Sharon Elaine Anderson v. The State of Texas--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-96-052-CR

SHARON ELAINE ANDERSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 96-02-15,903-CR

O P I N I O N

Sharon Elaine Anderson pled guilty to the offense of aggravated kidnapping. Tex. Penal Code Ann. 20.04 (Vernon Supp. 1997). Pursuant to a plea agreement, the court assessed punishment at 50 years in prison. Anderson s sole point of error asserts that the court erred in denying a motion to suppress her statements to police officers. We will affirm the judgment.

BACKGROUND

Anderson and her common-law husband, James Atomanczyk, were arrested on June 20, 1995, in connection with the murder of William Ralphs. Anderson was taken to the Austin Police Department where she was interrogated by Texas Ranger James Miller. The interrogation began around 5:30 p.m. At approximately 5:53 p.m., Anderson stated, I think I need a lawyer to talk to. Miller responded, You want a lawyer? Before Anderson could answer, there was a knock on the door, and Miller took his papers and left the room. Miller returned to the interrogation room ten to fifteen minutes later and resumed his questioning without any reference to Anderson s request for counsel. Anderson denied any involvement in or knowledge of Ralphs murder.

On June 23, Robertson County Deputy Sheriff Gerald Yezak arrived with Jailer Sandra Mitchell to transport Anderson to the Robertson County Jail. Shortly after placing Anderson in the patrol car, Yezak asked her if she was doing all right. Anderson replied, I know that I can get the death penalty with what I m charged with. Yezak stopped Anderson and explained that he was going to stop at a convenience store to get cold drinks and snacks. When he returned to the patrol car, he read Anderson s Miranda rights. Yezak asked Anderson if she had any questions for him, and she asked about Atomanczyk. He asked her, Do you want to talk about it? Anderson then discussed her involvement in the crime. She later gave a written statement detailing her involvement in the kidnapping and eventual death of Ralphs.

SUPPRESSION HEARING

At the suppression hearing, the court viewed the videotape of Miller s interrogation. Miller and Yezak testified. The court granted Anderson s motion in part, finding that Anderson had invoked her right to counsel and suppressing any statements she had made to Miller. The court found Anderson s statements to Yezak admissible.

In a hearing on a motion to suppress, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given to their testimony. Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996). If the court's resolution of a controverted issue is supported by the record, a reviewing court should not disturb that decision. Id.

RIGHT TO COUNSEL

Anderson argues that any statements made after she requested an attorney on June 20 including her statements to Yezak on June 23 should have been suppressed. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966); Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 1997).

Once an accused asserts her right to an attorney during custodial interrogation, all questioning must cease immediately. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378 (1981). An invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 2209, 115 L. Ed. 2d 158 (1991). [I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. Davis v. U.S., 512 U.S. 452, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994). In Davis, the United States Supreme Court upheld the lower court s ruling that the accused s remark, Maybe I should talk to a lawyer, was not a request for counsel. Id., 512 U.S. at ----, 114 S. Ct. at 2353.

The initial question, then, is whether Anderson s statement, I think I need a lawyer to talk to was an invocation of her right to counsel. Id. Anderson s statement is almost identical to that of the accused in Davis. Id.; but see Jones v. State, 742 S.W.2d 398, 404 (Tex. Crim. App. 1987). However, the trial court determined that Anderson had invoked her right to counsel and suppressed any statements made to Miller. We will not disturb that ruling. Green, 934 S.W.2d at 98.

Assuming that Anderson invoked her right to counsel, she could not be further interrogated unless counsel was provided or she reinitiated conversation. Davis, 512 U.S. at ----, 114 S. Ct. at 2354-55. The question is whether Anderson initiated conversation with Yezak by her statement, I know that I can get the death penalty with what I m charged with. Initiation, for the purposes of an Edwards analysis, is a statement or inquiry indicating an accused s desire for a generalized discussion about the investigation. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S. Ct. 2830, 2834-35, 77 L. Ed. 2d 405 (1983). The United States Supreme Court held that an accused initiated conversation by asking, Well, what s going to happen to me now? Id. The Court of Criminal Appeals found that an accused reinitiated communication with officers by asking, How is everyone in Georgia? Janecka v. State, 739 S.W.2d 813, 829 (Tex. Crim. App. 1987).

The only evidence at the suppression hearing came from Officer Yezak. He testified that Anderson broached the subject of the charges pending against her. He told Anderson, Let s not talk now, because he wanted to stop at the convenience store and make her aware of her rights before she spoke. After Yezak bought drinks and snacks, he read Anderson her rights, which she acknowledged she understood. Yezak testified that he asked Anderson if she had any questions and that she asked how Atomanczyk was doing. Yezak asked Anderson if she wanted to talk about the charges. He testified that he believed Anderson initiated the conversation when she told him she knew she was facing the death penalty.

Again, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given to their testimony. Green, 934 S.W.2d at 98. If the court's resolution of a controverted issue is supported by the record, we should not disturb that decision. Id. The only evidence of what took place in the patrol car came from Yezak. He testified that Anderson initiated the conversation concerning the charges. Once Anderson initiated the conversation, Yezak read her Miranda rights. Anderson waived her right to counsel prior to any questions from Yezak. She then discussed the details of her involvement in the crime. Thus, the court did not err in denying Anderson s motion to suppress her statements made to Officer Yezak. Id.

We overrule the point and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 9, 1997

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