David Wayne Hart v. The State of Texas--Appeal from 249th District Court of Johnson County

NO. 10-90-173-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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DAVID WAYNE HART,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 249th Judicial District Court

Johnson County, Texas

Trial Court # 27487

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O P I N I O N

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Appellant, who was convicted of murdering his parents, argues that his convictions should be reversed because his oral and written confessions were not given voluntarily. Specifically, he complains that he did not have the requisite mental capacity to waive his rights and that his confessions were given after he invoked his right to counsel. We will affirm the judgment.

The court held a hearing on the admissibility of Appellant's confessions. See Jackson v. Deno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 and Vernon Supp. 1991). At the hearing, Officer McCravey, who had known Appellant for approximately one year, testified that he read Appellant his Miranda // rights, that he reviewed the rights one at a time, and that Appellant said he understood his rights and voluntarily waived them. McCravey claimed that he "was satisfied that [Appellant] understood" his rights and voluntarily waived them. Later, when being questioned by Ranger Turner, Appellant orally confessed that he murdered his parents and led officers to the location of their bodies. Despite Appellant's stuttering, which got worse when he was excited, he was able to describe how his parents' bodies would be found. Turner then took Appellant to the police station, read him his rights, and took his written confession. Before giving the written statement, Appellant told Turner that he understood his Miranda rights and was waiving them voluntarily.

At the hearing, Appellant introduced into evidence a medical report from Vernon State Hospital, where he had been examined by Dr. Martinez prior to trial. The report reflected that Appellant, who had been in special education classes, was

oriented in three spheres. He could take into account all of the elements in his immediate surroundings. There is no depersonalization or clouding of consciousness. Attention span and rapport are fair. There is no gross disturbance in his memory for remote or more recent events. Judgment is immature and impaired. Speech is spontaneous, clear and relevant most of the time. Rational thinking is not possible. Thought content is disturbed. He is delusional.

However, Dr. Martinez concluded that Appellant was competent to stand trial, able to consult with his attorney with a reasonable degree of rational understanding, and could rationally and factually understand the proceedings against him.

Based on the testimony and evidence presented at the hearing, the court made the following findings regarding the oral and written confessions:

(1) All warnings required by Article 38.22 Sec. 2 V.A.C.C.P. were given to [Appellant] prior to making the statement to George Turner of the Texas Rangers.

(2) [Appellant] prior to and during the making of the statement, knowingly, intelligently, intentionally, freely and voluntarily waived the rights set out in the warnings prescribed by Article 38.22 Sec. 2(a) V.A.C.C.P., and that the statement was freely and voluntarily given by [Appellant], and that Article 38.22 Sec. 2 was fully complied with.

(3) [Appellant] had sufficient mental capacity to understand the warnings and rights given to him as required by Article 38.22 Sec[.] 2(a) V.A.C.C.P. and [had] the sufficient mental capacity to knowingly, intelligently[,] intentionally, freely and voluntarily waive these rights and that [Appellant] did so.

At a Jackson v. Deno hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Burks v. State, 583 S.W.2d 389, 393 (Tex. Crim. App. 1979), cert. denied, 448 U.S. 907, 100 S. Ct. 3050, 65 L. Ed. 2d 1136 (1979). Furthermore, the court's findings will not be disturbed unless there is an abuse of discretion. Taylor v. State, 630 S.W.2d 824, 826 (Tex. App. Houston [1st Dist.] 1982, no pet.).

Appellant claims in points one and two that his oral and written confessions were involuntary because he did not have the mental capacity to waive his rights. When reviewing a complaint that a confession was not voluntary, the evidence must be viewed in light of the totality of the circumstances. Berry v. State, 582 S.W.2d 463, 465 (Tex. Crim. App. [Panel Op.] 1979).

A mental defect may be significant enough to render a confession inadmissible. Page v. State, 614 S.W.2d 819, 819-20 (Tex. Crim. App. [Panel Op.] 1981). A confession, however, is not inadmissible merely because the defendant is illiterate, is poorly educated, is of subnormal intelligence, and was a special education student. Rodriquez v. State, 634 S.W.2d 48, 50 (Tex. App. Amarillo 1982, no pet.). Furthermore, even a defendant whose IQ places him in a borderline mentally retarded classification is mentally capable of knowingly and intelligently waiving his rights. White v. State, 591 S.W.2d 851, 858-59 (Tex. Crim. App. 1979).

Officer McCravey, who had known Appellant for approximately one year, claimed that he was "satisfied" that Appellant understood his rights and voluntarily waived them. Appellant was able to lead Ranger Turner to his parents' bodies and even described how the bodies would be found. Furthermore, Dr. Martinez concluded that Appellant was competent to stand trial, could consult with an attorney, and understood the proceedings against him. We hold that, in light of the totality of the circumstances, the court did not abuse its discretion when it determined that Appellant had sufficient mental capacity to understand the warnings and rights given to him and had sufficient mental capacity to knowingly, intelligently, intentionally, freely and voluntarily waive those rights. See Taylor, 630 S.W.2d at 826; Berry, 582 S.W.2d at 465. Accordingly, points one and two are overruled.

At the Jackson v. Deno hearing, Turner testified as follows:

A I told [Appellant] that I thought he was a suspect in what had occurred at [his parents'] house.

Q And did he respond?

A He did.

Q How did he respond, sir?

A He told me, he said, "Well, if I killed [my parents], what would happen to me?"

Q Did you respond to that, sir?

A I did.

Q What did you tell him?

A I told him, I said-- He asked, "What would happen to me?" I said, "Well-- I told him that if you're involved in this, you will probably need an attorney and perhaps he could help you.["]

Q Okay. How did he respond to that?

A He said-- Then he said, "I need some help, don't I?"

Q And what happened next, sir?

A I asked him, I said, "Did you kill them both?" He said, "Yes, I did."

Appellant's third point is that his statement, "I need some help, don't I," invoked his right to counsel. He argues, therefore, that the subsequent question was improper and his resulting confession was inadmissible. However, Turner claims that, based on his observations, he believed that Appellant was asking for a doctor when he said he needed help.

A defendant has the right to request that an attorney be present to advise him during any questioning. Tex. Code Crim. Proc. Ann. art. 38.22(2)(a)(3) (Vernon 1979). If a defendant invokes this right, any subsequent confession is admissible only if he initiates further discussions with the police or knowingly and intelligently waives the right he has invoked. Smith v. State, 779 S.W.2d 417, 426 (Tex. Crim. App. 1989). Furthermore, a defendant's statements to an officer, although not an explicit demand for an attorney, which indicate in some manner that he wants to exercise his right to counsel are sufficient to invoke his right to counsel and require that the interrogation cease. Ochoa v. State, 573 S.W.2d 796, 800 (Tex. Crim. App. 1978). Such a statement must, however, be a "clear" assertion of the desire to invoke a right to counsel. Russell v. State, 727 S.W.2d 573, 575-76 (Tex. Crim. App. 1987). Each case must be individually considered to determine whether a defendant's statement invoked his right to counsel. Id. at 576.

The court determines the credibility of the witnesses and the weight to be given their testimony. Burks, 583 S.W.2d at 393. Apparently, the court believed Turner's testimony and did not find that Appellant "clearly" invoked his right to counsel. We cannot say that the court abused its discretion when it determined that Appellant did not invoke his right to counsel. See Taylor, 630 S.W.2d at 826.

Assuming, however, that Appellant's statement did invoke his right to counsel, his oral confession would have been inadmissible. However, any error in admitting the oral statement was harmless because the record shows that Appellant subsequently, knowingly and intelligently waived his Miranda rights and gave a written confession, which was also admitted into evidence. See Daniel v. State, 668 S.W.2d 390, 392 (Tex. Crim. App. 1984); Furtick v. State, 592 S.W.2d 616, 617-18 (Tex. Crim. App. [Panel Op.] 1980). Point three is overruled and the judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed August 1, 1991

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