NO. 03-14-00044-CR

IN THE COURT OF APPEALS

FOR THE

THIRD SUPREME JUDICIAL DISTRICT OF TEXAS

AT AUSTIN

_____________________________________________________________

NO. CR-12-0771

IN THE 22ND DISTRICT COURT

OF HAYS COUNTY, TEXAS

_____________________________________________________________

JOHN FREDERICK ZEDLER,

APPELLANT

V.

STATE OF TEXAS,

APPELLEE

_____________________________________________________________

APPELLANT’S MOTION FOR REHEARING

_____________________________________________________________

 LINDA ICENHAUER-RAMIREZ

 ATTORNEY AT LAW

1103 NUECES 

AUSTIN, TEXAS 78701

 TELEPHONE: 512-477-7991 

 FACSIMILE: 512-477-3580

 EMAIL: ljir@aol.com SBN: 10382944

 

 ATTORNEY FOR APPELLANT

ACCEPTED

03-14-00044-CR

6228262

THIRD COURT OF APPEALS

AUSTIN, TEXAS

7/27/2015 10:10:50 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/27/2015 10:10:50 AM JEFFREY D. KYLE Clerk
2

GROUND FOR REHEARING NUMBER ONE

THE COURT OF APPEALS ERRED WHEN IT SAID THAT THE 

RECORD DID NOT REFLECT THE LENGTH OF TIME BETWEEN 

WHEN APPELLANT’S SON TOLD THE DETECTIVE THAT 

APPELLANT WOULD LIKE TO SPEAK WITH HIM AND WHEN 

THE DETECTIVE INTERVIEWED APPELLANT THE SECOND 

TIME.

In its opinion the panel of the Third Court of Appeals concluded that 

appellant initiated the second interview with Detective Floiran. The panel 

then wrote the following:

“There was no evidence presented at trial concerning the length 

of time between when Brandon told Floiran that Zedler would 

like to speak with him and when Floiran interviewed Zedler the 

second time. Therefore, there was no evidence that the 

police failed to timely act on Zedler’s initiation or were 

responsible for any delay in conducting Zedler’s second 

interview.” (slip opinion, p. 6)

This statement is totally wrong. The record reflects that a hearing was 

held on appellant’s motion to suppress outside the presence of the jury on 

December 9, 2013, immediately after jury selection. (R.R. II, p. 267-328) 

During that hearing the court heard testimony from Brandon Zedler, 

appellant’s son, who testified that he asked Detective Floiran to talk to 

appellant (his father) a second time. (R.R. II, pp. 272-282) Detective 

Floiran also testified during the hearing and told the court about his two 

interviews with appellant. He testified that appellant invoked his counsel 

during the first interview. (R.R. II, pp. 285-295) During his testimony 

he testified that he went to the jail to talk to appellant the second time after 
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Brandon told him that his father did not remember a lot about what had 

happened and had questions and wanted to talk to the detective. (R.R. II, 

pp. 296-298, 303-304) During the hearing the trial court watched the 

video of the detective’s first interview with appellant. (R.R. II, pp. 

313-322) The court then asked the parties about the circumstances of the 

second interview and following occurred:

“THE COURT: And what’s the time frame between 

this event where he says he wants his lawyer to when the 

second interview takes place?

“MR. ERSKINE: The second interview took place –

“THE COURT: What’s the time frame?

“MS. MCDANIEL: From the 22nd of June to the 11th of 

July.

MR. ERSKINE: Thank you. Correct.

MS. MCDANIEL: Or maybe after midnight. Maybe 

the 28th of June, but, what ever.

MR. ERSKINE: Right. So a matter of two weeks, 

approximately.

THE COURT: July what?

MS. MCDANIEL: The 11th.

MR. ERSKINE: Of 2012.” (R.R. II, p. 323)

The next morning the trial court watched the video of the second interview 

and then ruled that it would allow the video of the second interview to be 
4

seen by the jury, noting that the second interview occurred two weeks after 

the first interview. (R.R. III, pp. 16-20)

Appellant asks the Court to re-examine his case in light of the fact that 

the record does contain evidence that there was a two week delay between 

Brandon’s conversation with the detective and the detective talking to 

appellant. During this two week time span, appellant made no effort to tell 

anyone that he wanted to speak to authorities about his case. Appellant’s 

actions during that time certainly do not show a willingness and a desire to 

talk to the authorities about his case. Appellant’s situation is very similar 

to the situation in United States v. Whaley, 13 F.3d 963 (6th Cir. 1994). In 

Whaley, there was a three week interval between Whaley making an 

ambiguous request to talk to an officer about his arrest and then being 

re-interviewed by law enforcement during which he made a statement. 

On appeal, the issue before the Sixth Circuit was whether or not Whaley’s 

request to talk to the officer was an actual re-initiation of contact with law 

enforcement. The deciding factor for the Sixth Circuit was the length of 

time between Whaley’s request and the second interview coupled with 

Whaley’s conduct during that three week interval:

“However, in the present case, we do not need to decide this 

question, because after this exchange nothing happened for 

three weeks. The authorities did not contact Whaley, and 

Whaley made no effort to tell anyone – including agent 

Anderson – that he wanted to talk about the case. Whether or 
5

not Whaley’s exchange with Waggoner might have at the time 

constituted an Edwards initiation, given that Whaley did 

nothing else during the succeeding three-week period, his 

actions certainly do not show a willingness and a desire to 

speak generally about the case. Therefore, as in Edwards, 

when Anderson removed Whaley from his cell and interrogated 

him without counsel present, he violated Whaley’s 

constitutional rights.” 13 F.3d at 968.

Appellant asserts that Whaley should govern his case. The evidence 

affirmatively shows that there was a two week delay between Brandon’s 

request to the detective and the detective pulling appellant out of his cell and 

taking him in for the second interview. Appellant did nothing during this 

two week interval to indicate that he had a willingness and desire to speak to 

the detective about his case.

Appellant did not reinitiate contact with the detective. The 

detective’s second interview with appellant was in violation of Edwards v. 

Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). This 

ground for rehearing should be granted.

Respectfully submitted,

/s/ Linda Icenhauer-Ramirez 

LINDA ICENHAUER-RAMIREZ

ATTORNEY AT LAW

1103 NUECES

AUSTIN, TEXAS 78701

TELEPHONE: 512-477-7991 

FACSIMILE: 512-477-3580

 EMAIL: ljir@aol.com SBN: 10382944
6

 

ATTORNEY FOR

 APPELLANT ON APPEAL

CERTIFICATE OF COMPLIANCE

I hereby certify that this motion for rehearing contains 1,051 words, as 

calculated by the word count function on my computer and is prepared in 

Times New Roman 14 point font.

/s/ Linda Icenhauer-Ramirez 

LINDA ICENHAUER-RAMIREZ

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Appellant’s Motion for 

Rehearing was e-served to the Hays County District Attorney’s Office on 

this the 27th day of July, 2015.

/s/ Linda Icenhauer-Ramirez_ 

LINDA ICENHAUER-RAMIREZ