Maixner v. State

757 S.W.2d 21, 1988 Tex. App. LEXIS 2460, 1988 WL 101356
CourtCourt of Appeals of Texas
DecidedAugust 24, 1988
DocketNo. 09-83-092 CR
StatusPublished
Cited by2 cases

This text of 757 S.W.2d 21 (Maixner v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maixner v. State, 757 S.W.2d 21, 1988 Tex. App. LEXIS 2460, 1988 WL 101356 (Tex. Ct. App. 1988).

Opinion

OPINION ON REMAND

DIES, Chief Justice.

Appellant was convicted of murder and sentenced to forty-five years’ confinement. This court reversed the conviction and ordered the cause remanded for a new trial. Maixner v. State, No. 09-83-092 CR (Tex. [22]*22App.—Beaumont Nov. 30, 1983). The Court of Criminal Appeals granted the State’s petition for discretionary review and reversed this court’s decision, holding that Appellant’s confession on the night of his arrest was not the product of his illegal arrest. Maixner v. State, 753 S.W.2d 151 (Tex.Crim.App.1988). The Court of Criminal Appeals remanded the cause to this court for consideration of Appellant’s remaining points of error.

Appellant’s second point of error urges that the trial court erred in admitting Appellant’s belt and testimony concerning Appellant’s oral statement that it was the belt with which he strangled the victim. Appellant argues that the belt and his oral statement were inadmissible because he was not warned of his right to an examining trial when he was arraigned as required by TEX. CODE CRIM.PROC.ANN art. 15.17 (Vernon 1977).

The fact that an accused is not taken before a magistrate at all prior to making a statement does not vitiate a confession that is otherwise properly obtained. Maloy v. State, 582 S.W.2d 125, 128 (Tex.Crim.App.1979). Even an unreasonable delay in bringing an accused before a magistrate will render a confession inadmissible only if some causal connection is shown between the delay in taking the accused before a magistrate and the statement made by the accused. Id. Since a total failure to arraign an accused will not vitiate a confession absent a showing of a causal link, we hold that such a causal link must be shown where an accused claims that the magistrate did not give all proper warnings during the arraignment.

The record reveals that Appellant had been repeatedly warned of his Miranda rights and had repeatedly waived these rights prior to making the incriminating oral statement. The statement was made immediately after Appellant’s arraignment and in the magistrate’s presence. Appellant does not challenge the voluntary nature of his statement. While Appellant’s brief suggests that he might not have made the statement had he been warned of his right to an examining trial, the record contains no evidence that the statement would not have been made had such warning been given. Furthermore, Appellant never raised the grounds asserted in this point of error at or before his trial. Where an objection at trial is not the same as the point urged on appeal, the point is not properly preserved for review. Daniels v. State, 600 S.W.2d 813, 816 (Tex.Crim.App.1980); Walthall v. State, 594 S.W.2d 74, 82 (Tex.Crim.App.1980). For all the foregoing reasons, Appellant’s second point of error is overruled.

By his third point of error, Appellant urges that the trial court erred in admitting testimony concerning Appellant’s statements to the grand jury after he had made known his desire to consult with an attorney prior to testifying before the grand jury. The record reveals the following facts. Appellant was arrested during the evening of September 9, 1980. Police had also arrested appellant’s co-defendant, Gregory Hogle. Both Hogle and Appellant gave written statements to the police.

Hogle’s statement indicated that he and Appellant raped Katharina Bower and that Appellant intentionally caused her death by strangling her with a belt. Hogle led police to the victim’s body near Stagecoach Road in Bell County and had given police Appellant’s nickname (Shorty) which ultimately led to Appellant’s arrest.

Appellant’s second written statement was given to police around midnight after being warned several times of his rights under Miranda v. Arizona and article 38.-22 of the Texas Code of Criminal Procedure. This statement reads as follows:

In addition to the statement I made at 10:48 a.m., on the 9th day of September, 1980, I want to add that Greg asked me to take off my belt and put it around her neck, while he had ahold of her hair, and he asked me to choke her with it. At which time, I got behind her and put my belt around her neck and then I crossed the belt, as tight as I could, I didn’t want to. Then, I got up and left. At the time that Greg asked me to do this, I checked her heart, and she had a very faint heart [23]*23beat. Greg checked her heartbeat after I used the belt on her neck. As far as I know, that is all I know.

Police officers presented a complaint and affidavit for an arrest warrant to a magistrate. The magistrate issued an arrest warrant for Appellant. Appellant was brought before the magistrate for arraignment at approximately 3:00 a.m. on September 10, 1980.

Appellant remained in police custody and was brought before the Bell County Grand Jury sometime during the morning hours of September 10, 1980. After being advised that he was a suspect in a murder case and after being once again advised of his rights with respect to making a statement, Appellant stated that he would like to have an attorney. Appellant was advised that, in view of his request for an attorney, the grand jury would not question him. An assistant district attorney told Appellant, “Why don’t you go outside and think about it and you do whatever you want to Mr. Maxiner [sic], okay? [W]hy don’t you go ahead and get your coffee and we’ll let you go in one of our offices and think about it.”

Appellant was placed in one of the district attorney’s offices. Some time later, Terry Clark, an assistant district attorney, went to see Appellant who was still in the office. No other person was present when Clark went to see Appellant at the request of the grand jury. Clark went to see Appellant to ask whether he wanted to invoke his rights and to offer Appellant a cigarette.

Mr. Clark testified that Appellant was upset at that time and that although Appellant was not crying, “you could tell that he was close to it.” Appellant told Clark that he did not know what to do. Clark replied that it was Appellant’s decision to make and that Appellant should “do whatever he felt was right after having his rights informed.” Clark once again informed Appellant of his rights. Appellant then stated that he did not know what to do and that he did not understand the grand jury. Clark explained “what a grand jury was and how it fits in the criminal process.” Appellant then asked Clark who had testified before the grand jury. Clark replied that a police officer and Gregory Hogle had already testified before the grand jury.

Appellant asked Clark what Hogle had told the grand jury. Clark replied that grand jury testimony must be kept secret, but that he presumed that Hogle had said what he had told police in his prior statement. Appellant replied, “I don’t think that’s correct.” Appellant stated that he wanted to tell his side of the story. Clark told Appellant that because he had requested an attorney, he could not allow Appellant to talk to the grand jury until he had a lawyer appointed. Appellant then stated that he wanted to talk to the grand jury “now today.” Clark told Appellant he could not do so without an attorney.

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840 S.W.2d 594 (Court of Appeals of Texas, 1992)
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766 S.W.2d 869 (Court of Appeals of Texas, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
757 S.W.2d 21, 1988 Tex. App. LEXIS 2460, 1988 WL 101356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maixner-v-state-texapp-1988.