Jerrell Jerjuan Fultcher v. State ( 2011 )

Opinion issued June 9, 2011.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00199-CR

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Jerrell Jerjuan Fultcher, Appellant

V.

The State of Texas, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Case No. 1154993

MEMORANDUM OPINION

          A jury convicted appellant Jerrell Jerjuan Fultcher of murder and sentenced him to thirty years’ imprisonment. On appeal, he asserts that the trial court erred in overruling a motion to suppress his confession because police continued to question him after he requested an attorney, in violation of his constitutional rights.

Background

          Police arrested Fultcher for murder and transported him to a magistrate judge who read him his rights. The judge asked Fultcher if he understood his rights, and he replied that he did. The police also gave Fultcher a written copy of the statutory warnings. Officer Guerrero, the arresting officer, then escorted Fultcher to an interview room at the precinct. After Fultcher indicated that he was hungry, Officer Guerrero purchased fast food meals for himself and Fultcher, which they ate together in the interview room. Officer Guerrero and Fultcher made small talk during the meal, but they did not discuss Fultcher’s case. Near the end of the meal, Fultcher stated that he wanted to talk to Officer Guerrero, but that he wanted an attorney present. Officer Guerrero responded that he wanted to advise Fultcher of his rights on tape, and activated a videotape recording device. Officer Guerrero then read Fultcher his legal rights. Fultcher repeated his request for counsel. Officer Guerrero terminated their discussion at that point and left the room.

          After leaving the room, Officer Guerrero went back to his desk and called a patrol unit to pick up Fultcher and transport him to the jail. Officers Garcia and Andrade were dispatched to transport Fultcher. Before they left, the transporting officers went into the interview room to collect information, such as Fultcher’s name and birth date, for transportation paperwork. Fultcher and the officers did not discuss Fultcher’s case. When Officer Andrade asked Fultcher if he needed to use the restroom or anything else before they left, Fultcher asked Officer Andrade to allow him to speak with Officer Guerrero. Prior to Fultcher’s request, neither Officer Garcia nor Officer Andrade raised the possibility of continuing Fultcher’s interrogation. At the time of Fultcher’s request, approximately thirty minutes had passed since Officer Guerrero left the interview room. Officer Andrade left the room and informed Officer Guerrero of Fultcher’s request.

          Officer Guerrero returned to the interview room and asked Fultcher what he wanted. Fultcher stated that he wanted to talk to Officer Guerrero. Officer Guerrero agreed to speak with Fultcher and turned the recorder back on. After turning on the recorder, Officer Guerrero read Fultcher his rights again, and Fultcher responded that he understood his rights. Officer Guerrero inquired whether Fultcher had been threatened or coerced, and Fultcher responded that he had not. In his statement, Fultcher admitted to committing the murder.

          Before his trial, Fultcher moved to suppress his statement, asserting he made it involuntarily, that he was coerced, and that the officers took his statement in violation of his right to counsel. The trial court held two hearings on Fultcher’s motion to suppress, and it heard testimony from Fultcher and Officers Guerrero and Andrade. The court concluded that Fultcher’s statement was given voluntarily after he was advised of and understood his rights. The court further concluded that the Officers honored Fultcher’s request for counsel and did not interrogate him until after he reinitiated communication with Officer Guerrero and freely and voluntarily waived his right to counsel. On this basis, the trial court denied the motion to suppress. It admitted the recorded statement into evidence at trial.

Admissibility of Fultcher’s Statement

          A.      Applicable Law

The United States Supreme Court decision in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and article 38.22 of the Texas Code of Criminal Procedure protect suspects subjected to custodial police questioning. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (stating that both article 38.22 and Miranda apply when persons are in custody and being interrogated); Ervin v. State, 333 S.W.3d 187, 225–27 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (same). Under Miranda and article 38.22, an accused has a right to remain silent and to have an attorney present during custodial interrogation; the accused must be informed of these rights before any custodial interrogation. Miranda, 384 U.S. at 478–79, 86 S. Ct. at 1630 (interpreting Fifth and Fourteenth Amendments of U.S. Constitution); Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005). After an individual is informed of his rights, he may knowingly, intentionally and voluntarily waive his rights. Miranda, 384 U.S. at 478–79, 86 S. Ct. at 1630; Tex. Code Crim. Proc. Ann. art. 38.22. If the individual requests counsel, the interrogation must cease until an attorney is present. Id. at 474, 86 S. Ct. at 1627. Once the individual has invoked his right to have counsel present during custodial interrogation, a subsequent waiver of that right cannot be established by showing that he responded to further police-initiated interrogation; rather, a subsequent waiver of the right to counsel is valid only if the accused initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S. Ct. 1880, 1884–85 (1981).

At the hearing on the motion to suppress, the State bore the burden of demonstrating, by a preponderance of the evidence, that Fultcher waived his rights knowingly, intelligently, and voluntarily. Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). Here, this must include a showing that Fultcher, rather than the police, re-initiated communication after Fultcher requested counsel. See Edwards, 451 U.S. at 484–85, 101 S. Ct. at 1884–85; Herron v. State, 86 S.W.3d 621, 628 (Tex. Crim. App. 2002) (observing that, under Miranda, interrogation must cease until attorney is present if accused requests counsel but that Supreme Court recognized in Edwards “that an accused could waive his prior election by initiating further communication with the police.”).

In reviewing a trial court’s decision on the admission of a confession, we defer to the trial court’s determination of historical facts while reviewing the trial court’s application of law de novo.   Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The trial court, as the sole trier of fact, evaluates the credibility of the witnesses and determines the weight to be given to their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007).

B.      Analysis

          The trial court’s findings do not support Fultcher’s contention that the police took his statement in violation of his right to an attorney. The trial court found that Officer Guerrero terminated Fultcher’s interrogation after Fultcher requested counsel, that Officers Andrade and Garcia did not interrogate Fultcher but only asked whether Fultcher needed anything, and that Fultcher then reinitiated communication by requesting to speak with Officer Guerrerro. The trial court also found that Fultcher was read his rights multiple times and understood them, that Fultcher was never threatened or coerced in any manner, and that the officers’ testimony at the hearing was true and credible but Fultcher’s testimony was not.

Fultcher does not challenge the trial court’s application of the law but instead asserts that the trial court incorrectly concluded that Fultcher reinitiated communication with the police. Fultcher and Officer Andrade gave conflicting testimony as to how communication was reinitiated, and the trial court resolved this factual dispute based on the credibility of each witness. We defer to the trial court’s determination that the officers’ testimony was more credible than Fultcher’s testimony. See Wiede, 214 S.W.3d at 24–25; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Officer Andrade’s testimony supports the trial court’s finding that Fultcher reinitiated communication. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (“If the trial court’s findings of fact are supported by the record, an appellate court is not at liberty to disturb them[.]”).

Because the trial court found that Fultcher reinitiated communication and then voluntarily, intelligently, and knowingly waived his previously asserted right to counsel before making his statement, we hold that the trial court did not abuse its discretion in admitting the statement at trial. See Herron, 86 S.W.3d at 629; Hunter v. State, 148 S.W.3d 526, 530 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

Conclusion

          We affirm the judgment of the trial court.

                                                                   Jane Bland

                                                                   Justice                                                                 

Panel consists of Justices Keyes, Higley and Bland.

Do not publish.   Tex. R. App. P. 47.2(b).