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decided: July 2, 1986.


Appeal from TARRANT County.


Lee Ann Dauphionot, Fort Worth, Texas, Danny D. Burns, Fort Worth, Texas, for appellant.

Tim Curry, D.A. and C. Chris Marshall, David L. Richards and Greg Pipes, Assistant D.A.'s, Fort Worth, Texas, Robert Huttash, State's Attorney, Austin, Texas, for appellee.

Clinton, Judge. Teague, J., joins Onion, P.j., not participating.

Author: Davis

Appeal is taken from a conviction for capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). After finding appellant guilty, the jury returned affirmative findings to the special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at dea Appellant contends that the evidence is insufficient to prove the aggravating offense of aggravated rape. Appellant argues as follows:

"The only evidence of the circumstances of the sexual intercourse was Appellant's statement. According to the statement, the intercourse was consensual and the murder came later. Since the State offered the statement which admitted guilt but contained exculpatory statements, it was bound to disprove the exculpatory portions which would change the offense from capital murder to murder. Palafox v. State, 608 S.W.2d 177 (Tex.Cr.App. 1980). The State, therefore, did not sustain the burden of proving aggravated rape as set out in Sec. 21.02 and 21.03 of Tex. Penal Code and reversal is required."

We have set out appellant's confession in the footnote*fn1 Appellant claims that his statement "that is when Laura told me I didn't have to take it, she meant rape her and I put the knife back in my pocket and we went into her bedroom", is exculpatory, in that it negates lack of consent to the intercourse. If Laura McClendon did speak the words appellant claims she did, and with the purpose appellant attributes to them, appellant's confession shows that she spoke them early in her encounter with appellant, and not at the time of the intercourse. Many events intervened between her remark and the intercourse. Concerning the intercourse, appellant states, "I took Laura back in the back room. I raped her then we sat there and talked for about an hour." [our emphasis.]

The confession contains no exculpatory matter. At the point when consent is an issue, that is, at the time of the intercourse, appellant's confession states that he raped the victim; in other words, that the intercourse was without the victim's consent. The rule of Palafox therefore does not apply. Ground of error number thirteen is overruled.

In his fifth ground of error appellant contends that the trial court erred in admitting his confession over objection that it was obtained in violation of appellant's right to counsel. The record reflects that the trial court held a Jackson v. Denno hearing on the voluntariness of the confession. The trial court found that the confession was made voluntarily, and that appellant had waived his right to counsel. The court overruled the objection.

The record of the hearing reflects that on the night of February 8, 1975, at 10:11 P.M.., appellant went to the Fort Worth police station, accompanied by a Rev. Spearman. Officer Raulston testified that he was on duty that night. Raulston testified that the two men came into the station together, and that Rev. Spearman introduced appellant to Raulston. Appellant stated that he wanted to talk to a homicide investigator. Raulston told appellant that he was one, and appellant "asked if there was someplace that we could talk privately." Raulston then escorted the two men to an office in the homicide section and closed the door.

Raulston testified to the sequel as follows:

?"A. Reverend Spearman sat down at the table; Kenneth advised me, he says, you better sit down, I'm going to give you the shock of your life; and I asked him, I said, I don't understand what you're talking about, and he reached into his pocket and removed a pistol and laid it on the table, and then he reached in his pocket and pulled out a butcher knife and laid it on the table, and then he says, now do you understand what I'm talking about, and I said, not really; it's beginning to be a little clearer.

"Q. Let me ask you this: Was it in fact becoming clearer to you? Did you have any idea what this was about?

"A. My idea at that time was that some sort of violence had occurred. He said then that he wanted to confess to the Riverside Village Apartment murders."

Raulston testified that appellant stated at this point that he also wanted to confess "to two more that he had done that night." The Riverside Village Apartments was the site of the five murders appellant had committed the previous October (including the one for which he was convicted in the instant case). Raulston testified that he was familiar with that incident, and knew then what appellant was talking about. Raulston testified that "as soon as he told us that he had wanted to confess to the Riverside Village plus two that occurred that night, I then read him the blue card and then's when we started talking about it." Raulston gave appellant the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and also warned him of his right to terminate the interview at any time under Art. 38.22, V.A.C.C.P. In connection with this, Raulston was asked:

"Q. Okay. Let me ask you specifically if you informed the defendant of the charge that -- that he might be facing in this case?

"A. He advised us that he was guilty of the murders that occurred."

Raulston testified that after reading the warnings to appellant, he asked him "if there was any questions or requests concerning the warning and he advised that he had no requests or questions about it; that he fully understood it."

Raulston was concerned that one or both of that night's victims might still be alive. Raulston asked if appellant would take the police back to the site of that night's murders, and appellant replied that he would. Two more officers and an assistant district attorney joined Raulston to help with the investigation. When appellant was introduced to the assistant district attorney, appellant said that he did not want any publicity. When the assistant district attorney told him that he could not make any promises, appellant turned to him and said, "well, I don't want you posing with me and saying that you solved this crime, because I came to you." Appellant, Raulston, and the other three then drove to the murder scene, leaving Rev. Spearman at the police station.

The assistant district attorney, Rufus Adcock, also testified at the Jackson v. Denno hearing. Adcock testified that when the group arrived at the apartment building to which appellant had directed them, he said to appellant, "Mr. Granviel, do you understand you have a Constitutional right to refuse us the right of entry into your home or search it for any reason whatsoever", and that appellant said yes. Adcock then asked if appellant waived the right. Adcock testified that appellant responded, "I came to you and I'm taking you to them."

Appellant gave the police a key. Raulston and Detective Hudson entered and found two dead women inside the apartment. The Crime Scene Search Unit and the Medical Examiner were summoned. After handing the investigation of the scene over to them, the officers took appellant back to the police station.

When the group returned to the police station, Detective Hudson again warned appellant of his rights, and asked appellant if he wanted to give a statement about the Riverside Village murders. Appellant replied that he did, and began at 1:09 a.m. to give a statement to Detective Hudson. The record reflects that Hudson took down the statement in longhand, and then gave his transcription to a typist to be typed.

At 2:40 a.m., appellant had finished his first statement, concerning the Riverside Village murders. As Raulston prepared to take down the second, concerning the murders appellant had committed that night, appellant told Raulston that "he had a legal question that he would like to ask." Raulston went to Adcock. Adcock came into the room and asked appellant if he could answer the question for him. Appellant replied no, he didn't think so. Adcock then motioned toward a telephone in the room and told appellant "to call whoever he liked". Appellant "then said something and looked at [Adcock] -- pertaining to an automobile title and his car." Adcock further testified as follows

"A. Because when he said that, I'm sure I looked at him like here we are right in the middle of this, or something. He just said it really doesn't matter and took his arm and moved the telephone and phone book back and said, I'll sign the statement.

"Q. What, if anything, did you do? Did you have any other conversation with him at that time?

"A. No. I went to Mr. Raulston and told him to warn him again of his Constitutional rights."

Raulston then began taking appellant's statement concerning that night's murders. Appellant signed both statements in their typewritten form. Both were introduced at trial.

Appellant contends that his expression of the desire to ask a legal question constituted an invocation of the right to counsel. The Fifth Amendment right to counsel is a product of the Miranda decision:

". . . the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today.

". . .

"Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during the interrogation under the system for protecting the privilege we delineate today."

Miranda applies, however, to statements stemming from custodial interrogation only:

". . . briefly stated [our holding] is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean 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."

The Fifth Amendment right to counsel fashioned by Miranda was not triggered in the instant case. In express terms, Miranda excludes from its scope volunteered confessions such as appellant's

"In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and of counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." [our emphasis.]

The Miranda opinion distinguishes clearly between "statements obtained through interrogation" and confessions. The record reflects that appellant volunteered his confession, and that the resulting statements were not obtained by interrogation. Appellant had no Fifth Amendment right to counsel while giving a voluntary confession that was not the product of custodial interrogation.

Moreover, appellant's Sixth Amendment right to counsel had not yet attached at the time he confessed. "Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth 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, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977), quoting Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972).

Assuming that a right to counsel was available to appellant at the time he confessed and assuming further that his statement that he would like to ask a legal question (from the context evidently about a care title) invoked his right to counsel was available to appellant "initiated further communication exchanges or conversations with the police" when he said "it really doesn't matter" and "took his arm and moved the telephone and phone book back and said, I'll sign the statement." See Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981); see also Oregon v. Bradshaw, 462 U.S. 1039, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983). Furthermore, the record fails to reflect that appellant was interrogated after this supposed invocation of the right to counsel. The record reflects merely that appellant was again warned and thereupon began dictating a narrative account ...

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