Moore v. State
Moore v. State
Opinion of the Court
OPINION
The offense is murder; the punishment, fifteen (15) years.
The sufficiency of the evidence is not questioned.
Appellant’s first ground of error is that the court erred in overruling his mo
Nowhere in this brief does appellant tell us how the court’s action varied from the terms of Art. 35.11, supra, and we perceive no variance. His first ground of error is overruled.
His second ground of error is that the court erred in permitting the confession to be introduced in evidence because no warning appears on the face of the confession. The confession was not made a part of the record on appeal. No request for its inclusion in the record on appeal was made by appellant.
From Officer Parmer’s testimony, we may deduce that the full Miranda warning was on a separate piece of paper which was stapled to the piece of paper on which the confession appears. When the confession was offered, the State indicated that they did not want to be bound by one exculpatory sentence and the court permitted the prosecutor to read all of the remainder to the jury.
Reliance is had upon Anders v. State, Tex.Cr.App., 426 S.W.2d 228, wherein 1 Branch’s Ann.P.C.2d Ed., § 84 is cited. The rule has long been that a written confession must show the statutory warning on its face. We have here a question of what this Court has meant by “on its face.” If the warning was on one sheet which was affixed to, and ahead of, another sheet on which the body of the confession appeared, would this show the warning to be on the face of the confession? We think so. This is what we have here.
However, it is not necessary for us to decide whether or not the warning was on the face of the confession, because we note that Art. 38.22, V.A.C.C.P. was amended, effective August 28, 1967. The confession in Anders v. State, supra, was taken on October 5, 1966. At that time, the former Art. 38.22, Tex.Laws 1965, ch. 722, vol. 2 at 317 was in effect, which read, in pertinent parts, as follows:
“(a) The confession shall not be admissible if the defendant was in jail or other place of confinement or in the custody of an officer at the time it was made, unless:
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“2. It be made in writing and signed by the accused and shows that the accused has at some time prior to the making thereof received the warning provided in Article 15.17.”
The confession in the case at bar was taken on June 29, 1969, after the effective date of the present Art. 38.22, supra, the pertinent parts of which follow:
“1. The oral or written confession of a defendant made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible if:
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“(c) it be made in writing to some person who has warned the defendant from whom the statement is taken * *
Officer Parmer testified that he warned the appellant and took the confession from him. In the instant case, the prosecutor read the warning; we find it sufficient. He then read the parts of the confession upon which he sought to rely and appellant stated that he wanted to introduce the remainder. We perceive no error.
Appellant’s third ground of error is that the court refused to permit a witness to testify because she appeared in the courtroom wearing slacks. When the witness was called, the court stated that
Appellant’s fifth ground of error is a duplicitous assignment of error and does not meet the requirements of Art. 40.09, V.A.C.C.P. and presents nothing for review. See Huffman v. State, Tex.Cr.App., 450 S.W.2d 858, and Linton v. State, Tex.Cr.App., 452 S.W.2d 494.
Finding no reversible error, the judgment is affirmed.
Concurring Opinion
(concurring).
I concur reluctantly in the construction placed upon Article 38.22, V.A.C.C.P., as amended 1967. I would caution law enforcement officers and others against a departure from the traditional and wholesome practice of including the statutory and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, warnings on the face of the written confession. Failure to include such warnings may well create far more problems than are solved.
Reference
- Full Case Name
- R. C. MOORE, Appellant, v. the STATE of Texas, Appellee
- Cited By
- 6 cases
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- Published