Kenneth Jefferson v. The State of Texas--Appeal from 52nd District Court of Coryell County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 10th District Court of Appeals » 2004 » Kenneth Jefferson v. The State of Texas--Appeal from 52nd District Court of Coryell County

State: Texas

Court: Texas Northern District Court

Docket No: 10-03-00028-CR

Case Date: 10/13/2004

Plaintiff: Terry Glenn Moss

Defendant: The State of Texas--Appeal from 402nd District Court of Wood County

Preview:Kenneth Jefferson v. The State of Texas--Appeal from 52nd District Court of Coryell County
IN THE TENTH COURT OF APPEALS

No. 10-03-00027-CR No. 10-03-00028-CR Kenneth Jefferson, Appellant v. The State of Texas, Appellee

From the 52nd District Court Coryell County, Texas Trial Court Nos. 16566 and 16567 MEMORANDUM Opinion

This appeal concerns convictions for aggravated sexual assault. The State has not filed a brief. We will affirm. 1. Motion to Suppress. In Appellant s first issue, he contends that the trial court erred in overruling his motion to suppress his written statement. Appellant argues that taking his voluntary statement after he failed a polygraph examination exceeded the scope of his attorney s agreement that Appellant could submit to the polygraph examination. The trial court did not abuse its discretion in finding that counsel s permission for a polygraph examination could reasonably be interpreted as extending to taking Appellant s voluntary statement after informing him of the results of the examination, and thus overruling Appellant s motion to suppress the statement. See Dyar v. State, 125 S.W.3d 460, 462 (Tex. Crim. App. 2003); Cobb v. State, 93 S.W.3d 1, 6 (Tex. Crim. App. 2000), rev d on other grounds, 532 U.S. 162 (2001). We overrule Appellant s first issue. 2. Motion for Mistrial. In Appellant s second issue, he contends that the trial court erred in overruling his motion for mistrial. Appellant argues that the reading to the jury of his statement, which contained a reference to an extraneous arrest, violated the trial court s ruling in limine. By not objecting to evidence of the arrest when it came into evidence, Appellant forfeited his complaint. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1); Manns v. State, 122 S.W.3d 171, 189 (Tex. Crim. App. 2003); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002). We overrule Appellant s second issue.

file:///C|/Users/Peter/Desktop/opinions/PDFs1/5938.html[8/20/2013 7:19:42 PM]

Having overruled Appellant s issues, we affirm the judgments. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Justice Vance concurs with a note. The majority s memorandum opinion is short on facts to justify its decision. I would find that Jefferson s Sixth Amendment right to counsel was violated. See Cobb v. State, 93 S.W.3d 1, 6 (Tex. Crim. App. 2000) (citing Michigan v. Jackson, 475 U.S. 625, 635, 106 S.Ct. 1404, 1411, 89 L.Ed.2d 631 (1986), rev d on other grounds, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed2d 321 (2002); see also Hill v. State, 78 S.W.3d 374, 385 (Tex. App. Tyler 2001, pet. ref d) ( If, however, subsequent interrogation is initiated by law enforcement, no waiver of counsel (no matter how apparently knowingly and voluntary) is valid. ); Gutierrez v. State, 8 S.W.3d 739, 752 (Tex. App. Austin 1999, no pet.) ( [K]nowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such opportunity. ). Because I would also find the error harmless, I concur in affirming the judgment.) Affirmed Opinion delivered and filed October 13, 2004 Do not publish [CRPM]

file:///C|/Users/Peter/Desktop/opinions/PDFs1/5938.html[8/20/2013 7:19:42 PM]

Download 5938.pdf