Ronnie Lynn Holstein v. The State of Texas--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-92-224-CR

RONNIE LYNN HOLSTEIN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # 7963-A

O P I N I O N

Ronnie Lynn Holstein was found guilty of aggravated sexual assault and assessed twenty-three years in prison by a jury. In three points of error he complains that the court erred (1) in failing to suppress his written confession; (2) in overruling his objection that the four-year-old victim was incompetent to testify; and (3) in overruling his Batson objections. Because we find that the court erred in failing to suppress Holstein's confession, we will reverse the judgment and remand the case for a new trial.

Holstein was arrested and placed in the Limestone County Jail on the same day the offense was alleged to have occurred, March 10, 1992. At the time of his arrest, Holstein was thirty-six years of age, indigent, unable to read or write the English language, and stated that he had only a fourth grade education. Holstein gave a written confession to Charles Walker, the Groesbeck Chief of Police, on March 12, 1992. At the hearing on Holstein's Motion to Suppress the confession, Chief Walker was questioned concerning whether Holstein had requested an attorney. The colloquy between Holstein's trial counsel and Chief Walker was as follows:

Q. Before the statement started he told you he wanted to talk to his attorney?

A. No, that was on the first occasion. That's when he was first brought there [to the county jail] on the tenth. He never asked for an attorney, never made any indication that he wished to consult with an attorney on this particular occasion.

Having stated that Holstein requested an attorney on the tenth, Chief Walker testified how the interrogation was reinitiated on the twelfth, the date the statement was taken:

Q. Okay. And on the tenth did he make any statement to you at that time?

A. At that time, no. His attitude and conduct was completely contrary to what it was on the twelfth.

Q. Okay. And how did you get contact with him on the twelfth?

A. That was at my request.

Q. Okay. And you brought him back and talked to him at that time?

A. Yes.

(Emphasis added).

Even though it is the State's position that Holstein did not request an attorney on the twelfth, Chief Walker further testified:

Q. So, Chief Walker, you did say on the twelfth he invoked his right to an attorney.

A. He didn't request an attorney. He was telling me why he wanted to make the confession so that the Court would appoint him a lawyer. I believe that's what I said, and I believe that's consistent with what this said.

Q. So despite the fact that on the twelfth your testimony was that he said he wanted a lawyer, you proceeded and questioned him anyway.

A. Well, I didn't take it, and I still don't take it that he requested a lawyer or said that he wanted a lawyer. He said he wanted the Court to appoint him a lawyer to defend him whenever and whatever.

(Emphasis added).

During redirect examination of Chief Walker by District Attorney Cantrell, similar testimony was given:

Q. Chief, did he ever invoke the right to an attorney?

A. No, sir.

Q. Did he ever tell you, "I want an attorney" to go forward?

A. No, sir.

Q. He merely told you, "I want to give this statement so the Court can appoint me an attorney and I can get bail set and get out."

A. That's what he said.

At the conclusion of the hearing on the Motion to Suppress, the court found that Holstein did not invoke his right to an attorney and that he knowingly, intelligently, and voluntarily made the statement after having received the required Miranda warnings.

If a suspect in custody requests an attorney during his interrogation, all questioning must cease until he is given the opportunity to consult with counsel. United States v. Dougall, 919 F.2d 932, 934-35 (5th Cir. 1990) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966)), cert. denied, 111 S. Ct. 2860 (1991). A confession obtained through interrogation of a suspect after he has requested an attorney must be suppressed as evidence unless the suspect himself has voluntarily initiated further communication leading to it. Dougall, 919 F.2d at 935 (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L.Ed 2d 378 (1981)). Determination of whether a confession is voluntary under the due process clause must be based upon examination of the totality of the circumstances surrounding its acquisition. Price v. State, 818 S.W.2d 883, 886 (Tex. App. Corpus Christi 1991), vacated on other grounds, 826 S.W.2d 947 (Tex. Crim. App. 1992). Here, the court did not specify the reason it found the confession to be admissible. If the record supports the trial court's findings, an appellate court is not at liberty to disturb them, and on review, can only address whether the trial court improperly applied the law to the facts. Price, 818 S.W.2d at 888 (citing Johnson v. State, 698 S.W.2d 154, 159 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871, 107 S. Ct. 239, 93 L. Ed. 2d 164 (1986)). Furthermore, the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

The evidence elicited from the Chief of Police shows that Holstein requested an attorney when he was arrested and placed in jail on the tenth. He was then transported from the jail to Chief Walker's office on the twelfth at the request of Chief Walker. Chief Walker apparently made the request to have Holstein transported to his office because, "Then they told me he wanted to tell me the truth because he'd been drunk, and that he wanted to have a lawyer appointed so he could have bail set and get out of jail." (Emphasis added). Even though the trial court is the exclusive judge of the credibility of the witnesses, we believe that the court's ruling disregarded the fact that the State's witness acknowledged that Holstein had originally requested an attorney when he was arrested. Even with his limited education, Holstein invoked his Fifth Amendment right to counsel when he was arrested and further interrogation should not have been reinitiated unless Holstein voluntarily initiated further communications. The evidence further shows that Chief Walker reinitiated the interrogation knowing that Holstein still wanted counsel to defend him "whenever and whatever" or so that bail might be set to facilitate his release from jail. Considering the totality of the circumstances surrounding the taking of Holstein's statement, we find that his right's were not "scrupulously honored" and the guidelines specified by Miranda were thereby violated. See Ochoa v. State, 573 S.W.2d 796, 801 (Tex. Crim. App. 1978) (citing Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977)). Point one is granted.

Holstein next complains that the court erred in overruling his objection that the young victim was incompetent to testify. The issue of a witness' competency is a question for the trial court, and its ruling will not be disturbed on appeal unless an abuse of discretion is shown by a review of the entire record, including the witness' trial testimony. Hernandez v. State, 643 S.W.2d 397, 400 (Tex. Crim. App. 1982), cert. denied, 462 U.S. 1144, 103 S. Ct. 3128, 77 L. Ed. 2d 1379 (1983). The court conducted a hearing out of the presence of the jury during which the four-year-old victim was questioned concerning her competency to testify. Even though she initially gave some confusing answers concerning her ability to know the difference between the truth and a lie, she was able to recollect the events in question and adequately narrate them. Our review of the entire record reveals the court did not abuse its discretion in overruling Holstein's objection. Point two is overruled.

In his last point Holstein complains that the court erred by overruling his objections to the State's peremptory strikes of three blacks from the jury venire in violation of the holding in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The correct standard of review for a Batson hearing is the "clear error standard." Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992) (citing Hernandez v. New York, ___U.S.___, 111 S. Ct. 1859, 1871, 114 L. Ed. 2d 395 (1991)). The standard is applied by reviewing the trial court record including the voir dire, racial makeup of the venire, and the explanations of the prosecutor. The finding of the judge must be supported by the record so that it is not clearly erroneous. Vargas, 838 S.W.2d at 554.

Following the Batson objections, the court conducted a hearing in which the prosecutor stated specific reasons for striking each of the three black panel members. In summary, the reasons were that each of the three panelists previously had unfavorable contacts with the prosecutor's office or law enforcement agencies in the county. As a result, the prosecutor concluded that all three were undesirable for this jury. The court found these to be race neutral reasons. We agree that the court's finding is supported by the record and not clearly erroneous in view of the entire record. Point three is overruled.

Because we sustain the first point, we reverse the judgment and remand the case for a new trial.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and remanded

Opinion delivered and filed June 23, 1993

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