
    Alfredo Leyva PECINA, Appellant v. The STATE of Texas.
    No. PD-1159-07.
    Court of Criminal Appeals of Texas.
    Oct. 29, 2008.
    Richard A. Henderson, Fort Worth, for Appellant.
    C. James Gibson, Assistant Criminal District Attorney, Fort Worth, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court,

in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant, Alfredo Leyva Pecina, was found guilty of murder and sentenced to life in prison. He appealed his conviction, arguing that the trial court erred in denying his motion to suppress his statements to the police. The court of appeals affirmed the trial court. Pecina v. State, No. 2-05-456-CR, 2007 WL 1299263 (Tex.App.-Fort Worth May 3, 2007) (not designated for publication), 2007 Tex.App. LEXIS 3424. We granted review to consider whether an attorney should have been provided for Appellant before he was questioned by the police, and whether Appellant waived his Fifth and Sixth Amendment rights. We hold that Appellant’s rights to counsel had attached when he was arraigned, and that he did not initiate the contact with the police as required to validly waive those rights. Therefore, he should not have been questioned without an attorney present. We will reverse the court of appeals.

FACTS

Appellant and his wife, Michelle, lived with her father and her sister, Gabriela. One evening, Gabriela came home and found Appellant and Michelle lying on the floor of their bedroom, bleeding from stab wounds. When she picked up the phone to call 911, Appellant stood up and came toward her. She left the apartment and went to get a neighbor. The neighbor called 911 and then went with Gabriela back to the apartment. When police and paramedics arrived, they found Appellant on the floor suffering from stab wounds and took him to the hospital. Michelle was pronounced dead at the scene, and it was later determined that she had been stabbed more than fifty times.

Because the police believed that Appellant had murdered his wife and had attempted to kill himself, detectives prepared a warrant for his arrest. The detectives brought a Spanish-speaking magistrate, Judge Maddock, to the hospital to arraign Appellant before the detectives attempted to interview him. The magistrate testified that she and the detectives entered Appellant’s hospital room and introduced themselves. She went over to Appellant’s bedside and pointed to the detectives and said, “They are here. They want to speak to you.” She stated, “[H]e nodded his head or said ‘yes.’ I can’t remember, but there was an acknowledgment.” She then read him his rights and asked him if he wanted a court-appointed attorney. He said that he did. The magistrate wrote on the bottom of the waiver of counsel form, “Per court motion, appoint defendant an attorney.” She asked him if he wanted to speak to the detectives, and he said, ‘Tes.” She said that he did not indicate that he wanted counsel present before he talked to the detectives.

Before speaking with detectives, Appellant also signed the “Adult Warning Form,” which says that you have the right to counsel, the right to remain silent, you do not have to speak to the police, you are not required to make a statement, and you have the right to stop any interview or questioning at any time. One of the detectives wrote in Spanish on the side of the waiver of counsel form Appellant had already signed, “I asked for a lawyer, but I also wanted to speak with the Arlington police.” The officers read Appellant the Miranda warnings twice, once before they started recording the interview and again after turning on the recording device. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

During the interview with the police, Appellant said that he and his wife had argued. When asked if he had cut his wife, he said, “yes.” He then signed a confession written by one of the detectives stating that he had cut his wife.

Appellant filed a motion to suppress both his oral and written statements, claiming that the statements were not voluntarily given and were obtained in violation of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. At the suppression hearing, the State asked the magistrate whether Appellant freely, intelligently, knowingly and voluntarily spoke to the police officers. She testified, “He said he still — I said, I asked them— him, ‘do you still want to talk to them?’ And he said, Tes.’ He never said to me that he wanted to talk to them.”

The trial court denied the motion to suppress and made findings of fact and conclusions of law including that Appellant was fully informed of his rights and that Appellant “indicated that although he did want a lawyer, that he wished to also talk with detectives from Arlington, meaning that he basically was waiving his rights at that time ...” The trial court found that Appellant also signed various waivers of counsel and was not under the influence of drugs or alcohol when he gave a statement that was recorded and put in writing. Based on these findings, the trial court ruled that the statement was taken voluntarily and was admissible.

The jury found Appellant guilty of murder and sentenced him to life in prison. Appellant appealed, raising several issues, including that his statement to police was obtained in violation of his right to counsel.

COURT OF APPEALS

The court of appeals addressed Appellant’s issues related to the right to counsel under the Fifth and Sixth Amendment and held that the trial court did not err in finding that Appellant voluntarily waived his rights. The court reasoned that Appellant waived his Fifth Amendment right to counsel “either by failing to invoke it, because nothing in the testimony at the hearings or at trial clearly showed that Appellant indicated to Judge Maddock or the detectives at the time of the interview that he wanted to speak to an attorney about the questioning or to have one present during questioning, or because he reinitiat-ed the contact by answering ‘yes’ when asked by the magistrate if he still wanted to speak with the detectives and by telling the detectives that he wanted to speak to them.” Pecina, 2007 WL 1299263, at *7, 2007 Tex.App. LEXIS 3424 at *21-22.

Considering the Sixth Amendment, the court concluded that Appellant’s right to counsel had attached when he was arraigned by the magistrate and requested a court-appointed attorney. Id. 2007 WL 1299263, at *7, 2007 Tex.App. LEXIS 3424 at *23-24. The court determined that Appellant invoked his right to counsel and then reinitiated contact with the detectives when he said, “I asked for a lawyer, but also I wanted to speak with the Arlington police.” He also waived his right to counsel when he was advised of his Miranda rights by the detectives prior to the interview. Id. 2007 WL 1299263, at *8, 2007 Tex.App. LEXIS 3424 at *25-27, citing Cross v. State, 144 S.W.3d 521 (Tex.Crim.App.2004) (stating that a suspect has waived his previously invoked right to counsel if the suspect himself reinitiated the communication with the police and thereafter expressly waived the right to counsel). The court of appeals deferred to the trial court’s findings of fact and rejected Appellant’s arguments that his Fifth and Sixth Amendment rights were violated.

Appellant filed a petition for discretionary review asking us to consider the following two grounds for review:

When a defendant who had been given Miranda rights by a magistrate simultaneously requests a lawyer and requests to speak to the police, must an attorney be provided before the police can begin their interrogation?
When the police enter a hospital room to take a statement from defendant in custody after the police have been informed that the accused has requested an attorney and simultaneously indicated a willingness to speak to the police, has the accused ‘reinitiated’ contact with the police and voluntarily waived his fifth and sixth amendment rights to counsel and rights against self incrimination?

CASELAW

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that,

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot 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.

Id. at 484-85, 101 S.Ct. 1880.

The Court then extended Edwards to the Sixth Amendment in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1985). As in the case before us, in the two cases that were consolidated and discussed in Jackson, the appellants requested appointment of counsel at the arraignment. And, in each case, the investigating officers were present at the arraignment and questioned the accused after counsel was requested, but before the appellants had spoken with counsel. Each appellant was advised of his Miranda rights prior to questioning and agreed to proceed with the interview without counsel. The Court concluded that when a defendant requested counsel at an arraignment proceeding, the police could not then initiate contact with the defendant and request a waiver of those rights for the purpose of interrogation. Id. at 636, 106 S.Ct. 1404.

We considered Edwards in Cross v. State and held that if an appellant has invoked his right to counsel but then initiates contact with the police and expressly waives the right to counsel, then the Edwards rule is satisfied and “the suspect has countermanded his original election to speak to authorities only with the assistance of counsel.” 144 S.W.3d at 527 (citing Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983)).

ANALYSIS

Despite the fact that the grounds for review characterize the requests for a lawyer and to speak to the police as simultaneous, as noted above, the record indicates that the magistrate read Appellant his rights and asked if he wanted a court-appointed attorney. When he said that he did, she filled out the paperwork to begin the appointment process. She then asked Appellant if he wanted to speak to the detectives, who were waiting in his hospital room.

The State argues that Appellant failed to invoke his Fifth Amendment right to counsel during interrogation; that his Sixth Amendment rights were not triggered by the reading of the statutory warnings; and, even if Appellant invoked his Sixth Amendment rights, he waived them.

Because Appellant did not unambiguously request that an attorney be provided for the interrogation, the State asserts that the request for appointment of counsel was in the event of a future trial, and not for the purpose of assisting him during questioning by the detectives who were waiting to speak to him. The Supreme Court addressed and rejected this argument in Michigan v. Jackson, stating that “We thus reject the State’s suggestion that respondents’ requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings.” 475 U.S. at 633, 106 S.Ct. 1404. This also directly addresses the State’s second argument, that adverse judicial proceedings are not initiated by an arrest or by the magistrate reading Appellant his rights under Texas Code of Criminal Procedure Article 15.17. See id. at 636,106 S.Ct. 1404 (once the Sixth Amendment attached in dealings with magistrate, police could talk to a defendant only if he himself initiated the contact.) Recently, the Supreme Court specifically considered Sixth Amendment rights in relation to Texas Code of Criminal Procedure Article 15.17 and held that a defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Rothgery v. Gillespie County, — U.S. -, -, 128 S.Ct. 2578, 2592, 171 L.Ed.2d 366 (2008). Because Appellant in this case had invoked his rights to counsel when arraigned by the magistrate at the hospital, the remaining issue is whether Appellant initiated the contact with the police and then validly waived his previously invoked rights. See Cross, 144 S.W.3d at 528.

The record indicates that Appellant did not himself initiate contact with the detectives. The detectives came to the hospital with a warrant for Appellant’s arrest and brought a magistrate with them for the purpose of arraigning Appellant. The magistrate informed Appellant of his rights and began the process of appointing an attorney for him. Only after she asked him if he wanted to speak to detectives did he reply, “Yes.” In no way does this indicate that Appellant himself initiated contact or opened the dialog with the authorities. The magistrate testified that Appellant agreed to speak with the detectives only after she asked him if he wanted to, stating, “He never said to me that he wanted to talk to them.” Therefore, there was no initiation of contact with the police by Appellant. Just as in Edwards, the State showed only that Appellant responded to further police-initiated questioning.

As the Supreme Court stated in Jackson, ‘We thus hold that, if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Jackson, 475 U.S. at 636, 106 S.Ct. 1404.

CONCLUSION

While we agree with the court of appeals that Appellant’s Sixth Amendment right to counsel attached when he was arraigned by the magistrate, we disagree that Appellant himself initiated contact with the police. Saying “yes” when asked by the magistrate if he wanted a court appointed attorney is enough to invoke the Sixth Amendment right to counsel; however, answering “yes” when asked if he wanted to speak to detectives does not indicate that Appellant initiated the contact as required under the Edwards bright-line rule. The court of appeals erred in holding that Appellant initiated contact with the police and waived his previously invoked rights to counsel. The judgment of the court of appeals is reversed and the case is remanded for a harm analysis.

KELLER, P.J., filed a dissenting opinion.

KELLER, P.J.,

filed a dissenting opinion.

I think I read the record a little bit differently than the Court does. When Judge Maddock approached appellant’s bedside, she pointed to the detectives and said, “They are here. They would like to speak to you.” Appellant gave some sort of acknowledgement, nodding his head or saying “yes.” The judge then proceeded with the magistration process. After giving the required warnings, she asked appellant if he wanted a court-appointed attorney, and he said, “Yes.” She then asked, “Do you still want to talk to them?” Again, appellant answered, ‘Tes.”

Indisputably, appellant’s “yes” answer to the first question constituted an invocation of his right to counsel, but the scope of that invocation is another matter. It is possible for a suspect to engage in a “limited” invocation of his right to counsel that permits communication with the police without an attorney present. When there is ambiguity as to whether the suspect is invoking counsel at all, the police are not required to clarify the ambiguous remarks and may assume that the defendant has not in fact invoked his right to counsel. However, when the right to counsel has been clearly invoked, and the ambiguity is to the scope of that invocation, the suspect’s request must be interpreted broadly rather than narrowly. Though the Supreme Court has not explicitly held that clarifying questions can be used to cure ambiguity as to the scope of the suspect’s invocation, comments by the Court in Davis strongly suggest it: “[I]t will often be good police practice for the interviewing officers to clarify whether or not [the suspect] actually wants an attorney-Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect’s statement regarding counsel.”

Before invoking his right to counsel, appellant gave an affirmative response to Judge Maddock’s statement that the detectives would like to talk to him. That response could be interpreted as either (1) acknowledging that he understood the police wanted an interview or (2) assenting to such an interview. In asking whether appellant “still” wanted to talk to the police, Judge Maddock indicated that she held to the second interpretation, viewing appellant’s response as assenting to an interview. If Judge Maddock’s interpretation is accepted, then ambiguity existed with respect to the scope of appellant’s subsequent invocation of his right to counsel.

Accepting Judge Maddock’s interpretation may depend on the standard of review. In Davis, the Supreme Court held that the inquiry into whether an accused actually invoked his right to counsel (with respect to the interrogation) would be an objective one. It did so in order “[t]o avoid difficulties of proof and to provide guidance to officers conducting interrogations,” which is similar to the Supreme Court’s rationale for imposing a de novo review of the circumstances supporting a warrantless search or arrest. But in this case, the police exercised uncommon and commendable caution in bringing Judge Maddock to appellant’s hospital room. As a result, appellant’s invocation of his right to counsel occurred, not in response to police interrogation, but in response to the inquiry of a neutral and detached magistrate. Despite the general rule that Fourth Amendment search and seizure issues are evaluated de novo, both the Supreme Court and this Court have recognized an exception with respect to a magistrate’s determination of probable cause, which is reviewed under a deferential standard. Similarly, I believe deference should be accorded to a magistrate’s interpretation of the defendant’s invocation of his right to counsel, either as a component of the “objective” inquiry, or perhaps as an exception to the usual practice. Judge Maddock, who was also a Spanish-speaker, was in a position to observe appellant’s tone of voice and demeanor in making her evaluation.

However, even if a de novo review of the circumstances were required, the circumstances surrounding appellant’s initial affirmative response and his later request for counsel remain ambiguous, and Judge Maddock was justified in asking a clarifying question. Once she did so, it became clear that appellant’s invocation of his right to counsel was a limited one that did not apply to speaking with the officers.

Under these circumstances, appellant made an initial choice, under Patterson v. Illinois, to confront the police without counsel. Michigan v. Jackson is distinguishable because the Supreme Court’s decision in Jackson “turned on the fact that the accused had asked for the help of a lawyer in dealing with the police.” The Court contends that Jackson forecloses a conclusion that a request for appointed counsel before a magistrate could be construed as embracing only a future trial rather police interrogation. But the cited passage in Jackson simply made the point that an accused’s invocation of his right to counsel should be given a “broad, rather than narrow, interpretation.” An accused “should not be expected to articulate exactly why or for what purposes he is seeking counsel,” but if he articulates the boundaries of his right to counsel, then those boundaries can be respected and enforced by the courts. Because appellant’s initial request for counsel was a limited request that did not encompass the police interrogation, there was no need to show that he re-initiated communication.

I respectfully dissent. 
      
      . We acknowledge that it was the magistrate, not the detectives who actually initiated the contact between Appellant and the police. However, as the Supreme Court noted in Jackson, "Sixth Amendment principles require that we impute the State's knowledge from one state actor to another.” Jackson, 475 U.S. at 634, 106 S.Ct. 1404.
     
      
      . Emphasis mine.
     
      
      . Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct 828, 93 L.Ed.2d 920 (1987)(the defendant’s “limited requests for counsel” with respect to the taking of a written statement "were accompanied by affirmative announcements of his willingness to speak [orally] with the authorities”).
     
      
      
        . Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).
     
      
      . Barrett, 479 U.S. at 529, 107 S.Ct. 828.
     
      
      . Id. at 529 n. 3, 107 S.Ct. 828 (citing Smith v. Illinois, 469 U.S. 91, 96 n. 3, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984)).
     
      
      . Davis, 512 U.S. at 461, 114 S.Ct. 2350 (emphasis added).
     
      
      . See Marshall v. State, 210 S.W.3d 618, 627-28 (Tex.Crim.App.2006)(defendant’s "no sir” response when asked whether he wanted to waive his rights created ambiguity because the defendant had re-initiated contact with the police).
     
      
      . Davis, 512 U.S. at 458-59, 114 S.Ct. 2350 (citing Barrett, 479 U.S. at 529, 107 S.Ct. 828).
     
      
      . Id.
      
     
      
      . See Ornelas v. United States, 517 U.S. 690, 697-98, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)(“<⅛ novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined 'set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement' ").
     
      
      . Ornelas, 517 U.S. at 699, 116 S.Ct. 1657; Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex.Crim.App.2004).
     
      
      . 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988).
     
      
      . Id. at 291, 108 S.Ct. 2389 ("Preserving the integrity of an accused’s choice to communicate with police only through counsel is the essence of Edwards and its progeny — not barring an accused from making an initial election as to whether he will face the State’s officers during questioning with the aid of counsel, or go it alone. If an accused 'knowingly and intelligently' pursues the latter course, we see no reason why the uncoun-seled statements he then makes must be excluded at his trial.”)(emphasis in original).
     
      
      . 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1988).
     
      
      . Patterson, 487 U.S. at 291, 108 S.Ct. 2389 (brackets and internal quotation marks omitted).
     
      
      . Court’s op. at- (quoting Jackson, 475 U.S. at 633, 106 S.Ct. 1404).
     
      
      
        . Jackson, 475 U.S. at 633, 106 S.Ct. 1404.
     
      
      . Id. at 633 n. 7, 106 S.Ct. 1404 (quoting People v. Bladel, 421 Mich. 39, 63, 365 N.W.2d 56, 67 (1984))
     
      
      . Patterson, 487 U.S. at 290-91, 108 S.Ct. 2389.
     