William BENNETT v. The STATE of Texas, 686 S.W.2d 235

COUNTISS, Justice. Appellant was convicted of murdering Phillis Fassauer and sentenced to 75 years in the penitentiary. In this Court he contends, by four grounds of error, that the confession used against him was inadmissible. We affirm. On November 17, 1981, a friend found the bodies of Robert Phillips and Phillis Fassauer in Phillips’ home. Both had been shot to death. Two days later, appellant’s sister told police he had admitted killing them.

Acting on her information, police prepared an “Affidavit for Search and Arrest Warrant.” The document failed to request an arrest warrant, however, and police were issued only a search warrant for appellant’s car. Officers then went to the residence of an individual named Jim Shelnutt to execute the warrant. Several officers began to search appellant’s car, which they found parked outside Shelnutt’s residence, while another officer went to the house and attempted to rouse the occupants. After no one responded to his knocks and yells, the officer kicked in the door.

Espying appellant sitting on a couch and smoking a marijuana cigarette, the officer arrested him for murder. A few hours later, at 4:30 a.m. on November 20, 1981, after receiving appropriate admonitions and after observing that his sister was cooperating with police, appellant gave a statement admitting that he shot Phillips and Fassauer, implicating no one else and suggesting some elements of self-defense as to Phillips. Appellant was subsequently arraigned and counsel was appointed to represent him. A week later, appellant told a jailer he wanted to talk to the officers who had taken his confession.

The jailer relayed the request, but the officers did not respond. Appellant repeated the request the next day and the two officers then met with him. At that time, appellant said he wanted to tell them about Jim Shelnutt’s involvement in the murder. The officers read Bennett his rights again and, according to one of the officers, “We discussed the fact that he had a lawyer and could have him over there.

And he indicated that he didn’t want his lawyer there.” Appellant then made a second statement, more detailed than the first, admitting the murders and revealing that Shelnutt hired him to kill Phillips for $1,000 worth of “crystal.” At the trial, the State introduced only the second statement, which the trial court found was given, after appropriate warnings, freely and voluntarily and “was not tainted by any arrest of ... [appellant] prior to the giving of the statement.” In this Court, appellant launches a dual attack on the statement.

First, by grounds one and two, he argues that its admission violated the Fourth Amendment of the U.S. Constitution and Art. 1, § 9 of the Texas Constitution because appellant’s warrant-less arrest was illegal, the first statement was fatally tainted by the illegal arrest and the first statement fatally tainted the second. Next, by grounds three and four, he argues that the taking of a second statement after appellant was represented by counsel violated his rights under the Sixth Amendment of the U.S. Constitution and Art. 1, § 10 of the Texas Constitution. We will resolve the arguments in the order stated.

In determining whether the second statement was fatally tainted by the events preceding it, as asserted by grounds one and two, we will assume, without deciding, that the warrantless entry into the house where appellant was arrested was illegal and the first confession inadmissible. Also, we will resolve both constitutional challenges under one analysis, because appellant’s protections under Art. 1, § 9 are the same as his Fourth Amendment protections. Brown v. State, 657 S.W.2d 797, 798-99 (Tex.Crim.App.1983).

The controlling question, then, is whether the statement admitted into evidence was a product of appellant’s arrest and first statement, or of legal means sufficiently separate from the arrest “to be purged of the primary taint.” Duncan v. State, 639 S.W.2d 314, 317 (Tex.Crim.App. 1982). In this problem area, each case is to be resolved on its own facts. Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975). The threshold question is whether the confession was voluntary under Miranda. Brown, 422 U.S. at 604, 95 S.Ct. at 2262.

Other significant factors are “ ‘[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, ... and, particularly, the purpose and flagrancy of the official misconduct.’ ” Taylor v. Alabama, 457 U.S. 687, 690, 102 S.Ct. 2664, 2667, 73 L.Ed.2d 314 (1982), quoting Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62. A case factually comparable to this one is Wicker v. State, 667 S.W.2d 137 (Tex.Crim.App.1984). In that case, the arrest was illegal because the arrest warrant was not based on probable cause.

During the defendant’s detention, he gave certain written and oral statements at the outset that were not used at trial. In the interum he was given repeated Miranda warnings, was taken before a magistrate, and was not subjected to improper influence from the police. The written confession used at trial came five days after the illegal arrest. Between the giving of the statements not used and the one admitted into evidence, the defendant was allowed to meet with lawyers, his family, and a psychiatrist. Probable cause was developed after the arrest but before the last written statement.

The Court of Criminal Appeals held that the last written statement “was not the result of exploitation of the arrest and prior statements. We find no causal relationship between the prior statements and the written statement admitted at trial.” Id. at 141. In this case, ten days separated the arrest from the second confession. Appellant was given thorough Miranda warnings several times, was taken before a magistrate, and was not subjected to improper influence from the police. From the statement, we know he consulted his lawyer several days before he gave the statement.

From the record we are satisfied that the immediate cause of appellant’s first confession was his confrontation with his sister and the realization that she would probably testify for the State. Finally, the State had probable cause to arrest Bennett at the time it obtained the search warrant, so that the warrantless entry, while disconcerting and generally intolerable, was not done to illegally circumvent arrest requirements. Thus, after careful consideration of all the surrounding circumstances, we conclude, consistent with Wicker, supra, that the second statement was not fatally tainted.

Grounds one and two are overruled. Having found that the second statement was not tainted, by appellant’s arrest and first statement, we must next determine whether it was obtained in violation of his state and federal rights to counsel, as he contends in his third and fourth grounds. Here, also, we apply a single analysis to both grounds. See Parker v. State, 545 S.W.2d 151, 155 (Tex.Crim.App.1977). The filing of formal charges activates the Sixth Amendment right to counsel, Rudd v.

State, 616 S.W.2d 623, 624 (Tex.Crim.App.1981), and forbids the State from eliciting incriminating statements from a defendant in the absence of his counsel. Brewer v. Williams, 430 U.S. 387, 400, 97 S.Ct. 1232, 1240 (1977). The right to counsel may be waived, however, and the standard for showing a waiver of the Sixth Amendment right to counsel is the same as that for the Fifth Amendment, once counsel has been requested: the waiver must be voluntary, knowing and intelligent. Green v. State, 667 S.W.2d 528, 532 (Tex.Crim.App.1984).

The burden is on the State to show such a relinquishment of rights, and courts should indulge every reasonable presumption against such a waiver. Parker v. State, 545 S.W.2d 151, 155 (Tex. Crim.App.1977). Courts must test the waiver in light of the totality of the circumstances. Castro v. State, 562 S.W.2d 252, 258 (Tex.Crim.App.1978). Here, appellant had his rights read to him several times before each statement was given and expressly waived his right to counsel, in writing, in the second statement. See Williams v. State, 566 S.W.2d 919, 923 (Tex.Crim.App.1978).

There was also evidence that he expressly waived his right to counsel orally before the statement was prepared. Appellant’s oral and written statements are strong evidence of the validity of the waiver. Kelly v. State, 621 S.W.2d 176, 180 (Tex.Crim.App.1981). ■ Additionally, we note that appellant was twenty-five years old, had at least some high school education, and was able to read. Although he presented evidence of emotional and possibly neurological problems, nothing in the record indicates he lacked the capacity to waive his rights.

Most significantly, it was appellant who made two separate requests for the interview that led to the second confession. Phifer v. State, 651 S.W.2d 774, 778 (Tex.Crim.App.1983); Kelly, 621 S.W.2d at 180. Thus, from the totality of the circumstances, the trial court did not err in finding that appellant waived his right to counsel “knowingly” and “of his free will, and that he was not denied the assistance of counsel.” The judgment of conviction is affirmed. . The second statement is set out in full as "Appendix A" of this opinion. .

We reserve the right to resolve those matters, should it later become necessary to do so, without any assumptions of impropriety. We have serious doubts about appellant’s standing to challenge the warrantless entry at the time of this arrest. See United States v. Torres, 705 F.2d 1287, 1296 (11th Cir.1983); United States v. Renton, 700 F.2d 154, 161 (5th Cir.1983); Lewis v. State, 598 S.W.2d 280, 283-84 (Tex.Crim.App. 1980); Willeford v. State, 454 S.W.2d 745, 746 (Tex.Crim.App.1970); Gaskin v. State, 365 S.W.2d 185, 186 (Tex.Crim.App.1963). See gen erally 3 LA FAVE, SEARCH & SEIZURE § 11.3 at 554-55 (1978). .

Unlike the defendant in Pitts v. State, 614 S.W.2d 142, 143 (Tex.Crim.App.1981), appellant was not confronted with tainted evidence. If an impetus for confession exists, untainted by and separate from the illegal arrest, then it should be given some consideration when deciding whether the confession was a fruit of the arrest. Brewer v. State, 271 Ark. 810, 611 S.W.2d 179, 182 (1981); People v. Gabbard, 78 Ill.2d 88, 34 Ill.Dec. 751, 398 N.E.2d 574, 579 (1979); Commonwealth v. Barnett, 471 Pa. 34, 369 A.2d 1180, 1183-84 (1977).

The question is not whether the intervening events are the sole cause of the confession, but whether the confession '"was sufficiently

an act of free will to purge the primary taint.’” Brown v. Illinois, 422 U.S. at 599, 95 S.Ct. at 2259 (emphasis added in Brown), quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).