                                                                             ACCEPTED
                                                                         03-14-00044-CR
                                                                                 6228262
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   7/27/2015 10:10:50 AM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                      NO.   03-14-00044-CR

                 IN THE COURT OF APPEALS               FILED IN
                                                3rd COURT OF APPEALS
                          FOR THE                    AUSTIN, TEXAS
       THIRD SUPREME JUDICIAL DISTRICT OF TEXAS 7/27/2015 10:10:50 AM
                         AT AUSTIN                  JEFFREY D. KYLE
                                                         Clerk
_____________________________________________________________

                        NO. CR-12-0771

               IN THE 22ND DISTRICT COURT
                  OF HAYS COUNTY, TEXAS
_____________________________________________________________

                 JOHN FREDERICK ZEDLER,
                       APPELLANT

                               V.

                      STATE OF TEXAS,
                         APPELLEE
_____________________________________________________________

          APPELLANT’S MOTION FOR REHEARING
_____________________________________________________________

                                    LINDA ICENHAUER-RAMIREZ
                                    ATTORNEY AT LAW
                                    1103 NUECES
                                    AUSTIN, TEXAS 78701
                                    TELEPHONE: 512-477-7991
                                    FACSIMILE: 512-477-3580
                                    EMAIL: ljir@aol.com
                                    SBN: 10382944



                                    ATTORNEY FOR APPELLANT
        GROUND FOR REHEARING NUMBER ONE
THE COURT OF APPEALS ERRED WHEN IT SAID THAT THE
RECORD DID NOT REFLECT THE LENGTH OF TIME BETWEEN
WHEN APPELLANT’S SON TOLD THE DETECTIVE THAT
APPELLANT WOULD LIKE TO SPEAK WITH HIM AND WHEN
THE DETECTIVE INTERVIEWED APPELLANT THE SECOND
TIME.

      In its opinion the panel of the Third Court of Appeals concluded that

appellant initiated the second interview with Detective Floiran.     The panel

then wrote the following:

      “There was no evidence presented at trial concerning the length
      of time between when Brandon told Floiran that Zedler would
      like to speak with him and when Floiran interviewed Zedler the
      second time.       Therefore, there was no evidence that the
      police failed to timely act on Zedler’s initiation or were
      responsible for any delay in conducting Zedler’s second
      interview.”    (slip opinion, p. 6)

This statement is totally wrong.      The record reflects that a hearing was

held on appellant’s motion to suppress outside the presence of the jury on

December 9, 2013, immediately after jury selection.       (R.R. II, p. 267-328)

During that hearing the court heard testimony from Brandon Zedler,

appellant’s son, who testified that he asked Detective Floiran to talk to

appellant (his father) a second time.       (R.R. II, pp. 272-282)    Detective

Floiran also testified during the hearing and told the court about his two

interviews with appellant.    He testified that appellant invoked his counsel

during the first interview.    (R.R. II, pp. 285-295)    During his testimony

he testified that he went to the jail to talk to appellant the second time after
                                        2
Brandon told him that his father did not remember a lot about what had

happened and had questions and wanted to talk to the detective.        (R.R. II,

pp. 296-298, 303-304)       During the hearing the trial court watched the

video of the detective’s first interview with appellant.           (R.R. II, pp.

313-322)      The court then asked the parties about the circumstances of the

second interview and following occurred:

            “THE COURT: And what’s the time frame between
      this event where he says he wants his lawyer to when the
      second interview takes place?

              “MR. ERSKINE:      The second interview took place –

              “THE COURT:        What’s the time frame?

              “MS. MCDANIEL:       From the 22nd of June to the 11th of
      July.

              MR. ERSKINE:       Thank you.     Correct.

            MS. MCDANIEL: Or maybe after midnight.                 Maybe
              th
      the 28 of June, but, what ever.

            MR. ERSKINE:         Right.    So a matter of two weeks,
      approximately.

              THE COURT:      July what?

              MS. MCDANIEL:       The 11th.

              MR. ERSKINE:       Of 2012.”     (R.R. II, p. 323)

The next morning the trial court watched the video of the second interview

and then ruled that it would allow the video of the second interview to be

                                      3
seen by the jury, noting that the second interview occurred two weeks after

the first interview.   (R.R. III, pp. 16-20)

      Appellant asks the Court to re-examine his case in light of the fact that

the record does contain evidence that there was a two week delay between

Brandon’s conversation with the detective and the detective talking to

appellant.   During this two week time span, appellant made no effort to tell

anyone that he wanted to speak to authorities about his case.          Appellant’s

actions during that time certainly do not show a willingness and a desire to

talk to the authorities about his case.       Appellant’s situation is very similar

to the situation in United States v. Whaley, 13 F.3d 963 (6th Cir. 1994).       In

Whaley, there was a three week interval between Whaley making an

ambiguous request to talk to an officer about his arrest and then being

re-interviewed by law enforcement during which he made a statement.

On appeal, the issue before the Sixth Circuit was whether or not Whaley’s

request to talk to the officer was an actual re-initiation of contact with law

enforcement.      The deciding factor for the Sixth Circuit was the length of

time between Whaley’s request and the second interview coupled with

Whaley’s conduct during that three week interval:

      “However, in the present case, we do not need to decide this
      question, because after this exchange nothing happened for
      three weeks.    The authorities did not contact Whaley, and
      Whaley made no effort to tell anyone – including agent
      Anderson – that he wanted to talk about the case. Whether or
                                          4
      not Whaley’s exchange with Waggoner might have at the time
      constituted an Edwards initiation, given that Whaley did
      nothing else during the succeeding three-week period, his
      actions certainly do not show a willingness and a desire to
      speak generally about the case.      Therefore, as in Edwards,
      when Anderson removed Whaley from his cell and interrogated
      him without counsel present, he violated Whaley’s
      constitutional rights.” 13 F.3d at 968.

Appellant asserts that Whaley should govern his case.            The evidence

affirmatively shows that there was a two week delay between Brandon’s

request to the detective and the detective pulling appellant out of his cell and

taking him in for the second interview.     Appellant did nothing during this

two week interval to indicate that he had a willingness and desire to speak to

the detective about his case.

      Appellant did not reinitiate contact with the detective.             The

detective’s second interview with appellant was in violation of Edwards v.

Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).              This

ground for rehearing should be granted.

                                            Respectfully submitted,


                                           /s/ Linda Icenhauer-Ramirez
                                           LINDA ICENHAUER-RAMIREZ
                                           ATTORNEY AT LAW
                                           1103 NUECES
                                           AUSTIN, TEXAS 78701
                                           TELEPHONE: 512-477-7991
                                           FACSIMILE: 512-477-3580
                                           EMAIL: ljir@aol.com
                                           SBN: 10382944
                                       5
                                          ATTORNEY FOR
                                          APPELLANT ON APPEAL


                   CERTIFICATE OF COMPLIANCE

      I hereby certify that this motion for rehearing contains 1,051 words, as
calculated by the word count function on my computer and is prepared in
Times New Roman 14 point font.

                                            /s/ Linda Icenhauer-Ramirez
                                            LINDA ICENHAUER-RAMIREZ




                      CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of Appellant’s Motion for
Rehearing was e-served to the Hays County District Attorney’s Office on
this the 27th day of July, 2015.

                                            /s/ Linda Icenhauer-Ramirez_
                                            LINDA ICENHAUER-RAMIREZ




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