Al Wayne Juergens v. The State of Texas--Appeal from 91st District Court of Eastland County

11th Court of Appeals

Eastland, Texas

Opinion

Al Wayne Juergens

Appellant

Vs. No. 11-04-00040-CR -- Appeal from Eastland County

State of Texas

Appellee

The jury convicted Al Wayne Juergens of the offense of indecency with a child, and the trial court assessed punishment at 50 years confinement. Appellant confessed to committing the crime. In two points of error, appellant argues that his confession was improperly obtained after he asserted his right to counsel. We affirm.

On August 27, 2002, the victim, a nine-year-old girl, made an outcry statement to Dolores Metcalf of Child Protective Services.[1] In the statement, the victim alleged that appellant, an ex-boyfriend of the victim=s mother, sexually molested her. On September 10, 2002, at the Eastland County Jail, Texas Ranger David Hullum interviewed appellant about the indecency allegations. At that time, appellant was in custody for different offenses, specifically for burglary and for violating a protective order. During the interview, appellant confessed to engaging in sexual contact with the victim. On September 11, 2002, based on this sexual contact, an arrest warrant was issued for appellant. On July 1, 2003, appellant was indicted for the offense of indecency with a child.

In his first point of error, appellant asserts that the trial court erred in admitting appellant=s confession into evidence because the confession was allegedly obtained after appellant had invoked his right to counsel under the Sixth Amendment of the United States Constitution.

A trial court has broad discretion in ruling on the admissibility of evidence. See Salazar v. State, 38 S.W.3d 141, 151 (Tex.Cr.App.2001). As such, the standard of review for evidentiary decisions is abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Cr.App.2000). We will not disturb the trial court=s ruling as long as it was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1991).

Counsel=s objection to the admission of the confession during trial was based on TEX. CODE CRIM. PRO. ANN. art. 38.22 (Vernon 2005). Article 38.22 is an exclusionary statute which provides that no written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that the accused received his Miranda [2] warnings and that, prior to and during the making of the statement, the accused knowingly, intelligently, and voluntarily waived his Miranda rights. See Article 38.22, section 2.

Our review of the record indicates that the procedures of Article 38.22 were followed. Ranger Hullum testified that, prior to interviewing appellant, he read appellant his Miranda rights, including the right to have a lawyer present during questioning. Ranger Hullum also testified that, as he began reducing appellant=s confession to writing, he again explained to appellant his Miranda rights. Each right required by Miranda and Article 38.22 appeared on appellant=s written confession, including the right to have a lawyer present during questioning. To the left of each of these rights, appellant signed his initials. Appellant also signed his initials beside a statement that he knowingly, intelligently, and voluntarily waived these rights. We find that the State complied with the requirements of Article 38.22. Therefore, the trial court did not abuse its discretion in admitting the confession.

We also note that the Sixth Amendment right to counsel is offense-specific. Texas v. Cobb, 532 U.S. 162, 167 (2001). It does not extend to offenses that are Afactually related@ to those that have actually been charged. Cobb v. State, 85 S.W.3d 258, 261 (Tex.Cr.App.2002). At the time of the interrogation, appellant was not in custody for the offense of indecency with a child; instead, he was in custody for burglary and violation of a protective order.

The Sixth Amendment right to counsel, furthermore, does not attach until a prosecution is commenced. Texas v. Cobb, supra at 167. A prosecution is commenced at or after the initiation of adversary judicial criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Texas v. Cobb, supra at 167-68. Appellant was not indicted for the offense of indecency with a child until July 1, 2003. On September 10, 2002, when appellant confessed to the crime, his Sixth Amendment right to counsel for the specific offense of indecency with a child had not yet attached.

It is true that, if an accused clearly invokes his Fifth Amendment right to counsel during custodial interrogation by the police, before attachment of the Sixth Amendment right to counsel, all interrogation must cease. Upton v. State, 853 S.W.2d 548, 552 (Tex.Cr.App.1993). In appellant=s case, however, there is no evidence that appellant clearly invoked his Fifth Amendment right to counsel during custodial interrogation. Ranger Hullum testified that at no point during the interrogation or during the preparation of appellant=s written confession did appellant ever invoke his right to counsel. Appellant never contested or disputed Ranger Hullum=s testimony.

At most, appellant requested counsel several days prior to his interrogation, when he applied for a court-appointed attorney to represent him on separate charges relating to a burglary offense and violation of a protective order. Invoking the Fifth Amendment right to counsel Arequires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.@ McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)(emphasis added). To find that appellant invoked his Fifth Amendment right to counsel on the present charge merely by requesting the appointment of counsel on unrelated charges is to disregard the ordinary meaning of that request. See McNeil v. Wisconsin, supra at 178-79. Because we find that appellant never invoked his Fifth Amendment right to counsel during the interrogation and because his Sixth Amendment right to counsel had not yet attached at the time of the interrogation, we overrule appellant=s first point of error.

In his second point of error, appellant asserts the same argument he made in his first point, this time under Article I, Section 10 of the Texas Constitution and TEX. CODE CRIM. PRO. ANN. art. 26.04 (Vernon Supp. 2004 - 2005). Appellant provides no argument for his allegation that Article 26.04 was violated, and we will not address it. See Rule 38.1(h). We also do not believe that the Texas Constitution provides greater or different protection than its federal counterpart in this area of law. See Hernandez v. State, 988 S.W.2d 770, 772-73 (Tex.Cr.App.1999). We overrule appellant=s second point of error.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

May 5, 2005

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]Appellant alleges in the summary of his argument that it was error for the trial court to admit this outcry statement into evidence. However, appellant does not present this argument further in his brief, and we will not address it. See TEX.R.APP.P. 38.1(h).

[2]See Miranda v. Arizona, 384 U.S. 436 (1966).