X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The appellant was convicted in June 2003 of a capital murder committed in May 1979. Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure, Articles 37.0711 3(b) and 3(e), the trial judge sentenced appellant to death. HOLDING:Affirmed. The appellant contends that four tape-recorded statements obtained in Louisiana were admitted into evidence in violation of Texas Code of Criminal Procedure Article 38.22. He contends that Louisiana law enforcement officers failed to give some of the warnings required by the statute. If the warnings given by the Louisiana officers are the “fully effective equivalent” of the warnings outlined in Article 38.22, 2, then Article 38.22 does not bar admission of the statements. The appellant contends that the warnings were deficient, because they specified that his statements could be used against him in “court” but did not specify that the statements could be used against him at “trial.” This court addressed the “court” versus “trial” complaint under a previous version of the statute in Bennett v. State, 742 S.W.2d 664 (Tex. Crim. App. 1987), vacated on other grounds, 486 U.S. 1051 (1988). “[B]y saying that the use of”court’ instead of”trial’ did not”dilute the meaning or import of the warning,’we clearly expressed the view that the Louisiana warning was in fact the fully effective equivalent of the one contained in the statute.” Although the appellant contends that the equivalence of the warnings is negated by the fact that Article 38.22 contains two “used against” warnings, one specifying “court” and the other specifying “trial,” that language was also present in the statute at the time Bennett was decided, the court states. The two warnings here appear to largely overlap and, the court notes, “court” is the broader term, and is reasonably understood to include the term “trial.” Moreover, the court finds that three of the warnings also fairly convey the concept that the accused is entitled to consult counsel “prior to” interrogation. The warning says, “You have the right to get advice from a lawyer and to have a lawyer with you during your interview.” The wording of the warning suggests that the accused is entitled to a lawyer’s advice outside of the time during the interview. And the waiver-of-rights admonition that follows, by specifying that the accused is “willing to answer questions now without talking to a lawyer first, and without having one present,” makes clear that this right to an attorney can be exercised before interrogation. The court states that the final warning, if looked at in isolation, would appear to lack some of the warnings required, not only by Article 38.22, but also by Miranda. This warning does not contain a “used against” warning, does not contain the language making clear that counsel can be consulted before interrogation, and does not contain the admonition that an attorney can be appointed if the accused cannot afford one. But the court disagrees with the proposition that this warning should be looked at in isolation. Although different officers conducted questioning during each session and each session focused on a different set of crimes, the same officers were present during both sessions. A trooper reminded the appellant of his earlier waiver of rights; secured his acknowledgment that he had been previously been given warnings; briefly reminded him of his right to silence, to terminate the interview, and to counsel; and secured his assent to continue the interview. The court finds that the two sessions were part of a single interview for the purpose of Article 38.22 and Miranda. The appellant contends that the portions of his confession relating to the sexual assault of two of his nieces were improperly admitted, because the state failed to present any corroborating evidence that those offenses occurred. The court holds that the corpus delicti doctrine does not apply to extraneous offenses offered at the punishment phase of a capital murder trial. The appellant contends that pancuronium bromide, one of the substances used in Texas executions, inflicts cruel and unusual punishment in violation of the eighth amendment to the U.S. Constitution. Assuming, arguendo, that appellant was not required to object at trial to preserve error on this type of claim, the court concludes that cannot address this claim in its current posture in this appeal. This is the type of claim the resolution of which should provide a rule of law for all cases, but a reliable resolution of the merits requires a fact-intensive inquiry. Because of the absence of litigation during the trial, the record is not sufficiently developed to resolve this claim, and the novel nature of the claim counsels against resolution through judicial notice without the benefit of litigation before a fact-finder. OPINION:Keller, P.J., delivered the opinion of the court in which Meyers, Womack, Johnson, Keasler, Hervey, Holcomb and Cochran, JJ., joined. Price, J., concurred in the result

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.