Opinion
No. 05-03-01429-CR
Filed March 24, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F03-71211-JK. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
MEMORANDUM OPINION
Justin Michael Flores appeals his conviction for capital murder. A jury found appellant guilty and assessed punishment at life imprisonment. Appellant originally brought two issues on appeal and argued the court erred in (1) failing to enter written findings regarding the voluntariness of appellant's statement and (2) admitting appellant's written statement into evidence. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4. We affirm the trial court's judgment. In his first issue, appellant complained the trial court had failed to enter written findings regarding the voluntariness of his written statement. We ordered the trial court to enter the complained-of findings, and we abated this appeal and remanded the case to allow the trial court to comply with our order. On February 3, 2005, this Court received the requested findings. We reinstated the appeal on February 8, 2005 and allowed the parties time to file supplemental briefs. Appellant did not file a supplemental brief, and the State waived further briefing. Because the trial court has entered the complained-of findings, appellant's first issue is now moot. We overrule appellant's first issue. In his second issue, appellant contends the trial court erred in admitting his written statement. Appellant argues that his assertion he was not going to answer any questions from anyone but his lawyer was a "specific, direct, clear and concise invocation of his right to terminate questioning," making his statement inadmissible. We disagree. With regard to motions to suppress, we review the trial court's findings of fact under an abuse of discretion standard and will not disturb those findings as long as they have support in the record. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996). The reviewing court must give almost total deference to the trial court's determination of historical facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). In contrast, the trial court's conclusions of law and the application of those principles to the facts of the case are to be reviewed de novo. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000). When an accused person expresses his desire to speak with police only through an attorney, he is not subject to further interrogation without counsel being made available to him unless the accused himself countermands his previous desire. Cross v. State, 144 S.W.3d 521, 526 (Tex.Crim.App. 2004) (discussing Edwards v. Arizona, 451 U.S. 477, 485 (1981)). Questions that are asked as part of the normal custody or administrative booking procedure, however, "do not constitute `interrogation' for purposes of Miranda or Edwards." Id. at 524 n. 5; see Pennsylvania v. Muniz, 496 U.S. 582, 601-02 (1990). And when an accused initiates further discussion after having expressed his desire to deal with the police only through an attorney, "nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial." Edwards, 451 U.S. at 485. Once we, as the reviewing court, determine it was appellant who initiated the further discussion, we next determine whether appellant knowingly and intelligently waived his invoked right. Etheridge v. State, 903 S.W.2d 1, 18 (Tex.Crim.App. 1994) ( citing Oregon v. Bradshaw, 462 U.S. 1039, 1044-45 (1983)). If appellant both initiated the subsequent communication and waived his invoked right, he has "countermanded his original election." Cross, 144 S.W.3d at 527. During the hearing on appellant's motion to suppress, Officer Dan Lusty stated he had read the Miranda rights to appellant when he conducted his verbal interview after appellant was arrested. Appellant spoke with Lusty and gave consent to search his residence but denied being involved in the murder or knowing anything about the murder. Appellant never requested an attorney-neither in the car while being transported from his house nor during the interview. After several hours-between five and seven hours-Lusty realized "that we weren't really getting anyplace in the interview." Lusty left the room and asked his partner, Detective Ken Penrod, to complete the booking sheet so Lusty could finish other paperwork. Once in the interview room, Penrod informed appellant that he was there to complete the booking information sheet, and he began asking the questions on the form such as appellant's name, address, and date of birth. Penrod was not asking appellant any questions about the offense, but appellant became "irate and said that he didn't have to answer questions or wasn't going to answer questions from anybody but his lawyer." Appellant neither asked to call a lawyer, nor did he state he wanted a lawyer. Once appellant began yelling, Penrod told him that if he continued yelling, he would leave the room; they already had some of the information needed for the booking sheet. Appellant then asked why he was being put in jail, and Penrod told him he was being charged with capital murder. Appellant again became "irate" and yelled that he did not kill anyone. Penrod explained he was not questioning appellant about that; Penrod knew Lusty had already interviewed appellant about the offense. Penrod said he was going to leave the room to complete the forms. Appellant began "begging" Penrod to stay in the room, saying he wanted Penrod to stay in the room and talk to him. Penrod again told appellant he was not there to talk about the case. Appellant continued to "beg" and grabbed Penrod's arm, saying he wanted Penrod to stay in the room. Penrod said he was not going to stay in the room while he continued to deny the offense, but that he would stay if appellant wanted to talk about what happened or give him some other information other than what he had told Lusty. At that point, appellant gave his statement to Penrod who reduced the statement to writing. Cherilyn Taylor, an office assistant for the Dallas Police Department, witnessed appellant sign his statement. She recalled that the Miranda warnings printed on the statement were read to appellant in her presence and before he signed his statement. Appellant responded as if he understood those warnings. Taylor never heard appellant state he wanted to speak with an attorney, and she said appellant did not appear to have been forced to do anything he did not want to do. Assuming appellant's statement to Penrod constituted an invocation of his right to counsel, we conclude appellant waived that invoked right when he subsequently initiated communication with Penrod. Penrod told appellant he was not in the room to discuss the case-only to obtain information for the booking sheet. Appellant begged Penrod to stay in the room, and Penrod told appellant he would stay in the room if appellant wanted to talk, but Penrod did not ask appellant questions about the offense. See Cross, 144 S.W.3d at 524 n. 5. Appellant said he would tell Penrod what happened and provided his statement. We conclude appellant initiated this communication. Further, both Penrod and Taylor testified that the Miranda rights were read to appellant before he signed his written statements. Accordingly, because appellant both initiated the subsequent communication and waived his invoked right, we conclude the trial court did not err in denying appellant's motion to suppress. See id. at 527. We resolve appellant's second issue against him. We affirm the trial court's judgment.