Harold Ray Thomas v. Ruth Ann Thomas ( 1994 )

Thomas v. Thomas

IN THE

TENTH COURT OF APPEALS

No. 10-93-158-CV

     HAROLD RAY THOMAS,

                                                                                              Appellant

     v.

     RUTH ANN THOMAS,

                                                                                              Appellee

From the 249th District Court

Johnson County, Texas

Trial Court # 5068-93

                                                                                                    

O P I N I O N

                                                                                                    

      The court granted Ruth Ann Thomas and Harold Ray Thomas an agreed divorce, divided their property according to an agreed property settlement, and changed Ruth Ann's surname to Neel. Harold attacks the judgment in five points of error, claiming that the court erred by failing to divide a bank account and a business owned and operated by Ruth Ann, awarding her a house as separate property when there was insufficient evidence to support the award, granting the divorce on insufficient evidence, and approving the property division without discovering that he had not consented to the judgment. We affirm.

      Harold and Ruth Ann married on May 17, 1990 and separated on January 30, 1993. Ruth Ann filed for divorce on February 5, 1993. At the final hearing on the divorce, held on May 28, 1993, the parties presented the court with an agreed divorce decree. Ruth Ann and Harold each signed the decree as "approved as to form and to content." Both parties testified at the hearing. During Ruth Ann's testimony, her attorney reviewed the provisions of the agreed decree and asked if she was "in agreement with all that, and you're asking the Court to approve the decree that we've submitted." She responded "Yes, sir."

      When Harold testified, his attorney asked, "It's my understanding that while you're not the least bit anxious for this divorce to be granted, assuming that it is, then you wish the Judge to enter the decree awarding the property as it's been set out; is that correct?" Although Harold did not verbally respond to the question, the statement of facts indicates that, "Witness nods head." In his brief, Harold agrees that he nodded his head in response to this question. At the conclusion of the hearing the court approved the parties' agreement and granted the divorce. The court signed the judgment on the same day.

      On June 28, Harold moved for a new trial, requesting that the court set aside the divorce decree because he had not had adequate time to confer with his attorney and, so, had not been able to tell the attorney that he did not wish to consent to the agreed decree. Additionally, he alleged that the decree did not divide all of the property. After a hearing the court denied Harold's motion.

      Although the general rule is that an agreed judgment waives all error in rendering the judgment, a party's consent to a judgment can be attacked on appeal. See Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291-92 (1951). In point four, Harold claims that he did not consent to the judgment. He admits, however, that he nodded his head in agreement when his counsel inquired whether he was asking the court to divide the property in accordance with the agreed property division. Thus, to prevail on this point, he must show that the court had information which was "reasonably calculated" to cause it to inquire concerning his consent to the judgment and that the inquiry would have disclosed his lack of consent. See id. at 292.

      Essentially, he argues that the remark made by his attorney while questioning him about whether he consented to the property division—i.e., that he was "not the least bit anxious" to get the divorce—should have alerted the court that further inquiry was needed concerning his consent. We disagree. That he was "anxious" about the divorce being granted would not reasonably cause the court to question his consent to the decree, especially in light of the undisputed evidence that he clearly evidenced his consent by affirmatively nodding his head and by personally signing the judgment. The court did not abuse its discretion in denying the motion for a new trial based on a lack of consent. Point four is overruled.

      Agreed judgments excuse error and operate to end the controversy between the parties. See Ex parte Gorena, 595 S.W.2d 841, 844 (Tex. 1979); Boyett v. Boyett, 799 S.W.2d 360, 362 (Tex. App.—Houston [14th Dist.] 1990, no writ). Even if there is error in an agreed judgment, it cannot be attacked on appeal. See Boyett, 799 S.W.2d at 363-64. Thus, because he agreed to the judgment, Harold cannot attack the division of the property or the grant of the divorce. Points one, two, three and five, all of which attack the judgment, are overruled.

      If, as Harold argues, he has an unadjudicated claim in Ruth Ann's separate property business, his remedy is to file suit to have the court divide any undivided property. See Tex. Fam. Code Ann. § 3.90(a) (Vernon 1993).

      The judgment is affirmed.

 

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed March 30, 1994

Do not publish

, 40 F.3d 688, 692 (4th Cir. 1994); Trice v. United States, 662 A.2d 891, 895 (D.C. 1995); People v. Tritchler, 55 Cal. Rptr. 2d 650, 657 (Cal. Ct. App. 1996).  Concern for public safety, argued these Courts, is still present and continues to trump any concern regarding the suspect’s knowledge of his rights.  DeSantis, 870 F.2d at 540-41.  However, the exception extends only as far as the legitimate concern for safety.  Quarles, 467 U.S. at 657-59, 104 S. Ct. at 2632-34.  Where, as here, the suspect cooperates and the weapon is found, the need for reliance on this exception has ended.  The situation is governed by traditional Miranda rules.  See Berkemer v. McCarty, 468 U.S. 420, 429 n.10, 104 S. Ct. 3138, 3145 n.10, 82 L. Ed. 2d 317 (1984).  Under Miranda, where an accused is subjected to a custodial interrogation, he may properly invoke his right to have counsel present for that interrogation.  Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.  A suspect’s effective invocation of his right to counsel must be “scrupulously honored.”  See Michigan v. Mosley, 423 U.S. 96, 103, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313 (1975).  Thus, while the police had the authority not to Mirandize Russell, his invocation of his constitutional rights could not be ignored because the exigent circumstances had passed.

          Having established this was a custodial interrogation implicating the Fifth Amendment, we now turn to the question of whether Russell’s statement, “I need my cell phone to call my lawyer” was an effective invocation of his right to counsel.  Once a putative defendant has properly invoked his right to have counsel present during interrogation, questioning must cease unless initiated by the accused or unless the questioning is conducted in the presence of counsel.  Miranda, 384 U.S. at 474, 86 S. Ct. at 1628; Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1884-85.  A subsequent valid waiver of the right to counsel can be established only upon a showing that: 1) the accused initiated the communication with law enforcement, and 2) the accused gave a knowing and intelligent waiver of the right he had previously invoked.  Smith v. Illinois, 469 U.S. 91, 95, 105 S. Ct. 490, 492-93, 83 L. Ed. 2d 488 (1984); Cross v. State, 144 S.W.3d 521, 527 (Tex. Crim. App. 2004).

Triggering the “bright-line constitutional rule” of Edwards requires a clear and unambiguous statement requesting the assistance of counsel.  Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994); Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995).  Whether a statement properly invokes the right to counsel is an objective inquiry asking if the request can reasonably be construed as an expression of a desire of an attorney’s assistance.  Davis, 512 U.S. at 459, 114 S. Ct. at 2355; Dinkins, 894 S.W.2d at 351.  This review of the alleged invocation of the right to counsel looks to the totality of the circumstances.  Dinkins, 894 S.W.2d at 351.

          Russell’s statement that he needed his cell phone to call his lawyer was a clear and unequivocal invocation of his right to counsel.  No magic words are required to invoke that right.  Dinkins, 894 S.W.2d at 352.  Similar requests couched as questions or prefaced with ambivalent qualifiers have been rejected as ineffective.  See Davis, 512 U.S. at 462, 114 S. Ct. at 2357 (“Maybe I should talked to a lawyer.”); Saldana v. State, 59 S.W.3d 703, 710-711 (Tex. App.—Austin 2001, no pet.) (“If I wanted a lawyer, where would a lawyer come from?”); Flores v. State, 30 S.W.3d 29, 34 (Tex. App.—San Antonio 2000, pet. ref’d) (“Will you allow me to speak with my attorney before?”).  Such ambivalence, however, was not present here.  See Jamail v. State, 787 S.W.2d 372, 375 (Tex. Crim. App. 1990) (noting “Now it’s time for me to call my lawyer,” was effective); In re H.V., 179 S.W.3d 746, 755-56 (Tex. App.—Ft. Worth 2005, no pet.) (“I want to call my mother.  I want to ask her for an attorney.” effective for a minor).  This conclusion is buttressed by Officer Henderson’s response, “I’m not going to ask you any questions without your lawyer.”  Clearly, he understood Russell to be asking for an attorney.  Thus, the waiver of rights obtained by police before Russell’s statement is not knowing and intelligent because Russell had previously invoked his right to counsel and did not initiate the subsequent communication with the officers.  Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1884-85.

          Therefore, we hold that the trial court erred in concluding that the police question regarding the knife was not a custodial interrogation.  Russell clearly and unequivocally invoked his right to counsel, and in violation of the no-initiation rule of Edwards, the police obtained a waiver of Russell’s rights.  The court abused its discretion by overruling Russell’s motion to suppress.

Harmful Error

          We next must determine whether this error harmed Russell.  Where, as here, the appellate record in a criminal case reveals constitutional error, we must reverse a judgment unless we determine beyond a reasonable doubt the error did not contribute to the conviction or punishment.  Tex. R. App. P. 44.2(a).  We begin by reviewing the trial record to determine how the State used this confession.

          The State offered ample evidence of Russell’s guilt independent of his confession.  The arresting officer testified to having seen Russell flee the scene.  The knife and Russell’s statement regarding its location were properly admitted.  Three witnesses testified as to Russell’s having been upset at the victim, and additional witnesses testified to the details of the stabbing.

          Nevertheless, the State relied upon Russell’s confession extensively, both during its case-in-chief and during closing arguments.  Initially, the State played a recording of the confession for the jury during its direct examination of the detective who interrogated Russell.  Russell chose to take the stand and attempt to rebut the statements therein.[3]  The State then extensively cross-examined Russell with his confession, repeatedly questioning Russell as to factually incorrect statements which he originally gave to police.  In closing arguments at the guilt-innocence phase, portions of Russell’s statement were again played for the jury, and the State concentrated on discrepancies between Russell’s confession and his trial testimony.  “[A] true word could not come out of his mouth in that statement,” stated the prosecutor. This characterization of Russell as an untrustworthy liar continued in the punishment phase when the State told the jury, “[t]hat is the reason it’s not a probation case.  Because you’ve got to take a chance on a guy who will not tell you the truth at all.”

          The trial court instructed the jury on the affirmative defense of self-defense and the lesser charge of manslaughter.  The jury rejected these arguments and found Russell guilty of murder.  In the punishment phase, the jury found this was a crime of passion, assessing punishment at ten years’ imprisonment.  The jury rejected Russell’s request for community supervision or a lesser term of imprisonment.

The decision on harmlessness is not determined solely on the basis of whether there is sufficient evidence, independent of Russell’s inadmissible statement, for a reasonable jury to reach the same conclusion.  Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S. Ct. 1792, 1798, 100 L. Ed. 2d 284 (1988).  Instead, the question is whether the record shows, beyond a reasonable doubt, that the error complained of did not contribute to the verdict obtained.  Id.; McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001).  In assessing harm, we consider:

·       the source and the nature of the error;

 

·       the extent to which the State emphasized it;

 

·       the probable collateral implications of the error;

 

·       the weight a juror would probably place upon it, giving consideration to whether the record contains “overwhelming evidence supporting the finding;” and

 

·       whether declaring the error harmless would encourage the State to repeat it with impunity.

 

Roberson v. State, 100 S.W.3d 36, 41 (Tex. App.—Waco 2002, pet. denied); see also Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989).

The source of this error was the innocent misconduct of police, and the State’s reliance on this unconstitutionally obtained confession in trial.  During trial, this confession was repeatedly referenced, and portions of the recorded statement were played for the jury numerous times in questioning police and Russell.  The recording was also used in the State’s closing arguments.  Russell’s confession to police contained numerous fabrications, and the State used those lies to attack his character for truthfulness and trustworthiness.  The implications of the confession were that Russell was an untrustworthy liar who must be convicted and punished in a severe manner.  Russell’s defense was not that he did not commit the stabbing, but rather that the stabbing was justified as self-defense and that he lack the requisite mens rea to be guilty of murder.  The success of these defenses turned on the jury’s determination of Russell’s credibility, and it was his credibility which the State used the confession to undermine.  Despite the substantial evidence of guilt, there was little evidence of intent absent Russell’s confession. Though the record indicates this confession was not obtained in flagrant violation of constitutional rights, holding its admission harmless would encourage police and prosecutors to be less diligent in adhering to the rules of Miranda.

          While the evidence apart from the custodial statement is sufficient to support the verdict, we cannot find that there is no reasonable likelihood that the State’s use of Russell’s statement did not materially affect the jury’s deliberation.  See Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).  As the Court of Criminal Appeals recently stated, it is difficult to know that the thoughts of the jury regarding a particular piece of evidence, and although suppression of this evidence might not have altered the jury’s verdict and assessment of punishment, we cannot say so beyond a reasonable doubt.  Renteria v. State, No. 74-829, 2006 Tex. Crim. App. LEXIS 1919, at *16-17 (Tex. Crim. App. Oct. 4, 2006).  Therefore, we hold that the erroneous admission of Russell’s confession cannot be found beyond a reasonable doubt to have not contributed to the jury’s verdict of guilty of murder and its assessment of punishment.  Tex. R. App. P. 44.2(a).

“Although we are slow to overturn the verdict of a jury, when fundamental constitutional protections are violated, however innocently, we must uphold the integrity of that law.”  McCarthy, 65 S.W.3d at 56.  Accordingly, we reverse the judgment of the trial court and remand this cause for a new trial consistent with this opinion.

 

 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

          (Chief Justice Gray dissenting)

Affirmed

Opinion delivered and filed November 15, 2006

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[CRPM]   

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[1]               In addition to his Fifth Amendment claim, Russell also contends that the admission of his statement violated the Sixth Amendment, article I, section 10 and section 19 of the Texas Constitution, and articles 1.05, 38.03, 38.22 and 38.23 of the Texas Code of Criminal Procedure.  However, because Russell failed to present these contentions to the trial court, he did not preserve them for appellate review.  Tex. R. App. P. 33.1.

[2]               The State argued in at the trial court level that because there was a lapse of “more than a few moments” between the question regarding the knife and Russell’s request for his attorney, the interrogation had ended, and the request was void.  The State also placed some reliance on the fact that there is only one question asked. The argument was not raised before this Court, but it is nonetheless unpersuasive because these facts present a continuous encounter with police.  Clearly, this was still a part of the custodial interrogation when viewed from the perspective of the suspect.  United States v. Webb, 755 F.2d  382, 388 (5th Cir. 1985); see also Bush v. State, 697 S.W.2d 397, 403 (Tex. Crim. App. 1985) (incriminating statement as was the result of custodial interrogation despite more than 15 minutes since the time of the question and since the suspect’s last statement).

[3]               By taking the stand to rebut the statement offered against him, Russell did not waive his right to now claim harm where, in testifying, he offered testimony to rebut the evidence admitted over his objection.  See Leday v. State, 983 S.W.2d 713, 718-19 (Tex. Crim. App. 1998).