                                    NO.
                                                /*M5
                                                                                      ORIGINAL
                                                IN    THE
                                      COURT      OF    CRIMINAL
                                                APPEALS
                                               OF    TEXAS



                                                                                      RECEIVED IN
                                   JOHN    FREDERICK            ZEDLER              COURTOFCRIMINAL APPALS
                                                     V .                                DEC 01 2015
                                     THE   STATE           OF   TEXAS
                                           RESPONDENT                               Abel Acosta, Clerk

                                   NO.    CR-12-0771            IN   THE
                                    22ND       DISTRICT         COURT
                                   OF HAYS       COUNTY,         TEXAS
                                                     AND
                                     NO.   03-14-00044-CR
                                             FOR THE
                                   THIRD   COURT OF APPEALS




                           PETITION      FOR    DISCRETIONARY              REVIEW


                                                                                        FILED IN
JOHN     FREDERICK        ZEDLER
                                                                                COURT OF CRIMINAL APPEALS
Petitioner,         Pro    Se
TDCZJ#    01902409
Polunsky Unit
3872     FM   350   South                                                           Abel Acosta, Clerk
Livingston,         Tx     77351
                                     TABLE    OF    CONTENTS



                                                               Page
       IDENTITY       OF    INTERESTED    PARTIES              01


I.     INDEX    OF    AUTHORITIES                              III


II.    STATEMENT       REGARDING      ORAL    ARGUMENT         D2


III.   STATEMENT       OF    CASE                              02


IV.    STATEMENT       OF    PROCEDURAL      HISTORY           02


V.     GROUNDS       FOR    REVIEU                             03


VI.    ARGUMENT                                                03


VII.   PRAYER    FOR       RELIEF                              1 2


VIII.APPENDIX                                                  1 3




                                                   II
                                                  I.


                                     INDEX   OF   AUTHORITIES




U.S.    CASES:                                                                                  Page

1.     Arizona v. Roberson, 486 U.S.                    675,681,10B S.Ct.,          2093;-
       -100 L. Ed. 2d 704 (1988                                                                 j TO

2.     Edwards v. Arizona,             45 U.S.      477; 10lS.Ct. 1BBD,68 L.Ed.2d-
       -37B (1981)                                                          6,7,8,9^10

3.     Minnick v.          Mississippi,      498,    U.S.146,147,      111     S.Ct.'4B6,-
       112    L.Ed.    2d    4B9    (1990)                                                       10

4.     Oregon w. Bradshaw, 462 U.S.                 1039, 103 S.       Ct .    2830,
       77 L.Ed. 2d 405 (1983)                                                                    11

5.     Van    Hook    v.    Anderson,    488     F 3d   411   (6th   Cir.     2007)              11

6.     U.S.    v. Whaley,13F.3d 963(6th Cir.1994)                                                06

STATE    CASES:

1.     Cross v.       State,       144 S.hJ.3d    527(Tex.     Cr.App.      2004)                11

2.     McCarthy v. State,             65 S.W.3d 47(Tex. Cr .App . .2001 )                    ....11



STATUTES       AND    RULES:

1.     Code of       Criminal Procedure-Art . 1.051(c)                                           11




                                                    III
                            NO.




                                               IN       THE
                                     COURT      OF      CRIMINAL
                                               APPEALS
                                              OF    TEXAS




                                  JOHN     FREDERICK          ZEDLER
                                           PETITIONER


                                                    V


                                    THE    STATE         OF   TEXAS




                                  NO.    CR-12-0771           in    the
                                    22ND      DISTRICT        COURT
                                  OF HAYS       COUNTY,        TEXAS
                                                   AND
                                    NO.    03-14-00044-CR
                          THIRD     DISTRICT         COURT     OF    APPEALS




                          PETITION      FDR    DISCRETIONARY              REVIEW




TO    THE HONORABLE        JUDGES OF       THE COURT OF             CRIMINAL APPEALS
OF    TEXAS:


       Comes nouj the       petitioner,         John Frederick Zedler,                Pro   5e, in

the above-styled and numbered cause and respectfully urges the

courts    to   grant discretionary              review in           this    case,   Pursuant to

the    rules   of   the    court.




                                                   (1)
                                                   II


STATEMENT       REGARDING         ORAL    ARGUMENT


Oral    argument      not    required.




                                                   Ill




STATEMENT       OF   THE    CASE:

Petitioner was          indicted for         the    murder   of    Mildred      Zed.ler,    by

asphyxiation.(CR 15)               Petitioner plead "NOT GUILTY".                  (3 R.R.       23-24)

on December 11,            2013,    the    jury found petitioner guilty.                (4 R.R.2)

The    next   day he       was   sentenced to        60   years    in    the   INSTITUTIONAL

DIVISION      of the       Texas    Department       of Criminal         Justice.




                                                   IV




STATEMENT       OF   PROCEDURAL          HISTORY:

       Petitioner was            charged by    indictment         in    this   cause   on

September 5,2012.                Jury selection occurred on               December 9,       2013-

-(R.R.    II,    p.p.      5-25B)        On December TO,      2013,       after hearing the

evidence      and the       argument from counsel,            the       jury deliberated and

returned a verdict of guilty.                  (R.R. IV,      p.87;       CR.    20B6-2094)

On    December 12,         2013,    after hearing the         evidence         and argument

from counsel,         the    jury•deliberated and            assessed petitioner's

punishment at sixty (60)                  years imprisonment.            (R.R.V,    P.30;C.R.-

-2095-209B)          The trial court sentenced him that day.                        (R.R.V,p.32;

-C.R.    2100-2101)          The    trial court's certification of defendent'a

rights to appeal was filed on December 12,                             2013. (C.R.     2099)

A motion for new trial was                  filed on December 12,              201 31 (C.R.21.0 6)



                                                    (2)
Notice of appeal was filed on            January 7, 2014,(C.R.   2111-2112)

The Third Court of Appeals rendered its decision affirming

petitioners conviction on July 23, 2015.            A motion for

rehearing asking the Court of Appeals to revisit the case was

filed on July 23, 2015.            The Court of Appeals denied the motion

for rehearing on September 2, 2015.             Motion for extension of time

in which to file the Petition for Discretionary Review was n--:n -
granted on November 2, 2015 by the Court of Criminal Appeals

of   Texas.




GROUNDS    FOR    REVIEW

GROUND    ONE:


     The Third Court of Appeals erred when it said that the record

did not reflect the length of time between when petitioner's son

told the detective that petitioner would like to speak with him

and when the detective interviewed petitioner the second time:;



GROUND    TldO:


     The Third Court of Appeals erred when it found that petitioner

re-initiated      contact   with   Law   Enforcement:




                                          VI




ARGUMENT


GROUND    ONE:


     The Court of      Appeals erred when it      said that the record did




                                          (3)
not        reflect    the    length      of   timebetween          when       petitioner's      son       told

the detective that petitioner would like to speak with him and

when the detective interviewed petitioner the second time.

           The Court of Appeals has decided an important question of

State of Federal law that has not been,                             but should be,            settled by

the Court of Criminal Appeals.

           In its opinion the panel of the Third Court of Appeals con

cluded that petitioner 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 po-
-lir,->.    lice failed to timely act on Zedler's initiation or were re
            sponsible 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 petitioner's motion to suppress outside the

presence of the              jury on December 9,              2013,   immediately after                  jury

selection.           (R.R.   II,    p.276-328)

During        that hearing         the   court heard testimony                  from   Brandon

Zedler,          petitioner's       son,      who    testified     that        he   asked    Detective

Floiran to talk to              petitioner           (his father)         a    second time.         (R.R.-

-IIv       pp.    272-282)      Detective           Floiran also      testified during              the

hearing and told the court about his two interviews with pet

itioner.           He testified that petitioner 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 petitioner the

second        time   after     Brandon        told    him   that   his        father   did    not   re-




                                                      (4)
member       a lot       about what had happened:                      and       had    questions          and    wanted

to    talk to       the detective.             (R.R.          II,    pp.    296-29B, 303-304)

During       the    hearing       the       trial    court          watched       the    video       of    the

detective's first interview with petitioner.                                           (R.R.    II,       pp.313-322)

The   court        then    asked       the    parties          about       the    circumstances                of the

second       interview          and    the    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       the 28th

       of    June'.j     but,    whatever.

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

       imately .

            THE    COURT:        July What?

            MS.    MCDANIEL:           The    11th.

            MR..ERSKINE:              Of    2012."       (R.R.       II,    pi    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    seen by       the jury,          noting that the                   second

interview occurred two weeks after the                                     first interview.                (R.R. III-

-, pp.       16-20)

       Petitioner          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          petitioner.                 During this          two week

                                                          (5)
time    span,       petitioner made               no   effort       to    tell    anyone       that    he        wanted

to   speak     to    authorities          about        his       case.     Petitioner's          actions

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

to   talk     to    the    authorities            about      his    case.        Petitioner'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 happ
         ened for three weeks.               The authorities did not contact

         Whaley, and Whaley made no effort to tell anyone - in
         cluding agent Anderson-                  that he wanted to talk about the
         case.      Whether or not Whaley's exchange with Waggoner                                     ;'
         might have at the time constituted and 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 coun
         sel present, he violated Whaley's constitutional rights."
         13    F . 3d     at    968


Petitioner asserts                that Whaley should govern his case.                                 The

evidence affirmatively shows that there was a two week delay




                                                         (6)
between      Brandon's       request to       the       detective    and the detective

pulling      petitioner       out    of his       cell    and taking       him in    for       the

second      interview.        Petitioner          did    nothing    during    this       two    week

interval      to    indicate that he          had       a willingness       and desire          to

speak to      the    detective       about    his       case.

       Petitioner      did    not    reinitiate          contact    with    the   detective.


The detective's          second interview with                  petitioner was in          violation

of    Edwards v. Arizona,451               U.S.    477, 101      S.Ct.^1880,        6B    L.Ed.2d-

-378    (1981).       This    ground should be             granted.



Ground      Two :


        The Third Court of            Appeals erred when             it found that petitioner

reinititiated         contact       with    law    enforcement.


       The Court of Appeals has               decided an important question of .'•';•

State or      Federal law in a way that conflicts with the applicable

dicisions       of the    Court of Criminal               Appeals    and the Supreme             Court

of    the   United    Statesl


       In its opinion the            Third Court of Appeals concluded that

petitioner initiated the second interview with Detective                                       Floiran.

The evidence showed that petitioner invoked his right to                                       counsel

during his first interview with                     police on       the night of his wife's

death.       Several days later when he was                      visited by his son,

petitioner told his son that he                     did not remember anything from

the    night of his       wife's death.             His    son    suggested that it would

be helpful to get the detective to tell                           petitioner what had

happened that night.                For that reason petitioner's son contacted

the detective,         not at petitioner's request, but rather of his

own volition.          The evidence clearly shows that petitioner did



                                                   (7)
not    initiate          contact        with    the    detective.              The    detective's          conduct

in    going to meet with                 petitioner for the                second interview was a

clear       violation        of    Edwards       v.    Arizona,       451       U.S.    477,       101    S.CT.-.

-1BB0,       68 L.Ed.2d 378(1981).

       After the jury was selected the trial court conducted a

hearing on petitioner's motion to                             suppress.          (R.R.       II,    pp.    267-

-328;       R.R.    Ill,     pp.    15-19;       C.R.       20-22).        Petitioner's son,                   Brandon,

testified          that     it    was    his    idea    to have       petitioner             talk    to    the

detective again.                 (R.R.    II,    pp.274-275) .

       Brandon       testified that he                 told petitioner                that he       would       ask

the    detective to              talk to       petitioner and tell petitioner what had

happened.           Brandon testified                 that petitioner agreed with                         this

suggestion.              Brandon testified that he                    contacted Detective                      Floiran

about talking to                 petitioner.          (R.R.    II,    pp.       272-275).

       On cross-examination,                    Brandon testified that it was his idea

to    have     petitioner          talk to       the    detective          again:

            "QJ.    (BY MR.CASE)               You testified earlier that he                         told you

       he    didn't       remember what           happened,          and       that    you    told       him that

       you would          tell-or        ask the       detective          to    go    speak to       him.

            "A.     Yes.


            "Q.     Is    that     correct?           And    was    that       your-so       that    was       your

       suggestion?

            "A .    Y es,    I felt that he-he didn't have a good memory of

       what exactly happened.                     He    was    asking          me,    you know,          for

       details of what had happened that-night. . And I told him I

       would       have     the    detective          tell    him    in    detail       because          all    he

~r:    hadrbeehtold was that he had killed his wife."                                          (R.R.II,P.276)




                                                       (B)
       Brandon       testified      that       after       talking       with    petitioner,           he

wanted    the    detective         to    tell       petitioner          what    he   had    done    because

petitioner didn't know what happened.                              (R.R.II,p.          27B)

       Brandon       testified      that       he    went    and       told    Detective         Floiran


of his    idea to       tell petitioner what happened and that Detective

Floiran       told    him   he'd    be    sure       his    father       was    told    what     had


happened.       (R.R. II,p. 278-279)

       Detective       Floiran      testified          that       at    some    point      during      the

first    interview petitioner invoked his rights to                                    counsel.

(R.R.    II,pp.       292-295)

       Detective       Floiran testified that several                           days    later,      he

talked to       Brandon.       Brandon          told him that             petitioner had

questions about what had happened the night his mother died.

(R.R.pp. 296-298):'^-               .

       Floiran       testified      that       after       that    conversation,            he    went

to the jail,          checked petitioner out of the jail and took

petitioner back to his office for a second interview. (R.R.II,-'

-pp.    296-298);(R.R.         II,       pp.    303-304)

       At the    conclusion of the                  testimony,          the parties agreed that

the second interview was                  approximately two weeks after the first

interview.       (R.R.      II,p.323)

       Petitioner argued that with regard to the second inter

view, petitioner did not reinitiate contact with the detective

and    thus    the    second interview               should have          been suppressed in

accordance with Edwards v.                     Arizona,       451       U.S.    477, 101         S.CT.

18B0, 68 L.Ed.2d 378(1981).                         The United States Supreme Court

wrote :




                                                      (9)
       "We    now hold       that    when    an      accused has         invoked his          right    to

have    counsel       present       during      custodial          interrogation,           a valid

waiver       of   that     reght    can   not     be

established by showing only that he                            responded to          further     police-

initiated custodial                interrogation            even    if he      has   been     advised

of his rights.              We   further hold that an accused,                       such as     :

Edwards,          having expressed his               desire to       deal with the            police

only    through counsel,             is   not     subject to         further interrogation

by   the     authorities         until    counsel        has    been      made   available       to

him,    unless       the    accused himself initiates                     further communication

, exchanges,          or    conversations            with    the    police"      Edwards       v. -

-Arizona , 101           S.Ct.     at 1884-1885          (emphasis added)

       To    protect the         privilege        against self-incrimination                    guar

anteed by the            Fifth Amendment,              police may not conduct a cust

odial       interrogation of a suspect who has                           requested the         assist-

ance'of counsel.             Minnick v.         Mississippi , 49B U.S.                14 6,    147,-

-111    S.Ct.       486, 112 L.Ed.2d 489 (1990);                     Edwards v.        Arizona,-

-supra .


       When a person             subjected to          custodial         interrogation unam-

biguosly invokes the right to                        counsel,       all questioning must

cease.        Interrogation may not be reinitiated by the police,

(of course,          if the arrestee reinitiates the conversation,                                   the

Edwards       rule    is    satisfied),         at     anytime      or    in   any manner       unless

the person has consulted counsel.                            Period.       Arizona v.         Roberson,

4B6 U.S. 675,681,108 S.Ct. 2093, 100 L.Ed.2d 704(19BB), ID at-

-681-6B2.

       To establish a suspect has waived his previously invoked

right to counsel,                the courts must prove (1) The suspect himself



                                                  (10)
initiated further             communication             with       the    authorities          and    (2)

he    thereafter validly waived his                        right to        counsel.       Oregon          v.

Bradshaw,       462 U.S.       1039,      103     S.Ct.       2B30,       77 L.Ed.2d 405(19B3);

Cross v.       State,    144 S.W.3d at               527 .(Tex.Cr.App.2004)

       The    United    States Supreme               Courts has           not broached          the

subject of whether             a third party,                on    behalf of the          suspect,

may inititate communications with the police after the suspect

has invoked his Fifth Amendment right to counsel.                                         The Sixth

Circuit Court has held that even with third party communications,

the police are still prohibited from reinitiating questioning.

And    the impetus       for    reinitiation must                   still- come         from    the       sus

pect.        The virtue       of specifically identifying rights and

duties is preserved:                "Police and Prosecutors" still know,

"What they may do             in conducting custodial interrogation".

Van    Hook    v.    Anderson,      488    F3d 411           (6th       Cir.    2007)

       Applying that          analysis       to      petitioner's              case,    it is       clear

that    petitioner       himself       did      not    reinitiate              contact with

Detective       Floiran.        It was       Brandon,             petitioner's          son.        There

is no    evidence in the record whatsoever that it was petitioner'

s idea to reinitiate contact with the detective.                                         Furthermore,

the evidence is clear that Detective Floiran made no attempt,

to    determine       if petitioner had               an     attorney          so    that he    could

contact       that    attorney      prior       to    interrogating                 petitioner.

McCarthy v.          State,    65   S.W.3d 47(Tex .Crim.App.2001 ) .                           It    is

clear by the record that it was approximately two weeks                                              after

the first interview and when petitioner requested counsel,

to    when    the    detective      conducted          the        2nd    interview.


In    accordance with          CCP Art. , 1 :051 (c) , The courts should have



                                                     (11 )
appointed          petitioner          counsel       by^the          end    of the       3rd working       day

of petitioner requesting counsel.                                Therefore,          it was    Detective

Floiran's          duty    to    check       to    see    if petitioner             had    counsel    prior

to    talking       to    petitioner.




Conclusion;

       Finally,          the evidence is clear that it was petitioner's

son's    idea       to    have    the       detective          talk    to    petitioner,       not    so

that petitioner could give a statement to                                     the    detective,       but

rather,       so    that the          detective          could tell          petitioner what had

happened to          his    wife       (the victim)             since petitioner had no

memory       of    the    nights       events

       Accordingly,             the    entirety          of    the    second       interview    with

petitioner,          State's          Exhibit       31    B,    should have          been    suppressed.

This    point       of error          should be          sustained.




                                                         VII




                                            PRAYER       OF     RELIEF


       Prayer;

                         Wherefore,          premises          considered,          petitioner       prays

this    Honorable          Court will             reverse       the judgment of conviction

for    the    reason herein             alleged          and    remand       for    an    acquittal,

remand for a new                trial,       or    enter any other relief appropiate

under    the       facts    and       the    law.




                                                                               Respectfully Submitted

                                                                               JOHN FREDERICK ZEDLER
                                                                               TDCJ# 01902409
                                                                               PDLUNSKY UNIT
                                                                               3872 FM 350 SOUTH
                                                                               LIVINGSTON, TX        77351

                                                         (12)
                                         VIII




APPENDIX:




CERTIFICATE OF    SERVICE;

    I hereby certify that a true and correct copy of                         Petitioner's

Petition for Discretionary Review was                  mailed to ;the Court of

Criminal Appeals of Texas,            Austin,       Texas 78711     on this

19th day of   November,       2015.




                                                                          tf-^UwA &d/w
                                                                  I0HN   FREDERICK ZEDLER
                                                                TDCJ#     01902409




I, JOHN ZEDLER,      TDCJ# 01902409,          being presently incarcerated

in the Polunsky Unit of the Texas Department of Criminal                         Justice

in Polk County;      Texas,    verify and declare under penalty of

perjury that the      foregoing       statements       are   true   and correct.

Executed on   this    the 19th    day    of     November,      2015.




                                                                                     22=_
                                                               JOHN      FREDERICK   ZEDLER
                                                               TDCJ#     01902409




                                              1 3
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-14-00044-CR




                               John Fredrick Zedler, Appellant

                                                v.



                                   The State of Texas, Appellee



      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR-12-0771, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING



                            MEMORANDUM                 OPINION



               Following the denial of his motion to suppress evidence, a jury found appellant

John Zedler guilty ofmurder and assessed punishment at 60 years' imprisonment, and the trial court

renderedjudgment on the jury's verdict. See Tex. Penal Code § 19.02. In two points oferror, Zedler

contends that the trial court should have granted his motion to suppress and that the trial court's

judgment contains an error that should be corrected. We will modify the trial court's judgment and

affirm the judgment as modified.


                                        BACKGROUND


               Detective Angelo Floiran and other law enforcement officials interviewed Zedler on

June 27,2012, in connection with the death of Zedler's wife. During the interview, Zedler invoked

his right to counsel. A few days later, Zedler met with his son Brandonand indicated a desire to
speak with the police again. On July 11, 2012, while Zedler was in custody under suspicion for

homicide, Detective Floiran again interviewed Zedler. During this second interview, Zedler waived

his Miranda rights and made self-incriminating statements suggesting that he caused the injuries

discovered on his wife's body. Zedler's subsequent motion to suppress the video recording of the

second interview was denied, and the recording was published to the jury at trial. The jury found

Zedler guilty of murder, and this appeal followed.


                                    STANDARD OF REVIEW


                We review a trial court's ruling on a motion to suppress for abuse ofdiscretion, using

abifurcated standard. Goodwin v. State,376 S.W.3d 259,266 (Tex. App.—Austin 2012, pet. refd).

In doing so, we view the evidence in the light most favorable to the trial court's ruling. Johnson v.

State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We give almost total deference to rulings on

application of the law to questions of fact and to mixed questions of law and fact if resolution of

those questions depends on an assessment of credibility and demeanor of witnesses. Arguellez v.

State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). We review de novo pure questions of law

and mixed questions of law and fact that do not depend on evaluating credibility and demeanor.

Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011). We will affirm the trial court's

ruling ifthe record reasonably supports it and it is correct on any theory oflaw applicable to the case.

State v. Duran, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013).
                                          DISCUSSION



Motion to suppress

               In Edwards v. Arizona, the United States Supreme Court held that an accused,

"having expressed his desire to deal with the police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made available to him, unless the accused

himselfinitiates furthercommunication, exchanges, or conversations with the police." 451 U.S. 477,

484-85 (1981); see Cross v. State, 144 S.W.3d 521, 529 (Tex. Crim. App. 2004) ("[T]he critical

inquiry is whether the suspect was further interrogated before he reinitiated conversation with law

enforcement officials. If he was not, Edwards is not violated."). In his first point of error, Zedler

contends that his Fifth Amendment rights articulated in Edwards were violated because Detective

Floiran interviewed Zedler again after he had invoked his right to counsel in his first interview.

               Zedler makes two arguments in support of his Edwardsclaim. First, Zedler argues

that he did not reinitiate contact with law enforcement and that it was his son, Brandon, who asked

Detective Floiran to speak to Zedler a second time.1 However, the State contends that Brandon



       1 To theextentZedlerargues thatan accused cannever initiate contactwithlawenforcement
under Edwards through a third party, we reject that contention. See VanHookv. Anderson, 488 F.3d
411,423 (6th Cir. 2007) (concluding that under Edwards a suspect "can initiate a discussion with
police through the communication ofa third party"); Owens v. Bowersox, 290 F.3d 960,963 (8th Cir.
2002) ("[W]e do not believe that it was unreasonable for the state court to hold that a defendant may
'evince' a willingness and desire to discuss the crime by communicating with the police through a
third party, especially a close relative."); United States v. Michaud, 268 F.3d 728, 737-38 (9th Cir.
2001) (concluding defendant initiated contact under Edwards through a third party); United States
v. Gaddy, 894 F.2d 1307, 1311 (11th Cir. 1990) (concluding defendant initiated contact through
his aunt). Zedler relies on the Fifth Circuit's decision in UnitedStates v. Rodriguez to support his
argument that his conversation with Brandon did not constitute an initiation under Edwards. See
993 F.2d 1170, 1174 (5th Cir. 1993) (concluding that defendant did not initiate contact under
initiated contact with the detective on Zedler's behalf. Viewing the evidence in the light most

favorable to the verdict, as me must, we determine that there is sufficient evidence in the record to

support this conclusion.

               At the hearing on the motion to suppress, Brandon testified that he spoke with Zedler

a few days after the alleged murder. According to Brandon, Zedler stated that he was not sure what

had happened on the night ofthe incident. Brandon suggestedthat Zedler talk to the detective again,

and Zedler agreed and said he wanted to talk to the detective. Although Brandon also testified that

he was unsure whether it was originally his idea or Zedler's idea for Zedler to talk to the detective

again, the trial court was entitled to conclude, as it did, that it was ultimately Zedler's decision to

reinitiate contact with law enforcement and that Brandon acted on Zedler's behalf when he asked


Detective Floiran to speak with Zedler. See St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim.

App. 2007) (in ruling on motion to suppress, "the trial judge is the sole trier of fact and judge of

credibility ofthe witnesses and the weight to be given to their testimony"). Even if it were originally

Brandon's idea that Zedler should speak with Floiran, Brandon's undisputed testimony was that

Zedler agreed with Brandon's suggestion and wanted to speak with the detective. Deferring to the

trial court's determination of the underlying facts, we conclude, as a matter of law, that Zedler

reinitiated contact with law enforcement through Brandon. See Holman v. Kemna, 212 F.3d 413,



Edwards through co-defendant). However, we conclude that Rodriguez does not stand for the
proposition that an accused can never reinitiate contact with law enforcement through a third party.
Instead, the Rodriguez court merely determined that an initiation had not occurred under the facts
of that case. Rodriguez is distinguishable from the present case because, in Rodriguez, the alleged
initiation occurred through a co-defendant, the co-defendant never actually told the officer that
the defendant wished to speak to him, and the evidence of the officer's conversation with the co-
defendant was hearsay. See id.
417 (8th Cir. 2000) (stating that "whether those facts [found by the state court] constitute an

'initiation' underEdwards is a legal question requiring de novo review"); United States v. Whaley,

13 F.3d 963, 968 (6th Cir. 1994) ("While we accept, unless clearly erroneous, the facts that the

district court found,whether those facts together constitutean 'initiation' under Edwards is a legal

question we review de novo").

                Second, Zedler argues that "the time lapse between [Brandon's] conversation with

the detective and the detective's visit to the jail" indicates that Zedler did not wish to initiate contact

with the police. In other words, Zedler is arguing that, even if his conversation with Brandon

constituted an initiation under Edwards, that initiation had become ineffective or stale by the time

Detective Floiran returned to interview Zedler.


                In support of this argument, Zedler cites United States v. Whaley. In that case, the

defendant told an officer that he would like to discuss his case, and a different officer interviewed

the defendant over three weeks later. Whaley, 13 F.3d at 964-65. The Sixth Circuit concluded that,

"[w]hether or not Whaley's exchange with [the officer] might have at the time constituted an

Edwardsinitiation, 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 his case." Id. at

968. The court therefore reversed Whaley's conviction. Id. at 969.

                Zedler has not called our attention to any Texas case holding, as Whaleydoes, that

an accused's initiation under Edwards can become invalid merely because of the passage of time,

and we have found no such case. Even assuming without deciding that an initiation can expire over

time, we conclude that Zedler's initiation remained valid when Detective Floiran conducted the
second interview. 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.

Under the specific facts of this case, we cannot conclude that Floiran's second interview with

Zedler demonstrated "police overreaching" of the type Edwards was intended to discourage. See

Griffin v. Lynaugh, 823 F.2d 856, 861 (5th Cir. 1987); see also id. at 862 (stating that "these

[Supreme Court] cases are clearly indicative to us that in the absence of some police interference

with the exercise of the right to counsel of the accused, the Edwards rule is to be strictly and

narrowly applied"). We therefore hold that because Zedler reinitiated contact with law enforcement

through Brandon, the second interview with Detective Floiran did not violate Zedler's rights under

Edwards. Accordingly, we overrule Zedler's first point of error.


Error in the judgment

               In his second point of error, Zedler contends that the trial court's judgment contains

an error that should be corrected. We agree. On the first page of the judgment, in the blank labeled

"Findings on Deadly Weapon," the entry is "N/A". However, the jury made an affirmative finding

that Zedler used a deadly weapon during the commission of the murder, a fact noted on the

judgment's secondpage. Accordingly, we sustain Zedler's secondpoint of error and modify the

judgment to reflect on the first page that the jury found Zedler used a deadly weapon. See Tex. R.

App. P. 43.2(b).
                                       CONCLUSION


              We affirm the judgment of conviction as modified.




                                            Scott K. Field, Justice

Before Justices Puryear, Pemberton, and Field

Modified and, as Modified, Affirmed

Filed: July 23,2015

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