Ex Parte Burton

Full title: EX PARTE ARTHUR LEE BURTON, Applicant

Court: Court of Criminal Appeals of Texas

Date published: Jun 18, 2008

No. AP-75,790 (Tex. Crim. App. Jun. 18, 2008)

Opinion

No. AP-75,790

Date Delivered: June 18, 2008. DO NOT PUBLISH.

On Application for a Writ of Habeas Corpus, Cause No. 760321-B, from the 338th District Court of Harris County.

Johnson, J., filed a dissenting statement.

ORDER

PER CURIAM.

Arthur Lee Burton filed this post conviction application for a writ of habeas corpus pursuant to Texas Code of Criminal Procedure Article 11.071, alleging that he was denied effective assistance of counsel as required by the Sixth Amendment to the United States Constitution. Specifically, Burton contends that his trial counsel was ineffective in failing to preserve his Fifth and Sixth Amendment complaints to a statement obtained during a "classification interview" with a prison sociologist without the benefit of Miranda ¹ warnings. For the following reasons, we remand this case to the trial judge for further consideration. In 1998, a jury found Burton guilty of capital murder and sentenced him to death. On October 8, 1998, while housed on death row, Burton was interviewed by prison sociologist J.P. Guyton as part of a routine "classification interview." Burton's appeal was pending at this time. In 2001, we affirmed Burton's conviction on direct appeal but vacated the sentence and remanded the cause to the trial court for a retrial on punishment.² On retrial, the State introduced, and the trial judge admitted into evidence, statements made by Burton during his "classification interview." On September 6, 2002, in accord with the jury's answer to the special issues, Burton was again sentenced to death. We affirmed Burton's sentence on direct appeal.³ On December 1, 2003, Burton filed an application for a writ of habeas corpus challenging the validity of the punishment retrial on four grounds. On November 7, 2007, we adopted the trial judge's findings of fact with respect to Burton's first, third, and fourth claims and denied relief. However, we filed and set Burton's second claim for submission and ordered briefing on whether he was denied effective assistance of trial counsel when his counsel failed to object at applicant's punishment retrial to testimony by a prison sociologist about an admission he elicited from applicant during a `classification interview' which applicant claims constituted custodial interrogation.⁴ On December 4, 2007, the State filed a "Motion Requesting Clarification of Court's November 7, 2007 Order" seeking clarification of the precise issues to be briefed. Consequently, on December 19, 2007, we ordered the parties to submit briefs on the following issues:

(1) whether all questions asked and answers or statements obtained in a classification interview are admissible in court, or whether some questions asked and answered or statements obtained can exceed the scope of a permissible classification interview and become products of custodial interrogation; (2) whether the question of why applicant committed the instant crime exceeded the permissible scope of the classification interview and became custodial interrogation; and

(3) whether applicant's counsel performed deficiently when he failed to specifically object to the testimony on this basis at trial.⁵

Shortly before we ordered briefing on these issues, on November 21, 2007, we handed down our decision in Herrera v. State.⁶ Herrera held that incarceration does not always constitute "custody" for Miranda purposes and provided a non-exclusive list of five factors that should be considered by courts when making this determination. Before this Court, in arguing whether Burton was in custody at the time of the "classification interview," both parties devoted considerable attention to the Herrera factors. The habeas judge did not make findings on the issue of "custody" and the habeas record contains little to assist analysis under Herrera. In his brief before us, Burton included a copy of a signed statement in which he describes the circumstances surrounding his "classification interview." He relies heavily on this document in making his custody argument. The statement is dated February 4, 2008, and the habeas judge entered his findings on March 10, 2006; therefore, this statement was never before him. Consequently, the habeas judge was unable to consider it in the context of our decision in that case. The question of whether Burton was "in custody" for Miranda purposes during his "classification interview" is an important issue in this case. Burton's statement, if credible, is relevant to answering this question. However, we generally do not evaluate newly-submitted evidence prior to its consideration by the habeas judge.⁷ A remand to the trial judge is appropriate in this case because, although we are the ultimate fact-finder, we generally afford significant deference to a trial judge's "custody" determination when the question turns on credibility.⁸ Next, although neither party focused on the issue, we are uncertain, based on our review of the record, that Guyton qualified as a "state agent" for Miranda purposes under the facts of this case. We have stated that "[n]ot all government workers must be familiar with and ready to administer Miranda warnings."⁹ Because this case must be remanded for further consideration of the "custody" issue, we order the parties to brief and present arguments on this issue as well. This case is therefore remanded to the trial judge so that he may consider evidence and hear arguments relevant to the questions of custody and Guyton's status as a state agent. The trial judge shall then make findings of fact and conclusions of law that he deems appropriate to the disposition of Burton's second ground for habeas relief. The trial court shall resolve the issues presented within 120 days of the date of this order. In the event that any continuances are granted, copies of the order granting the continuance shall be provided to us. This application will be held in abeyance pending the trail court's compliance with this order.

1 Miranda v. Arizona, 384 U.S. 436 (1966).

2 Burton v. State, No. 73,204 (Tex.Crim.App. Mar. 7, 2001) (not designated for publication).

3 Burton v. State, No. 73,204, 2004 WL 3093226 (Tex.Crim.App. May 19, 2004) (not designated for publication).

4 Ex parte Burton, WR-64360-01, 2007 WL 3289679 (Tex.Crim.App. Nov. 7, 2007) (not designated for publication).

5 Id.

6 241 S.W.3d 520 (Tex.Crim.App. 2007).

7 See Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.Crim.App. 1960).

8 See Herrera, 241 S.W.3d at 526-27.

9 Wilkerson v. State, 173 S.W.3d 521, 528 (Tex.Crim.App. 2005).

JOHNSON, J., filed a dissenting statement.

DISSENTING STATEMENT

At the 2002 hearing, Guyton testified that "he interviewed new prison inmates to compile a social and criminal history for classification purposes, and that the inmates were asked about their criminal history, drug and alcohol history, religion, education, military background, and `various other things' to decide classification, placement, individual treatment and/or counseling. . . ." State's brief at 13-14. He later testified that "a hypothetical defendant would go to general population if he received a life sentence for the offense of capital murder. . . ." The inference, of course, is that defendants who received a death sentence do not go into general population; they go to death row. Guyton also "thoroughly explained the prison classification system, including housing and contact with others." State's Brief at 14. The purpose of the interview system appears to be to provide sufficient information to the prison system to determine appropriate housing-no Crips in with Bloods, no young first timers in with sex offenders-and appropriate treatment regimens for problems such as drug and alcohol addiction. Housing choices dictate the level of contact with other inmates, another factor mentioned by Guyton. Given these stated purposes for the "classification interview," Guyton had no reason at all to interview applicant. Death-row inmates are housed in cells that accommodate one person. They have no contact with other inmates, on or off death row, except in special circumstances such as medical visits. Rehabilitation before release is not a concern, and the prison system probably does not use scarce rehabilitation services on condemned prisoners. A criminal history-at least as to prior and current convictions-is readily available to the prison system through means other than self-reporting by the inmate, and such a history is likely more accurate and complete than self-reporting. Almost none of the information sought in such a "classification" interview is relevant when the classification of the inmate has already been determined by his offense. The parties have not challenged Guyton's status as a state agent, probably because, under our case law, he is. We do not need to re-examine that issue sua sponte. Estelle v. State, 451 U.S. 454 (1981), is on point; unwarned statements made by an inmate during a court-ordered psychological examination were admitted at the penalty phase on the issue of future dangerousness. The United States Supreme Court held that those statements were inadmissible. Applicant made statements during a prison-system-ordered interrogation, and his statements were used against him during in his second sentencing hearing on the issue of future dangerousness. Under Estelle, applicant's statements to Guyton are inadmissible. Wilkerson v. State, 173 S.W.3d 521 (Tex.Crim.App 2005), does not change the equation. A Child Protective Services caseworker who visits an inmate in jail for the purpose of finding suitable placements for the inmate's children is a far cry from a prison employee who wants to know why the crime for which the inmate is serving time was committed. No one has offered a rationale as to why such a question is appropriate or relevant to a determination of the housing and rehabilitation of a death-row inmate. In these circumstances, a remand does not significantly assist this Court is resolving the issues before it. I respectfully dissent.