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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
No. AP-75,061
JOHN MANUEL QUINTANILLA, JR., Appellant
v.
THE STATE OF TEXAS
Appeal of Case
03-3-20,037-D
377th District Court of
Victoria County
Womack,
J., delivered the opinion for a unanimous Court.
A jury found the appellant guilty of the November 24, 2002
capital murder of Victor Billings. The trial court sentenced the
appellant to death based on the jury's verdict on the issues of
punishment.
(1)
In the appeal to this court, which a statute requires,
(2)
the appellant raises two points of error. We find them to be
without merit, and we affirm the judgment.
I. The Facts
The appellant was arrested on January 14,
2003 on a warrant from Calhoun County for an unrelated
aggravated robbery. At that time, no charges had been brought
nor had a warrant issued for the instant offense.
At 2:30 p.m. on January 15, 2003, the
appellant was taken before a magistrate for the warnings and
other proceedings that Article 15.17 of the Code of Criminal
Procedure required.
(3)
The appellant requested that an attorney be appointed.
At approximately 4:00 p.m., Investigator Abel
Arriazola of the Victoria County Sheriff's Office and
Investigator Mike Kovorek of the Calhoun County Sheriff's
Department began interrogating the appellant. They recorded the
interview on a videotape, later labeled State's Exhibit 1a.
Prior to questioning, Arriazola gave the appellant his
Miranda warnings.
The appellant indicated he understood his
rights and wished to continue with the interview. The appellant
made no statements regarding the capital murder, nor did he
invoke his right to counsel, during this portion of the
interview.
At approximately 7:55 p.m., the officers and the appellant took
a short break, which marked the end of State's Exhibit 1a. A new
videotape, which eventually would be labeled State's Exhibit 1b,
was inserted in the videotape recorder. The appellant and
Kovorek returned to the room at about 8:10 p.m. to continue the
interrogation; then Kovorek left the room again.
A short time after that, at about 8:35 p.m., Arriazola returned,
now with Detectives Alfred Santiago and Tom Copeland of the
Victoria Police Department. Arriazola told the appellant, "Nothing
has changed from the time I've talked to you," by which he meant,
according to his testimony in the pre-trial hearing, "that [the
appellant's] rights were still in full effect."
Santiago and Copeland testified that they were aware that
Arriazola had already informed the appellant of his Miranda
rights, and so they began their interrogation, which
included questions regarding the capital murder, without re-administering
the warnings. About fifteen minutes into the interview, however,
the detectives reminded the appellant of his Miranda
rights and that Arriazola had read him his rights; the appellant
acknowledged that he remembered and understood those rights.
Santiago later acknowledged in his pre-trial testimony that he
inadvertently left out the warning that an attorney would be
appointed if the appellant could not afford to hire one. At no
time during the interview did the appellant invoke his right to
counsel. During the interrogation by Santiago and Copeland, the
appellant made inculpatory statements regarding the instant
offense.
As a result of a pre-trial hearing, the trial
court entered the following required findings of fact and
conclusions of law
(4)
concerning the admissibility of the appellant's statement
contained in State's Exhibits 1a and 1b:
-- the appellant received the Article 15.17
magistrate's warning on, and requested an attorney for, the
aggravated-robbery offense for which he had been arrested on the
warrant from Calhoun County;
-- the appellant had not been arrested on the
capital-murder offense in Victoria County at the time of the
interview;
-- State's Exhibits 1a and 1b constituted one
continuous interview, and therefore the Miranda
warnings Arriazola gave at the beginning of videotape 1a applied
to the entire interview;
-- the Miranda warnings given by
Arriazola complied with Article 38.22;
-- the appellant freely, knowingly, and
voluntarily waived his rights as to the capital murder at the
beginning of videotape 1a, including the right to a court-appointed
attorney; and
-- the appellant's statements regarding the
Calhoun County aggravated robbery were taken in violation of the
Sixth Amendment, but this did not prohibit the admission of
statements as to other offenses.
Portions of State's Exhibits 1a and 1b were
consolidated into State's Exhibit 29, a videotape that was then
admitted into evidence at the guilt phase of the trial. State's
Exhibit 29 contains only those portions of the interview that
relate to the offense at hand, including Arriazola's initial
warnings to the appellant, the introduction of Santiago and
Copeland, the reminder of the appellant's Miranda
warnings, and the appellant's statements regarding the instant
offense. All references to the Calhoun County aggravated robbery
and other extraneous offenses were omitted.
II. Admissibility of Appellant's Statement
In point of error one, the appellant claims
that the trial court erred in admitting State's Exhibit 29 on
two grounds: that the videotaped statement regarding the instant
offense was obtained in violation of the Fifth Amendment "right
to counsel," and also in violation of Article 38.22 of the Texas
Code of Criminal Procedure. We will address these grounds in
turn.
Fifth Amendment Right to Counsel
The Fifth Amendment right to counsel provides
"prophylactic rights designed to counteract the 'inherently
compelling pressures' of custodial interrogation."
(5)
The "right to counsel" under the Fifth Amendment may be waived,
but its invocation prevents any further interrogation of a
suspect unless counsel is present.
(6)
The Fifth Amendment right to counsel is not offense-specific,
and it thus precludes interrogation regarding any offense in the
absence of counsel once the right has been invoked.
(7)
The appellant admits that he was informed of,
and waived, his Fifth Amendment rights at the beginning of the
interview, as recorded on State's Exhibit 29. He argues that his
request for counsel when he appeared before the magistrate after
being arrested for aggravated robbery serves as a non-offense-specific
Fifth Amendment invocation of counsel, thereby rendering
inadmissible even his subsequent statements regarding the
instant offense.
The appellant seems to imply that his Fifth
Amendment right to counsel was triggered by, at least in part,
the magistrate's act of reading the Article 15.17 warnings that
comply with Miranda.
(8) However,
the warnings themselves and the administration of those warnings
do not confer the right. The right stems from its narrow
association with the process of police custodial interrogation,
and can be invoked only as a specific articulation of a desire
for assistance of counsel with that process.
(9)
The appellant confuses the issue by
interchanging Texas statutory provisions with U. S.
constitutional law throughout his brief. His constitutional
argument is based on language he extracts from Dowthitt v.
State
(10)
and Articles 38.22
(11) and 15.17.
(12) Also, by
referring to the Article 15.17 magistration warnings as "Miranda"
warnings, he implies that the Article 15.17 proceeding has Fifth
Amendment importance with regard to the right to counsel. It
does not.
The appellant cites Robinson v. State
(13)
to argue that this court supports his position. The issue in
Robinson, however, turned on whether the appellant
had effectively requested assistance of counsel at all.
(14) The
appellant in that case was warned not only by two magistrates,
but -- more importantly to the analysis -- twice by police as
well.
(15) The Court
there did not identify precisely when the Fifth Amendment right
would have attached, but the statement the Court found to fail
as a request for counsel under the Fifth Amendment was made to
police during interrogation, not to the magistrates.
(16)
The appellant here contends that our holding
in Robinson implies that the Fifth Amendment right to
counsel attaches at an Article 15.17 magistration, because, he
asserts, we found the appellant in Robinson had not
invoked his Fifth Amendment right when brought before the
magistrates. Robinson, however, does not stand
for this proposition.
The appellant ignores the critical fact that
the appellant in Robinson had also been warned by
police prior to his interrogation, a fact that the Supreme Court
has identified as the narrow situation in which the Fifth
Amendment right to counsel is implicated. We find the
appellant's Fifth Amendment argument unconvincing.
Article 38.22
The appellant also claims that State's
Exhibit 29 was admitted in error because the statement contained
therein was obtained in violation of Article 38.22 of the Code
of Criminal Procedure. He raises several issues under this claim.
First, the appellant claims that he invoked
his Article 38.22 "right to counsel" at his magistration for
aggravated robbery. Article 38.22 confers no such right. The
statute governs the admissibility of an accused's statement and,
among its provisions, outlines the procedures that must be
followed in order to use that statement in a criminal proceeding.
(17)
The right conferred can better be expressed as a right to
receive warnings: the accused must be given the equivalent of
Miranda warnings in order for his statement as a result
of custodial interrogation to be admissible.
(18)
The provision is satisfied merely by giving the warnings,
without any obligation to ensure that the substance of the
warnings is carried out. Section 3 of Article 38.22 applies to
oral statements, and its provisions include the requirement of
an electronic recording
(19) and the
requirement that during the recording the suspect must receive
Article 38.22 warnings and voluntarily waive his or her rights.
(20)
The appellant here does not suggest a
violation of these requirements took place, and in fact the
record supports the conclusion that State's Exhibit 29 complied
with these statutory requirements. Further, the appellant
acknowledges this court's holding that the warnings provision in
Section 2 of Article 38.22 applying to written statements --
that warnings must be given by the person "to whom the statement
is made" -- does not apply to oral statements.
(21)
Arriazola's warnings at the beginning of the appellant's
interview were therefore effective for the purposes of Article
38.22, despite the fact that Santiago and Copeland were the
officers present when the appellant made the statements at issue
here. It is inconsequential that Santiago's later warnings
failed to comply with Article 38.22.
Instead, the appellant argues: "Art. 38.22,
Section 2(a), Texas Code of Criminal Procedure, specifically
provides that receiving from a magistrate the warning provided
in Article 15.17 of the Code of Criminal Procedure is sufficient
to comply with the warnings requirement of Art. 38.22."
(22)
This is essentially a rehashing of his Fifth Amendment argument:
that since the appellant was warned by a magistrate during an
Article 15.17 proceeding in a manner complying with Article
38.22, and invoked his right to counsel in that proceeding, his
subsequent statement in the absence of counsel is inadmissible
under Article 38.22.
This argument simply ignores the fact that Section 2 of Article
38.22 applies to written, not oral, statements, and that a
magistrate's Article 15.17 warnings are ineffective as to oral
statements, whose warnings must be given and waived on the
actual recording.
(23) Article
38.22, Section 3 requirements were met; the magistrate's
warnings are irrelevant to this determination.
The appellant also points to one particular
warning given to him at his Article 15.17 proceeding for
aggravated robbery: the "right to have an attorney present
during any interview with peace officers."
(24) The
appellant seems to assert that "any interview" should be read
literally to mean any subsequent interview with police
officers regarding any offenses, including those
unrelated to that charge for which the appellant was magistrated,
and that this right was therefore violated when the appellant
was interviewed regarding the instant offense.
The Supreme Court in McNeil
expressly rejected an identical argument on policy grounds:
(25)
The proposed rule would � seriously impede
effective law enforcement. . . . [M]ost persons in pretrial
custody for serious offenses would be unapproachable by
police officers suspecting them of involvement in other crimes,
even though they have never expressed any unwillingness to
be questioned.
Since the ready ability to obtain uncoerced
confessions is not an evil but an unmitigated good, society
would be the loser. Admissions of guilt resulting from valid
Miranda waivers "are more than merely 'desirable'; they are
essential to society's compelling interest in finding,
convicting, and punishing those who violate the law."
(26)
The Court further noted:
If the Miranda right to counsel can
be invoked at a preliminary hearing, it could be argued, there
is no logical reason why it could not be invoked by a letter
prior to arrest, or indeed even prior to identification as a
suspect.
(27)
The same reasoning applies to the appellant's
argument here. We reject the appellant's Article 38.22 argument.
Point of error one is overruled.
III. Admissibility of Penitentiary Packet
In point of error two, the appellant claims
the trial court erred in admitting his "pen packet," labeled
State's Exhibit 133, at the punishment phase. He specifically
objects to the omission of the required seal on the
certification page, which is required by Article 42.09 Section
8(b).
(28) This
section provides:
The Texas Department of Criminal Justice
shall not take a defendant into custody under this article until
the designated officer receives the documents required by
Subsections (a) and (c) of this section. The designated officer
shall certify under the seal of the department the documents
received under Subsections (a) and (c) of this section. A
document certified under this subsection is self-authenticated
for the purposes of Rules 901 and 902, Texas Rules of Criminal
Evidence.
(29)
The appellant's pen packet was certified by
affidavit of the Chairman of Classification and Records for the
Texas Department of Criminal Justice -- Correctional
Institutions Division, under the seal of the State of Texas,
instead of the seal of the Department.
The appellant contends that this seal was
insufficient to meet the statutory requirement for certification.
He argued at punishment that Article 42.09, Section 8, should be
the controlling procedure. Because that procedure was not
followed, he submits, State's Exhibit 133 is not self-authenticating
under Rules 901 and 902 and therefore should not have been
admitted.
We need not address whether the seal on
State's Exhibit 133 complies with the requirements of Article
42.09 because this procedure is not the exclusive means of
admitting a pen packet. Rather, it is one of several possible
ways of authenticating the document as a precondition to its
admission into evidence.
At the punishment hearing, the trial court
relied on
Barker v. State
(30)
in overruling the appellant's objection that the pen packet was
not self-authenticated, referring to the Barker court's
finding that Article 42.09 is not the sole method of
authenticating this type of document. In Barker, the
appellant had objected to the admission of his pen packets under
Article 42.09, Section 8(b), claiming they were inadequately
certified by the records clerk instead of by the director.
(31)
The trial court overruled his objection and admitted the
documents.
(32) The
appeals court agreed with the state's position that the
documents met the requirements of Rule 902(4) for self-authentication
and were not admitted in error.
(33) In so
holding, the Court reasoned:
We could interpret section 8(b) to require
the actual director's signature for admission of this particular
class of public documents, when every other similar class would
only have to meet the broader and easier requirements of Rule
902(1) through (4). We cannot imagine that this was the intent
of the legislature in enacting section 8(b).
Rather, it is quite plausible that section
8(b)'s requirement is one automatic vehicle for admission that
the legislature enacted to provide a sure-fire method of
admission, but not an exclusive one. This seems the reasonable
interpretation, while the interpretation of exclusivity seems
the absurd one.
(34)
We find the Barker reasoning
persuasive, and therefore hold that Code of Criminal Procedure
Article 42.09, Section 8(b), is not the exclusive means of
authenticating a pen packet.
In the instant case, the Chairman of
Classification and Records at TDCJID, in his affidavit,
certified that the pen packet contained "true and correct copies
of the original records" that were on file in his office and
maintained in the regular course of business. The affidavit
bears the seal of the State of Texas.
This certification provides sufficient
evidence to support a finding that State's Exhibit 133 is what
its proponent claims it to be, and thus the pen packet was
properly authenticated under Rule 901. State's Exhibit 133 also
satisfies the requirements for self-authentication under Rule
902(4) ("Certified Copies of Public Records"). It is a copy of a
public record, certified as correct by the custodian, by
certificate complying with Rule 902(1) ("Domestic Public
Documents Under Seal").
Point of error two is overruled.
IV. Conclusion
We affirm the trial court's judgment.
Delivered: June 27, 2007.
Do Not Publish.
*****
1. See Code Crim.
Proc. art. 37.071, � 2(b), (e), (g).
2. Id., � 2(h).
3. When the appellant was
arrested, Article 15.17(a) of the Code of Criminal Procedure
read, "In each case enumerated in this Code, the person making
the arrest or the person having custody of the person arrested
shall without unnecessary delay . . . take the person arrested
or have him taken before some magistrate . . . . The magistrate
shall inform in clear language the person arrested . . . of the
accusation against him and of any affidavit filed therewith, of
his right to retain counsel, of his right to remain silent, of
his right to have an attorney present during any interview with
peace officers or attorneys representing the state, of his right
to terminate the interview at any time, and of his right to have
an examining trial. The magistrate shall also inform the person
arrested of the person's right to request the appointment of
counsel if the person cannot afford counsel. The magistrate
shall inform the person arrested of the procedures for
requesting appointment of counsel. . . . The magistrate shall
also inform the person arrested that he is not required to make
a statement and that any statement made by him may be used
against him. The magistrate shall allow the person arrested
reasonable time and opportunity to consult counsel and shall,
after determining whether the person is currently on bail for a
separate criminal offense, admit the person arrested to bail if
allowed by law." Act of June 15, 2001, 77th Leg., R.S., ch.
1281, � 1, 2001 Tex. Gen. Laws 3074, 3075; Act of June 14, 2001,
77th Leg., R.S., ch. 906, � 4, 2001 Tex. Gen. Laws 1800, 1801.
4. See Code Crim.
Proc. art. 38.22, � 6.
5. McNeil v. Wisconsin,
501 U.S. 171, 176 (1991) (citing Miranda v. Arizona,
384 U.S. 436 (1966)).
6. Id., at 176-77
(citing Edwards v. Arizona, 451 U.S. 477 (1981)).
7. Id., at 177 (citing
Arizona v. Roberson, 486 U.S. 675 (1988)).
8. Miranda v. Arizona,
384 U.S. 436 (1966).
9. McNeil, 501
U.S., at 178-79.
10. 931 S.W.2d 244 (Tex.
Cr. App. 1996).
11. Code Crim. Proc. art.
38.22, �� 2(a), 3(a)(2).
12. Code Crim. Proc. art.
15.17(a).
13. 851 S.W.2d 216 (Tex.
Cr. App. 1991).
14. Id., at 222.
15. Id., at
222-23.
16. Id., at
223-24.
17. See Code
Crim. Proc. art. 38.22, �� 2, 3.
18. Id., at ��
2(a), 3(a)(2).
19. Id., at �
3(a)(1) (a videotape complies).
20. Id., at �
3(a)(2).
21. See Dowthitt,
931 S.W.2d, at 258.
22. Appellant's brief, at
7.
23. Code Crim. Proc. art.
38.22, � 3(a)(2).
24. Code Crim. Proc. art.
15.17(a).
25. 501 U.S., at 180-81.
26. Ibid.
(emphasis in original) (quoting Moran v. Burbine, 475
U.S. 412, 426 (1986)).
27. Id., at 182,
n.3.
28. Code Crim. Proc. art.
42.09, � 8(b).
29. Ibid.
30. 931 S.W.2d 344 (Tex.
App. -- Fort Worth 1996).
31. Id., at 348
(At the time of the trial in Barker, Article 42.09
required the "director," rather than a "designated officer"
allowed under the current statute, to certify these documents).
32. Id.
33. Id., at 349.
34. Id., at
348-49. |
