AFFIRMED, Opinion Filed February 24, 1994
In The
(!l0urt at Appeals Kitty Itstrtci at ©exas ai Salias No. 05-92-01586-CR
JIMMY DONALD BUIE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F91-44995-SK
OPINION
Before Justices Maloney, Barber, and Whittington Opinion By Justice Barber
Jimmy Donald Buie was convicted by ajury for the offense of aggravated robbery as alleged in the indictment. The jury also found that appellant used or exhibited adeadly weapon during the course of the commission of the offense. Appellant pleaded true to the enhancement paragraph contained in the indictment. The trial court sentenced appeUant to thirty years' confinement. On appeal, appellant asserts that the trial court erred in: (1) admitting appellant's oral statements to Officer Mason; and (2) overruling appellant's
objection that he was deprived of his right to counsel in the taking of his oral statement.
We affirm the trial court's judgment.
FACTUAL AND PROCEDURAL HISTORY
On November 9, 1991, at about 10:00 p.m., William Harless (complainant) parked his car on HaU Street, just off of Oak Lawn Street, in Dallas, Texas. After the complainant got out of his car, he was approached by appeUant. Appellant put a gun to the complainant's chest. The complainant then took money from his pocket and gave it to appellant. AppeUant turned and ran down an alley, getting into the passenger side of acar. The complainant returned to his car and followed appellant's car. After he got the Hcense plate number of appeUant's car, the complainant pulled off to caU the poUce. Within fifteen minutes after the robbery, DaUas poUce officer Penelope Mills, observed appeUant's vehicle being driven erratically and speeding. MiUs stopped appellant's vehicle at Oak Lawn and Stemmons and issued citations to the driver, Byron Fossett, and a citation to the passenger, appellant, for faUure to appear on aprior ticket. After issuing the citations, MiUs released Fossett and appeUant.
After the complainant identified appellant in aphoto lineup, appeUant was indicted for the offense of aggravated robbery, arrested, and placed in jaU. WhUe in custody, appellant sent word through adeputy that he wished to speak to Detective Mason of the DaUas Police Department. Mason went to the jaU to speak to appeUant. The trial court's
-2- ruling with respect to statements made by appeUant during the conversation initiated by
appeUant form the basis of this appeal.
Pursuant to Article 38.22, § 61 of the code of criminal procedure and Jackson v.
Denno, 378 U.S. 368 (1964), the trial judge held a hearing outside the presence ofthe jury
on appellant's oral motion to suppress his statement. At the hearing, Mason testified that he went to speak to appeUant at appeUant's request. Ordinarily, he would not have gone to speak to appeUant. Mason informed appellant that he was the detective who had filed the case and gave appellant the Miranda2 warning. Appellant wanted to discuss the aggravated robbery case with which he was charged. He told Mason that he loaned his car to Byron Fossett and that appeUant attended aLuther Vandross concert that night. Mason told appellant that the case had been filed and he could not discuss it with appellant. Mason wanted to discuss other robberies in which he thought appeUant might be involved. He asked if appellant had done any other robberies. AppeUant replied "no," and kept talking about the aggravated robbery for which he was charged. Mason again told appellant that Mason could not discuss it with him. Mason asked the name of appellant's attorney. Appellant gave Mason the name, but said his fanuly was getting another attorney for him and he did not know who it was at that time.
All references to 38.22 are to Tex. Code Gum. Proc. Ann. art. 38.22 (Vernon 1979 and Vernon Supp. 1994).
Miranda v. Arizona, 384 U.S. 436 (1966).
-3- Mason testified that appeUant seemed "unsure" when he answered Mason's question
about other robberies. Therefore, Mason asked appeUant if it were possible that appeUant
could have been riding around with somebody, and that person might have committed a robbery of which appellant was not aware, but appeUant might have been tied to the robbery because he was in the car. AppeUant first said no, but then said "that might have been that way that night for this offense."
[MASON]: And I said, "well is it?" And he [appeUant] said, "weU, it might have been. I don't know." And that's where it ended. I didn't question him more about it.
[PROSECUTOR]: Did he give you specifics, though as to what -- as to why he thought it might be that night or why it might have happened that way?
[MASON]: He said that he was driving with a friend, they parked in an alley, the friend -- he said the friend had to get out and I believe is [sic] use the bathroom or something, but he walked out of the aUey, he came running back to the car or came back to the car, they got in and drove off.
Q. Okay. Would that friend's name have been a Byron Fossett?
A. I believe that's the name he said.
Q. Okay. What else as far as that interview? A. He also said -- when I first got there he said he didn't do the robbery, that he had loaned the car that night to Byron Fossett. He said that he was at a concert that night and that's how he knew he didn't do the robbery.
AppeUant objected to the admission of the statements on the basis that they were
-4- taken in violation of his right to counsel under the Sixth Amendment3 and article I, section
10 of the Texas constitution and in violation of article 38.22 of the code of criminal
procedure. Overruling appellant's motion to suppress, the trial judge found that appeUant
initiated the conversation with Mason and concluded the statements were admissible on that
basis.4 The trial continued.
Mason testified before the jury that several weeks after appeUant's arrest, appeUant
left word with a deputy sheriff that he wanted to talk to Mason. About a week later Mason went to the jail, identified himself as the person who filed the aggravated robbery case on appeUant, and asked appeUant if he wanted to talk to him. When appeUant said he did, Mason read appellant the Miranda rights and asked him who his attorney was. AppeUant said originally his counselor was Brashear, but his farmly did not want Brashear representing him anymore and they were getting him new counsel. Questions by the prosecutor to and answers by Mason:
PROSECUTOR: Okay. What happened from that point on? MASON: He wanted to talk about the robbery that I'd filed on the case he was in jaU on. I told him that I could not discuss that case, the case had been filed, I cannot help you with it. But he wanted to tell me that he didn't do the robbery, that he
3 U. S. Const, amend. VI.
4The trial court dictated its findings and conclusions to the court reporter. These findings were transcribed and made part of the statement of facts which has been made part of the appellate record. Under theseM«, ^"™££""«£ findings mandated by article 38.22 has been met. Perkins v. State, 779 S.W.2d 918, 925 (Tex. App.-Dallas 1989, no pet.), see also Parr v. State, 658 S.W.2d 620, 623 (Tex. Crim. App. 1983).
-5- was at a concert that night and again I told him that -- that I cannot discuss the case. What I was there to talk to him about was other robberies that he might have been involved in and he eventually told me a name of a person that he had loaned the car to that night.
Q. Okay and that person's name?
A. Byron Fossett.
Q. Okay. What else -- what else was said?
A. We talked about --1 asked him if there was any chance he might have been involved in some more robberies in that area or anywhere else. Did -- he first said no, but then he was really -- he sounded very unsure. He said, I don't think so, I don't remember any.
I said, Could it have been a case where you might have been riding with some friends or somebody and they committed a robbery but you didn't know at the time untU they got back to the car or later on where you could have been seen, and he said, well, that's possible. He said, that could have happened that night.
Q. Okay. Which night?
A. On November 9th --
Q. Okay.
A. '91.
Q. What did he say about that incident? Why did he say that that could have been possible?
A. Because he was riding around with -- I beheve, if I remember right, he said Byron that night. It might not have been Byron, but that he was driving in the Oak Lawn area, he puUed into an aUey because Byron, I think he said, had to use the bathroom. That he sat in the car and Byron got out of the car, Byron came back to the car and they left.
I asked him again if this -- if he remembers being involved in any other robberies anywhere that might come back to effect [sic] him and he said not that he can remember and that's about the point where we ended it right there.
Q. Okay. Had he -- during that conversation, then, had he previously denied being involved on November 9th, 1991?
A. Yes.
Q. And then did he later indicate that it was possible that he had been riding around on that night?
A. That's correct.
Appellant did not testify during the suppression hearing. However, he testified before the jury that Mason did not read him the Miranda warnings and did not tell him not to talk about the aggravated robbery. He also denied telling Mason that he and Fossett rode around together on November 9, 1991, and receiving acitation whUe apassenger in the vehicle.
AppeUant further testified that on November 9,1991, he attended aLuther Vandross concert at Reunion Arena with his fiancee (now his wife). They arrived at Reunion Arena at about 8:45 p.m. and the concert ended at about 12:30 a.m. AppeUant never left the arena during that time period. AppeUant loaned his Thunderbird to Byron Fossett that evening.
-7- SheUa Buie, appeUant's wife, testified that she and appeUant attended a Luther
Vandross concert at Reunion Arena on November 9, 1991. The concert lasted from about
9:00 p.m. untU 12:15 a.m. AppeUant remained with her except for a short period during intermission when he went to get her a drink. After the concert they went to appeUant's sister's home where they remained the rest of the night. She further testified that Fossett borrowed appellant's car that evening.
Kimberly Jones testified that she had known appeUant approximately three and one- half years. She saw appellant at the Luther Vandross concert between 10:30 p.m. and 10:45 p.m. on November 9, 1991.
Byron Fossett testified that he and appeUant were involved in arobbery on November 9, 1991.5 Fossett pulled into an alley off HaU Street. Appellant got out of the car with a gun and Fossett waited in the car. AppeUant returned to the car and told Fossett that he "got some money." They left, driving down HaU to Oak Lawn. They were stopped by a police officer and issued citations for failure to appear. STANDARD OF REVIEW
In asuppression hearing, "the trial judge is the exclusive trier of fact and judge of the edibility of the witnesses as weU as the weight to be given their testimony." Romero v. crec
SFossett testified on two prior occasions. The first time Fossett testified, he said he borrowed appellant's ™"^*«- November 9, 1991. He went to anightclub known as the Cliff Club. While he was there he, «,, .Jnend named T^ F«*ett rented "T" the Thunderbird for ten dollars. "T" was gone almost two hours, returnmg to the club at about 11.00 p.m. The secona toe FoLtftes^d he again claimed that he loaned the Thunderbird to TV He also denied recemng a^-^vem^r ?£?£•£. testified athird time after he was granted use immunity for the testimony and an agreement was made that no aggravated perjury charge would be filed against him.
-8- State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). On appeal, we do not engage in our
own factual review. Id. We determine whether the trial judge's fact findings are supported
by the record. Id. We do not disturb the findings of fact if they are supported by the record; we only address the question of whether the trial court improperly appUed the law to the facts. Id. If the trial judge's decision is correct on any theory of law applicable to the case, we will sustain it, even if the trial judge gave the wrong reason for his decision. Id. ARTICLE 38.22
In his first point of error, appeUant claims that the trial court erred in admitting appellant's oral statements to Mason. Article 38.22, § 3(a) of the code of criminal procedure provides that unrecorded oral statements of the accused which are the product of acustodial interrogation are inadmissible. Tex. Code Crim. Proc. Ann. art. 38.22, §3(a) (Vernon,Supp. 1994). However, article 38.22 does not bar the admission of statements which are not the product of a custodial interrogation. Id. §5(Vernon 1979). "'Custodial interrogation' is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Cannon v. State, 691 S.W.2d 664, 671 (Tex. Crim. APP. 1985), cert, denied, 474 U.S. 1110 (1986). Appellant was clearly in custody when he made the statement to Detective Mason. Therefore, the question is whether the statement was the product of an interrogation.
It is undisputed that appellant initiated the conversation with Mason and there was
-9- initiaUy no custodial interrogation. However, appeUant contends that Mason's questions after the point appellant asserted his innocence of the aggravated robbery became a custodial interrogation because appeUant was not initiating the conversation at that point. Appellant argues that Mason's questions went further than inquiring about other offenses and suggested that appellant was involved in the aggravated robbery with which he was charged. The state argues that the statement was not the product of a custodial interrogation.
"'Interrogation' . . . must reflect a measure of compulsion above and beyond that inherent in custody itself." Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Interrogation refers to both express questioning and to any words or actions on the part of poUce that they should know are reasonably likely to eUcit an incriminating response from the suspect. Id. at 301; Henson v. State, 794 S.W.2d 385, 392 (Tex. App.-DaUas 1990, pet. refd). Reviewing the record before us, we conclude that Mason's questions regarding other possible offenses did not amount to a custodial interrogation regarding the aggravated robbery for which appeUant was indicted and in custody. AppeUant initiated the conversation with Mason. Mason read appeUant the Miranda warning and appeUant told Mason that he wished to talk about the aggravated robbery. Mason twice told appeUant that he could not discuss the case; he only wanted to talk to appeUant about other robberies in which appeUant was possibly involved. However, appellant persisted in talking about the aggravated robbery and eventuaUy made inculpatory statements.
-10- Assuming, without deciding, that Mason's questions regarding other offenses
amounted to a custodial interrogation regarding those offenses, we conclude that under
these circumstances, the questions were not such that Mason knew or should have known
he was likely to eUcit an incriminating response from appellant regarding the aggravated robbery in issue. See Innis, 446 U.S. at 303. AppeUant's oral statements were admissible under article 38.22, § 5.
We overrule appellant's first point of error.
APPELLANT'S RIGHT TO COUNSEL
In his second point of error, appellant contends that the trial court erred in overruling his objection that he was deprived of his right to counsel when his oral statement was taken. AppeUant objected at trial on the grounds that he was deprived of his right to counsel under the Sixth,Amendment and article I, section 10 of the Texas constitution.6 AppeUant did not separately brief this point of error to teU us why his rights are different or greater under article I, section 10 of the Texas constitution. Therefore, appeUant has waived this argument and we will address only his Sixth Amendment claim. See Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim. App.), cert, denied, 114 S. Ct. 116 (1993). "Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth
6AppeUant also argues in his brief that his Miranda rights were violated. AsappeUant did not raise aviolationof his m A^rightsattr^ Amendment. To the extent that appellant asserts aviolation of has Fifth *™^^c^ to Gardner v. State, 733 App. 1981), cert, denied, 456 U.S. 910 (1982).
•11- f *
Amendments means at least that a person is entitled to the help of a lawyer at or after the
time that judicial proceedings have been initiated against him--'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" Brewer v. Williams, 430 U.S. 387, 398 (1977)(quotingKlrby v. Illinois, 406 U.S. 682, 689 (1972)). Appellant was indicted on the aggravated robbery charge before he spoke to Mason. It is undisputed that appellant's Sixth Amendment right to counsel had attached to the instant offense at the time he made the statements to Mason.
The State argues that appeUant never invoked his right to have counsel present during Mason's meeting with appeUant. However, this argument must faU in light of Holloway v. State, 780 S.W.2d 787 (Tex. Crim. App. 1989). In Holloway, the court of criminal appeals held that where a defendant has been indicted and an attorney-chent relationship is established, authorities may initiate an interrogation with the defendant only through defense counsel. Id. at 795; see also Upton v. State, 853 S.W.2d 548, 553 (Tex. Crim. App. 1993). Although appellant was uncertain as to the status of his counsel at the time he spoke with Mason, the record reflects that appellant was represented by counsel. Therefore, any police initiated interrogation with appellant would be in violation of his Sixth Amendment right to counsel.
However, Holloway does not control the disposition of appellant's case. First, appellant, unlike the situation in Holloway, initiated the contact with Mason. "[N]othing in the Sixth Amendment prevents asuspect charged with acrime and represented by counsel
-12- from voluntarily choosing, on his own, to speak with poUce in the absence of an attorney."
Michigan v. Harvey, 110 S. Ct. 1176,1181 (1990). A defendant may initiate communication,
exchanges, or conversations with the pohce as long as there is a showing that he knowingly and voluntarily waived his right to counsel. See Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983). Initiation is an inquiry representing a desire on the part of an accused to open up amore generalized discussion relating directly or indirectly to the investigation. Id. at 1045- 46.7
The record reveals that appellant sent word that he wanted to talk to Mason. When Mason asked appellant what he wanted, appellant said that he "wanted to talk about the robbery case, he didn't do it." Clearly, this reflected adesire on the part of appellant that he wished to open up a more generalized discussion relating directly or indirectly to the investigation. This seems far more true of appellant's statement than the statement, "Well, what is going to happen to me now?" that the Bradshaw court found to be an "initiation." "Although a defendant may sometimes later regret his decision to speak with pohce, the Sixth Amendment does not disable a criminal defendant from exercising his free wiU." Harvey, 110 S. Ct. at 1182.
Second, unlike the situation in Holloway, Mason did not dehberately eUcit incriminating information from appeUant. "DeUberate elicitation" is "intentionaUy creating
7Although Bradsha* addresses waivers of adefendant's Fifth Amendment right to counsel, we see ~«~^£"£ analysis cannot apply to defendant-initiated communications and the Sixth Amendment right to counsel. See Harvey, 110 S. Ct. at 1182; see also Michigan v. Jackson, 475 U.S. 625, 635 (1986).
-13- a situation likely to induce [a person] to make mcriminating statements without the
assistance of counsel." United States v. Henry, 447 U.S. 264, 274 (1980). The deliberate
eUcitation test is satisfied either with proof that the officer intended to eUcit an mcriminating
response or must have known that his words or actions were likely to elicit an mcriminating response from the accused. Lara v. State, 740 S.W.2d 823, 833 (Tex. App.-Houston [1st Dist.] 1987, pet. refd), cert, denied, 493 U.S. 827 (1989); see also Maine v. Moulton, 474 U.S. 159, 176 (1985).
The Sixth Amendment right to counsel is offense specific. McNeil v. Wisconsin, 111 S. Ct. 2204, 2207 (1991). The Sixth Amendment was not impUcated by Mason's questions regarding other uncharged crimes in which appeUant may have been involved. See id. (Sixth Amendment does not attach until initiation of adversary judicial criminal proceedings). This was not a situation in which the poUce used the investigation of other crimes to circumvent appellant's Sixth Amendment right to counsel. Mason told appeUant twice that he could not discuss appellant's case. Despite these warnings, appeUant continued to talk about the aggravated robbery with which he was charged, eventually giving an inculpatory statement. "[T]he Sixth Amendment is not violated whenever - by luck or happenstance - - the State obtains incriminating statements from the accused after the right to counsel has attached." Moulton, 474 U.S. at 176; Henry, 447 U.S. at 276 (PoweU, J., concurring). We cannot say that Mason intended or must have known that his questions regarding other crimes in which appellant was possibly involved would eUcit aresponse inculpating appeUant
-14- in the aggravated robbery with which he was charged.
Additionally, this was not a situation in which the aggravated robbery was anelement
that would be used to aggravate the offenses for which appeUant's right to counsel had not yet attached. See Upton, 853 S.W.2d at 555. The robberies about which Mason wished to question appellant were unrelated to the aggravated robbery with which he was charged. Finally, the record supports the conclusion that appeUant knowingly and voluntarily waived his right to have counsel present during his conversation with Mason. Waiver is the intentional relinquishment of a known right. Robles v. State, 577 S.W.2d 699, 703 (Tex. Crim. App. 1979). The State bears a heavy burden of showing a valid waiver as the presumption is against waiver of afundamental constitutional right. Id. "[A]n expUcit statement of waiver is not invariably necessary to support a finding that the defendant waived his right... to counsel.. .." North Carolina v. Butler, 441 U.S. 369, 375-76 (1979). We determine whether appellant waived his right to counsel by the totaUty of the circumstances. See Barefield v. State, 784 S.W.2d 38, 41 (Tex. Crim. App. 1989), cert. denied, 497 U.S. 1011 (1990). Appellant initiated the conversation with Mason. Mason read appeUant the Miranda warnings. When appeUant indicated that he wanted to discuss the aggravated robbery with which he was charged, Mason told him that he could not discuss it. AppeUant continued to talk about the aggravated robbery, and Mason again told him that he could not discuss it. AppeUant stUl talked about the aggravated robbery and eventuaUy gave an inculpatory
-15- statement. Reviewing the totality of the circumstances, we conclude appeUant knowingly
and voluntarily waived his right to counsel.
We overrule appellant's second point of error.
HARMLESS ERROR
Finally, we conclude that error, if any, in admitting appeUant's statement was harmless. See Tex. R. App. P. 81(b)(2). The United States Supreme Court permits a
harmless error analysis where the effect of a Sixth Amendment violation is limited to the erroneous admission of particular evidence at trial. See Satterwhite v. Texas, 486 U.S. 249, 257 (1988); Young v. State, 820 S.W.2d 180, 189 (Tex. App.-DaUas 1991, no pet.). Error is harmless if the State can prove beyond a reasonable doubt that aconstitutional error did not contribute to the verdict or punishment. Satterwhite, 486 U.S. at 256. Appellant argues that the statements were not harmless because they directly conflicted with his testimony that he was at a Luther Vandross concert on the night of the aggravated robbery. However, other evidence presented by the State showed that appellant was not at the concert and impUcated him in the aggravated robbery. The complainant testified at the outset that appellant robbed him at gunpoint on November 9, 1991. He identified appeUant three times as being the individual who robbed him: in aphoto lineup, during asuppression hearing, and in open court during appellant's trial.
MUls testified that on November 9,1991, at 10:15 p.m., she stopped avehicle on Oak
-16- Lawn. Fossett was driving and appeUant was the passenger. The two men identified
themselves by their names and dates of birth. MiUs checked the two men through the
computer and learned of outstanding warrants for the two men for faUure to appear on
other citations. Mills issued citations to both men for faUure to appear on their prior
citations. MiUs identified appeUant in court as being the passenger in the vehicle.
Fossett testified that he and appellant were involved in a robbery on November 9,
1991. Fossett pulled into an aUey off Hall Street. AppeUant got out of the car with a gun and Fossett waited in the car. AppeUant returned to the car and told Fossett that he "got some money." They left, driving down HaU to Oak Lawn. They were stopped by a police officer and issued citations for failure to appear.
Additionally, the State did not emphasize the statements. During closing argument, the prosecutor only once referred to Mason's testimony regarding appellant's statements. We conclude beyond a reasonable doubt that any error in admitting the statements did not contribute to appellant's conviction or punishment. See Satterwhite, 486 U.S. at 257; Young, 820 S.W.2d at 190.
CONCLUSION
We conclude that the trial court did not err in aUowing the admission of appeUants statements or in overruling appellant's objection that his Sixth Amendment right to counsel was violated. We overrule appellant's two points of error.
-17- We affirm the trial court's judgment.
tIM&ds- WILL BARBER JUSTICE
Do Not PubUsh Tex. R. App. P. 90 921586F.U05
-18- i^w
Court of Appeals Jifttj Ststrtrt of Gkxas at Hallas JUDGMENT
JIMMY DONALD BUIE, Appellant Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. No. 05-92-01586-CR V. F91-44995-SK). Opinion delivered by Justice Barber, THE STATE OF TEXAS, Appellee Justices Maloney and Whittington also participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered February 24, 1994.
WILL BARBER iir JUSTICE i VI