Watson v. State, No. 1052-86

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtONION; CLINTON; McCORMICK
Citation762 S.W.2d 591
Decision Date14 December 1988
Docket NumberNo. 1052-86
PartiesJimmie Davis WATSON, Appellant, v. The STATE of Texas, Appellee.

Page 591

762 S.W.2d 591
Jimmie Davis WATSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 1052-86.
Court of Criminal Appeals of Texas,
En Banc.
Dec. 14, 1988.

Page 592

Douglas H. Parks, Dallas, for appellant.

Henry Wade, former Dist. Atty., John Vance, Dist. Atty. and Gilbert P. Howard, Mark Nancarrow and Donald Land, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted by a Dallas County jury of burglary of a habitation. V.T.C.A., Penal Code, § 30.02. Finding the enhancement paragraph in the indictment to be true, the trial court assessed punishment at 25 years' imprisonment.

The Fort Worth Court of Appeals reversed the conviction based on an error in the jury charge. Watson v. State, 660 S.W.2d 882 (Tex.App.--Ft. Worth 1983). This Court reversed the judgment of the Court of Appeals citing Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), and finding that no harm accrued to appellant as a result of the jury charge submitted by the trial court. Watson v. State, 693 S.W.2d 938, 940 (Tex.Cr.App.1985). The cause was remanded to the Court of Appeals for consideration of appellant's remaining grounds of error.

On this second go around the Court of Appeals affirmed the conviction, holding inter alia that appellant's silence after being advised of his rights and being asked to make a statement was not sufficient under the circumstances to indicate that he wished to remain silent and to cut off questioning. Watson v. State, 715 S.W.2d 864, 868-874 (Tex.App.--Ft. Worth 1986).

The sole ground of review set forth in appellant's petition for discretionary review urges that the "Court of Appeals improperly held that an arrestee has an affirmative obligation to explicitly state his objection to further questioning by police where [he]

Page 593

has been given and understood the Miranda warnings and where there is no evidence of coercion or undue pressure depriving the accused [of] control of the interrogation."

We granted said petition to determine the correctness of the ruling by the Court of Appeals.

The record reflects that appellant and one Larry Jordan were caught in the act of attempting to burglarize a habitation at 1517 King Arthur 1 in Grand Prairie in the evening of December 26, 1981. On December 28, 1981, appellant, while in jail, was interrogated on four separate occasions by Officer Myer and Detective Shaw concerning an earlier burglary that had occurred on December 20, 1981, at the Perkins' residence at 1509 Austrian in Grand Prairie in the same neighborhood as the location of the said attempted burglary. At the last interrogation appellant made certain oral statements that led to some of the items that were taken in the Perkins burglary. See Article 38.22, § 3(c), V.A.C.C.P.

Appellant filed a pretrial motion requesting that before any evidence of a confession, oral or written, be introduced a hearing on the voluntariness of any admission or confession be conducted in the jury's absence, contending that if there were conversations with the officers they occurred while appellant was in custody. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Article 38.22, V.A.C.C.P.

At trial the Jackson v. Denno hearing was conducted outside the presence of the jury to determine the voluntariness of appellant's statements made during custodial interrogation. At such hearing Grand Prairie Police Officer Dennis Myer was called by the State and was the only witness to testify. 2

Myer testified that he and Detective Shaw first interviewed appellant about the Perkins burglary between 9 and 9:30 a.m. on December 28, 1981. Myer first read to appellant his Miranda warnings 3 and stated

Page 594

that appellant acknowledged to him that he understood those rights. The record then reflects:

"Q. And after he acknowledged those did he indicate to you that he wished to speak with you?

"A. Yes, sir.

"Q. Did he at any time ask for an attorney?

"A. Not at that time."

On cross-examination Officer Myer testified as to the first interrogation:

"Q. [Defense Counsel] You say you read Mr. Watson his rights?

"A. Yes, sir.

"Q. And he refused to talk?

"A. Yes.

"Q. Who was doing the talking during that thirty or forty-five minutes?

"A. We were [Officer Myer and Detective Shaw].

"Q. What were you saying?

"A. Just asking questions.

"Q. He wasn't answering?

"A. No, Sir.

"Q. And you did that for thirty or forty-five minutes?

"A. Yes, sir.

"Q. Did he ever answer any of your questions?

"A. No, sir.

* * *

* * *

"Q. At any time during that thirty or forty-five minute interrogation did Mr. Watson indicate to you that he didn't wish to talk to you anymore?

"A. No, sir.

"Q. Just sat silent?

"A. Yes, sir." (Emphasis supplied.)

Appellant was returned to his jail cell about 10:30 a.m.

The record reflects that thereafter in response to the prosecutor's questions about appellant being "arraigned" 4 Officer Myer agreed that appellant was "arraigned" about 11 a.m. No further details of that action were elicited and it is unclear whether appellant was "arraigned" on the Perkins burglary or on some other offense. Myer then testified the second interrogation of appellant began about 1 p.m., the same being initiated by the officers. Again appellant was given his Miranda warnings and acknowledged he understood his rights. Appellant did not at any time acknowledge that he wanted to talk to the officers and after 20 minutes he was "placed--back in a cell." The record reflects on direct examination:

"Q. [Assistant district attorney] He didn't want to talk to you then?

"A. No, sir."

On cross-examination the record reflects:

"Q. Had Mr. Watson indicated to you from his cell he changed his mind and wanted to talk to you?

"A. No, sir.

"Q. Did he talk to you on that occasion?

"A. No, sir."

The third interrogation initiated by the officers took place about 3 p.m. Appellant was again given the Miranda warnings and indicated that he understood his rights.

Page 595

For "fifteen or twenty minutes" appellant made no response to any of the questions asked him, then the appellant told the officers that the man with whom he was arrested, Larry Jordan, had a watch with him at the time of arrest that was taken in the Perkins burglary. On cross-examination the record reflects:

"Q. Had Mr. Watson said any word or given any indication to you that after having refused to talk on two prior occasions he changed his mind and wanted to talk on the third occasion?

"A. He did when he answered the questions.

"Q. When you brought him out of his cell and took him down he sent word he wanted to talk?

"A. No, sir."

After eliciting the information about Larry Jordan the appellant was returned to his cell. The officers found the watch in Jordan's property and determined it had been taken from the Perkins residence. Myer then confronted Jordan with appellant's statement. Thereafter Jordan orally confessed implicating appellant in the burglary. He later signed a written confession.

Thereafter, and for the fourth time that day, the officers interrogated appellant at their own instance. He was again given the Miranda warnings and acknowledged again he understood his rights. The officers confronted appellant with information received from Larry Jordan. Appellant explained that he, Larry and his brother, Michael Jordan, planned to "hit the house together" but when he and Larry arrived at the Perkins' residence they saw Michael's car departing, that Larry Jordan entered the house and took a microwave, stereo, watch and other items. Appellant stated he remained in the car and denied he acted as a lookout. He admitted that he and Larry Jordan took all the stolen items to Michael Jordan's house except a stereo that they sold to a Mr. Mowry on Bernal Street. That same evening appellant accompanied Officer Myer and pointed out Michael Jordan's house on Canada Street. Michael Jordan was arrested there the next day, and after he gave consent to search the police recovered several video cassettes taken from the Perkins' residence. The microwave was recovered from a neighbor's house, and appellant pointed out Mowry as the man to whom the stereo was sold, and the missing stereo was eventually recovered from Mowry.

There was no evidence offered at the hearing as to appellant's age, competency, background, education or experience, etc. While Officer Myer testified that no promises were made to appellant, the State, with the burden of proof, offered no other evidence as to the lack of coercion or undue pressure in the jail setting than that already described.

The court found at the conclusion of the Jackson v. Denno hearing that the oral statements had been given freely and voluntarily and were admissible in evidence. No issue of voluntariness was raised by the evidence before the jury.

The trial court filed its written findings of facts and conclusions of law after the Court of Appeals abated the appeal and ordered the same done. See Article 38.22, V.A.C.C.P.; McKittrick v. State, 535 S.W.2d 873 (Tex.Cr.App.1976).

In its written findings the court found that appellant had been duly warned of his rights, had acknowledged he understood his rights, and "indicated he wished to speak to Officer Myer" and did not ask for an attorney, "and further did not admit anything as to being involved in the burglary ..." and the officers quit talking to the appellant and left. The court found on three other occasions he was warned of his rights, acknowledged he understood the same, and did not ask for an attorney, that on the third of the four occasions he implicated Larry Jordan, and that on the last occasion admitted his involvement in the burglary and showed the police where he and Larry Jordan had taken the stolen property.

The trial court further found that appellant knowingly,...

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101 practice notes
  • Soffar v. Cockrell, No. 98-20385.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 2002
    ...Cir.1984) (defendant's statement that he did not want to talk with the police invoked his right to cut off questioning); Watson v. State, 762 S.W.2d 591, 597 (Tex.Crim.App. 1988) (defendant's silence and refusal to answer questions during interrogation invoked his right to cut off questioni......
  • Higginbotham v. State, No. B14-87-00422-CR
    • United States
    • Court of Appeals of Texas
    • February 16, 1989
    ...U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Watson v. State, 762 S.W.2d 591 (Tex.Crim.App.1988); Massengale v. State, 710 S.W.2d 594 Appellant was twenty-nine years old, lived with his mother and had no history of enc......
  • Franks v. State, No. 2-00-431-CR.
    • United States
    • Court of Appeals of Texas
    • July 18, 2002
    ...that the interrogation must cease when the person in custody "indicates in any manner" that he wishes to remain silent. Watson v. State, 762 S.W.2d 591, 597 (Tex.Crim.App.1988). In fact, the court concluded that there need not be a formal invocation of Miranda rights; instead, anything said......
  • State v. Hernandez, No. 04-91-00039-CR
    • United States
    • Court of Appeals of Texas
    • August 31, 1992
    ...15.17 hearing and an "arraignment" in Texas under Chapter 26 of the Texas Code of Criminal Procedure was explained in Watson v. State, 762 S.W.2d 591, 594 n. 4 3 In McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965) it was held that after formal charges the police could not ......
  • Request a trial to view additional results
102 cases
  • Soffar v. Cockrell, No. 98-20385.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 2002
    ...Cir.1984) (defendant's statement that he did not want to talk with the police invoked his right to cut off questioning); Watson v. State, 762 S.W.2d 591, 597 (Tex.Crim.App. 1988) (defendant's silence and refusal to answer questions during interrogation invoked his right to cut off questioni......
  • Higginbotham v. State, No. B14-87-00422-CR
    • United States
    • Court of Appeals of Texas
    • February 16, 1989
    ...U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Watson v. State, 762 S.W.2d 591 (Tex.Crim.App.1988); Massengale v. State, 710 S.W.2d 594 Appellant was twenty-nine years old, lived with his mother and had no history of enc......
  • Franks v. State, No. 2-00-431-CR.
    • United States
    • Court of Appeals of Texas
    • July 18, 2002
    ...that the interrogation must cease when the person in custody "indicates in any manner" that he wishes to remain silent. Watson v. State, 762 S.W.2d 591, 597 (Tex.Crim.App.1988). In fact, the court concluded that there need not be a formal invocation of Miranda rights; instead, anything said......
  • State v. Hernandez, No. 04-91-00039-CR
    • United States
    • Court of Appeals of Texas
    • August 31, 1992
    ...15.17 hearing and an "arraignment" in Texas under Chapter 26 of the Texas Code of Criminal Procedure was explained in Watson v. State, 762 S.W.2d 591, 594 n. 4 3 In McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965) it was held that after formal charges the police could not ......
  • Request a trial to view additional results

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