Pecina, Alfredo Leyva

PECINA, Appellant, Leyva Alfredo of Texas.

The STATE

No. PD-1095-10. Texas. Appeals of of Criminal 25, 2012.

Jan. Worth, Henderson,

Richard A. Fort for Appellant. D.A., Gibson, Fort

C. James Asst. Crim. Worth, McMinn, Attorney, Lisa C. State’s Austin, for State. J.,

COCHRAN, opinion delivered the P.J., KELLER, in which JOHNSON, WOMACK, MEYERS, ALCALA, JJ„ KEASLER, HERVEY and joined. County jury appel-

A Tarrant convicted The trial lant of the murder his wife. judge appellant’s sup- denied motion to after the police gave him Miranda warn- press police during his statements to cus- ings, judge the trial did not err in denying at a questioning hospital todial after appellant’s motion suppress. given him

magistrate had his Article 15.17 rights.1 judge rejected appel- The trial I. lant’s claim that he had invoked both his Fifth and Sixth Background. A. Factual . counsel when asked the Arlington paramedics responded to a appointed attorney but also said that he 911 call wife, and found appellant and his police

wanted to talk to the who were Michelle, in their apartment, both bleeding standing hospital outside the room. On Michelle, from stab wounds. who had Court, remand from this ap- court of fifty-five times, been stabbed died before dissent, peals, over a held that appellant paramedics arrived. Appellant was had invoked his Fifth right Amendment to taken hospital. to the A serrated kitchen magistra- counsel knife with a seven-inch blade was found on process.2 tion the bathroom floor. Based on their initial granted We petition State’s investigation, detectives ap- believed that discretionary for clarify review to the dis pellant had killed Michelle and then Montejo tinction after between the Fifth stabbed himself. After days, they several Amendment to interrogation counsel obtained an arrest warrant. Then Detec- and the Sixth Amendment to trial Maddock, tives Nutt and Frias Judge took counsel.3 Under the Fifth magistrate, a local to appellant’s hospital Amendment to interrogation counsel room. the Miranda is triggered by Judge Maddock suppres- testified at the give beginning any that must before sion that normally performs she questioning. The Sixth Amend magistration hearings at Arlington to trial triggered by counsel is Jail, City but she judicial hospital went to the arraignment or Article 15.17 mag- appellant’s hearing, as she istration. Both the Fifth had done in and Sixth cases, some other “due policy Amendment to the of the apply- sheriffs post-magistration custodial office it will transfer ... interrogation, [that not] but each a Defendant exactly fully magis- is invoked and until he has been waived in same manner —under trated.” the Fifth The two detectives drove Judge Miranda prophylactic hospital rules. Maddock to the and ap- entered appellant We hold because pellant’s never in room with her. They all intro- voked his to interrogation Maddock, Judge duced themselves. who 1. Tex.Code Crim. Proc. art. 15.17. 3. The State's Grounds for Review are fol- as lows: State, 2. Pecina v. 326 S.W.3d 265-66 (1) opinion The improper- Fort Worth Court’s 2010) ("When (Tex.App.-Fort Worth Pecina ly Appellant’s noninterrogative conflates ar- requested appointment of which is raignment subsequent interroga- with his undisputed, he invoked his Fifth Amendment tion. pres- to consult with and have counsel (2) misapplied The Fort Worth ent, magistrate explained as that opinion Hughen Court’s v. State. him, any police questioning. (3) The Appellant anticipatorily could not invoke waiting were question in the hall to him at his Fifth Amendment at a noninterro- moment.”). that gative arraignment. initially “had appellant the detectives appellant, told while Spanish, fluent detectives, had “They lawyer, here. but she been [that] are asked for to the

pointing wanted to talk you.” told Mr. Pecina that he speak Appel- like would They yes gave signed nodded. She Article said them.” either lant detectives, she 15.17 wait- form to left the then room detectives hallway. ed in the Judge Maddock ar- while outside stood read appellant She then appellant. Frias and Nutt came raigned Detectives Article 15.17 “Adult Det. appellant’s version back into room. Frias Spanish Form,” only she although had Warning spoke explained Spanish sign.4 After for him version English they wanted to they who were rights, Judge Mad- appellant his reading murder. question Ap him about his wife’s appoint- if he court “wantfed] dock asked he to talk with pellant said that wanted he he stated did.” She attorney. And wrote, ed them, in Spanish, Det. Frias on so you “Do still want to appellant, then asked form, lawyer, “I for a the 15.17 asked but He said that detectives]?” talk to [the Arlington also with the I wanted the 15.17 signed Article Appellant did. police.” appellant The officers told that that he understood acknowledging form interview, they record the and as would rights. his they their Det. Frias prepared equipment, Miranda5 the gave appellant that, in opin- her Judge Maddock stated equipment The audio orally Spanish. in speak ion, to with appellant’s decision first, Frias orally at so Det. malfunctioned voluntary and was free and detectives tape again Pecina once the started. warned no coercion.” She “absolutely was there signed that Appellant also a card listed his that, appellant when asked believed Miranda every At Spanish. asking he was for trial counsel. his Miranda point, appellant waived never that indicated appellant She said statement, rights. taping the oral to While lawyer present wanted be that he Det. Frias wrote out a written version for Judge him. questioned detectives when signed appellant, the hall told and it.6 then went into and Maddock (5) statement, required Spanish not make a 4.Judge version of You are to Maddock read version, you [may any make can and English and statement rights printed in- on the court; against you in used cluding following: be] (6) right stop any have the interview- You to (2) lawyer hire a and have You have to any ing questioning you time. If or at any present to and prior him/her you may questions, stop answer decide to by peace questioning arid officers interview time; any questioning state; attorneys representing [the] or (7) examining have the have an You to (3) lawyer, you you afford a have If cannot felony you charged if are with a of- trial appointment request the of a fense; and prior lawyer present to be and (8) subject may deportation you be if You you and have the such interview not a U.S. citizen. are attorney appointed represent an to have Arizona, you attorney. This you if cannot afford v. U.S. Miranda S.Ct. you may your lawyer (1966). means obtain own 16 L.Ed.2d lawyer you. may appointed for have a You statement, opportunity to taped have reasonable time and In his said that your you lawyer day if [The consult desire. he did not remember much about his they paperwork argued He said had form then describes the neces- wife died. that counsel]; sary indigent wanting obtain status for to be with He about her him. (4) fight. angry, they Ap- have remain silent. You became and started You to. pellant that police; he had cut wife and speak do not have to to the admitted that appellant detectives said never less of may which he have invoked.8 On stop asked to the interview and never review, discretionary reversed, we holding speak They that, asked to with counsel. denied under Michigan v. Jackson, 9 appellant making any promises, they stated that “had invoked his [Sixth Amendment] they believed appellant’s waiver was know- rights to counsel when arraigned by the ing, intelligent, voluntary. After their magistrate at the hospital,” appellant’s interview, the detectives took Judge Mad- “yes” reply when asked if office, dock back to her began and she he still wanted to talk with the process appoint appellant’s trial counsel. insufficient to reinitiate contact and waive his previously invoked Sixth Amendment Appellant testified if an attorney right.10 We remanded the case for the had him not police, advised court of appeals to conduct a harm analy he would not have talked with them. The sis. testimony rest of his dealt with whether he

was advised that he could contact the Mex- While this case was pending the court ican Consulate. appeals remand, on the United States Supreme Court overruled Michigan

The trial judge denied the motion to very Jackson —the case that we suppress. He found that relied on appellant was fully holding appellant’s informed of his invocation of “indicated Sixth Amendment although he did lawyer, want that he at the magistration hearing wished to also talk with detectives from rendered his subse Arlington, quent waiver of meaning basically that he counsel for the waiving rights police-initiated at that time.” interview invalid—in Mon tego However, v. Louisiana.11 the court of Appellate History. B. appeals that, held Montego, even after ap pellant’s submission, statements original On should have been sup the Fort Worth pressed of because he Appeals appellant’s Court affirmed invoked his Fifth mur- conviction, der Amendment finding right interrogation to an when at agreed torney by asking the response for an appointed the magistrate’s question, lawyer.12 he granted initiated con- We review to police.7 tact with Appellant’s action discuss the distinct Fifth and Sixth waived both the Fifth Amendment Amendment to counsel after Monte- jo and the Sixth and to apply those differences to custo Amendment to trial regard- dial interrogation. State, 564, that no present (Tex. one else was when these 10. Pecina v. 268 S.W.3d 568 events occurred. He memory ("While had no cut- of Crim.App.2008) agree we with the statement, ting himself. In written appel- appeals Appellant’s court of Sixth picked lant up said that he the knife from the Amendment to counsel attached when wife, kitchen and cut his but he did not re- arraigned by magistrate, he was the we dis many member how times he cut her. agree Appellant himself initiated contact (Pecina II). police.”) with the State, 6-CR,

7. v. Pecina No. 2-05-45 2007 WL 1299263, 3, (Tex.App.-Fort May *7-8 Worth Louisiana, 778, Montejo 11. v. 556 U.S. 2007) (not (Pecina designated publication) for n 2079, (2009). S.Ct. 173 L.Ed.2d 955 8. Id. State, 249, 12. Pecina v. 326 S.W.3d 264-67 (Pecina 2010) III). (Tex.App.-Fort Worth 9. 475 U.S. 89 L.Ed.2d (1986). bright-line reaffirming

II. the rule of Mi- randa and Edwards.13 As Justice Scalia decades, past jurispru- four Over conclusion, Montejo noted in his Fifth concerning the Amendment dence exemplar Jack- This case is an of Justice during police interrogation right to counsel quoted warning son’s oft that this Court right to counsel and the Sixth Amendment adding “is new stories to forever stages proceed- all “critical” criminal at law, and temples of constitutional complex had become intertwined ings way collapsing have a when temples was confusing increasingly It ways. and story many today one too We is added. to determine which difficult courts Michigan v. fourth remove Jackson’s when whether can be invoked and ” story prophylaxis.14 to counsel under invocation Montejo We examine how the lessons of coun- amendment invoked one case, apply factually in this one that Finally, under the amendment. sel other very Montejo.15 similar to States Montejo, the United Right A. The Fifth Amendment to In- right-to-coun- the two disentangled terrogation Counsel.16 provisions sel constitutional and clarified separate purposes applications their Fifth prohibits Amendment overruling Michigan government from compelling Jackson criminal 794-96, Montejo, 129 S.Ct. at But the Court the case to deter- remanded Montejo 2091-92. whether “made a mine had clear when assertion of the 556 U.S. at at 2092 S.Ct. accompa- approached had about officers him (citation omitted). nying them on excursion for the murder (1) weapon,” question because of whether Jay Montejo arrested 15. Jesse for murder validly Montejo had waived his Miranda questioned by police He ad- detectives. (2) fully litigated; had not been mitted that he had shot and killed the victim press his could still claim that his Sixth days burglary. in a botched Several later he and, rights had if been violated charged prelimi- with murder at a police misrepresented whether he had been nary hearing, judge the ordered that counsel appointed lawyer appointed purportedly a when he represent be him. to 129 S.Ct. at rights day, police Miranda 2082. Later that same detectives waived his custo- They jail. Montejo visited read him his dial Id. rights accompany him to Miranda and asked weapon. Montejo find them to the murder right to 16.We refer this to counsel as the and, agreed, trip, he the wrote "an interrogation right Amendment "Fifth to inculpatory apology to the victim's letter of distinguish the counsel” to it from "Sixth Only Montejo widow.” Id. did meet later his right To trial counsel." be court-appointed lawyer, quite upset "who was clear, this interrogated that the detectives had his client something aof to the extent misnomer appeal, Montejo in his absence.” Id. On that it indicates that the Fifth Amendment inculpatory claimed that letter the should not right itself creates a counsel. The have been because he admitted had invoked Miranda, by including right created his Sixth Amendment counsel at the present during have counsel custodial inter- preliminary police hearing and thus officers rogation, rights pro- "are not themselves questioning were barred from thereafter with- by tected [are] Constitution but instead presence out the of counsel. Id. at 2083. right against to insure measures that the Supreme held that Court neither a defen- compulsory protect- self-incrimination [is] preliminary dant’s counsel at a However, pervasive- ed.” because of appointment nor of that af- validity fects the ness of term’s use in the cases of the defendant’s waiver of rights during Supreme interpreting ... subsequent his Miranda custo- Court Miranda, interrogation by police. dial Id. 2091-92. counsel created we use it here. suspect against to bear witness purpose himself.17 The of the Edwards rule is to Arizona,18 In Miranda v. Supreme “prevent police from badgering a defen- crafted safeguards protect Court dant waiving into previously asserted “privilege against self-incrimination” in the Miranda rights.”23 That prophylactic inherently coercive atmosphere of custodi protects rule the suspect has made —who interrogations.19 al questioning Before the decision not to law-enforce- suspect custody, who is in police give must ment officers without lawyer and clear- Miranda warnings. Only if person ly communicated that decision po- to the the person voluntarily and intelligently lice—from further badgering.24 In waives his Miranda Montejo, rights, including Supreme again Court praised to have an attorney present during the “clear and unequivocal guidelines to questioning, may his statement be intro the law enforcement profession” that Ed- duced wards against into evidence him at trial.20 provides.25 Arizona,21

Under Edwards v. once It is the officer or other person invokes his right to have counsel law-enforcement agent who administers present during a Miranda warnings, and he does so imme interrogation, custodial valid waiver of that diately cannot be estab before interrogation.26 by merely lished showing Thus, that the suspect the police give must the Fifth responded police-initiated interrogation Amendment Miranda warnings during the after being advised of his again.22 process of custodial interrogation but be- Johnson, 162, 796, Montejo, Goodwin v. 132 F.3d 179 n. 12 25. 556 U.S. at 129 S.Ct. at 2091 (5th Cir.1997) (quoting Eagan, (internal Duckworth v. omitted). quotation marks 195, 203, 2875, 492 U.S. 109 S.Ct. (1989)) (all L.Ed.2d 166 other citations and Miranda, 444-45, 384 U.S. at 86 S.Ct. omitted). quotation marks (suspect may invoke his Fifth Amend- interrogation "prior (“No to” person 17. U.S. amend V ... shall Const, during interrogation compelled if any be he criminal case to be a manner, himself”). against indicates "in any stage witness and at process that wishes to consult with an 436, 18. 384 U.S. 86 S.Ct. 16 L.Ed.2d speaking”). before In 694(1966). repeatedly referred to the Fifth Amendment during "po- 1602; 19. Id. at 86 S.Ct. see also Dick- interrogation, lice initiated” custodial thus it States, 428, 437-38, erson v. United questioning is that factual by police (2000) (de- 147 L.Ed.2d scenario — agents gives officers or their rise to the scribing the Fifth Amendment to inter- —that prophylactic warnings, Miranda rogation and the invo- prophylactic counsel as a rule nec- essary cation mitigate right or waiver of the Fifth inherently Amendment coercive interrogation). environment of questioning. custodial counsel such See 787, Montejo, 556 U.S. at 129 S.Ct. at 2086 Miranda, 475, 20. 384 U.S. at 86 S.Ct. 1602. (stating “antibadgering” by police offi- Edwards), cers is the rationale of at id. 2087 477, 1880, 21. 451 U.S. 101 S.Ct. 68 L.Ed.2d (rejecting Montejo’s proposed rule that would (1981). 378 prevent “police-initiated interrogation entire- 485, 22. Id. at 101 S.Ct. 1880. ly right” once the Sixth Amendment to coun- attaches), (purpose sel id. at 2089 of Jackson 344, 350, Michigan Harvey, 494 U.S. 110 rule, Edwards, preclude like that of "is to 1176, (1990). S.Ct. 108 L.Ed.2d 293 badgering State from waiving defendants into previously rights"). their asserted Cobb, 175, 162, 24. Texas v. 532 U.S. 1335, (2001) J„ 149 L.Ed.2d (Kennedy, concurring). ini- But, will allow it to be asserted that we actually begins.27 as questioning fore the context of custodial in McNeil v. tially outside noted Court Supreme similar future ef- interrogation, with the no- Wisconsin,28 accepted has never it Mi- fect.29 invocation of “anticipatory” of an tion (1) by someone other randa given rights Thus, Court officers or other than law-enforcement its Fifth Amendment stated under (2) the context of outside agents; or state who does not “a defendant jurisprudence, custodial police to the without want to person that a never held have in fact We when he is only say need as much present Miranda rights anticipa- can invoke his the Miranda given approached first than “custodial other torily, in a context if invoke his warnings.”30 And he does preliminary a interrogation” counsel, “not Fifth Amendment —which always, usually, or even not hearing will [by po- immediate contact only must must be rights Most assert- involve.... end, requests later ‘badgering’ but lice] seeks to take government when the ed prohibited.”31 they against. protect the action have allowed the Miranda adversary pro Once formal that we

fact asserted, ceedings begin, to be the Sixth once exactly the same applies to future custodial to counsel respect effective right applies the Fifth Amendment necessarily way not mean as does interrogation (3d Cir.1995) (murder defendant’s re- As the Miranda 725-26 S.Ct. 1602. Id. at stated, arraignment a quest "An individual need not make at his did not for counsel lawyer. While pre-interrogation request request for a a Fifth Amendment constitute affirmatively interrogation; secures subsequent police such counsel at a one, lawyer ask for a does his failure to have proposition stands for the that a re- "McNeil effective waiver is, a waiver. No not constitute arraignment quest for an at during interrogation itself, to invoke the Fifth Amend- insufficient specifically recognized made unless can be subsequent to counsel at have we here delineate after interrogation if that con- —even given.” at 86 S.Ct. 1602. been the defendant was cerns the offense on which who, Thus, have suspect before Redman, arraigned.”); Alston v. 34 F.3d reading warnings, begun him his Miranda Cir.1994) ("The (3d antipathy ex- attorney, for an is entitled to one asks them anticipatory pressed in McNeil towards Similarly, suspect being questioned. before invocation of the Miranda is consistent who, warnings, being given his Miranda upon underlying principles. The with Miranda’s attorney, for an is entitled to asks the prophylactic is a Miranda being questioned. suspect And a one before operate independent from rule that does initially that he understands all of who states danger protect against it seeks to —'the but, them, to waive and wishes pro- compelling atmosphere inherent in the questioning, stops and any point in-custody interrogation’ the ef- cess of —and attorney, is entitled to one before asks for an danger suspect's privi- fect that can have on being questioned further. self-incrimination.”). lege compelled to avoid 2204, 171, 111 S.Ct. 115 L.Ed.2d 28. 501 U.S. 3, 111 29. 501 U.S. at 182 n. S.Ct. 2204. State, (1991); also Green v. 934 158 see 92, ("Like (Tex.Crim.App.1996) the 97 S.W.2d 794, Montejo, 556 U.S. at 129 S.Ct. at 2090 30. McNeil, appellant's request for an in (citing "the Miranda-Edwards-Minnick line of appearance with the at his associated cases”). expression robbery not an for assistance interrogation by dealing the with custodial Delaware, 710, Id. police.”); v. 68 F.3d 31. Flamer Thus, Mi- Article 15.17 initial interrogation.32 appearance magis- to custodial tration the initiation randa inter- marks of serve the arrestee’s adversarial judicial proceedings Texas and “plainly the ests in Fifth and Sixth Amend- both signals” attachment the of a defendant’s custodial Sixth right Amendment to counsel.35 person conducted after a interrogations formally the charged. has been Because Jackson, v. Michigan In the Supreme ensuring of the “doctrines voluntariness that “if police Court had held inter- initiate simultaneously Fifth Amendment waiver assertion, rogation after defendant’s at ensure the voluntariness of the Sixth an arraignment or similar proceeding, of waiver,”33 Amendment both the Fifth and counsel, right the waiver of interrogation Sixth Amendment right defendant’s counsel for that police- fully encompassed by counsel are the Fifth interrogation initiated is invalid.”36 That Miranda doctrine. Amendment is the rule that the Court explic- Montejo itly overruled because it Tri- Right B. The Amendment Sixth “unworkable,” deemed “superfluous,” and al Counsel. “policy doctrine driven” whose is “policy being adequately through served other right

The Sixth Amendment means.”37 “adversary judi once the counsel attaches initiated,” has it process

cial been Furthermore, Jackson rule simply “a defendant to have guarantees right did not take account of the practical reali- at all ‘critical’ present stages goals ties and of the arraignment event proceedings.”34 criminal We refer relationship and its to the separate event short Sixth Amendment with the of custodial When a person Generally, “trial brought magistrate, hand term counsel.” is before told that (noting "protect government 32. Id. that cases like Jackson and defendant have solidified.” to have Id. happens to be —which (once guaranteed adversary judicial pro- 191, Gillespie Rothgery County, 35. v. 554 U.S. begun) by cess has two sources of law. Since 212, 2578, (2008) 128 S.Ct. L.Ed.2d 366 using under both sources is waived (stating magistration that Texas’s article 15.17 procedure, ensuring the same doctrines vol- signals” hearing "plainly attachment of the Fifth waiver untariness Amendment the Sixth Amendment "even simultaneously ensure the voluntariness of stage.”); if it a critical also is not itself see waiver”) (citations Sixth Amendment omit- State, 330, (Tex. Hughen v. 297 S.W.3d ted). (defendant's Crim.App.2009) "Article 15.17 appearance initial marked the initiation 33. Id. at 2090. judicial proceedings against adversarial him signaled] 'plainly thus attachment’ of 786, Montejo, 556 at 34. U.S. at 129 S.Ct. counsel.”). Sixth Amendment may 2085. An accused invoke his Sixth right "at or after the initiation Jackson, 636, 625, Michigan 475 U.S. judicial adversary proceedings— criminal 1404, (1986). 106 S.Ct. 89 L.Ed.2d 631 by way charge, preliminary whether formal indictment, information, hearing, arraign- 792-96, Illinois, 556 U.S. at Kirby v. ment.” (concluding margin- 2089-91 "when the (1972). S.Ct. 32 L.Ed.2d 411 This is weighed al benefits of Jackson rule are "starting point” for the Sixth Amendment against its substantial costs to the truth-seek- only to trial counsel "it [when because ing process justice system, criminal adversary proceedings commence] readily government we conclude that the rule prosecute, has committed itself does ”). only positions ‘pay way.’ then that the of adverse its 78 Miranda and Edwards matters for committing a “What of formally accused

he is the defendant is lawyer to when happens if he wants a is what crime, and asked (if proceed- criminal he interrogation, in those for approached him represent question entirely consents) different during an the interro- ings, happens that is what lawyer be with wants a he any prelimi- from whether at happened what gation—not A de- questioning. during police him nary hearing.”41 “Yes, lawyer,” a I want response, fendant’s may mean because it fatally ambiguous Montejo essence,

is its Distilled to judicial pro- lawyer for these “I want invocation of his means that a defendant’s I lawyer before “I want a ceedings,” or hearing 15.17 at his Article right to counsel for lawyer “I want a police,” or talk to the invocation possible about his says nothing say want I do not purposes all police- later to counsel of po- anyone you or anything more to — custodial initiated one.”38 I have lice—until interroga an hearing is not magistration concluded, Montejo ambiguity may uncharged suspect An As event. tion Amendment re- easy resolve: a Sixth to coun his Fifth Amendment invoke arraignment, an at quest (and for arraign been who has sel defendant Article 15.17 appearance, initial Sixth Amendment may ed invoke his hand of coun- guiding for the request is a counsel) of custodial inter purposes If proceedings. criminal judicial for all sel or other law- police when the rogation to invoke his also wishes the defendant give him and agents approach enforcement to counsel Sixth him his Miranda warnings. That is the post-arraignment of stage” “critical invoke or waive place to either time and certainly may interrogation,39 custodial purposes to counsel for by invoking that But he does so do so. questioning. Miranda, pursuant Edwards, and Minnick when law enforce- of Review C. Standard upon agents embark ment or other state interrogation.40 concerning reviewing In claims Miranda violations and the admission

Thus, Amend- the Fifth and Sixth both result of custodial made as the statements during custodial the bifurcated we conduct thing: interrogation, same interrogation depend upon layers right.... prophylaxis Montejo, These three at 129 S.Ct. at 38. See 556 U.S. ac- Under the Miranda-Edwards- (noting that even the Jackson Court are sufficient. 2086 (which doubt), ‘actually knowledged that defendants is not "doubt Minnick line of cases to encom- speak their for counsel intend[ed] who not want to a defendant does during any ques- pass representation further present only need without "). tioning’ approached and say when he is first as much warnings.... given If that re- the Miranda Montejo, at at 129 S.Ct. 39. See integrity gime protect suffices to States, (citing Massiah United ‘suspect's voluntary not to out- choice 201, 204-05, 12 L.Ed.2d U.S. 84 S.Ct. arraign- lawyer's presence’ before side his (1964)). ment, why it would not also it is hard to see choice after ar- protect that same suffice 792-94, U.S. at raignment, when Sixth Amendment Jackson, (stating without 2089-90 even attached.”) (citation omitted). have interroga- subject "any suspect to custodial lawyer present if tion have a has the 41.Id. at 2091. requests, and to be advised of he so

79 v. Guzman State.42 viewpoint articulated in of the objectively review reasonable po- afford almost total deference to the lice officer conducting We custodial interroga- rulings questions trial court’s on of histori tion. application

cal fact and on of law to fact general With that background, we turn questions upon credibility turn the present case. demeanor while we review de novo the trial on rulings application court’s of law to III. fact questions upon that do not turn credi case, In this there were sepa two bility and demeanor.43 magistration rate events: followed aby

However, custodial interrogation.46 Judge Maddock that, deciding has held whether an ac conducted the magistration gave ap “actually cused pellant invoked his to coun his Article 15.17 in Span sel,” reviewing objec her, courts must use an Appellant ish. lawyer, told “I want a tive standard avoid of I “[t]o difficulties but also want to speak Arlington with the proof provide guidance and to to officers opinion, Police.” In her appellant asked conducting interrogations^]”44 The ac for the appointment attorney, of a trial but request cused “must unambiguously coun he wanted to talk to who were thus, sel” interrogation; standing right custodial hospital outside the door. “he must articulate his desire to have She appellant did not believe that invoked present sufficiently clearly that a his purposes to counsel for of custo reasonable interrogation.47 officer the circum dial magis As a neutral trate, stances would understand the statement to acting judicial capacity, her she be a request attorney.”45 for an view appellant willing We concluded that to talk totality of circumstances from the to the police officers without counsel.48 85, them.”). events, (Tex.Crim.App.1997); 42. 955 entirely S.W.2d are These distinct State, 344, (Tex. see v. 351 S.W.3d hospital and the officérs were Leza not even in the (”[W]e Crim.App.2011) propriety Judge measure room when performed Maddock her duties, ruling respect magistration of the trial court’s to al nor could it be said leged totality judge, Miranda violations under the as a she was somehow a conduit for circumstances, wholly deferring interrogation by almost the detectives. questions the trial court on of historical fact Indeed, credibility, reviewing but de novo all entirely 47. such a would be questions questions law and mixed of law inconsistent with the words that See, Wisconsin, credibility and fact that actually e.g., do not turn on deter used. v. McNeil minations."); State, 171, 178-79, Ripkowski 2204, v. 61 S.W.3d 501 U.S. 111 S.Ct. 378, (Tex.Crim.App.2001). (1991) ("[T]o 381-82 L.Ed.2d 158 find that ac- [the cused] invoked his Fifth Amendment Leza, present charges merely by counsel on the 43. 351 S.W.3d at 349. requesting appointment counsel at arraignment charge on the unrelated States, 452, Davis United 458- disregard ordinary meaning of that re- (1994). 129 L.Ed.2d 362 (internal omitted). quest.”) quotations marks Id. at 114 S.Ct. 2350. suspects 48. The article 15.17 assures judges, charge police, are in appeals mistakenly 46. The court of concluded justice system in America. As Professors Dix that, during magistration, appellant noted, Schmolensky have III, "approached interrogation.” Pecina ("The acting primary S.W.3d at 267 appearance A function of the be- detectives— course, through interroga- magistrate, provi- fore the is the —initiated asking by tion interrogation warnings, Pecina if he still wanted to talk sion of the but fore, Sixth his Fifth and gave ap- entered and waived both then The detectives warnings Spanish during in to counsel cus- Amendment pellant his Miranda At time he interrogation.49 times. no did separate todial three hesitate, attorney at his to an invoke appeals, of the court of majority A interview, stop ask the officers to that acknowledged opinion, in its The officers concluded questioning. their Montejo, and stated decision Court’s intel- freely, voluntarily, and appellant that are still the that “Miranda and Edwards his to counsel ligently waived custody subjected suspects law for in the nothing There is questioning. their protect To police interrogation.... contradict them conclu- record that would privilege against Fifth Amendment self- sion. incrimination, police may not initiate circum- totality of these Under who suspect of a custodial stances, judge with the trial that agree we requested assistance of previously has officer, police reasonable objective exactly. Montejo, Not counsel.” Under interrogation, would conducting a custodial Miranda, Edwards, following voluntarily that had conclude Minnick, is, “To the correct statement his Fifth and Sixth Amend- waived both privilege Fifth Amendment protect purposes to counsel for self-incrimination, police may against by Detectives Frias questioning custodial not continue or re-initiate custodial inter appellant was in custo- and Nutt. Because suspect previously of a who has rogation him, dy police questioned at the time the of counsel requested assistance after to coun- a Fifth Amendment had police him informed to invoke it. Because sel if he wished interroga beginning at the custodial adversary proceedings begun had formal 50 Judge magistration Maddock’s tion.” triggered by were against appellant and trigger any did not Fifth Amendment raagistration, he had a Judge Maddock’s that concerning interrogation; custodial to counsel if he Sixth Amendment begin the detectives at the done it. He invoke ei- wished to invoke could ning of their the same man- precisely ther or both Holman, in officers, dissenting Justice they after by telling ner — below, correctly in the court noted opinion gave warnings, him the Miranda that he regime’ that “the ‘Miranda-Edwards does speak- to have an before wished He, interrogative types ‘non apply them. He did not do so. there- ing to having person interest in waivers invocation or a 6th Amendment invocation is with less addition, Ap- interrogating a lot of difference.” officers. In a distinction without than presentation suspects pellant's Brief at 6. He is correct in the con- demonstrates to agency holding post-arraignment interroga- them text of the law enforcement tion, acknowledges upon power as a defendant has both a Fifth and Sixth outside limits its suspects. impartial Both Amendment that inter- over both) (or judicial rogation triggered by domi- and either is and the demonstration of giving warnings. may inherently him the Miranda nance reduce the coercive interrogation upon impact of later custodial 129 S.Ct. at See suspects. ("[A] been [i.e. defendant one who has 41 G. Dix & J. TEXAS PRACTICE SCH.MOLENSKY, formally charged with a who does not crime] § 20:5 Series- Criminal Practice and Procedure want to to the without counsel ed.2011). (3d only say present need as much when he is notes, given aptly approached and the Miranda warn- Appellant first "Once invoked, ings.”). whether it is called 5th ALCALA, J., interaction between defendant and the filed a concurring opinion ”51 JOHNSON, J., in which State.’ He joined. stated both the Su preme Montejo Court decision in and our I Although join majority the opinion’s post-Montejo in Hugheri52 decision make it determination that prece- clear that [appel “whatever occurred at compels dent a conclusion that neither the preliminary hearing lant’s] did not even Fifth nor the Sixth Amendments to the implicate Edwards because Pecina had not United violated, States Constitution was I write yet approached separately been for interrogation nor to observe that a different might outcome result under had he ever the unambiguously expressed Texas his Constitution and state statutes. The Tex- desire to deal with the only through as Code of Criminal provides Procedure Further, attorney.”53 his Justice Holman rights additional appellant, Ley- Alfredo noted, correctly Montejo “now that Pecina, va beyond provided those by the Jackson, court has overruled neither a de United States Constitution. These addi- request fendant’s for counsel arraign rights tional are the magistrate warnings proceeding or similar appoint nor required by Article 15.17 of the Texas ment of by gives a court rise to a Code of Criminal Procedure. Tex.Code presumption any subsequent that waiver Crim. Proo. art. 15.17. police-initiated a defendant to interro The Texas Code of Criminal Procedure gation is agree invalid.”54 We with this duties, describes a magistrate’s as follows: analysis. The magistrate shall inform in clear lan- Because, Montejo, appellant under nev- guage person arrested ... of the er invoked his Fifth or Sixth Amendment him, accusation against ... of his rights to custodial interro- to retain to remain gation, we conclude that the trial judge silent, of to have an attorney properly appellant’s denied sup- motion to present during any peace interview with press his statements made as a result of officers,.... The magistrate shall also that questioning. We therefore re- person inform the arrested of per- verse judgment appeals court of son’s right request appointment and affirm judgment. the trial court’s counsel if the person cannot afford coun-

sel. Tex.Code Crim. Proc. art. 15.17. Consis- ALCALA, J., filed a concurring opinion statutory tent with this requirement, JOHNSON, J., in which joined. magistrate in this case advised appellant PRICE, J., dissenting opinion. filed a by stating, in pertinent part, III, J., (Holman, 51. Pecina 326 S.W.3d at 271 was sufficient to waive his Sixth Amendment dissenting). that interview. Id. at Hughen specifically only 335. dealt with a Hughen, In the defendant was taken to a waiver under the Sixth Amendment because magistrate who read him his under specific was his claim. Under article 15.17. 297 S.W.3d at 331-32. The exactly the result is the same under either a requested appointment defendant of counsel. Fifth or Sixth Amendment claim. later, Id. Three hours a detective initiated interrogation by reading the defen- III, (Holman, J., 53. Pecina 326 S.W.3d at 271 rights, dant his Miranda and the defendant dissenting). agreed waived those and to talk to the officer without counsel. Id. at 332. We held the Fifth Amendment Miranda waiver Id. at 272. by peace After

(2) lawyer questioning ap- officers.” to hire You have attorney, told her wanted an present prior pellant he have him/her asked him if he wanted to ques- magistrate still during any interview officers, he said speak did. tioning by peace officers attor- state; appellant’s expressed desire to From neys representing [the] officers, to the sur- (3) lawyer, you cannot afford a you If that, when had earlier mised request ap- have the attorney, for an was for asked lawyer present to be pointment only. I conclude that it proceedings court during any and such inter- prior to appellant’s unreasonable construe re- is to to you and have the have view attorney request an as a for an quest for represent attorney an appointed solely attorney proceedings for court attorney. you if afford an you cannot continuing a merely expressed because he you your obtain may This means The magis- desire to the officers. ap- lawyer lawyer a own or have interpretation trate’s misses whole you. may for have rea- pointed You is the point warning, of which time con- opportunity sonable and attorney any “during have an in- present you if desire.... your lawyer sult peace with terview officers.” Tex.Code informing him of his Article 15.17 After Proc. art. I conclude that the 15.17. Crim. attorney present during have an rights to appellant’s indisputably record shows that peace interview with officers any request an a request attorney for was court, attorney him in represent have an attorney during present interroga- have an appellant if he magistrate asked tion, proceedings. as well as court attorney. appointed a court “want[ed] out, majority opinion points ap As the Following he stated did.” And attorney was, pellant’s request for an at magistrate appellant, response, asked most, his pre-invocation a of coun you want to talk to detec- [the “Do still sel, which at the time of the later attached he did. replied He that The tives]?” Supreme Because police testified that she believed he magistrate pre-invoca that precedent Court dictates attorney pro- for an for trial asking was a tion of defendant’s Miranda speaking rather than for ceedings under States ineffective the United Con police officers. stitution, agree majority’s I with the de out, points suspect’s a As the State re- federal termination there is no consti unambiguous quest for counsel must be violation tutional here. See McNeil sufficiently a clear that reasonable Wisconsin, 3, 171, 501 182 n. 111 U.S. would under- person in the circumstances (1991). 2204, 115 S.Ct. L.Ed.2d 158 request the statement for an stand to be States, Although 512 no federal attorney. See v. United there is constitu- Davis prec- violation L.Ed.2d tional under U.S. S.Ct. (1994). edent, appel- magistrate’s provide The failure to record shows attorney for after one plainly attorney interrogation lant asked for an immedi- an magistrate may him Article 15.17 ately requested after the informed violate be- magistrate appellant advised attorney police for interro- cause proceedings. attorney interroga- and for to have an for gation courtroom one, none requested him that he had “a tion and he but advised ... lawyer present provided. ... See art. right to [have] Proo. Crim. Tex.Code If this any to and interview 15.17. were a violation Article prior 15.17, analysis under attorney present a harm Texas Rule have an during police 44.2(b) Appellate might ap- interrogation, you Procedure be must make that request Tex.R.App. 44.2(b). See the time of the propriate. questioning.”1 P. Per- warning This additional always clearly would be would ad- haps this harmless error vise the defendant that the time if to make was re-warned of his statu- an attorney for assistance tory rights at the time he made the state- interrogation is at the time of waived an upon receiv- and not earlier. , ing the new But warnings. we do not pres- reach of those issues because the comments, With these I join majori- appellate challenge ent concerns the feder- ty opinion in this case. only. al constitution The clear intent of Article 15.17 is to PRICE, J., dissenting filed a opinion. ensure that defendant is advised of his In summarizing the substantive Fifth attorney interrogation to an for and Sixth regime Amendment in place af- See Tex.Code proceedings. courtroom ter Supreme United States Court’s CRIM. Proc. art. 15.17. But the current opinion Montejo v. Louisiana,1 in opposite scheme seems to have the effect today says: Court magistrate warnings when the come before essence, Montejo officer’s Distilled to its means that a magistrate warnings create a defendant’s invocation of confusing sit- his right to counsel at his Article 15.17 uation when the informs the hearing says nothing possible about his defendant of the to attorney have an invocation of his to during questioning pro- but then fails to police-initiated later interroga- custodial one, vide and then the him advise magistration tion. The hearing is not an that same to an that was interrogation event. An uncharged sus- asked for minutes earlier provided. but not pect may invoke his Fifth Amendment might A defendant reasonably surmise (and right to counsel a defendant who that the government really does not intend arraigned may has been invoke his Sixth provide to him an attorney during ques- counsel) Amendment right for pur- tioning because request his first for an pose of interrogation when the attorney during questioning ignored. was police or agents other law-enforcement worse, Making matters the defendant him his Miranda approach give him and given any never explanation concerning warnings. That place is the time and magistrate’s failure to provide an at- either invoke or waive the right to coun- torney pursuant to his All request. sel for purposes police questioning.2 knows is that his was ignored. The Legislature easily prob- could fix this gather I that this conclusion stems from by lem adding one sentence to the Article observation, identified earlier 15.17 you admonishments: “If desire to opinion deriving Court’s as from a footnote 1. The Code of Criminal warning Procedure advises could add additional if even Legislature magistrates clearly fails amend the statute. explain to defendants rights. their See Tex.Code Crim. Proc. art. 1. 556 U.S. 173 L.Ed.2d (directing magistrates 15.17 to inform defen- (2009). "right dants of their to retain counsel” in therefore, language”). magistrate, Majority "clear A opinion, at 78. Wisconsin, why her “acknowledging]” statement as that the McNeil v. present.5 were The detec person that a detectives has “in never held fact anticipatori- stepped tives then out the room Miranda

can invoke his twenty while “probably than ‘custodial inter- fifteen or minutes” in a other ly, context ”3 the Article Ultimately Judge con- Maddock administered rogation[.]’ the Court informing magistration warnings, Spanish, 15.17 “Judge Maddock’s cludes that charged Fifth what he any appellant trigger did not issuing interrogation; then all admonishments concerning custodial begin- in footnote four of the the detectives at the are enumerated done today.6 interrogation.”4 agree opinion I These of their Court’s ning that, exclusively ap to the ordinarily, probably explicitly it is accurate to refer retained though pellant’s it includes the issu- whether say even any “magistra- appointed, “during or interview warnings, of Miranda ance attorneys questioning by peace event.” officers or is not tion They no Montejo representing [the] [S]tate[.]” in either McNeil nothing But refer, appel implicitly, where even to the invariably regard compels us these —a any representation lant’s other hearing” “interro- “magistration versus an purpose. time or for other At mutually events for exclusive gation”—as process, Judge conclusion of this Maddock purposes. And it Fifth Amendment “a asked the whether he wanted categori- me as unwise hold as strikes appointed attorney. And he stated court magistration hearing un- cal matter that he did.” any can never constitute der Article 15.17 To “interrogation my of an event.” part took Judge Maddock testified that she mind, amply the of this case illustrate facts her appellant this to mean that the wanted

why. him appoint attorney to represent to an court[,]” proceedings.” This is a case that turns on “for for “these She not the elaborate, credibility suppres- not it is to me of the witnesses at the did unclear so, reliability why the of their testi- she would think since the sion or just which had mony, disputed. appellant neither of Two she administered to the Arlington picked detectives made no allusion whatsoever to the up municipal from the trial. Judge Maddock court- to an for She told appel- waiting with them the that the “had appellant house and took her to detectives room, initially lawyer,” he hospital already lant’s where he was asked for a but that County then “that he talk guard deputy under the of Dallas had told her wanted to detectives, Judge From Pointing respective sheriff. to” detectives. their testimonies, appellant, “They gets impres- Maddock told the are one distinct (or do) you.” like I that They here. would sion least the detectives ap- ap- that the that the Judge Maddock remembered understood Maddock mean or pellant “yes,” pellant nodded said thus had first indicated that he wanted either Wisconsin, (quoting that he to talk to” detectives. Id. at 76 McNeil v. 501 me wanted U.S. n. 111 S.Ct. this that she I take to mean did not construe (1991)). L.Ed.2d acknowledgment initial detectives that the "speak” like to him indication would as an 4. Id. at 80. willing that he was to do so. testimony, Judge 5. Later in her Maddock 6.Majority clarify appellant opinion, would said at 72 n. that the "never appointed purposes po- today saying counsel for of the is that this makes all the that interrogation, lice but he had subse- happened because difference what in the event, relented. In it not quently does hospital room the absence detec- Judge what either Maddock or the matter merely tives was a “magistration” and not since, as cor- detectives believed the Court “interrogation an event.” But even the today, rectly acknowledges the standard is Court seems to an concede that “interroga- objective suspect must articu- one7—a may tion event” be either by initiated law- that for pur- late his desire is enforcement some “other for state poses interrogation, agent[ Any objective reasonably ].”10 of view- clarity do so with must sufficient that er peculiar would conclude from the facts officer reasonable under circumstances of Judge this case that Maddock was act- I just would understand it be that.8 ing agent as a facto de of the interrogating agree appeals with the court of that detectives. She arrived them at the objective circumstances can case room, hospital where the only reasonably be construed to indicate already the guard under of law enforce- initial, ex- appellant’s clearly that ment. The first told him thing she pressed desire was to have the assistance that the detectives to “speak” wanted purposes custodial inter- then him. She pointedly exclusively rogation.9 him informed of his Fifth Amendment course, undisputed

Of it is to counsel for purposes also what of custodial and, it, I from interrogation, take the circumstances to be a clear after he invoked nev- invocation asked him ertheless whether he “still” counsel—not trial counsel—occurred to talk to though wanted the detectives — alone, front of the out of she later acknowledge would that he had presence her, immediate interrogating up told to that point, he did Although words, officers themselves. I am not want to talk to them. In other certain, entirely indicators, I objective think what the is all Judge Court Maddock him; Majority opinion, 7. they at 79. detectives wanted to talk in waited the hall while she administered warnings. the Gobert, After he had invoked his 888, State 275 S.W.3d 892-93 they proceeded to re-enter (Tex.Crim.App.2009). interrogation the room and conduct their reading after Pecina Miranda appeals majority’s 9. The court of view well second and third time. expressed repeating: and bears disagree We ... with the dissent's asser- Nor did Pecina invoke his Fifth Amend- that tion whatever occurred at the article "anticipatorily,” ment to counsel as implicate [v. 15.17 did not Edwards asserts, using term dissent referenced Arizona, 1880, by majority opinion in dictum the in Monte- (1981)] L.Ed.2d 378 because Pecina had jo. appointed ... Pecina asked for yet approached somehow "not in- been response being advised that he was terrogation.” Dissenting op. at 272. The any questioning entitled to counsel interpretation. record belies such just and while the to do waited that. just happen up did at detectives to show precisely His was for the sort of hospital They Pecina’s went room. subject assistance of counsel that is the of hospital interrogate to arrest Pecina and to Miranda. brought him and them State, Pecina v. 326 S.W.3d 267 & n. 101 they warnings; to administer his Miranda 2010). (Tex.App.-Fort Worth magistrate; walked into his with the room magistrate explained 10.Majority opinion, to Pecina that at 76. subsequent responses look to official ap- to facilitate the doing her utmost retrospect custodi- determine in subjugation to entreaties “to immediate pellant’s meant when it suspect really whether al right to coun- unequivocally invoked the Scalia observed rights[,]” Justice “Most sel.” McNeil, “must assert- be in his footnote seeks to take the government when the ed con- agree appeals’s I with the court of protect rights] against.”11 [those action appellant’s Fifth Amend- clusion that the I believe that appeals, Like the court of did exactly this is what violated, I would affirm its therefore of consequences avoid the this case.12 To not, judgment. Because the does I Court Judge Mad- by categorizing assertion respectfully dissent. nothing more than a dock’s conduct as which, Court’s defi-

“magistration,”

nition, “in- any part can of an never form event,” prover- amounts

terrogation form over substance —it

bial exaltation of

willfully ignores objective reality of the accurately perceived by as

situation appeals. I understand that it is court parte Ex Yekaterina to stomach the conse- sometimes difficult TANKLEVSKAYA, quences doubly prophylactic rule such Applicant. circumstances, as Edwards under like case, presented by those in which a No. 01-10-00627-CR. freely volun- suspect appears later Texas, Appeals Court tarily relinquish the Fifth Amendment (1st Dist.). Houston that he had in- earlier But, just prerog- as it is never our voked. May ignore Supreme precedent, ative to conjure strategies, new neither should we to do appears today,

as the Court in or- legal

carve out artificial distinctions unpalatable

der those conse- avoid clearly invoked

quences. interroga- for custodial what was

tion in context of unmistak-

ably an event.” That the “interrogation

invocation occurred a simulta- also accurate, “magistration,” while does

neous

not detract from its essential character for purposes.

Fifth Amendment And once

suspect has made it clear he desires in coping of counsel assistance we are entitled to interrogation, McNeil, 13.Gobert, supra, at 893. supra, at 182 n. 111 S.Ct. 2204

12. See note ante.

Case Details

Case Name: Pecina, Alfredo Leyva

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 25, 2012

Citation: 361 S.W.3d 68

Docket Number: PD-1095-10

Court Abbreviation: Tex. Crim. App.