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

N O . A P - 7 6 , 9 3 6

T E R E N C E T R A M A I N E A N D R U S , A p p e l l a n t

v . T H E S T A T E O F T E X A S
O N D I R E C T A P P E A L F R O M C A U S E N O . 0 9 - D C R - 0 5 1 0 3 4 I N T H E 2 4 0 T H D I S T R I C T C O U R T F O R T B E N D C O U N T Y

K E L L E R , P . J . , f

i l e d a d i s s e n t i n g o p i n i o n .

The Court rema

nds for finding s of fac t tha t a ppellant never reque sted. I would not rema nd beca use I do not believe that the tr ial court wa s require d to make finding s of fa ct sua sponte

. I. BACKG ROUND I n a pretria l motion to suppress, appellant challeng ed the admissibili ty of his confe ssion on the g round that it was obtained in violation of Miranda beca use office rs continued to question himANDRU S DISS ENT–2

after he invoked his rig ht to counsel. The trial court conducte d a pretria l hear ing on this claim at whi ch appellant and witnesses for the State testified. I will assume, arguendo , that there was a dispute in the testimony about wh ether appellant invoked his rig ht to counsel with respe ct to interrog ation

. The trial court denied the motion to suppress without issuing finding s of fac t. Appellant never reque sted finding s of fac t during the trial proce eding s, but, on appea l, the State filed
a mot ion in this Court asking us to deter mine wh et h er a remand for findings of fac t from the trial court is re quired, a

nd we de nied that motion.

II. ANALYSIS I n Urias v. State , we rema nded a case to the trial court for written fi n d i n gs o f fa ct and 1 conclusions of law reg arding a claim that the admission of the defe ndant’s confe ssion violated the dictates of Miranda v. Arizona beca use the office rs continued their interrog ation afte r the defe ndant 2 invoked his r ight to r emain silent. We c oncluded that Article 38.22, § 6, require d such a rema nd 3 4 “whe ther or not the defe ndant objects to the absenc e” of written findings. This conclusion is 5 inconsistent with how we have char acte rized § 6 in prior and subsequent case law and should be reexamined.

155 S.W .3d 141 (Tex. Crim. App. 2004). 1 384 U.S. 436 (1966). 2 Urias , 155 S.W .3d at 141-42. 3 See T E X . C O D E C R I M . P R O C . art. 38.22, §6. 4 Urias , 155 S.W .3d at 142. 5ANDRU S DISS ENT–3

I n State v. Terrazas , we explained tha t § 6 was enac ted in r esponse to Jack son v. Denno , 6 7 which set forth constitutionally require d p ro cedures for deter mining whether a defe ndant’s confe ssion was involuntary

. Be fore Jack son , Texas followed the “Ne w York rule,” which allowed 8

a trial court to suppr ess a confe ssion on voluntariness g rounds only if the undisputed fac ts showe d involuntariness. I f the fac ts wer e disputed, the issue was submitt ed to the jury

. Jack son held that 9 1 0 trial proce dures “must

. . . be fully adequate to insure a reliable and clear- cut determination of t he voluntariness of the confe ssion, including the resolut i o n o f d i sputed fac ts upon which the voluntariness i ssue m ay depend.” For trial proce dures to be fully adequate, an e ntity other than 1 1 the jury char g ed with deter

mining g uilt mus t resolve the voluntar iness of a c onfession bec ause [e] x panded conce pts of fairne ss in obtaining confe ssions have been acc ompanied by a corr esponding ly g rea ter complexit y in de termining whether an acc used’s will has been overbor

ne—fa cts are fre quently disputed, questions of cre dibilit y are often cruc ial, and infere nces to be draw n from established fac ts are o ft en deter minative. The overall determination of t he volunt ar i n ess of a confession has t hus become an exceeding ly sensitive task, one that require s fac ing the issue square ly , in illumi nating isolation and unbecloude d by other issues and the eff ect of extraneous but prejudicia l evidenc e. 1 2 Jack son was decide d two y ear s befor e Miranda

. The issue in Jack son was whether the defe ndant’s will was overbor ne by a combinat i o n o f p olice tactics, the defe ndant’s pain from his

Terrazas , 4 S.W .3d 720 (Tex. Crim. App. 1999). 6 378 U.S. 368 (1964). 7 4 S.W .3d at 724-25. 8 Id. 9 Id. 1 0 Jack son , 378 U.S. at 391. 1 1 Id. at 390. 1 2ANDRU S DISS ENT–4

wounds, and his consumption of pain-killing drug s. The claim in Jack son was a due-pr ocess claim 1 3 of actua l involuntariness rathe r than a Miranda claim of presumed or imputed involuntariness from the fa ilure to follow prophy lactic pr ocedur es. Article 38.22, § 6 was specific ally desig ned to pr escr ibe proce dures to c onform to Jack son for claims of actua l involuntariness, like the claim at i s s u e i n Ja ck son. Other portions of Article 38.22 contain proc edure s desig ned to confor m to the prophy lactic require ments of Miranda , and 1 4 § 5 contains various restric tions on the Miranda -ty pe protec tions confe rre d by the statute, including a provision that “[n]ot hing in this article prec ludes the admission of .

. . a st atement that does not
stem from custodial interrog ation.” I n Nenno v. State , we construed this statement in § 5 to mean 1 5 that “Ar ticle 38.22 applies only to persons in custody ,” but Terrazas later overr uled Nenno “to the 1 6

extent it decide s Article 38.22, Section 6, applies only to custodial statements.” The holding that 1 7 § 5 does not limit the application of § 6, despite the rathe r expansive lang uag e in § 5, im p l i ed ly sug g ested that § 6 re ally

has nothing to do with the rest of Ar ticle 38.22. That i mplied sug g estion was made expli cit in Oursbourn v. Stat e , wher e we said, “Ar ticle 38.22, § 6 is a very detailed section that is essentially independe nt o f t h e other sections contained

Id. at 391-92. 1 3 See T E X . C O D E C R I M . P R O C . A R T . 38.22, §§ 2, 3. 1 4 Id. § 5. 1 5 970 S.W .2d 549, 556 (Tex. Crim. App. 1998). 1 6 Terrazas, 4 S.W .3d at 727. 1 7ANDRU S DISS ENT–5

within Article 38.22.” We made cle ar tha t a § 6 voluntariness issue is diffe rent fr om a war nings 1 8 issue g overne d by §§ 2 an d 3 an d t h at submissi on of an instruction to a jury on the two ty pes of issues wer e g overne d by differ ent sections of Article 38.22. The decision to cra ft two separ ate jury

1 9 instruction provisions within Article 38.22 sug g ests that the legi s l at u re specific ally saw the § 6 volunta ri n ess as separ ate from the §§ 2 and 3 war nings issues. I n fac t, the only jury instruction authorized by § 6 is a gen er al o n e that speaks to actua l involuntariness: “unless the jury believes bey ond a rea sonable doubt that the statement was voluntarily made, the jury shall not consider such statement for

any purpose nor

any evidenc e obtained a s a re sult thereof.” 2 0 Moreove r, the leg islative decision to cra ft two separ ate jury -instruction provisions in Article 38.22—one within § 6 and the other outside of it—contrasts with t h e d ec i s i o n to cra ft only one finding s-of-f

act provision, contained within § 6. I f the leg islature had wanted war nings claims under §§ 2 and 3 to be subject to mandatory finding s of fac t, it could have cre ated a separ ate finding s-offac t provision, just as it did with respec t to jury instructions. We further explained in Oursbourn that § 6 requires initially that “a question” be raised reg arding voluntariness befor e the protec tions of § 6 are trig g ere d. For a question to be raised, the 2 1 trial judge must be notified by a party about the voluntariness issue or the trial judge must raise the

259 S.W .3d 159, 174 (Tex. Crim. App. 2008). 1 8 Id. at 175 (“B eca

use Section 6 contains its own jury -instr u ct i o n p rovision, it is not 1 9 g overne d by

the jury -instruction provision found in Section 7. The obvious purpose of Section 7 is to authorize and require jury instructions reg arding the war nings a nd safe g uards for writt en and oral statements outlined in Article 38.22, § 2 & § 3 (wa rning s on the rig ht to rema in silent, rig ht to counsel, e tc).” ).

Id. 2 0 Id. 2 1ANDRU S DISS ENT–6

issue on his own. I t is only afte r § 6 is trig g ere d by a question being raised that a whole sequenc e 2 2 of proc edure s—including the issuance of written finding s—become s require d. 2 3 I n the prese nt case , there are , at best, two possible claims: (1) a war nin gs claim based on continued interrog ation afte r invoking the rig ht to counsel, and (2) a voluntariness claim based upon the allege dly coer cive tactic of confining applicant to an automobil e during hour s o f trave l. Only the second possible cl ai m falls within § 6, and appellant did not raise that claim befor e the trial judge , nor did the trial judge raise it on his own. (And it is not e ven clea r that appellant has raised it on appea l). Consequently , the require ments of § 6 wer e never trig g ere d. The first claim was raised befor e the trial judge , but it is a war nings claim, not a § 6 claim. Applicant was require d under State v. Cullen to reque st findings be fore being entitled to them. He did not do so. 2 4 I respe ctfully

dissent. Filed: F ebrua

ry 25, 2015 Do not publish

Id. 2 2 Id. at 175 & n.55. 2 3 195 S.W .3d 696 (Tex. Crim. App. 2006). 2 4