Terrell v. State, 08-93-00254-CR

• Decision Date: 29 December 1994
• Docket Number: No. 08-93-00254-CR,08-93-00254-CR
• Parties: Delbert Eugene TERRELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 307

891 S.W.2d 307

Delbert Eugene TERRELL, Appellant, v. The STATE of Texas, Appellee.

No. 08-93-00254-CR.

Court of Appeals of Texas,

El Paso.

Dec. 29, 1994.

Discretionary Review Refused April 12, 1995.

Robert J. Fickman, Houston, for appellant.

John B. Holmes, Dist. Atty., Harris County, Houston, for state.

Before BARAJAS, C.J., and KOEHLER and McCOLLUM, JJ.

OPINION

McCOLLUM, Justice.

This is an appeal from a conviction for the lesser-included offense of murder. ¹ Appellant waived his right to a jury trial and entered a negotiated plea of nolo contendere. The trial court found Appellant guilty, and in accordance with the plea bargain, assessed his punishment at 40 years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice with a deadly weapon finding. Appellant attacks the trial court's denial of a written motion to suppress his confession by three points of error. We affirm.

FACTUAL SUMMARY

The record reflects that John Silva and Dennis Gafford, investigative sergeants assigned to the Homicide Division of the Houston Police Department, obtained a warrant for Appellant's arrest for the capital murder of Kerry LaMon Thomas. Silva and Gafford arrested Appellant at approximately 9:40 a.m. on September 26, 1991. The officers specifically advised Appellant of the charge. A patrol car transported Appellant to the Homicide Division in downtown Houston while Silva and Gafford continued to look for a co-defendant for a short time. Being unsuccessful in their search, they returned to the Homicide Division at approximately 11:30 that same morning. While Gafford prepared paperwork relative to the investigation, Silva met with Appellant in an interrogation room. Silva identified himself, again told Appellant why he had been arrested, and read him Miranda ² warnings from a form entitled "Statement of Person in Custody." Appellant asked whether Silva thought that he should have an attorney appointed to represent him. Silva told Appellant that he could not make that decision for him. After thinking for a moment, Appellant said he would tell Silva about the incident. Appellant waived his rights, and beginning at approximately 11:50 a.m., Silva proceeded to take a written confession from him. After the statement was completed, Silva gave Appellant an opportunity to read it. Then, Silva stepped outside the room and two other police officers, Sgts. John Swaim and Stewart Kennedy, entered for the purpose of determining whether Appellant understood his rights and had voluntarily given his statement. After determining that he had, Appellant signed his statement at approximately 1:15 p.m. in the presence of Swaim and Kennedy. Kennedy testified that Appellant did not request an attorney or ask any questions in that regard. Silva reentered the interrogation room and permitted Appellant to telephone his mother. Upon escorting Appellant from the interrogation room, Silva learned for the first time from Sgt. Gafford that Appellant's family had retained an attorney for him and that he was waiting for Appellant down the hallway. Silva took Appellant to the area where Robert Fickman was waiting and permitted Appellant to speak with him privately. Appellant was not advised during the course of the interrogation that Fickman had been hired to represent him and was waiting to see him.

Sgt. Gafford testified that while Appellant was in the interrogation room, he received a message that Robert Fickman had telephoned him. Gafford returned the call at 12:03 p.m. and Fickman indicated that Appellant's family had asked him to represent

Appellant. He requested to speak with Appellant, but Gafford told him that Silva was interviewing Appellant and he would not interrupt the process. The conversation ended. Fickman faxed a letter to the police department at 12:29 p.m. in which he requested that the interview be terminated. At around 1 p.m., he went to the station in person and met with Gafford. Gafford was unaware of the faxed letter until Fickman mentioned it. Fickman requested that he immediately be allowed to speak to Appellant or that Gafford tell Appellant that Fickman was present. He also asked that Gafford contact the District Attorney's Office to let them know of his requests. Gafford refused to interrupt the interview, but told Fickman that he had already contacted the District Attorney's Office with regard to the case and was expecting for his call to be returned within the next few minutes

During the course of the interview, Gafford and Silva had no communications with one another. Thus, Silva was unaware of Gafford's discussions with Fickman and of Fickman's presence at the station until after the interview was completed and the statement obtained. Likewise, Silva did not tell Gafford that Appellant was in the process of giving a statement.

The record reflects that Appellant had previously been represented by Fickman on unrelated charges in 1988 and 1989. However, Fickman's representation of Appellant in that case had terminated prior to Appellant's arrest in the instant case. Appellant testified that he had occasionally spoken to Fickman when his brothers were in jail, but on those occasions he did not speak to Fickman about the details of their cases. Appellant and his mother, Madeline Fay Cobb, testified that they considered Fickman to be the "family lawyer." When Mrs. Cobb heard sometime during the morning hours of September 26 that Appellant had been arrested, she called Gafford and learned that Appellant was being questioned in connection with a murder. At approximately 11 a.m., Mrs. Cobb spoke to Fickman on the telephone and they entered into an oral agreement for Fickman to represent Appellant in connection with the capital murder charge.

Appellant testified at the suppression hearing that he did not recall whether his rights had been read to him by either Silva, Swaim, or Kennedy. He said that if he had known Fickman was at the station, he would not have given his statement without first speaking to him. Appellant admitted, however, that he did not invoke his right to an attorney when that right was explained to him and he did not ask to call Fickman. He also admitted that he gave his statement freely and voluntarily. The trial court denied the motion to suppress.

DISCUSSION

Violation of Art. I, § 10

Right to Counsel Provision

In Point of Error No. One, Appellant urges that the confession was taken in violation of the right to counsel provision of Article I, § 10 of the Texas Constitution. Appellant contends that Dunn v. State, 696 S.W.2d 561 (Tex.Crim.App.1985) and Roeder v. State, 768 S.W.2d 745 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd) ³ are dispositive of this claim. Although he recognizes that Dunn was overruled by Goodwin v. State, 799 S.W.2d 719 (Tex.Crim.App.1990), he contends that the holding in Goodwin was limited to the defendant's Fifth Amendment right to counsel and did not separately address the defendant's Article I, § 10 right to counsel. Thus, he contends that Dunn still stands as good law with respect to his state law claim. We disagree.

Our reading of Goodwin reveals that the Court of Criminal Appeals applied Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) to Goodwin's Art. I, § 10 claim as well as to his Fifth Amendment contention. The Court applied Moran v. Burbine to the state law claim because Goodwin based that contention primarily upon Dunn. The Court noted that Dunn analyzed Appellant's Art. I, § 10 claim in tandem with his Fifth Amendment claim and relied primarily upon federal law, including Burbine v. Moran, 753 F.2d 178 (1st Cir.1985), in reaching its decision. See Goodwin, 799 S.W.2d at 729. Since the holding in Dunn did not represent an independent and adequate state ground, it was amenable to review by the United States Supreme Court and was implicitly overruled by Moran v. Burbine. See Goodwin, 799 S.W.2d at 731. Thus, Dunn and Roeder do not support Appellant's Art. I, § 10 claim. Because Appellant provides no independent analysis of Art. I, § 10 to support his argument that the Texas Constitution provides broader protection than the Fifth Amendment, we will apply Moran v. Burbine in determining whether Appellant's waiver of counsel was effective.

The Supreme Court held in Moran v. Burbine that events occurring outside of the presence of the suspect and entirely unknown to him can have no bearing on his capacity to comprehend and knowingly relinquish a constitutional right. Moran v. Burbine, 475 U.S. at 418, 106 S.Ct. at 1139; Goodwin, 799 S.W.2d at 730. Under the Moran v. Burbine analysis, police conduct such as what occurred in the instant case is irrelevant to the inquiry into the effectiveness of a defendant's waiver of counsel absent a showing that such conduct prevented the defendant from attaining awareness and comprehension of the information conveyed in the Miranda warnings and the consequences of abandoning those rights. See Moran v. Burbine, 475 U.S. at 424, 106 S.Ct. at 1142; Goodwin, 799 S.W.2d at 729-30. Appellant wholly failed to make such a showing in the suppression hearing.

Sgt. Gafford did not misinform Fickman with regard to Silva's interview of Appellant. He refused to interrupt the interview of Appellant to advise him that Fickman was present and available to talk with him, but neither Gafford nor Silva misled Appellant with regard to his right to counsel. When Appellant inquired of Silva whether he thought that Appellant should have an attorney advise him, Silva simply told Appellant that he could not give him advice and that the decision was up to him. Because this did not amount to an unequivocal invocation of the right to counsel, Silva's response was appropriate. See Robinson v. State, 851 S.W.2d 216, 223-24 (Tex.Crim.App.1991) (mere mention of the word "lawyer" or "attorney" does not automatically invoke the right to counsel; interrogating officers may continue questioning to...