For Appellant: James H. Clack - Andrews, TX
For Appellee: G. Dixon Mahon, D.A. - Fort Stockton, TX
This is an appeal from a conviction under the old Code for murder with malice. A motion for change of venue was granted by the district court of Winkler County and the case was transferred to Pecos County. The jury assessed punishment at 550 years' confinement in the Texas Department of Corrections.
The sufficiency of the evidence is not challenged. Appellant's four grounds of error relate to the admission of his confession into evidence. Although three statements were taken from the appellant in connection with this case, only the last one was admitted into evidence. The trial court conducted a lengthy Jackson v. Denno hearing to determine the voluntariness of the statements. The findings of fact and conclusions of law filed at the conclusion of this hearing recite that all three statements were voluntary and that the third statement, the only one to be admitted into evidence, was not the result of any exploitation of the first two statements given by appellant.
The appellant contends that the confession should not have been admitted into evidence because it was made after his arrest and request for counsel and because it was the fruit of the two prior statements given, which he contends were also involuntary.
Appellant did not testify at the pretrial hearing on his Motion to Suppress Statements, nor at the trial on the merits.
The record reflects that the first two statements were made by appellant while he was under arrest and in custody in Fort Worth for an unrelated offense of aggravated kidnapping. Appellant's wife had hired a Tarrant County lawyer to represent appellant in connection with this unrelated offense. This attorney had interviewed appellant and represented him in a writ of habeas corpus proceeding in connection with the kidnapping case.
After the writ hearing on the kidnapping case, appellant was returned to the city jail. Later, Fort Worth police detectives sought to interrogate him in connection with the kidnapping and another unrelated murder charge that had arisen. At this time, appellant requested that his attorney be present. After this request, he was placed back in the jail and no attempt was made to interview him. This was the first time appellant had requested an attorney since his arrest.
Shortly thereafter, Winkler County Sheriff Bell sought to interview appellant in connection with the instant murder. During this interview, appellant advised the sheriff that he wanted his attorney, at which time the interview was terminated.
Later, appellant consulted with his attorney and was returned to jail. A search warrant was then obtained in connection with the unrelated murder and kidnapping charges. Appellant went with the officers to his residence, where the warrant was to be executed. While at his residence, he told Fort Worth police detective Hudson that he wanted to talk with him. Hudson then took appellant to the Fort Worth district attorney's office and began interviewing him. Prior to beginning the interview, Hudson gave appellant his Miranda warning and specifically asked appellant if he wanted his attorney present. Appellant stated that he did not want his attorney present and that he understood his rights. Appellant then gave statement #1 in connection with the instant murder. While it was not admitted into evidence, appellant contends it was involuntarily given and tainted statement #3 which was admitted into evidence.
Appellant was then given a polygraph examination. Prior to beginning the examination, appellant was again warned of his rights and he stated he understood them and did not want his attorney present. After the examination, Detective Hudson advised appellant that it showed he was lying about the instant murder. Appellant then proceeded to give statement #2. Prior to this he was warned of his rights and he stated he did not want his attorney present.
During the course of taking statement #2, Hudson was advised by an assistant district attorney that a restraining order had been issued preventing the interrogation of the appellant. The record reflects that appellant's attorney had obtained this restraining order from District Judge Gordon Gray. Hudson knew nothing about the restraining order until he was notified. Another assistant district attorney then called Judge Gray at home and advised him that appellant wanted to make a voluntary statement. Judge Gray then came down to the district attorney's office and talked to the appellant alone. Judge Gray testified that appellant told him he didn't want a lawyer and he wanted to make a statement. Appellant told the judge that he had not hired his attorney and he did not want a lawyer at the time he made his statements to the police. He also stated he didn't want a lawyer present then and wanted to give the statement. Judge Gray then gave appellant another warning. Judge Gray determined that appellant had not been mistreated, that ...