John Fredrick Zedler v. State

Opinion

ACCEPTED 03-14-00044-CR 6228262 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/27/2015 10:10:50 AM JEFFREY D. KYLE CLERK NO. 03-14-00044-CR

IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE AUSTIN, TEXAS THIRD SUPREME JUDICIAL DISTRICT OF TEXAS 7/27/2015 10:10:50 AM AT AUSTIN JEFFREY D. KYLE Clerk _____________________________________________________________

NO. CR-12-0771

IN THE 22ND DISTRICT COURT OF HAYS COUNTY, TEXAS _____________________________________________________________

JOHN FREDERICK ZEDLER, APPELLANT

V.

STATE OF TEXAS, APPELLEE _____________________________________________________________

APPELLANT’S MOTION FOR REHEARING _____________________________________________________________

LINDA ICENHAUER-RAMIREZ ATTORNEY AT LAW 1103 NUECES AUSTIN, TEXAS 78701 TELEPHONE: 512-477-7991 FACSIMILE: 512-477-3580 EMAIL: ljir@aol.com SBN: 10382944

ATTORNEY FOR APPELLANT GROUND FOR REHEARING NUMBER ONE THE COURT OF APPEALS ERRED WHEN IT SAID THAT THE RECORD DID NOT REFLECT THE LENGTH OF TIME BETWEEN WHEN APPELLANT’S SON TOLD THE DETECTIVE THAT APPELLANT WOULD LIKE TO SPEAK WITH HIM AND WHEN THE DETECTIVE INTERVIEWED APPELLANT THE SECOND TIME.

In its opinion the panel of the Third Court of Appeals concluded that

appellant initiated the second interview with Detective Floiran. The panel

then wrote the following:

“There was no evidence presented at trial concerning the length of time between when Brandon told Floiran that Zedler would like to speak with him and when Floiran interviewed Zedler the second time. Therefore, there was no evidence that the police failed to timely act on Zedler’s initiation or were responsible for any delay in conducting Zedler’s second interview.” (slip opinion, p. 6)

This statement is totally wrong. The record reflects that a hearing was

held on appellant’s motion to suppress outside the presence of the jury on

December 9, 2013, immediately after jury selection. (R.R. II, p. 267-328)

During that hearing the court heard testimony from Brandon Zedler,

appellant’s son, who testified that he asked Detective Floiran to talk to

appellant (his father) a second time. (R.R. II, pp. 272-282) Detective

Floiran also testified during the hearing and told the court about his two

interviews with appellant. He testified that appellant invoked his counsel

during the first interview. (R.R. II, pp. 285-295) During his testimony

he testified that he went to the jail to talk to appellant the second time after 2 Brandon told him that his father did not remember a lot about what had

happened and had questions and wanted to talk to the detective. (R.R. II,

pp. 296-298, 303-304) During the hearing the trial court watched the

video of the detective’s first interview with appellant. (R.R. II, pp.

313-322) The court then asked the parties about the circumstances of the

second interview and following occurred:

“THE COURT: And what’s the time frame between this event where he says he wants his lawyer to when the second interview takes place?

“MR. ERSKINE: The second interview took place –

“THE COURT: What’s the time frame?

“MS. MCDANIEL: From the 22nd of June to the 11th of July.

MR. ERSKINE: Thank you. Correct.

MS. MCDANIEL: Or maybe after midnight. Maybe th the 28 of June, but, what ever.

MR. ERSKINE: Right. So a matter of two weeks, approximately.

THE COURT: July what?

MS. MCDANIEL: The 11th.

MR. ERSKINE: Of 2012.” (R.R. II, p. 323)

The next morning the trial court watched the video of the second interview

and then ruled that it would allow the video of the second interview to be

3 seen by the jury, noting that the second interview occurred two weeks after

the first interview. (R.R. III, pp. 16-20)

Appellant asks the Court to re-examine his case in light of the fact that

the record does contain evidence that there was a two week delay between

Brandon’s conversation with the detective and the detective talking to

appellant. During this two week time span, appellant made no effort to tell

anyone that he wanted to speak to authorities about his case. Appellant’s

actions during that time certainly do not show a willingness and a desire to

talk to the authorities about his case. Appellant’s situation is very similar

to the situation in United States v. Whaley, 13 F.3d 963 (6th Cir. 1994). In

Whaley, there was a three week interval between Whaley making an

ambiguous request to talk to an officer about his arrest and then being

re-interviewed by law enforcement during which he made a statement.

On appeal, the issue before the Sixth Circuit was whether or not Whaley’s

request to talk to the officer was an actual re-initiation of contact with law

enforcement. The deciding factor for the Sixth Circuit was the length of

time between Whaley’s request and the second interview coupled with

Whaley’s conduct during that three week interval:

“However, in the present case, we do not need to decide this question, because after this exchange nothing happened for three weeks. The authorities did not contact Whaley, and Whaley made no effort to tell anyone – including agent Anderson – that he wanted to talk about the case. Whether or 4 not Whaley’s exchange with Waggoner might have at the time constituted an Edwards initiation, given that Whaley did nothing else during the succeeding three-week period, his actions certainly do not show a willingness and a desire to speak generally about the case. Therefore, as in Edwards, when Anderson removed Whaley from his cell and interrogated him without counsel present, he violated Whaley’s constitutional rights.” 13 F.3d at 968.

Appellant asserts that Whaley should govern his case. The evidence

affirmatively shows that there was a two week delay between Brandon’s

request to the detective and the detective pulling appellant out of his cell and

taking him in for the second interview. Appellant did nothing during this

two week interval to indicate that he had a willingness and desire to speak to

the detective about his case.

Appellant did not reinitiate contact with the detective. The

detective’s second interview with appellant was in violation of Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). This

ground for rehearing should be granted.

Respectfully submitted,

/s/ Linda Icenhauer-Ramirez LINDA ICENHAUER-RAMIREZ ATTORNEY AT LAW 1103 NUECES AUSTIN, TEXAS 78701 TELEPHONE: 512-477-7991 FACSIMILE: 512-477-3580 EMAIL: ljir@aol.com SBN: 10382944 5 ATTORNEY FOR APPELLANT ON APPEAL

CERTIFICATE OF COMPLIANCE

I hereby certify that this motion for rehearing contains 1,051 words, as calculated by the word count function on my computer and is prepared in Times New Roman 14 point font.

/s/ Linda Icenhauer-Ramirez LINDA ICENHAUER-RAMIREZ

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellant’s Motion for Rehearing was e-served to the Hays County District Attorney’s Office on this the 27th day of July, 2015.

/s/ Linda Icenhauer-Ramirez_ LINDA ICENHAUER-RAMIREZ