ONION, Presiding Judge.
This appeal arises out of a conviction for murder with malice under the former Penal Code. Punishment was assessed in a bench trial at ten (10) years' confinement in the Department of Corrections.
On original submission the appeal was abated because the trial court failed to file its findings of facts and conclusions of law regarding the voluntariness of the appellant's confession. See McKittrick v. State, 535 S.W.2d 873 (Tex.Cr.App.1976). There, it was held that the requirements of Article 38.22, Vernon's Ann.C.C.P., and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), requiring the trial court to make such findings must be followed whether the defendant objects to the failure of the court to follow the statutory duty or not. See Hester v. State, 535 S.W.2d 354 (Tex.Cr.App.1976). A supplemental transcription has now been filed reflecting such findings and conclusions. The appeal has now been reinstated.
The sufficiency of the evidence to sustain the conviction is not challenged. In appellant's sole ground of error she states:
The evidence presented during the hearing on the pre-trial motion to suppress was voluminous and contains an exhaustive examination into all aspects of the events leading to appellant's confession.
The record reflects that the indictment was returned on April 25, 1973. On May 14, 1973, the appellant, accompanied by her attorney, Charles Caperton of Dallas, posted bond. On May 25, 1973, the appellant was arraigned. Her counsel was present.
Detective J. W. Carpenter of the Houston City Police Department, Homicide Division, testified he had been active in the investigation of the shooting death of Dr. John Hill. Carpenter related he was present at the arraignment of the appellant and that subsequently on a date not made clear by the record
After this event, appellant's counsel, Caperton, filed a motion for a temporary restraining order and permanent injunction to enjoin Carpenter and all other peace officers from contacting or harassing the appellant. Carpenter later learned the matter was moot when neither the appellant nor her attorney appeared for a hearing on the said motion.
On September 24, 1973, at 7 p. m. Carpenter received a telephone call from a Dallas city detective. When he returned the call, he was informed that appellant was in custody in Dallas on several charges and wanted to talk with Carpenter about a murder case. Carpenter talked with the appellant, who said she wanted to "get her business straight" about the John Hill murder case, and that she was sincere about it this time, and her bondsman "had gone off her bond" in the murder case. When Carpenter inquired about her lawyer, appellant informed him Caperton didn't represent her any more and had told her to do anything she wanted to do. Carpenter told her that if there was an outstanding capias for her he would come to Dallas to pick her up. Carpenter then learned that the bondsman "had gone off the bond" and there was an outstanding capias. He then called the appellant and told her he was on his way to Dallas. She requested a change of clothes, and Carpenter obtained some from his wife and then picked up his partner, Detective Gamino, and arrived in Dallas between 11:30 p. m. and midnight. They secured appellant's release in about an hour, and Carpenter then asked if she had been given her warnings, and she replied she had been before a judge, and in response to Carpenter's question told him she knew she didn't have to talk to them. Around 1 a. m. they stopped in a gas station and the appellant changed clothes. Appellant told Carpenter she was "dope sick," and he observed she was having chills and was in some discomfort. About 3 or 3:30 a. m. they stopped at a truck stop and all had breakfast, and Carpenter said he gave her two aspirins for her discomfort when they had coffee. He recalled that on the trip she asked about getting some methadone, and he replied he
It appears that at 9:35 a. m. the appellant was taken before a magistrate, Judge Mike Breen, and Carpenter testified the Judge gave her the warnings found on the face of the subsequent confession, which are in accordance with Articles 15.17 and 38.22, Vernon's Ann.C.C.P., and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Then at 9:50 a. m. Carpenter began to interrogate the appellant about the charge against her. At 11:20 a. m. appellant signed the typed statement in the presence of witnesses after she had read the confession, including the warnings thereon.
Carpenter testified he had no trouble communicating with appellant while taking her confession, that she was an intelligent girl, communicated in an intelligible manner, and was able to understand what she was revealing and knew "what was going on around her." He related she had her "wits about her," was not crying or emotionally distressed. He stated that while she had complained of chills, discomfort, etc., on the trip from Dallas and stated she felt bad, she also stated when asked if she wanted to give a confession that she felt "like going ahead" and asked and was given coffee.
Carpenter testified that he made no threats or promises to her, nor did he use coercion to obtain her written statement. He told her he could not help her in connection with any of the charges in Dallas County, but would talk to the Harris County District Attorney's office to see if they would make an offer as to her testimony in the murder case. He testified that she had not asked for nor was she denied food, rest, sleep, etc., that appellant's confession had been freely and voluntarily given.
Carpenter later testified that after the confession was taken he took the appellant to the Repose Clinic at St. Joseph's Hospital, and the appellant talked with a nun and a doctor. The doctor then decided she was not eligible for methadone, but did give her three prescriptions without any examination.
Lillian Duke, registered nurse at the Harris County Jail, called by the appellant, testified that the appellant came into her custody at 2:30 p. m. on September 25, 1973, after being booked into jail at 1:45 p. m. and having taken two capsules of sodium amytal at 2:15 p. m. At the time appellant was semi-conscious, was having difficulty with her respiration, and seemed to have had an overdose of drugs. There were fresh needle marks on her arm. She was given artificial respiration and liquids. The nurse stated that the appellant had come to jail with a bottle of 98 sodium amytals, the prescription having called for 100 capsules; that amytal was a barbiturate which affects the central nervous system, and would account for appellant's semi-conscious condition. It was related that after treatment appellant slept for 24 hours.
Robert Walker, administrator for the medical division of the Harris County Sheriff's department, also called by the defense, stated he saw the appellant a few hours after admission into the jail and described her as being in a semi-comatose state.
Testifying in her own behalf, the appellant stated after the arraignment on May 25, 1973, Assistant District Attorney Bob Bennett approached her and asked if she knew what immunity meant and offered her immunity for her testimony in the case
She testified she had been arrested in Lubbock about June 12th for prostitution, paid her fine and had gone back to her motel when two hours later at night Detectives Hargraves and Cooper arrived and took her back to the Lubbock Police Department. There they mentioned Carpenter's name and tried to persuade her to go to Houston. She told them she was on bond and had an attorney, but they refused to permit her to call Caperton, telling her they didn't trust him, that Caperton was "in league" with Percy Foreman, who was paying Caperton to get her the electric chair and get Foreman's client off. The appellant admitted that the next morning she talked to Detective Carpenter over the telephone, that Carpenter talked to her about immunity, told her not to contact Caperton as he (Carpenter) didn't trust Capterton, that if she cooperated she wouldn't need a lawyer. She stated she agreed to talk "to them" if they were going to persist in picking her up, but that she wanted Caperton present when they did.
The appellant then related that afternoon the Lubbock officers placed her on a plane for Houston after inquiring if the flight was a direct flight to Houston, not realizing there is a difference between a non-stop flight and a direct flight. When the plane stopped in Austin, she got off the plane and called her lawyer in Dallas. Thereafter, the earlier described motion for restraining order, etc., was filed.
Appellant testified she was again arrested in Dallas on September 21, 1973, on various charges (auto theft, theft over $50, forgery, passing worthless checks)
Dr. Stan Shoemaker, a physician at the Parkland Hospital in Dallas, testified for the defense that he examined the appellant on September 22, 1973, at the hospital upon
There was also introduced into evidence an affidavit executed by the appellant in the Dallas County Jail before a notary public on September 24, 1973, to the effect that she was represented by Caperton, recounted her Lubbock experience, restated her fear that Houston officers would again attempt to interrogate her since she was no longer on bond and since Dallas officers had already indicated Houston officers wanted to talk to her.
Officer Gamino, called in rebuttal, testified that Carpenter did not give the appellant any type of drugs on the trip from Dallas but may have given her aspirin as Carpenter used aspirin himself. He testified that she did not pass out or become unconscious on the trip, though she may have fallen asleep for a while, but she did not seem disoriented or confused, that while she appeared tired or sleepy, she did not appear to be suffering any discomfort.
As earlier noted, the findings of facts and conclusions of law by the trial court are before us. Such instrument reads in part as follows:
We do not understand the appellant to complain that the warnings given by the magistrate prior to the confession or those on the face of the confession form do not conform with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or Article 38.22, Vernon's Ann.C.C.P. It is appellant's complaint that the evidence is insufficient to show an affirmative waiver of the right to counsel and the privilege against self-incrimination as required by the Miranda decision and the provisions of Article 38.22, supra.
Miranda, of course, teaches that a heavy burden rests upon the prosecution to prove that a person in custody "knowingly and intelligently" waived his privilege against self-incrimination and his right to retained or appointed counsel, 384 U.S. at 475, 86 S.Ct. at 1628.
The determination of whether there has been such an intelligent waiver must depend upon the particular facts in each case, including the background, experience, and conduct of the accused. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Thus, courts must approach the question of waiver in each case on ad hoc basis. Narro v. United States, 370 F.2d 329, 330 (5th Cir. 1966). See also McCandless v. State, 425 S.W.2d 636, 640 (Tex.Cr.App.1968).
We turn now to an examination of the facts and circumstances in the instant case to determine if they sufficiently demonstrate a "knowing and voluntary" waiver of the right to counsel and the privilege against self-incrimination.
It appears that appellant had the same retained counsel before and after the confession. This court, however, has never interpreted Miranda to mean that once counsel has been requested or obtained the same forever bars law enforcement officers from interrogating an accused provided the prosecution sustains its heavy burden of showing an affirmative waiver. And this is particularly true where the accused initiates the conversation with the officers. See, e. g., Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974); Caraway v. State, 489 S.W.2d 106 (Tex.Cr.App.1973); Nash v. State, 477 S.W.2d 557 (Tex.Cr.App.1972); Elliott v. State, 444 S.W.2d 914 (Tex.Cr. App.1969); Hill v. State, 429 S.W.2d 481 (Tex.Cr.App.1968); Gunter v. State, 421 S.W.2d 657 (Tex.Cr.App.1967).
The face of the confession reflects a warning by a magistrate shortly before the confession was given and further reflects the appellant was warned:
The evidence shows that this confession was read and signed by the then 23 year old appellant, who had a prior criminal record and some experience with peace officers.
Such statements in a confession are factors to be considered in determining if the accused affirmatively waived his or her rights but is not determinative thereof.
Here, we have more than a boilerplate statement in the confession. When Carpenter returned the call he had received from Dallas, he talked to the appellant, who told him she wanted to get "her business straight" in Houston and was sincere about it. Upon inquiry, she told Carpenter that Caperton no longer represented her as her lawyer and had told her to do anything she wanted to do. A short time after she had been warned of her rights by the magistrate she told Carpenter she felt "like going ahead" when asked if she wanted to give a confession. We conclude from the totality of the circumstances that the prosecution discharged its burden of showing an affirmative waiver of the right to counsel.
With regard to the waiver of the privilege against self-incrimination, in addition to all of the above, it is noted that when they left Dallas the appellant told Carpenter she had been before a judge and knew that she didn't have to talk to him. After receiving the magistrate's warnings, she agreed to give a confession, and at no time during the interrogation did she state she wished to remain silent or desired to terminate the questioning. We conclude that under the totality of the circumstances the prosecution demonstrated an affirmative waiver of the privilege of self-incrimination. See and cf. Michigan v. Mosley, 423 U.S. 96, S.Ct. 321, 46 L.Ed.2d 313 (1975).
Of course, appellant's own testimony contradicted some of the testimony of the State's witnesses, but it is clear that where the facts are in dispute in a separate hearing on the voluntariness and admissibility of a confession, be it a hearing on a motion to suppress or otherwise, the trial judge is the trier of the facts and can accept or reject the testimony of the witnesses, including a defendant, in determining the issues before him. Farr v. State, 519 S.W.2d 876 (Tex.Cr.App.1975); Horne v. State, 506 S.W.2d 596 (Tex.Cr.App.1974); Aranda v. State, 506 S.W.2d 221 (Tex.Cr.App.1974); Simmons v. State, 504 S.W.2d 465 (Tex.Cr. App.1974); Gutierrez v. State, 502 S.W.2d 746 (Tex.Cr.App.1973). We conclude the trial court was supported by sufficient evidence in holding that there were affirmative waivers.
Appellant urges that her physical condition and state of mind at the time would show the confession was involuntary and that the waivers, if made, were not "knowing and intelligent" waivers. It is true that appellant testified she was addicted to heroin, and this is supported in some degree by the fact she had fresh needle marks on her arm. She did not testify as to when she had had her last "fix," but Dr. Shoemaker testified she told him that on September 22nd she had taken a "fix" at 4:30 p. m. on September 21st, that if she was taking six or eight grams she would reach the peak of her withdrawal period between 48 and 72 hours and would have been on the down side of her withdrawal at 9:50 a. m. on September 25th, at the time of the confession. This is supported by the fact that the doctor at the Repose Clinic would not give her methadone shortly after the confession was given. It is true she testified she was having chills and stomach cramps on the trip to Houston and Carpenter thought she was having chills. It is also true that Dr. Shoemaker testified chills often accompanied the urinary tract infection for which he treated her. The appellant also claimed Carpenter gave her a bitter pill, smaller than aspirin, and she blacked out. This was contradicted by Officers Carpenter and Gamino. Gamino testified she was not given any drugs and that she was able to sleep part of the time on the trip to Houston, that she was never confused or disoriented. Carpenter testified that at the time of the confession she had her "wits about her," etc. We cannot conclude her condition was such as to prevent her waivers from being "knowing and intelligent."
We conclude from the totality of the circumstances that the confession was freely and voluntarily given by appellant after she had been fully apprised of her constitutional rights and had affirmatively waived these rights. Encina v. State, supra. The court did not err in overruling the motion to suppress.
The judgment is affirmed.