State v. Hernandez

• Decision Date: 31 August 1992
• Docket Number: No. 04-91-00039-CR,04-91-00039-CR
• Citation: 842 S.W.2d 306
• Parties: The STATE of Texas, Appellant, v. Henry David HERNANDEZ, Appellee.
• Court: Texas Court of Appeals

Page 306

842 S.W.2d 306

The STATE of Texas, Appellant, v. Henry David HERNANDEZ, Appellee.

No. 04-91-00039-CR.

Court of Appeals of Texas,

San Antonio.

Aug. 31, 1992.

Rehearing Denied Oct. 20, 1992.

Discretionary Review Refused

Feb. 3, 1993.

Mark Stevens, San Antonio, for appellant.

Steven C. Hilbig, Crim. Dist. Atty., Beth Taylor, Sam Ponder, Barbara Hervey, Asst. Crim. Dist. Attys., San Antonio, for appellee.

Before BUTTS, CHAPA and ONION, JJ.

OPINION

ONION, Justice (Assigned). ¹

A State's Appeal

The State appeals an order of the trial court granting a motion to suppress appellee's oral statements made to a television news reporter over the telephone while appellant was incarcerated in the county jail. See TEX.CODE CRIM.PROC.ANN. art. 44.01(a) (Vernon Supp.1992).

Appellee is charged by indictment with the offense of capital murder. Appellee filed a pretrial motion to suppress certain oral statements made by him, contending that the same are inadmissible as they were obtained in violation of his federal and state constitutional rights and Texas statutory provisions. At the conclusion of the suppression hearing, the trial court ordered that the oral statements of the appellee made to a television news reporter and the taped recording of that conversation be suppressed. The trial court specifically based its findings on a violation of the Sixth Amendment right to counsel alone. It further found that the taped recording had been altered and did not meet the requirements of Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977). The State agrees that the tape is inadmissible. It, however utilizes its limited right of appeal, urging in a single point of error, that the trial court erred in granting the motion to suppress the oral statements made to the news reporter on the basis of the Sixth Amendment.

The Suppression Hearing

The suppression hearing developed a scenario in which the appellant, Henry David Hernandez, and Brian Karem, the television news reporter, were the principal actors. Chief Deputy Sheriff Alex Ramirez, jail runner Charles Reid, and Joe L. Hernandez, appellee's attorney, assumed supporting roles. The sheriff and others were bit players.

Many of the basic facts are undisputed. San Antonio Police Officer Gary Lee Williams was shot and killed in the early morning hours of March 27, 1989. Later the same day, felony complaints charging murder were filed in a Justice of the Peace Court against the appellee and his brother, Julian Hernandez. Arrest warrants were issued and an intensive manhunt was launched. On March 29, 1989, attorney Joe L. Hernandez, who had represented appellee on other matters for several years, arranged for the appellee and his brother to surrender to members of the district attorney's office. They were first taken to the office of the district attorney, and then brought before District Judge James E. Barlow, who performed the function of a magistrate under TEX.CODE CRIM.PROC.ANN. art. 15.17 (Vernon Supp.1992). Judge Barlow informed the appellee and his brother of the charges filed against them, gave the proper warnings (equivalent to the Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) warnings), and determined that appellee and his brother desired the appointment of counsel. The judge had them fill out the necessary papers and announced that he would appoint counsel for them. Attorney Hernandez informed the magistrate that he would remain in the case to assist appointed counsel. Attorney Hernandez then requested that the magistrate order that appellee and his brother not be interviewed by the police without the presence of counsel. The record does not reflect any ruling or response to the request. The two men were then remanded to jail to be held without bail. Sometime during these described activities, attorney Hernandez declined a request from San Antonio Police Officer James Holguin for an interview with his clients.

Attorney Hernandez testified that he went to the county jail after the hearing before the magistrate. He related that the sheriff and his chief deputy agreed with his request that the police were to have no access to the Hernandez brothers. The sheriff and Chief Deputy Ramirez vigorously denied that they met with attorney Hernandez or had any such discussion. Other evidence showed that attorney Hernandez did have a meeting with his clients and their family members in a room at the jail before the brothers were placed in their cells.

Chief Deputy Ramirez testified that he received a telephone call from Karem, whom he knew as a television newsreporter, requesting an interview with the Hernandez brothers. Ramirez was in the sheriff's administrative offices and did not know that the Hernandez brothers had been booked. He denied Karem's request. Ramirez again rebuffed him, explaining that jail policy permitted interviews with an inmate only upon order of a district judge after which the inmate would be taken to the courthouse. He acknowledged, however, that inmates had telephone privileges and could call anyone they desired. Ramirez checked with the sheriff who was nearby. The sheriff confirmed the policy as stated by Ramirez. Karen then wrote his name and telephone number on a slip of paper and asked Ramirez to deliver it to the Hernandez brothers. Ramirez described Karen as a likeable, but persistent and persuasive individual. Ramirez agreed to deliver the slip of paper just to get Karem "off of his back." He had never done anything like that in his twenty-three year law enforcement career.

Ramirez first went to Julian Hernandez's cell and told him of the news reporter's request, but advised him not to talk with Karem and to consult his attorney. Julian replied: "No, no, no, that's my brother." Ramirez then want to the appellee's cell and repeated the same message and advice. Ramirez did not give any Miranda warnings as it was not his purpose to take a statement. He did not discuss with appellee the charge against him. Appellee told Ramirez that he had already talked to his attorney, and indicated that he wanted to talk with Karem. Ramirez then instructed Charles Reid, a jail runner, that if appellee wanted to make the call to see that a telephone was made available to him. Ramirez gave Reid the slip containing Karem's name and telephone number.

Ramirez returned to his office and informed Karem that the message had been delivered, but that he had advised appellee not to talk to Karem. However, he told Karem to expect a call from the appellee. Karem left for the television station. Karem called Ramirez in about fifteen minutes to tell that appellee had not called. Ramirez contacted the booking desk and made inquiry. He was informed that appellee was at that point talking to Karem. Ramirez acknowledged that he knew Karem was a reporter seeking an interview with persons charged with murder, but he did not know if appellee would make the call and he had no thought of trying to solve a murder.

Charles Reid, the jail runner, testified that he first took Ramirez to Julian Hernandez's cell. After some conversation, Julian told them that his brother would do the "talking." Reid then took Ramirez to the appellee's cell. Ramirez asked appellee if he had talked to his lawyer and informed him of the newsreporter's request. According to Reid, appellee stated that he had talked with his lawyer, and that they (the brothers) wanted to tell "our side of the story." Ramirez instructed Reid to make a telephone available to appellee at 7:15 p.m., and gave Reid a slip of paper with a name and telephone number on it. Reid transferred appellee to another cell with a telephone and gave him the slip of paper. Later Ramirez called and inquired why appellee was not talking to Karem. Reid went to the cell, took the phone away from the appellee and determined that Karem was already on the line. He reported this to Ramirez.

Brian Karem, reporter for KMOL-TV, testified that his station had been "invited" by the district attorney's office to attend the surrender of the Hernandez brothers. He acknowledged that the idea for an interview with the brothers was his alone, though he had earlier gained the impression from Hernandez family members that the brothers might be willing to talk. He denied that the police had requested his assistance. Being rebuffed by Ramirez in his initial request for an interview Karem went to the Sheriff's office. He was again told "No," but after some maneuvering on his part, Ramirez finally agreed to take Karem's name and telephone number to the Hernandez brothers. When Ramirez returned he told Karem that he had advised appellee not to talk to Karem, but Karem should expect a call about 7:10 p.m. Karem returned to the television station. When the call did not come, Karem telephoned Ramirez. Shortly thereafter, Karem received appellee's telephone call. The interview was taped, edited, and placed on the television newscast that night. Karem gave no warnings to appellee at anytime.

Appellee, testifying for the limited purpose of the suppression hearing, stated that Ramirez came to his cell and asked if "I wanted to let the public know my side of the story," and informed him that his brother had said he should talk. Ramirez also told appellee it would be to his benefit to talk to "this person so all of us could know your side of the story." Appellee told Ramirez that his attorney had counseled him not to talk, but "I'll see about it." Appellee testified that he did not know Karem and did not want to call him.

According to the appellee, he was placed alone in another cell containing a telephone. He did not call the number he had been given, but called home and talked to his mother and a cousin. His mother was unable to set up a three-way conference call, but his cousin, Debra Ledesma, dialed the right numbers. Appellee asked her to stay on the line while he talked to Karem. Appellee stated that Karem did not, in their conversation,...