### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00044- CR

John Fre drick Ze dler, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 22ND J UDICIAL DI STRICT NO. CR-12 -07 71, H ONO RAB LE R. B RUCE B OY ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Fo l l owing the denial of his motion to suppress evidenc e, a jury found appellan t J ohn Z edler g uilty of murder and assessed punishment at 60 y ear s’ imprisonment, and the trial court rende red judgme nt on the jury ’s verdic t. See Tex. Penal Code § 19.02. I n two points of err or, Z edler contends that the trial court should have g rante d his motion to suppress and that t h e t ri al co urt’s judgme nt contains an err or that should be corr ecte d. We will modify the trial court’s judgme nt and aff irm the judg ment as modified.

BACK GR OUND

Detec tive Ang elo Floira

n and other law enfor ceme nt officia ls interviewe d Z edler on J une 27, 2012, in connec tion with the death of Z edler ’s wife. During the interview, Z edler invoked h i s ri gh t t o counsel. A few day s later, Z edler met with his son Br andon and indicated a desire t ospeak with the polic e aga i n . On J u ly 11, 2012, while Z edler was in custody under suspicion for

homicide, Detec tive Floira n ag ain interviewe d Z edler

. During this second interview, Z edler waived h i s Mi r a nda rig hts and made self-inc riminating statements sug g esting that he cause d the injur i es discovere d on his wife’s body . Z edler ’s subsequent motion to suppress the video rec ording of the second interview was denied, and the re co rding was publi shed t o the j ury at t rial. The jury found Z edler g uilty of murder , and this appea l followed.

STANDARD OF REVIEW We revie w a trial court’s ruling on a motion to suppress for abuse of discretion, using

a bifurca ted standard. Goodwin v. State , 376 S.W .3d 259, 266 (Tex. App.—Austin 2012, pet. ref ’d). I n doing so, we view the evidenc e in the light most favor able to the trial court’s ruling

. Johnson v. State , 414 S.W .3d 184, 192 (Tex. Crim. App. 2013). We g ive almost total defe renc e to ruling s on application of the law to questions of fac t and to mix ed questions of law and fac t if resolution of those questions depends on an assessment of credibility and demeanor of wit n es s es . A rguellez v. State , 409 S.W .3d 657, 662 (Tex. Crim. App. 2013). We revie w de novo pure questi o n s of law and mix ed questions of law and fac t that do not depend on evalua ting cre d i b i l i ty and demea nor. Martinez v. Sta t e , 3 48 S.W .3d 919, 923 (Tex. Crim. App. 2011). We will aff irm the trial court’s ruling if the rec ord rea sonably supports it and it is corr ect on any theory of law applicable to the case . State v. Duran , 396 S.W .3d 563, 571 (Tex. Crim. App. 2013).

2DISCUSSIO N

Motion to suppress

I n Edwards v. Arizona , the United States Supreme Court held that an acc used, “having expressed his desire to de al with the police only throug h counsel, is not subject t o further interrog ation by the authorities until counsel has been made available to him, u n l ess the acc used himself initi a

te s f u r th e r c o mm

u nication, exchang es, or conver sations with the police.” 451 U.S. 477, 484–85 (1981); see Cross v. State , 144 S.W .3d 521, 529 (Tex. C ri m. App. 2004) (“[T]he critica l inquiry is w hether the suspect was further interrog ated be fore he re initiated conver sation with la w enfor ceme nt officials. I f he w as not, Edwards is not violated.”)

. I n his first point of error, Z edler contends that his Fifth Amendment r ights a rticulated in Edwards wer e violated beca use Detec tive Floira n interviewe d Z edler

ag ain af ter he had invoked his rig ht to counsel in his first interview. Z edler makes two arg uments in suppor t of his Edwards claim. First, Z edler arg ues that he did not reinitiate contac t with law enfor ceme nt and that it was his son, Br andon, who asked Detec tive Floira

n t o s p ea k to Z edler a second time. Howeve r, the State contends that Br andon 1

To the extent Z edler arg ues that an acc used can neve r initiate contac t with law enfor ceme nt 1 under Edwards throug h a third party , we reje ct that contention. See Van Hook v. Anderson , 488 F.3d 411, 423 (6th Cir. 2007) (concluding that under Edwards a suspec t “ca n initiate a discussion with police throug h the communication of a third party ”); Owens v. Bowersox , 290 F.3d 960, 963 (8th Cir. 2002) (“[W] e do not believe that it was unrea sonable for the state court to hold that a defe ndant may ‘evinc e’ a willingness and desire to disc uss the crime by communicating with the police throug h a third party , espec ially a close rela tive.”); United States v. Michaud , 268 F.3d 728, 737–38 (9th Cir. 2001) (conc luding defe ndant initiated c ontact under Edwards throug h a third party ); United States v. Gaddy , 894 F.2d 1307, 1311 (11th Cir. 1990) (conc luding defe ndant initiated conta ct throug h his aunt). Z edler relies on the Fifth Circuit’s decision in United States v. Rodriguez to support his argume nt that his conver sation with Br andon did not constitute an initiation under Edwards

. See 993 F.2d 1170, 1174 (5th Cir. 1993) (c o n cl u d i n g that defe ndant did not initiate contac t under 3initi at ed co n t ac t with the detec tive on Z edler ’s behalf

. Viewing the evidenc e in the light most favor able to the verdic t, a s me must, we deter mine that there is suf

ficient evidenc e in the rec ord to support this conclusion.

At the hear ing on the motion to suppress, Br andon testified that he spoke with Z edler

a few day s afte r the alleg ed murder. Acc ording to Br andon, Z edler stated that he was not sure what had happene d on the night of the incident. Br andon sug g ested that Z edler talk to the detec tive ag ain, and Z edler ag ree d and said he wanted to talk to the detec tive. Although Br andon also testified that he was unsure whether it wa s orig inally his ide a or Z edler ’s idea f or Z edler to talk to the detective ag ain, t he trial court was entitled t o co n cl u d e, as it did, that it was ult imately Z edler ’s decision to reinitiate contact wit h law enforce ment and that Br ando n ac t ed on Z edler ’s behalf when he asked Detec tive Floira

n to spe ak with Z edler

. See St. G eorge v. State , 237 S.W .3d 720, 725 (Tex. Crim. App. 2007) (in ruling on motion to suppres s , “t h e t ri al judge is the sole trier of fac t and judge of

cre dibilit y of the witnesses and the weig ht to be g iven to their testimony ”). Even if it wer e orig inally Br andon’s idea that Z edler should speak with Floir an, Br andon’s undisputed testimony was that Z edler ag ree d with Br andon’s sug g estion and wanted to spe ak with the detec tive. Def err ing to the trial court’s deter

mination of the und er l y i ng fac ts, we conclude , as a matter of law, that Z edler reinitiated c o n tact with law enforce ment throug h Br andon. See Holman v. Kemna , 212 F.3d 413,

Edwards throug h co-de fenda nt). Howeve r, we conclude that Rodriguez does not stand for the proposition that an acc used can never reinitiate contac t with law enfor ceme nt throug h a third party

. I nstead, the Rodriguez court merely deter mined that an ini tiation had not occur red under the fac ts of that case . Rodriguez is distinguishable from the prese nt case beca use, in Rodriguez , the alleg ed initiation o ccurred throug h a co-de fenda nt, the co-de fenda

nt never actua lly told the office r that the defe ndant wished to speak to h i m , and the evidenc e of the office r’s conver sation with the codefe ndant was he arsa

y . See id. 4417 (8th Cir. 2000) (s t at i n g t h at “whe ther those fac ts [found by the state court] constitute an

‘initiation’ under Edwards is a leg al question requiring de novo revie w”) ; United States v. W haley , 13 F.3d 963, 968 (6th Cir. 1994) (“While we acc ept, unless clea rly err oneous, the fac ts that the district court found, whether those fac ts toge ther constitute an ‘initiation’ under Edwards is a leg al question we re view de novo .”).

Second, Ze dler arg ues t hat “the time lapse between [ Br andon’s] conversation with the detec tive and the detec tive’s visit to the jail” indicates that Z edler did not wish to initiate contac t with the police. I n other words, Z edler is arg uing that, ev en i f h i s conversation with Br andon constituted an initiation under Edwards , that initiation had become ineffe ctive or stale by the time Detec tive Floira

n returne d to interview Z edler

. I n support of t his arg ument, Z edler cites United St ates v. W haley

. I n that case , the defe ndant told an offic er tha t he would like to discuss his case, a nd a diffe rent off

icer interviewe d the defe ndant over three wee ks later. W haley , 13 F.3d at 964–65. The Six th Circuit conclude d that, “[w]h et h er o r not Whaley ’s exchang e with [t he office r] might have at the time constituted an Edwards initiation, g iven that Whaley did nothing else during the succe eding three -we ek period, his actions certainly do not show a will ingne ss and a desire to speak ge nera lly about hi s ca s e. ” Id. at 968. The c ourt there fore reve rsed Whaley ’s conviction. Id. at 969.

Z edler has not called our attention to any Texas case holding, as W haley does, t hat

an accuse d’s i nitiation under Edwards can be come invalid mer ely beca use of the passage of t ime, and we have found no such case . Even assuming without deciding that an initiation can expire over time, we conclude that Z edler ’s initiation rema ined vali d when Detec tive Floira n conducte d the

5second interview. There was no evidenc e prese nted at trial conce rning the leng th of time be tween

when Br andon told Floira n that Z edler would like to speak with him and when Floira n interviewe d Z edler the second time. There fore , there was no evidenc e that the police fa i l ed t o t i m ely act on Z edler ’s initiation or wer e responsible for any delay in conducting Z edler ’s second i n t er v i ew. Under the specific fac ts of this case , we cannot conclude that Floira n’s second interview with Z edler demonstrated “police overr eac hing” of the ty pe Edwards was intended to discourag e. See Griffin v. L

yn a u g h , 823 F.2d 856, 861 (5th Cir. 1987); see also id. at 862 (stating that “these [S upreme Court] case s are clea rly indicative to us that in t h e absence of some police interfe renc e with the exercise of the rig ht to counsel of the acc used, the Edwards ru l e i s t o be strictly and

narr owly applied”)

. We there fore hold that beca use Z edler reinitiated contac t with law enfor ceme nt throug h Br andon, the second interview with Detec tive Floira n did not violate Z edler ’s rig hts under Edwards . Acc ording ly , we ove rrule Z edler ’s first point of er ror.

Error in the judgm ent

I n his second point of err or, Z edler contends that the trial court’s judgme nt contains

an err or that should be corr ecte d. We ag ree . On the first pag e of the judgme nt, in the blank labeled “F indings on Dea dly Weapon,” the entry is “N/A”

. Howeve r, the jury made an aff irmative finding
t h at Zed l er used a deadly wea pon during the commission of the murder, a fac t noted o n t h e judgme nt’s second pag e. Acc ording ly , we sustain Z edler ’s second point of err or and modify the judgme nt to ref

lect on the first pag e that the jury found Z edler used a deadly wea pon. See Tex. R. App. P. 43.2(b).

6CONCLUSION We affir m the judgme nt of conviction as modified.

__________________________________________ Scott K. Field, Just ice Be fore J ustices Pury ear , Pemberton, and F ield Modified and, a s Modified, Aff irmed Filed: Jul y

23, 2015 Do Not Publish

7