NO. 72,807






MANSFIELD, J., delivered the opinion of the Court, in which MEYERS, PRICE, HOLLAND, WOMACK, and JOHNSON, JJ., joined. McCORMICK, P.J., filed a dissenting opinion, in which KELLER and KEASLER, JJ., joined.


Appellant, Raymond Levi Cobb, was found guilty of intentionally killing two people in a single criminal transaction. See Tex. Pen. Code 19.03. His punishment was assessed at death. In eleven points of error, he argues that he is entitled to a new trial or at least a reformation of his sentence from death to imprisonment for life. We will reverse the judgment of the trial court and remand the cause for a new trial.

We turn first to appellant's eleventh point of error, in which he contends that the evidence adduced at trial was legally insufficient to support the jury's affirmative answer to the first punishment issue, concerning his future dangerousness. See Art. 37.071, 2(b)(1).(1) Appellant argues that the evidence was insufficient because (1) he was only seventeen years old at the time of the offense, (2) he had no prior history of violent conduct, (3) he had no prior convictions, (4) the testimony of prosecution witness Dr. Frederick Mears, a licensed clinical psychologist, was "inherently unreliable" and thus inadmissible because he did not actually examine appellant, and (5) defense witness Dr. Walter Quijano, also a licensed clinical psychologist, testified that appellant would not likely be a future danger if imprisoned for life.

Under the first punishment issue, the jury was asked to determine "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Art. 37.071, 2(b)(1). The State had the burden of proving the first punishment issue beyond a reasonable doubt. Art. 37.071, 2(c). Thus, the State had the burden of proving beyond a reasonable doubt that there is a probability that appellant, if allowed to live, would commit criminal acts of violence, so as to constitute a continuing threat, whether in or out of prison. Narvaiz v. State, 840 S.W.2d 415, 424 (Tex.Crim.App. 1992), cert. denied, 113 S.Ct. 1422 (1993). In its determination of this issue, the jury was entitled to consider all of the evidence presented at both the guilt/innocence and punishment stages of trial. Valdez v. State, 776 S.W.2d 162, 166-167 (Tex.Crim.App. 1989), cert. denied, 110 S.Ct. 2575 (1990). As an appellate court reviewing the jury's finding, we view all of the record evidence, whether properly or improperly admitted, in the light most favorable to the prosecution, and then determine whether, based on that evidence, any rational jury could have found beyond a reasonable doubt that the answer to the first punishment issue was "yes." Miles v. State, 918 S.W.2d 511, 512 (Tex.Crim.App. 1996); Harris v. State, 738 S.W.2d 207, 225-226 (Tex.Crim.App. 1986), cert. denied, 108 S.Ct. 207 (1987). This standard of review gives full play to the jury's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. See Jackson Virginia, 99 S.Ct. 2781, 2789 (1979). If we find that the evidence was legally insufficient to support the jury's affirmative answer, then we must reform the trial court's judgment to reflect a sentence of life imprisonment. Art. 44.251(a).

Viewed in the necessary light, the evidence at the guilt/innocence stage established that sometime between 5:45 a.m. and 5:15 p.m., December 27, 1993, appellant burglarized the Lindsey and Margaret Owings residence in a rural part of Walker County and stole a stereo system, a videocassette recorder, and other items. In the course of the burglary, appellant intentionally killed 22-year-old Margaret Owings and sixteen-month-old Kori Rae Owings. The evidence at the punishment stage, viewed in the necessary light, established that appellant has a dangerous personality disorder and lacks any regard for the welfare of others. We hold that, based on the totality of the evidence presented at trial, a rational jury could have found beyond a reasonable doubt that appellant is dangerous and incorrigible and that the answer to the first punishment issue is "yes." The jury was not required to give controlling weight to appellant's youth or lack of a violent past or criminal record. Nor was the jury required to give controlling weight to Dr. Mears' failure to examine appellant personally. We overrule appellant's eleventh point of error.

We turn next to appellant's fourth point of error, in which he contends that the trial court erred in admitting in evidence, at the guilt/innocence stage, a written statement he gave to police shortly after his arrest. Appellant, citing Michigan v. Jackson, 106 S.Ct. 1404 (1986), and Upton v. State, 853 S.W.2d 548 (Tex.Crim.App. 1993), argues that the police obtained the statement in violation of his Sixth Amendment right to counsel because the police initiated interrogation of him without first notifying his counsel of record. The State argues in response that, at the time the police interrogated appellant, his Sixth Amendment right to counsel had not yet attached. The State argues in the alternative that even if the right had attached, the right had been waived because on two previous occasions defense counsel had allowed police to interrogate appellant without counsel being present.

The facts relevant to this point of error are as follows: On December 27, 1993, Lindsey Owings notified the Walker County Sheriff's Office that his home had been burglarized and that some of his property had been stolen. He also reported that his wife, Margaret, and his daughter, Kori Rae, were missing.

Sometime in early February 1994, the sheriff's office received an anonymous tip that appellant, who resided across the street from the Owings residence, might have been involved in the burglary. Walker County investigators questioned appellant about the burglary and the disappearances, but he denied any involvement. On July 15, 1994, after further questioning by investigators, appellant, who was then under arrest in an unrelated case, gave a written statement in which he confessed to the burglary. He continued to insist, however, that he knew nothing about the disappearances. A Walker County grand jury subsequently indicted appellant for the burglary.

On August 15, 1994, attorney Hal Ridley was appointed to represent appellant in the burglary case. Shortly thereafter, Walker County investigators sought Ridley's permission to question appellant again about the disappearances. Ridley gave his permission, but only after being assured that appellant was not a suspect in the disappearances. The investigators then questioned appellant, and he again denied any involvement.

On September 13, 1995, Walker County investigators again sought Ridley's permission to question appellant about the disappearances, and again he gave permission, still believing that appellant was not a suspect. During the questioning, appellant again denied any involvement.

On November 11, 1995, appellant's father, Charles Cobb, who resided in Odessa, telephoned the Walker County Sheriff's Office with information regarding appellant, who was then free on bond in the still-pending burglary case and also residing in Odessa. Mr. Cobb reported that appellant had just confessed to him that he had killed Margaret Owings while in the course of burglarizing her home and that he had buried her body in a wooded area not far from the home. Walker County investigators instructed Mr. Cobb to proceed to an Odessa police station to give a statement, which he did. The Odessa police faxed Mr. Cobb's statement to Walker County, and investigators there used the statement to obtain an arrest warrant, which they faxed back to Odessa. The Walker County investigators neglected, however, to inform the Odessa police that appellant had counsel in the burglary case. The Odessa police then located appellant, arrested him, Mirandized(2) him, and interrogated him. After ninety minutes of questioning, appellant gave a written statement in which he admitted killing both Margaret and Kori Rae Owings while in the course of burglarizing their home.

Having explicated the relevant facts, we turn now to the relevant law, which is both settled and familiar. The Sixth Amendment to the Constitution of the United States provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defence." This right to counsel was made applicable to state felony prosecutions by the Due Process Clause of the Fourteenth Amendment. Gideon v. Wainwright, 83 S.Ct. 792, 797 (1963). The purpose of the right to counsel is to protect the unaided layman after the adverse positions of government and defendant have solidified with respect to a particular alleged crime. McNeil v. Wisconsin, 111 S.Ct. 2204, 2209 (1991). The right thus attaches at the initiation of adversarial proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment, and no request for counsel need be made by the accused. Brewer v. Williams, 97 S.Ct. 1232, 1239, 1242 (1977). Once the Sixth Amendment right to counsel attaches, government efforts to elicit information from the accused, including interrogation, represent "critical stages" at which the right to counsel applies. Michigan v. Jackson, 106 S.Ct. at 1407-1408. Therefore, for the fruits of post-indictment interrogations to be admissible in a prosecution's case-in-chief, the State must prove a voluntary, knowing, and intelligent waiver of the right to counsel. Patterson v. Illinois, 108 S.Ct. 2389, 2394-2395 (1988). However, once the right to counsel has attached and has been invoked, any subsequent waiver during police-initiated interrogation is ineffective unless counsel has first given permission for the interrogation. Michigan v. Jackson, 106 S.Ct. at 1411.

Also relevant to this case is the Sixth Amendment rule that once the right to counsel attaches to the offense charged, it also attaches to any other offense that is very closely related factually to the offense charged. State v. Frye, 897 S.W.2d 324, 328-329 (Tex.Crim.App. 1995); Upton v. State, 853 S.W.2d at 555-556; accord, United States v. Arnold, 106 F.3d 37, 41 (3rd Cir. 1997), and cases cited therein; see 2 W. LaFave, et al., Criminal Procedure 6.4(f) n. 127 (2nd ed. 1999). This rule prevents the government from circumventing the Sixth Amendment right to counsel merely "by charging a defendant with additional crimes after questioning him without counsel present," United States v. Arnold, 106 F.3d at 41, or "by charging predicate crimes with the purpose of questioning a suspect on an aggravated crime," Upton v. State, 853 S.W.2d at 556.

Relevant to this case, too, is the "Sixth Amendment ... require[ment] that we impute the State's knowledge from one state actor to another." Michigan v. Jackson, 106 S.Ct. at 1410. "One set of state actors (the police) may not claim ignorance of defendants' unequivocal request for counsel to another state actor (the court)." Ibid.

We now apply these rules of law to the case at bar. Once appellant was indicted for the Owings burglary, his Sixth Amendment right to counsel attached to that offense and to the capital murder offense, which was factually interwoven with the burglary. It is also true that once appellant's right to counsel attached, he asserted it by accepting Ridley's appointment as his counsel. Therefore, before the Odessa police could lawfully question appellant about the disappearances of the Owings, they were under an obligation to contact Ridley and get his permission. They failed to do that. Consequently, the fruits of the Odessa police interrogation, including appellant's written statement, were inadmissible in the prosecution's case-in-chief.

The fact that Ridley twice gave permission to Walker County investigators to question appellant is irrelevant. Nothing in the record suggests that Ridley's permission was intended to be continuing or could have reasonably been so interpreted.

Having found constitutional error, we still need not reverse appellant's conviction if we determine that the error was harmless beyond a reasonable doubt. Chapman v. California, 87 S.Ct. 824, 828 (1967); Tex. R. App. Proc. 44.2(a). If there is a reasonable likelihood that the error materially affected the jury's deliberations, then the error was not harmless beyond a reasonable doubt. Satterwhite v. Texas, 108 S.Ct. 1792, 1797 (1988).

The record reflects that appellant's statement was incriminating and central to the prosecution's case against him. Therefore, a reasonable likelihood exists that the admission of the statement in evidence materially affected the jury's deliberations.

We sustain appellant's fourth point of error. In view of our disposition of appellant's fourth point of error, we need not address his remaining points of error. The judgment of the trial court is reversed, and the case is remanded for a new trial.



1. All references to articles are to those in the Texas Code of Criminal Procedure.

2. See Miranda v. Arizona, 86 S.Ct. 1602 (1966).