Haywood, Jerrell Ladrea v. The State of Texas--Appeal from 56th District Court of Galveston County

Affirmed and Opinion filed March 27, 2003

Affirmedand Opinion filed March 27, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00488-CR

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JERRELL LADREA HAYWOOD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 56th District Court

Galveston  County, Texas

Trial Court Cause No. 00CR1843

M E M O R A N D U M O P I N I O N

Appellant, Jerrell Ladrea Haywood, was convicted by a jury of murder. The trial court denied appellant=s motion to suppress his videotaped oral confession. In his sole point of error, appellant challenges the admissibility of the videotaped statement on the grounds that it does not meet the requirements set forth in the Texas Code of Criminal Procedure.[1] We affirm.

On October 11, 2000, appellant was interrogated by Texas City Police Sergeant Brian Goetschius during an investigation into the murder of Ernest Joiner. During the course of the interrogation, appellant made both a written statement and an oral videotaped confession.

Prior to the interrogation, Officer Goetschius formally read appellant his rights[2] and presented appellant with a waiver-of-rights form. After appellant stated he could not read well, Goetschius asked him if he understood his rights. Specifically, he asked appellant if he understood his rights, if he freely and voluntarily waived those rights, and if he was willing to make a statement. Appellant was then asked if he had any questions, to which he replied, AI already know all that.@ Appellant initialed each right and signed the waiver at 2:08 p.m.

Appellant then gave a two-page written statement. The top of the statement lists the warnings again and also contains the following recitation: AI further state that I understand that I have waived each of my rights set out at the beginning of this statement and was fully aware of my waiver of rights during the entire period that the statement was given.@ After the entire statement was read to him, appellant signed both pages at 3:09 p.m. Appellant then gave an oral videotaped statement.

The videotape recording began at 3:27 p.m. On the tape, before appellant gave his statement, Goetschius again read appellant the rights required by article 38.22. Although appellant did not expressly state he waived his rights, he stated he understood his rights. Before proceeding, Goetschius confirmed that appellant understood he was being recorded and understood his rights.

Appellant did not object to the written statement being admitted into evidence. As for the oral confession, appellant claimed the requirements of article 38.22, section 3(a)(2) were not met because he did not knowingly, intelligently, and voluntarily waive his rights on the recording.[3] At the suppression hearing, the trial court replayed the first part of the videotape, which contained the reading of the rights. The trial court found that although there was not an affirmative waiver on the recording, an implied waiver occurred because the written statement, with express waivers, was signed less than an hour beforehand and the appellant voluntarily proceeded with his statement after he had received the warnings again on the videotape. Appellant claims the recorded statement is inadmissible as he did not expressly waive his rights.

Normally, a trial court=s admission of evidence is reviewed under an abuse-of- discretion standard. See Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). Because the facts surrounding the confession are not disputed, the question of whether appellant=s videotaped statement was admissible under article 38.22 is a question of law which we review de novo. See State v. Oliver, 29 S.W.3d 190, 191 (Tex. App.CSan Antonio 2000, pet. ref=d).

Article 38.22, section 3(a)(2) requires an oral statement from an interrogation to contain a warning to the defendant of his rights and a knowing, intelligent, and voluntary waiver of those rights. Oliver, 29 S.W.3d at 191. In the context of either a written or oral confession, a waiver of rights may be inferred rom the actions and words of the person interrogated. Id. at 191-92; see also Barefield v. State, 784 S.W.2d 38, 40-41 (Tex. Crim. App. 1978), overruled on other grounds by Zimmerman v. State, 860 S.W.2d 89, 94 (Tex. Crim. App. 1993), vacated on other grounds, 510 U.S. 938 (1993).

In Barefield, the trial court admitted the defendant=s oral confession. Like the instant case, the defendant in Barefieldwas given the required warnings and affirmatively stated he understood them, but did not expressly state he waived his rights. 784 S.W.2d at 40. Responding to the defendant=s argument that the confession was inadmissible, the court affirmed the conviction, stating:

We do not, however, interpret the oral confession statute to require an express verbal statement from an accused that he waives his rights prior to giving the statement. In reaching the voluntariness of a confession, this Court looks at the totality of the circumstances.

Id. at 40-41. Thus, in the context of an oral confession, the Court of Criminal Appeals has approved the inference of a waiver based on the totality of the circumstances surrounding interrogation. Id.; Oliver, 29 S.W.3d at 192.

Appellant relies on Garcia v. State for the proposition that Aan appellant=s acknowledgment that he understood his rights does not indicate a waiver of those rights.@ 919 S.W.2d 370, 379 (Tex. Crim. App. 1996). In so doing, appellant argues that he must expressly waive his rights for the videotape to be admissible. However, appellant mistakenly cites to a portion of that opinion that was superseded by an opinion on rehearing. Although the Garcia court originally reversed and remanded, on rehearing, it affirmed the judgment of the trial court. Id. at 383-403. On rehearing, the court held that a written confession was admissible, despite the absence of an explicit oral or written waiver. Id. at 386-87. The court reasoned that a waiver of Garcia=s rights could be inferred from the language of the written statement. Id.

Examining Barefield and Garcia together illustrates the Court of Criminal Appeals=approval of an implied waiver when the circumstances show that an oral confession contains a recitation of the article 38.22 warnings and the defendant indicates he understands his rights and proceeds with the interview without hesitation. Id. Here, during the course of one continuous interrogation, appellant=s rights were read to him several times and he signed a written waiver of those rights. The videotape contains the article 38.22 warnings and indication from appellant that he understood his rights. Given the totality of the circumstances, we find appellant waived his rights in accordance with article 38.22.

We overrule appellant=s sole point of error and affirm the judgment of the trial court.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed March 27, 2003.

Panel consists of Justices Yates, Anderson, and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(a)(2) (Vernon Supp. 2003).

[2] The warnings given complied with article 38.22, section 2(a)(1)-(5) of the Texas Code of Criminal Procedure.

[3] Article 38.22, section 3(a) provides:

Sec. 3. (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;(4) all voices on the recording are identified; and(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.