Larry Glenn Collins v. The State of Texas--Appeal from 185th District Court of Harris County

Affirmed and Memorandum Opinion filed September 25, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00737-CR

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LARRY GLENN COLLINS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1047869

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

Appellant Larry Glenn Collins appeals from the trial court=s denial of his motion to suppress an audiotaped statement given to the police. In two issues, he claims the statement was taken after he requested counsel in violation of his rights under the Fifth and Sixth Amendments to the United States Constitution. We affirm.

In November 2005, Detective Roy Swainson of the Houston Police Department (AHPD@) asked Detective Alfred Paige of the Galveston Police Department to arrest appellant, who was living in Galveston, pursuant to a capital murder warrant issued for appellant for a murder in Harris County. Detective Paige arrested appellant and held him in the Galveston County Jail until Detective Swainson could transport appellant to Houston later that day. When, several hours later, it appeared that Detective Swainson would not arrive in Galveston before 5:00 p.m., Swainson asked Detective Paige to take appellant before a magistrate judge to be administered Miranda warnings and other warnings required by the Texas Code of Criminal Procedure. See Miranda v. Arizona, 384 U.S. 436, 467B68 (1966); Tex. Code Crim. Proc. Ann. arts. 15.17, 26.04 (Vernon Supp. 2006).

Detective Paige retrieved appellant and told him that HPD was on the way and would want to talk to him if he chose. Detective Paige further informed appellant that he was going before a magistrate judge to discuss his rights and receive warnings. Appellant told Detective Paige that he wanted to tell his side of the story. However, Detective Paige viewed his role as limited to assisting HPD in arresting appellant. Because it was not his case to investigate and because it was past the end of his shift, Detective Paige told appellant that he did not want to hear appellant=s story and that he would have an opportunity to tell HPD.

Detective Paige escorted appellant to the magistrate judge and brought the necessary forms. One form requested that appellant indicate whether he wanted counsel, and appellant signed the portion of the form indicating he wanted counsel. The magistrate judge discussed all the statutory warnings with appellant, which appellant appeared to understand. The magistrate judge told appellant he had no authority to appoint counsel and that counsel would be appointed by the district judge in Houston. After the hearing, in the hall outside the courtroom, appellant again told Detective Paige that he wanted to tell his story, and Detective Paige again told appellant not to tell him but to wait and tell HPD.

Later that evening when Detective Swainson arrived in Galveston, Detective Paige told him that appellant had been requesting to talk and offered Swainson the use of an interview room. While escorting appellant to the interview room, Detective Paige told appellant that HPD had arrived and that he could now tell his story if he chose. When appellant entered the room, Detective Swainson told appellant he was from HPD and was investigating a murder and said he would like to talk to appellant. Detective Swainson set up the audio recorder and then, on the tape, confirmed with appellant that he had gone before a magistrate judge earlier that day and was read his statutory rights and warnings. Detective Swainson then read appellant his rights again, and appellant stated on the tape that he voluntarily waived those rights and was willing to give a statement. Detective Swainson had seen the form indicating appellant wanted counsel and had discussed it with Detective Paige, who assured him the request was for trial counsel, not for counsel to assist with the police interview. Detective Swainson specifically asked appellant about his request for counsel to the magistrate judge, and appellant confirmed that he wanted an attorney at some point but wanted to talk to Detective Swainson right then. Appellant then gave a statement implicating himself in the murder Detective Swainson was investigating. He told Detective Swainson that it had Abeen eating [him] up@ and that he had been planning on turning himself in after the holidays. Appellant never told Detective Paige or Detective Swainson that he did not want to talk to the police and wanted an attorney right then.

Appellant filed a motion to suppress his audiotaped statement, arguing that because it was taken after he requested counsel, his rights under the Fifth and Sixth Amendments were violated. After the suppression hearing, in which Detectives Paige and Swaison as well as the magistrate judge testified, the trial court found that (a) everyone assumed appellant was requesting counsel for trial and not the police interview, (b) appellant never said he wanted an attorney for the interview, (c) appellant said he wanted to talk to the police, both before and after receiving warnings from the magistrate judge, and (d) appellant gave his audiotaped statement after being advised of his Miranda rights.

We review a trial court=s ruling on a motion to suppress for an abuse of discretion. Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003). At a suppression hearing, the trial judge is the trier of fact and assesses the witnesses= credibility and the weight to be given to their testimony. Wiede v. State, 214 S.W.3d 17, 24B25 (Tex. Crim. App. 2007). As long as they are supported by the record, we afford almost total deference to a trial court=s findings of historical fact. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Further, we defer to a trial court=s application of law to fact rulings if they turn on an evaluation of credibility and demeanor. Id.

In his two issues, appellant argues that the trial court=s failure to suppress his audiotaped statement violated his rights to counsel under the Fifth and Sixth Amendments. He argues that he invoked his right to counsel by so indicating on the magistrate judge=s form and that the record does not support the trial court=s finding that his request for counsel was only for trial and not for the police interview. We conclude that even if appellant is correct that his request was for immediate counsel and not trial counsel, he waived that protection.

Under both the Fifth and Sixth Amendments, once a defendant invokes the right to counsel, he can waive this protection by reinitiating further communication with the police and then knowingly and voluntarily waiving his right to counsel. See Cross v. State, 144 S.W.3d 521, 526B27 (Tex. Crim. App. 2004) (citing Oregon v. Bradshaw, 462 U.S. 1039, 1045B46 (1983)); Hargrove v. State, 162 S.W.3d 313, 321B22 (Tex. App.CFort Worth 2005, pet. ref=d); Hunter v. State, 148 S.W.3d 526, 529, 533 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d), cert. denied, 126 S. Ct. 2286 (2006). The trial court found that appellant wanted to talk to the police, both before and after being warned by the magistrate judge. Detective Paige=s testimony that he did not want to talk to appellant and that appellant kept requesting to talk, even after requesting counsel, is undisputed. In his brief, appellant admits he requested to talk to the police but argues he did not knowingly and voluntarily waive his Fifth and Sixth Amendment rights, stating as follows:

[Appellant] told Detective Paige that he wanted to speak to law enforcement, Appellant was continually told that he would have to wait until officers from Houston arrived, Appellant went before a magistrate and requested counsel, and the magistrate said you will have to wait. Appellant has been put in the position of being told that his one chance to give his version of the events that led to his arrest would be when officers arrived from Houston to interview him, but that he cannot have an attorney until he himself returns to Houston. Given the timing of events, it is a reasonable conclusion that Appellant believed if he ever wanted to have his version of events told, he would have to do so without the benefit of counsel.

(emphasis added). We reject this argument. Detective Paige never told appellant that he had only Aone chance@ to tell his storyChe only told appellant that he personally did not want to hear it. Appellant could have delayed speaking to police until he had counsel. Detective Swainson re-administered appellant=s Miranda warnings on tape before interviewing him and even specifically inquired about appellant=s request of counsel form, and appellant said he wanted to talk right then. Thus, the trial court=s findings that appellant never asked for an attorney for the interview, wanted to talk to the police both before and after receiving the magistrate judge=s warnings, and gave his statement after again receiving his Miranda warnings are supported by the record. Based on this evidence and these findings, we conclude the trial court did not abuse its discretion in denying appellant=s motion to suppress his audtiotaped statement. See Hunter, 148 S.W.3d at 529, 533; cf. Hargrove, 162 S.W.3d at 323 (finding that even though defendant had reinitiated police contact after requesting counsel before a magistrate, he did not knowingly and voluntarily waive his right to counsel thereafter because police did not re-administer Miranda warnings before interviewing him). We overrule appellant=s two issues and affirm the trial court=s judgment.

/s/ Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed September 25, 2007.

Panel consists of Justices Yates, Seymore, and Edelman.*

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

* Senior Justice Richard H. Edelman sitting by assignment.