James Ronald Coleman, appellant, appeals his conviction by a jury for committing the offense of burglary of a building. See V.T.C.A., Penal Code, Sec. 30.02(a)(3). Punishment, enhanced by two prior felony convictions, was assessed by the trial court at life imprisonment. See V.T.C.A., Penal Code, Sec. 12.42(d).
Appellant presents several grounds of error in the appeal, one of which concerns the admissibility of a written confession that was admitted into evidence over objection.
Article 40.09, Sec. 13, V.A.C.C.P., which was in effect at the time appellant gave notice of appeal to this Court, and is therefore applicable to this cause, see Carter v. State, 408 S.W.2d 507 (Tex.Cr.App.1966); Dorsey v. State, 485 S.W.2d 569 (Tex.Cr. App.1972); Hill v. State, 429 S.W.2d 481 (Tex.Cr.App.1968), provided that error, "which in the opinion of the Court of Criminal Appeals should be reviewed in the interest of justice," could be reviewed by this Court although not expressly raised as a ground of error. Because we find that the failure of a magistrate to honor a request by an accused for counsel may rise to the level of "error reviewable in the interest of justice", we will, pursuant to Art. 40.09, Sec. 13, supra, review the unassigned error. Because a magistrate in this instance failed to honor the appellant's request for counsel, and there is no showing that appellant, after he had invoked his right to counsel, affirmatively waived his right to counsel prior to giving an inculpatory statement, in accordance with Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), we will reverse the conviction. Also see Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).
The facts of this cause reflect that on November 5, 1975, appellant was arrested in Houston by members of the Houston Police Department. On that same date, appellant was released to law enforcement personnel of Grimes County. Appellant was then taken to Anderson, the county seat of Grimes County, where in the office of John Darby, then Sheriff of Grimes County, a magistrate
In Edwards v. Arizona, supra, the Supreme Court of the United States held that when an accused person has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. Edwards also held that an accused, who had expressed his desire to deal with law enforcement officials only through counsel, may not be subjected to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the authorities, and affirmatively waives his right to counsel.
When this cause was tried, and when appellant's counsel on appeal prepared and filed his appellate brief, Edwards v. Arizona, Id., had not been decided by the Supreme Court. Does Edwards v. Arizona, Id., nevertheless, control the disposition we should make of this cause? We find it does.
In Miranda v. Arizona, supra, the Supreme Court held that "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." In Michigan v. Mosley, supra, the Supreme Court further interpreted its decision of Miranda, and held that 1) the Miranda requirement that police interrogation must cease when the person in custody indicated that he wished to remain silent, neither created a per se proscription of indefinite duration upon any further questioning by any police officer at any time or place on any subject, nor imposed a blanket prohibition against the taking or the admission in evidence of voluntary statements, nor permitted a resumption of interrogation after a momentary cessation, 2) the admissibility of incriminating statements obtained after a person in custody had initially decided to remain silent depended on whether his right to cut off questioning was scrupulously honored, and 3) the defendant's incriminating statement in that cause was admissible in evidence, since a) the defendant had been properly advised of his Miranda rights at both of his interrogations, b) when the defendant exercised his right to remain silent at the first interrogation, the officer immediately ceased the questioning, and c) the second interrogation occurred after a significant time lapse and was conducted at another location in the building by another officer.
As previously noted, in Edwards v. Arizona, supra, the Supreme Court further elaborated on Miranda and expressly held: "[W]e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available." 481 U.S. at 484, 101 S.Ct. at 1884, 68 L.Ed.2d at 386. Also see Silva v. Estelle, 672 F.2d 457 (5th Cir.1982).
Under Edwards v. Arizona, supra, after appellant informed the first magistrate that he wanted counsel, Darby was not entitled to initiate interrogation with the appellant unless the exercise by appellant of his right to counsel was honored or there was a showing by the State that the appellant thereafter initiated contact with Darby and there was a showing that he affirmatively waived his right to counsel.
We believe that it was just this type of case that the Supreme Court was concerned with when, in Edwards v. Arizona, supra, it stated the following: "When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver cannot [exist] by showing only that he responded to further police initiated custodial interrogation even if he has been advised of his rights."
In North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979), the Supreme Court also stated the following: "The court must presume that a defendant did not waive his rights; the prosecution's burden is great." Other than Darby giving appellant another Miranda warning, prior to the taking of the written confessions, there is no evidence in this record that the appellant knowingly and intelligently waived his right to counsel before making and signing the written inculpatory statements. Castillo v. State, 616 S.W.2d 620 (Tex.Cr.App.1981). Also see Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.2d 1461 (1938).
If it could be argued that appellant did not, during the questioning by Darby, further request an attorney, and that is what this record reflects, and such omission rendered the involved confession admissible, such an argument would be tenuous at best. "To ... require a defendant to specifically request that an attorney be made available during questioning, would protect the knowledgeable accused while penalizing an accused who knows no more than to say he wants an attorney." Chaney v. Wainwright, 561 F.2d 1129, 1134 (5th Cir.1977).
We have reviewed appellant's other grounds of error, none of which challenge the sufficiency of the evidence, and find them to be either without merit or, if any of them demonstrate error, we do not believe that upon retrial such errors will reoccur. They are therefore all overruled.
The judgment of conviction is reversed and the cause remanded to the trial court.
W.C. DAVIS, McCORMICK and CAMPBELL, JJ., concur.
Appellant, however, does argue the following under his ground of error: "Further, if interrogation persists after the accused's request to remain silent, e.g., an indication that the accused does not want to talk, failure to honor the request invalidates the confession secured by the interrogation." Thus, this is not a total Sec. 13 type error, but more nearly represents a quasi-Section 13 type error. See post.