Opinion
NUMBER 13-16-00157-CR
08-17-2017
DARREN McGREGORY BRYANT, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court of Jackson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Longoria
By a single issue, appellant Darren McGregory Bryant challenges his conviction for one count of assault involving family violence. See TEX. PENAL CODE ANN. § 22.01(b)(2) (West, Westlaw through 2017 R.S.). Under the circumstances of this case, the offense was a second-degree felony. See id. § 22.01(b-1). We affirm.
I. BACKGROUND
Following his arrest for assaulting the complainant, appellant completed a form stating he was indigent and requested the appointment of counsel. Appellant appeared before a magistrate who approved his request and used another portion of the form to appoint an attorney to represent him. See TEX. CODE CRIM. PROC. ANN. art. 15.17(a) (West, Westlaw through 2017 R.S.) (setting out the magistrate's responsibilities during the initial appearance of an accused). Later, a grand jury investigating the alleged assault summoned appellant to appear before it but did not notify his counsel.
The form bearing appellant's request for counsel and the court's appointment was filed with the district clerk but never offered into evidence. Nevertheless, appellant brought the form to the attention of the court during trial and the State refers to it extensively in its brief to this Court. Because the truth of the content of the form can be readily ascertained from the district clerk's office, we grant the State's request to take judicial notice of the form. See TEX. R. EVID. 201(b)(2) (allowing a court to take judicial notice of a fact that is not subject to reasonable dispute because it "can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned").
Appellant appeared before the grand jury on July 20, 2015. It is undisputed that he was not accompanied by his counsel and did not consult with him beforehand. A prosecutor admonished appellant regarding his rights orally and in writing as required by statute. See id. art. 20.17 (West, Westlaw through 2017 R.S.) (describing how a suspect or accused person should be questioned by a grand jury). The prosecutor asked appellant whether he wanted to waive his rights and testify before the grand jury. Appellant agreed and said: "I want to answer questions." The prosecutor gave appellant a written version of the admonishments, went through each one with him again, and told appellant to sign at the bottom of the form if he wished to waive his rights and testify. The waiver form is not part of the record, but appellant subsequently testified regarding the events leading to his arrest. The grand jury returned an indictment charging appellant with two counts of assault involving family violence.
Appellant pled not guilty, and the case was tried to a jury. The State offered into evidence an audio recording of appellant's grand jury testimony. Appellant asked the court to exclude the recording because it was obtained in violation of his right to counsel protected by the Fifth and Sixth Amendments. The trial court overruled his objection and admitted the recording, which was then played for the jury.
The jury found appellant guilty of Count 2 of the indictment. Following a punishment trial, the jury found three enhancement paragraphs to be true and assessed punishment at imprisonment for life in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.
Count 1 omitted the allegation in Count 2 that appellant was previously convicted of an assault involving family violence but was otherwise the same. See TEX. PENAL CODE ANN. § 22.01(b)(2), (b-1). The court's charge instructed the jury not to consider Count 1 if it found appellant guilty of Count 2.
II. GRAND JURY TESTIMONY
Appellant asserts in a single issue that the trial court erred in admitting his testimony because it was obtained in violation of his Sixth Amendment right to counsel.
Appellant does not renew his Fifth Amendment objection on appeal.
A. Standard of Review and Applicable Law
We review a trial court's decision to admit or exclude evidence for a clear abuse of discretion. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Id. We will uphold the trial court's ruling if it is correct on any applicable theory of law. Id.; De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
The Sixth Amendment right to counsel attaches "once the adversary judicial process has been initiated" and "guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings." Pecina v. State, 361 S.W.3d 68, 77 (Tex. Crim. App. 2012) (citing Montejo v. Louisiana, 556 U.S. 778, 786 (2009)). Custodial interrogation by the police or another agent of the State is such a stage. Hughen v. State, 297 S.W.3d 330, 334 (Tex. Crim. App. 2009). In Texas, a defendant's initial appearance before a magistrate under article 15.17 of the Texas Code of Criminal Procedure generally marks the start of adversarial judicial proceedings and "plainly signals" the attachment of the Sixth Amendment right to counsel. Rothgery v. Gillespie County, Tex., 554 U.S. 191, 212 (2008); Pecina, 361 S.W.3d at 77.
The Sixth Amendment right to have counsel present during interrogation may be waived as long as the waiver is "voluntary, knowing, and intelligent." Montejo, 556 U.S. at 786; Hughen, 297 S.W.3d at 334. "The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled." Montejo, 556 U.S. at 786; see Michigan v. Harvey, 494 U.S. 344, 352-53 (1990).
B. Analysis
Appellant asserts that an appearance before the grand jury was a critical stage of the proceedings against him where he was entitled to the assistance of counsel. And, because appellant had no opportunity to consult with his counsel before waiving his rights, the waiver was necessarily not knowing or voluntary. The State responds that the fact that appellant was already represented by counsel does not mean the waiver was invalid.
We agree with the State. Both parties treat appellant's appearance before the grand jury as custodial interrogation by an agent of the State rather than a judicial criminal proceeding. Assuming without deciding that the parties' characterization is accurate, appellant's invocation of his right to counsel at his article 15.17 hearing does not mean that a subsequent waiver of that right during state-initiated custodial interrogation was presumptively invalid. See Pecina, 361 S.W.3d at 78; see also Montejo, 556 U.S. at 797 (overruling a contrary rule imposed by Michigan v. Jackson, 475 U.S. 625, 633 (1986)). In the custodial-interrogation context, a waiver of the Sixth Amendment right to counsel during interrogation is typically valid if the defendant is read his Miranda rights and agrees to waive them. Montejo, 556 U.S. at 786; Hughen, 297 S.W.3d at 335. Appellant does not contest that the admonishments administered by the prosecutor in the grand jury proceedings were the functional equivalent of Miranda warnings but asserts that he was too unsophisticated to understand them without the help of a lawyer. Specifically, he argues that he could have been confused into believing he did not already have a lawyer by the admonishment that a lawyer would be appointed for him "if" he wanted. But even if that occurred—and appellant does not assert it actually did—the validity of a waiver of the right to counsel under the Sixth Amendment does not depend on whether the defendant is represented by counsel. See Montejo, 556 U.S. at 786 ("The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled."); Harvey, 494 U.S. at 352-53. Appellant does not present any other reason why his waiver was invalid. On the record and arguments before us, we conclude that appellant has failed to demonstrate that his waiver of the right to counsel under the Sixth Amendment was not knowing and voluntary.
The distinction is significant because a Sixth Amendment request for counsel at an article 15.17 hearing "is a request for the guiding hand of counsel for all judicial criminal proceedings." Pecina v. State, 361 S.W.3d 68, 77 (Tex. Crim. App. 2012). The defendant may also invoke his Sixth Amendment right to have counsel present during later custodial interrogation, but he must do so pursuant to Miranda and related cases at the time "law enforcement or other state agents embark on custodial interrogation." Id.
Moreover, the prosecutor indisputably admonished appellant twice that he could request a lawyer be appointed to be present outside the chamber to advise him before answering any question he felt might be self-incriminating. Appellant did not express any confusion or request time to consult with a lawyer but chose to answer the prosecutor's questions.
The United States Supreme Court has acknowledged that a waiver of the Sixth Amendment right to counsel could be rendered invalid if it was based on misrepresentations as to whether a defendant had already been appointed a lawyer. See Montejo v. Louisiana, 556 U.S. 778, 798 (2009) (noting that on remand Montejo would be permitted to "press any claim he might have that his Sixth Amendment waiver was not knowing and voluntary, e.g., his argument that the waiver was invalid because it was based on misrepresentations by police as to whether he had been appointed a lawyer"). However, there is nothing in the record to support a finding that the prosecutor or any other agent of law enforcement knew appellant was represented by counsel and misrepresented that fact to him.
We overrule appellant's sole issue.
III. CONCLUSION
We affirm the trial court's judgment.
NORA L. LONGORIA
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 17th day of August, 2017.