he was warned by Justice of the Peace Armando Flores who had been asked via police radio to meet the arresting officers with the appellant. After consenting to taking a polygraph examination, appellant was taken to Justice of the Peace Peter Dunne where he was twice warned of his rights prior to the actual taking of the polygraph examination. Appellant was then warned five times by the polygraph operator, Henry Canty. Among these was the warning administered by Canty which was printed on the confession form on which appellant dictated and signed his confession. A review of these warnings is as follows. Justice of the Peace Flores testified:
Justice of the Peace Dunne testified:
The polygraph operator, Canty, testified that he warned appellant at 9:15 a.m., on May 4th, 1966:
Appellant also signed a release to take the polygraph examination. Thereafter, appellant dictated and signed a written confession which was introduced as State's Exhibit No. 10. Canty, who took the confession, testified further:
'A. 11:32 a.m.'
'A. 1:46 p.m.'
In addition to the above warnings, appellant's confession was corroborated by the fact that teeth marks found upon deceased's body were made by the appellant. Appellant did not testify or offer any evidence challenging the voluntariness of the confession.
The repeated warnings and the evidence presented sustain the view that under the 'totality of the circumstances' surrounding this case, a full and intelligent waiver of appellant's right to have an attorney present during questioning was shown, and he was informed that he could terminate questioning at any time, 3 McCandless v. State, Tex.Cr.App., 425 S.W.2d 636; Hernandez v. State, Tex.Cr.App., 425 S.W.2d 653; Anders v. State, Tex.Cr.App., 426 S.W.2d 228; Santiago v. State, Tex.Cr.App., 444 S.W.2d 758; Torres v. State, Tex.Cr.App., 422 S.W.2d 741; Gonzales v. State, Tex.Cr.App., 429 S.W.2d 882; Narro v. United States, 370 F.2d 329 (5th Cir.); and Easley v. State, Tex.Cr.App., 448 S.W.2d 490.
In his grounds of error numbers four (4) and five (5), appellant contends that he was not warned that he was suspected of the offense of murder with malice aforethought, and that death could be a possible punishment. Appellant was not arrested for murder. He was informed that he was under arrest for burglary, attempted murder, and investigation of assault with intent to murder. Appellant's culpability as to murder did not become apparent until some time later. The indictment charging appellant with murder was returned May 23, 1966, counsel was appointed the same day, and the trial did not commence until April 10, 1967. We believe this case comes under the holding in Elliott v. State, Tex.Cr.App., 444 S.W.2d 914, where this Court said:
'The fact that appellant was informed that he had been accused of the offense of 'attempted kidnapping and attempted rape,' rather than 'the offense he was to be charged with committing,' did not render the confession inadmissible.'
Appellant's grounds of error 6, 7, 8, 9, 10, 12, and 13 challenge the validity of Article 1.14, V.A.C.C.P., and the infliction of the death penalty. Article 1.14, V.A.C.C.P., merely puts a defendant on notice that the death penalty will be sought by the state. The death penalty as a punishment for murder in Texas has long been upheld. These contentions are without merit. 4
Appellant's ground of error number 11 questions the excusing of certain veniremen because of their views concerning the death penalty. We conclude after careful examination of this record which consists of some 1099 pages of voir dire examination, as set forth therein, that the court did not run afoul of the standards set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. 5
Appellant's grounds of error numbers 14 through 16 assert that appellant should have been allowed to examine the state's files with regard to the investigation of this case to determine the identity of a suspect who had neither admitted nor denied that he had committed the offense in question. One of the investigating officers testified that the state had questioned 'hundreds' of people in connection with this offense, and that he could not remember the person about whom appellant was inquiring. Upon examination of the files,...
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