Alton CHARLES, Appellant, v. The STATE of Texas, Appellee, 424 S.W.2d 909

OPINION DICE, Judge. The offense is murder; the punishment, death. The deceased, Andrew Judge Roe, a sixty-six-year-old retired lake property caretaker and game warden, lived near Caddo Lake in Harrison County. On the morning of March 3, 1966, his dead body was found lying on a sidewalk at the rear of his home. He had been shot in the chest with a shotgun, and it was apparent he had been murdered.

In the investigation which ensued, the appellant, an eighteen-year-old Negro boy in the eleventh grade at school, was brought to the office of District Attorney Charles Allen on the morning of March 11, 1966, for interrogation. District Attorney Allen proceeded to talk to appellant and, at such time, advised him he was under investigation. Appellant was then taken before Justice of the Peace J. G. Stauts, who advised him of his rights prescribed by Art. 15.17 of the 1965 Code of Criminal Procedure, which included his right to retain counsel of request the appointment of counsel and the right to remain silent.

Appellant was also advised of his right not to take a polygraph examination. At such time he consented to take a test. No charges were filed against appellant and he was released. On March 17, appellant voluntarily accompanied Officers Shivers and Little to Dallas for the purpose of taking a polygraph examination. After the test was given, appellant gave a statement to District Attorney Allen in which he confessed to having killed the deceased on the night of March 2, 1965, by shooting him with a gun.

Prior to making and signing the confession in Dallas, which was introduced in evidence, appellant was warned by the district attorney that he did not have to make a statement and that any statement he did make could be used in evidence against him. Appellant was not, however, taken before a magistrate in Dallas and warned of his rights enumerated in Art. 15.17, supra. The confession introduced in evidence by the state as state’s exhibit #2, read, in part, as follows: “I, Alton Charles, after first being duly warned by J. G.

Stauts, who is the Justice of the Peace of Marshall, Texas, at 10:30 A_M., at Marshall, Texas— on March 11, 1966, of the accusation against me and the affidavit, if any, filed in support of such accusation; that I have a right to retain counsel; that if I am unable to obtain counsel that I can request the appointment of counsel; that I have a right to an examining trial; that I am not required to make any statement at all and that any statement I do make may be used against me; and Charles A.

Allen, the person to whom this statement is made, also warned me that I do not have to make any statement at all; that I have a right to consult with a lawyer; and that any statement made by me may be used in evidence against me in the trial or trials of the offense or offenses concerning which this statement is made, do hereby make the following voluntary statement: * * Appellant objected to the confession on the ground that it had not been taken according to law and was in violation of the decisions of the Supreme Court of the United States in Gideon v.

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; and Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. He also objected on the ground that he had not been taken before a magistrate, as required by Art. 38.22, Vernon’s Ann.C.C.P., and warned of his rights under Art. 15.17, supra. Appellant’s first ground of error is that the court erred in admitting the confession in evidence.

It is appellant’s contention that the confession was not legally obtained because he was not first taken before a magistrate in Dallas, pursuant to the provisions of Art. 38.22, V.A.C.C.P., and warned of his rights enumerated in Art. 15.17, supra. Art. 38.22, supra, at the time appellant’s written confession was made, provided in part as follows: “When confession shall not be used “(

a) The confession shall not be admissible if the defendant was in jail or other place of confinement or in the custody of an officer at the time it was made, unless: “1. It be shown to be the voluntary statement of the accused taken before an examining court in accordance with law, or “2. It be made in writing and signed by the accused and shows that the accused has at some time prior to the making thereof received the warning provided in

Article 15.17. It must further show the time, date, place, and name of the magistrate who administered the warning. It must further show that the person to whom the confession is made warned the accused: First, that he does not have to make any statement at all.

Second, that any statement made by him may be used in evidence against him on his trial for the offense concerning which the confession is therein made * * Art. 15.17, supra, at the time, provided: “Duties of arresting officer and magistrate “In each case enumerated in this Code, the person making the arrest shall immediately take the person arrested before some magistrate of the county where the accused was arrested.

The magistrate shall inform the person arrested of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to request the appointment of counsel if he is unable to obtain counsel, and of his right to have an examining trial. He shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him.

The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowed by law.” The state concedes that appellant was not taken before a magistrate in Dallas on March 17 and warned of the rights enumerated in Art. 15.17 but insists that such was unnecessary in view of the fact that he was taken before a magistrate in Harrison County on March 11 and warned of his rights under Art. 15.17, supra. We agree with the state’s position.

Art. 38.22, supra, only requires that an accused receive the warning provided in Art. 15.17, supra, “at some time” prior to making the confession. This was complied with in the instant case, and the lapse of six days did not, under the circumstances, vitiate such warning. Although appellant was not under arrest on March 11, he was the subject of investigation in the case and the warning was properly given him at that time. No issue was raised by appellant as to the voluntary nature of the confession, and the requirement of Jackson v.

Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, that the court make an independent finding on the issue before admitting the confession in evidence was not applicable. Ex parte Roper, Tex.Cr.App., 408 S.W.2d 929. There is no evidence that appellant was in any manner denied the assistance of counsel during his interrogation and the making of his confession. The record affirmatively shows that he was advised of his right to remain silent and his right to counsel. Such is specifically recited in the confession which he executed and signed.

Under the record, we find that the confession was not obtained in violation of the rules prescribed by the Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, wherein the court summarized its holdings in Gideon v. Wainwright and Escobedo v. State of Illinois, and overrule the first ground of error.

Our holding that the confession was legally obtained, and no issue having been made as to the legality of his arrest, disposes of appellant’s contention that the subsequent finding of the murder weapon and the introduction in evidence of photographs showing appellant’s reenactment of the crime was in violation of the “fruits of the poisonous tree” doctrine discussed in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, and such contention is overruled. In this connection it should be pointed out that appellant made no such objection to the evidence when offered at the trial.

In his remaining ground of error, appellant insists that the court erred in refusing to grant a mistrial when reference was made to a polygraph test during the questioning of Ranger Elliott by the state. The record reflects that, on redirect examination of the officer by the district attorney, the following transpired: “Q. Do you know how many persons submitted to investigations in this case? A. Yes, sir. We had already carried two to Dallas for the purpose of polygraph tests. “MR.

WATSON: We object to the introduction of any polygraph test— Judge, or the mention, and ask for a mistrial to be granted here for the reason it is not admissible for any purpose- “THE COURT: I thought he was talking about the others. “MR. WATSON: No, sir, he said that he carried two to Dallas for a polygraph test, and we object to the introduction or the statement of the polygraph test in this case, the injection of it into the case in any way. “THE COURT: I will sustain the objection to that. “MR. WATSON: And, we ask that a mistrial be granted in this case. “THE COURT: I will overrule that motion. “MR.

WATSON: We feel, your Honor, that it is like carrying a skunk in here and telling the jury not to smell it, and it is impossible to cure it by that, and for that reason we are going to ask the court to grant us a new trial in this case, and declare a mistrial. “THE COURT: I overrule your motion. “MR. WATSON: Note our exception. I will ask the court then to instruct the jury not to consider a polygraph test or any other scientific test for any purpose whatsoever. “THE COURT: You will not consider that statement that Mr. Elliott made about two people having taken the test in Dallas. “MR.

ALLEN: Two other people, your Honor. “THE COURT: Two other people. Not the defendant. “MR. ALLEN: No further questions.” From the record, it appears that the reference to taking a polygraph test related to other people and not the appellant. This would not constitute reversible error under the rule announced in Peterson v. State, 157 Tex.Cr.R. 255, 247 S.W.2d 110, 248 S.W.2d 130, cited by appellant. The ground of error is overruled. The judgment is affirmed.