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Raymond Levi
COBB
"This man claimed that the baby just fell into
the grave, and he left it there," McCreary said. "And he walked
around ... with a cloud over his head because of this."
Lawyers argued to throw out the confession
because Cobb had already been indicted for the burglary.
MANSFIELD, J., delivered the opinion of the
Court, in which MEYERS, PRICE, HOLLAND, WOMACK, and JOHNSON, JJ.,
joined. McCORMICK, P.J., filed a dissenting opinion, in which
KELLER and KEASLER, JJ., joined.
O P I N I O N
Appellant, Raymond Levi Cobb, was found guilty
of intentionally killing two people in a single criminal
transaction. See Tex. Pen. Code 19.03. His punishment was assessed
at death. In eleven points of error, he argues that he is entitled
to a new trial or at least a reformation of his sentence from
death to imprisonment for life. We will reverse the judgment of
the trial court and remand the cause for a new trial.
We turn first to appellant's eleventh point of
error, in which he contends that the evidence adduced at trial was
legally insufficient to support the jury's affirmative answer to
the first punishment issue, concerning his future dangerousness.
See Art. 37.071, 2(b)(1).(1)
Appellant argues that the evidence was insufficient because (1) he
was only seventeen years old at the time of the offense, (2) he
had no prior history of violent conduct, (3) he had no prior
convictions, (4) the testimony of prosecution witness Dr.
Frederick Mears, a licensed clinical psychologist, was "inherently
unreliable" and thus inadmissible because he did not actually
examine appellant, and (5) defense witness Dr. Walter Quijano,
also a licensed clinical psychologist, testified that appellant
would not likely be a future danger if imprisoned for life.
Under the first punishment issue, the jury was
asked to determine "whether there is a probability that the
defendant would commit criminal acts of violence that would
constitute a continuing threat to society." Art. 37.071, 2(b)(1).
The State had the burden of proving the first punishment issue
beyond a reasonable doubt. Art. 37.071, 2(c). Thus, the State had
the burden of proving beyond a reasonable doubt that there is a
probability that appellant, if allowed to live, would commit
criminal acts of violence, so as to constitute a continuing threat,
whether in or out of prison. Narvaiz v. State, 840 S.W.2d
415, 424 (Tex.Crim.App. 1992), cert. denied, 113 S.Ct.
1422 (1993). In its determination of this issue, the jury was
entitled to consider all of the evidence presented at both the
guilt/innocence and punishment stages of trial. Valdez v.
State, 776 S.W.2d 162, 166-167 (Tex.Crim.App. 1989), cert.
denied, 110 S.Ct. 2575 (1990). As an appellate court
reviewing the jury's finding, we view all of the record evidence,
whether properly or improperly admitted, in the light most
favorable to the prosecution, and then determine whether, based on
that evidence, any rational jury could have found beyond a
reasonable doubt that the answer to the first punishment issue was
"yes." Miles v. State, 918 S.W.2d 511, 512 (Tex.Crim.App.
1996); Harris v. State, 738 S.W.2d 207, 225-226 (Tex.Crim.App.
1986), cert. denied, 108 S.Ct. 207 (1987). This standard
of review gives full play to the jury's responsibility to fairly
resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from the evidence. See Jackson
Virginia, 99 S.Ct. 2781, 2789 (1979). If we find that the
evidence was legally insufficient to support the jury's
affirmative answer, then we must reform the trial court's judgment
to reflect a sentence of life imprisonment. Art. 44.251(a).
Viewed in the necessary light, the evidence at
the guilt/innocence stage established that sometime between 5:45
a.m. and 5:15 p.m., December 27, 1993, appellant burglarized the
Lindsey and Margaret Owings residence in a rural part of Walker
County and stole a stereo system, a videocassette recorder, and
other items. In the course of the burglary, appellant
intentionally killed 22-year-old Margaret Owings and sixteen-month-old
Kori Rae Owings. The evidence at the punishment stage, viewed in
the necessary light, established that appellant has a dangerous
personality disorder and lacks any regard for the welfare of
others. We hold that, based on the totality of the evidence
presented at trial, a rational jury could have found beyond a
reasonable doubt that appellant is dangerous and incorrigible and
that the answer to the first punishment issue is "yes." The jury
was not required to give controlling weight to appellant's youth
or lack of a violent past or criminal record. Nor was the jury
required to give controlling weight to Dr. Mears' failure to
examine appellant personally. We overrule appellant's eleventh
point of error.
We turn next to appellant's fourth point of
error, in which he contends that the trial court erred in
admitting in evidence, at the guilt/innocence stage, a written
statement he gave to police shortly after his arrest. Appellant,
citing Michigan v. Jackson, 106 S.Ct. 1404 (1986), and
Upton v. State, 853 S.W.2d 548 (Tex.Crim.App. 1993),
argues that the police obtained the statement in violation of his
Sixth Amendment right to counsel because the police initiated
interrogation of him without first notifying his counsel of
record. The State argues in response that, at the time the police
interrogated appellant, his Sixth Amendment right to counsel had
not yet attached. The State argues in the alternative that even if
the right had attached, the right had been waived because on two
previous occasions defense counsel had allowed police to
interrogate appellant without counsel being present.
The facts relevant to this point of error are
as follows: On December 27, 1993, Lindsey Owings notified the
Walker County Sheriff's Office that his home had been burglarized
and that some of his property had been stolen. He also reported
that his wife, Margaret, and his daughter, Kori Rae, were missing.
Sometime in early February 1994, the sheriff's
office received an anonymous tip that appellant, who resided
across the street from the Owings residence, might have been
involved in the burglary. Walker County investigators questioned
appellant about the burglary and the disappearances, but he denied
any involvement. On July 15, 1994, after further questioning by
investigators, appellant, who was then under arrest in an
unrelated case, gave a written statement in which he confessed to
the burglary. He continued to insist, however, that he knew
nothing about the disappearances. A Walker County grand jury
subsequently indicted appellant for the burglary.
On August 15, 1994, attorney Hal Ridley was
appointed to represent appellant in the burglary case. Shortly
thereafter, Walker County investigators sought Ridley's permission
to question appellant again about the disappearances. Ridley gave
his permission, but only after being assured that appellant was
not a suspect in the disappearances. The investigators then
questioned appellant, and he again denied any involvement.
On September 13, 1995, Walker County
investigators again sought Ridley's permission to question
appellant about the disappearances, and again he gave permission,
still believing that appellant was not a suspect. During the
questioning, appellant again denied any involvement.
On November 11, 1995, appellant's father,
Charles Cobb, who resided in Odessa, telephoned the Walker County
Sheriff's Office with information regarding appellant, who was
then free on bond in the still-pending burglary case and also
residing in Odessa. Mr. Cobb reported that appellant had just
confessed to him that he had killed Margaret Owings while in the
course of burglarizing her home and that he had buried her body in
a wooded area not far from the home. Walker County investigators
instructed Mr. Cobb to proceed to an Odessa police station to give
a statement, which he did. The Odessa police faxed Mr. Cobb's
statement to Walker County, and investigators there used the
statement to obtain an arrest warrant, which they faxed back to
Odessa. The Walker County investigators neglected, however, to
inform the Odessa police that appellant had counsel in the
burglary case. The Odessa police then located appellant, arrested
him, Mirandized(2)
him, and interrogated him. After ninety minutes of questioning,
appellant gave a written statement in which he admitted killing
both Margaret and Kori Rae Owings while in the course of
burglarizing their home.
Having explicated the relevant facts, we turn
now to the relevant law, which is both settled and familiar. The
Sixth Amendment to the Constitution of the United States provides
that "[i]n all criminal prosecutions, the accused shall enjoy the
right ... to have the assistance of counsel for his defence." This
right to counsel was made applicable to state felony prosecutions
by the Due Process Clause of the Fourteenth Amendment. Gideon
v. Wainwright, 83 S.Ct. 792, 797 (1963). The purpose of the
right to counsel is to protect the unaided layman after the
adverse positions of government and defendant have solidified with
respect to a particular alleged crime. McNeil v. Wisconsin,
111 S.Ct. 2204, 2209 (1991). The right thus attaches at the
initiation of adversarial proceedings, whether by way of formal
charge, preliminary hearing, indictment, information, or
arraignment, and no request for counsel need be made by the
accused. Brewer v. Williams, 97 S.Ct. 1232, 1239, 1242
(1977). Once the Sixth Amendment right to counsel attaches,
government efforts to elicit information from the accused,
including interrogation, represent "critical stages" at which the
right to counsel applies. Michigan v. Jackson, 106 S.Ct.
at 1407-1408. Therefore, for the fruits of post-indictment
interrogations to be admissible in a prosecution's case-in-chief,
the State must prove a voluntary, knowing, and intelligent waiver
of the right to counsel. Patterson v. Illinois, 108 S.Ct.
2389, 2394-2395 (1988). However, once the right to counsel has
attached and has been invoked, any subsequent waiver during police-initiated
interrogation is ineffective unless counsel has first given
permission for the interrogation. Michigan v. Jackson,
106 S.Ct. at 1411.
Also relevant to this case is the Sixth
Amendment rule that once the right to counsel attaches to the
offense charged, it also attaches to any other offense that is
very closely related factually to the offense charged. State
v. Frye, 897 S.W.2d 324, 328-329 (Tex.Crim.App. 1995);
Upton v. State, 853 S.W.2d at 555-556; accord, United
States v. Arnold, 106 F.3d 37, 41 (3rd Cir. 1997),
and cases cited therein; see 2 W. LaFave, et al., Criminal
Procedure 6.4(f) n. 127 (2nd ed. 1999). This rule prevents
the government from circumventing the Sixth Amendment right to
counsel merely "by charging a defendant with additional crimes
after questioning him without counsel present," United States
v. Arnold, 106 F.3d at 41, or "by charging predicate crimes
with the purpose of questioning a suspect on an aggravated crime,"
Upton v. State, 853 S.W.2d at 556.
Relevant to this case, too, is the "Sixth
Amendment ... require[ment] that we impute the State's knowledge
from one state actor to another." Michigan v. Jackson,
106 S.Ct. at 1410. "One set of state actors (the police) may not
claim ignorance of defendants' unequivocal request for counsel to
another state actor (the court)." Ibid.
We now apply these rules of law to the case at
bar. Once appellant was indicted for the Owings burglary, his
Sixth Amendment right to counsel attached to that offense and
to the capital murder offense, which was factually interwoven with
the burglary. It is also true that once appellant's right to
counsel attached, he asserted it by accepting Ridley's appointment
as his counsel. Therefore, before the Odessa police could lawfully
question appellant about the disappearances of the Owings, they
were under an obligation to contact Ridley and get his permission.
They failed to do that. Consequently, the fruits of the Odessa
police interrogation, including appellant's written statement,
were inadmissible in the prosecution's case-in-chief.
The fact that Ridley twice gave permission to
Walker County investigators to question appellant is irrelevant.
Nothing in the record suggests that Ridley's permission was
intended to be continuing or could have reasonably been so
interpreted.
Having found constitutional error, we still
need not reverse appellant's conviction if we determine that the
error was harmless beyond a reasonable doubt. Chapman v.
California, 87 S.Ct. 824, 828 (1967); Tex. R. App. Proc.
44.2(a). If there is a reasonable likelihood that the error
materially affected the jury's deliberations, then the error was
not harmless beyond a reasonable doubt. Satterwhite v. Texas,
108 S.Ct. 1792, 1797 (1988).
The record reflects that appellant's statement
was incriminating and central to the prosecution's case against
him. Therefore, a reasonable likelihood exists that the admission
of the statement in evidence materially affected the jury's
deliberations.
We sustain appellant's fourth point of error.
In view of our disposition of appellant's fourth point of error,
we need not address his remaining points of error. The judgment of
the trial court is reversed, and the case is remanded for a new
trial.
DELIVERED MARCH 15, 2000
PUBLISH
1. All references to
articles are to those in the Texas Code of Criminal Procedure.