Darrell Dean v. The State of Texas--Appeal from 198th Judicial District Court of Kerr County

MEMORANDUM OPINION
Nos. 04-02-00693-CR & 04-02-00694-CR
Darrell DEAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court Nos. B01-350 & B01-140
Honorable Karl Prohl, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 29, 2003

AFFIRMED

Darrell Dean appeals his convictions for sexual assault and aggravated sexual assault. In one issue, Dean contends the trial court erred in denying his motion to suppress videotaped statements obtained as a result of an interrogation that violated his right to counsel. We overrule Dean's issue and affirm the trial court's judgments.

Factual and Procedural Background

On November 1, 2002, Darrell Dean was indicted on two counts of sexual assault in cause number B01-350 (the first case). Capias also issued that same day. Dean, however, was not arrested on the first case until April 9, 2002. The next day, April 10th, Dean made a written request for appointment of counsel. His request was filed in the clerk's office at 3:10 p.m. with notations placed at the top - "Cause No. B01-350" and "sexual asslt - 2 counts." Meanwhile, also on April 10th, a complaint for aggravated sexual assault was filed against Dean accusing him of an unrelated sexual assault allegedly occurring on April 9, 2002 (the second case). At about 5:30 p.m. on April 10th, Todd Burdick, an investigator for the District Attorney's office, interviewed Dean with the purpose of gaining evidence surrounding allegations of aggravated sexual assault in the second case. Dean was admonished of his right to counsel, but chose to proceed with the interview. Dean incriminated himself, on videotape, in both the first case and the second case. The next day, April 11, 2002, Dean was arrested on the second case.

Dean filed a motion to suppress the videotaped statement arguing that, because he had requested appointment of counsel and adversarial proceedings had begun in both cases before he gave his statement, his statement was given in violation of his constitutional right to counsel. According to the State, however, Dean had only requested counsel on the first case at the time of his interview with Burdick. The trial court ordered that any reference to the first case on the videotape be redacted, but denied Dean's motion to suppress as to any statement made regarding the second case. Dean entered guilty pleas in both cases and was sentenced to ten years imprisonment in the first case and forty-one years in the second case, the sentences to run concurrently.

Discussion

1. Standard of Review

We review the trial court's ruling on a motion to suppress for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Under this standard, we afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. We afford the same amount of deference to a trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. We, however, may review de novo "mixed questions of law and fact" not falling within this category. Id.

2. Sixth Amendment Right to Counsel

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI; see Green v. State, 872 S.W.2d 717, 719 (Tex. Crim. App. 1994). This right to counsel protected by the Sixth Amendment, however, does not attach until "the initiation of adversary judicial proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Green, 872 S.W.2d at 719 (citation omitted). Moreover, the right only applies to events constituting a "critical stage." Id. at 720.

Dean argues that the trial court abused its discretion in refusing to suppress the incriminating statements he made with regard to the second case. He emphasizes that the right to counsel attached as to the second case when adversarial proceedings were begun, that is, when the felony criminal complaint in the second case was filed. The State does not disagree but argues that, even though adversarial proceedings in the second case had begun, Dean waived his right to counsel as to Burdick's interview regarding the second case. Dean was, in fact, given his Miranda rights and indicated he was waiving his right to have counsel present. Despite this waiver, Dean contends that his request for counsel applied to the charges in both the first and second case and, therefore, any waiver was ineffective.

In making his argument, Dean relies primarily on Michigan v. Jackson, 475 U.S. 625, 636 (1986), in which the Supreme Court held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." In a later case, Patterson v. Illinois, 487 U.S. 285, 291 (1988), the Supreme Court noted that their decision in Jackson was premised on the defendant having requested the assistance of a lawyer in dealing with the police. The Court further held that, generally, when a defendant is admonished with Miranda warnings, he has been sufficiently warned of his rights under the Sixth Amendment; therefore, his waiver is a knowing and intelligent one. Id. at 296-97.

With regard to the request for counsel, the Supreme Court has also held that the Sixth Amendment right to counsel is "offense specific." Texas v. Cobb, 532 U.S. 162, 167 (2001). Thus, a request for counsel as to one offense does not necessarily amount to a request for another offense, even though the offenses may be factually related. Id. at 167-68.

The issue before us then becomes whether Dean's request for counsel applied not only to the first case, but to the second case as well. At the time Dean gave his incriminating statement, he had been charged with offenses in both the first case and the second case. However, the timing was such that he had only been arrested on the first case. Dean made a request for counsel while under arrest for the first case. Although a complaint had been filed, he had not been arrested on the second case. While in custody for the first case, Officer Burdick questioned Dean regarding the second case after first advising him of his right to counsel. Under these circumstances, the trial court did not abuse its discretion in finding Dean's request applied only to the first case. Dean voluntarily waived his right to counsel as to the interview and statements he made regarding the second case.

For the above reasons, we overrule Dean's sole issue and affirm the trial court's judgments.

Karen Angelini, Justice

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