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Dotson v. State9/2/2004
because Walker did not act as a state agent during his conversations with Dotson.
At trial, shortly after the State commenced its examination of Walker, Dotson moved for a hearing outside the presence of the jury to determine whether Walker was "working with the police department in talking to [Dotson] in the jail after he was charged." After hearing evidence and argument regarding the admissibility of Walker's testimony, the trial court overruled Dotson's objections and permitted him to testify in front of the jury. But, in the court's charge, the jury was instructed not to consider any evidence of statements Dotson made to Walker if the jury believed that Walker was acting as an agent for the State when talking to Dotson about his case.
A. Standard of Review and Applicable Law
In reviewing a Sixth Amendment right-to-counsel question, we employ the bifurcated standard of review set forth in Guzman v. State. 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); see also Manns v. State, 122 S.W.3d 171, 178 (Tex. Crim. App. 2003) (applying bifurcated standard to right-to-counsel question). Therefore, we afford almost total deference to a trial court's determination of the historical facts and to its determination of mixed questions of law and fact that turn upon an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo mixed questions of law and fact that do not turn on credibility and demeanor. Id. When the trial court does not make findings of fact, we review the evidence in the light most favorable to the trial court's ruling. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000).
It is well settled law that, after the initiation of formal criminal proceedings, the State cannot deliberately elicit incriminating statements from an accused without an express waiver of the right to counsel. Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203 (1964). In order to find a Sixth Amendment violation under Massiah and its progeny, the challenged statements must have been (1) deliberately elicited (2) by a government agent. State v. Hernandez, 842 S.W.2d 306, 312 (Tex. App.--San Antonio 1992, pet. ref'd), cert. denied, 509 U.S. 927 (1993). The determination of whether a jailhouse informant is acting as a state agent depends in large part upon whether the inmate is acting pursuant to an agreement with or instructions from government officials. See Manns, 122 S.W.3d at 182. A jailhouse informant who has not entered into any agreement with the government and who reports incriminating evidence out of conscience or even an "encouraged hope to curry favor" is not acting as a government agent. Hernandez, 842 S.W.2d at 314.
B. Walker Was Not Acting as an Agent of the State During His Conversations with Dotson
Outside the presence of the jury, Walker testified that he initiated contact with Detective Thomas Boetcher of the Fort Worth Police Department by sending him a series of letters regarding his jailhouse conversations with Dotson. In the letters, Walker indicated that he wanted a pending burglary charge dismissed and that he asked Detective Boetcher to have the White Settlement Police Department reinvestigate the case against him. On December 11, 2001, Detective Boetcher met with Walker and obtained a written statement detailing information received during Walker's conversations with Dotson. During the meeting, Detective Boetcher informed Walker that he had no control over the White Settlement Police Department and that he could not make any promises regarding his pending case. Walker testified that after the meeting he continued to talk to Dotson about the case on his own accord and continued to send Detective Boetche
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