      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                         4444444444444444444444444444444444
                                 ON MOTION FOR REHEARING
                         4444444444444444444444444444444444



                                       NO. 03-06-00330-CR



                                  The State of Texas, Appellant

                                                  v.

                                Milton Dwayne Gobert, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
         NO. D1DC06-904006, HONORABLE BOB PERKINS, JUDGE PRESIDING



                               DISSENTING OPINION


               Because Gobert’s statement that “I don’t want to give up any right, though, if I don’t

got no lawyer” is sufficiently and clearly an invocation of his right to consult with counsel, I would

conclude that this Court’s original opinion and judgment affirming the trial court’s suppression order

was correct. The State now urges on rehearing that Gobert’s statement is a “conditional request”

for counsel and therefore not a sufficient invocation.1 The experienced trial judge—with the benefit


       1
          The State also now claims on rehearing that, contrary to its original brief on appeal, “parts
of this comment are close to being inaudible” and the tape “might also support his comment as being
‘I don’t want to give up these rights, though, before I got no lawyer.’” The State then argues:
“Regardless of the precise words used, the conditional ‘tenor and sense’ of this early interchange,
including its cryptic nature and possible use of a double negative, vividly depict the reasonableness
of the detectives’ responses, and illustrate the limitations of drawing conclusions from the cold
written record, as have the courts and parties so far.”
of the actual videotaped interview not in the record on appeal2—found otherwise. So should we.

Accordingly, I respectfully dissent to the substituted opinion and judgment reversing the trial court’s

order.

                The majority opinion agrees with the State that Gobert’s statement to the interrogating

officer was not a clear assertion of the right to counsel. The State asserts that Gobert “never

expressly asked for a lawyer” and “never expressly stated he wanted an attorney there.” Therefore,

the State argues, the statement was not a “clear, unequivocal, unambiguous” invocation of his right

to counsel but was “conditional” and therefore no assertion:


         [Gobert] may have meant he did not want to waive his right to silence since there was
         no lawyer there. That is not a request for an attorney. Or [Gobert] may have meant
         he wanted to talk to a lawyer before he decided whether or not he would waive his
         right to remain silent. What exactly he meant is just not clear. His statement being
         subject to more than one interpretation, the State submits it did not constitute an
         unambiguous, unequivocal request for counsel, nor did it constitute an unambiguous,
         unequivocal assertion of his right to remain silent. When the detectives immediately
         asked [Gobert] for clarification, [Gobert] promptly and definitely indicated his
         willingness to talk to them.


                This argument confuses the right to counsel with the right to remain silent. It may

have been unclear, as the State argues, whether Gobert “did not want to waive his right to silence

since there was no lawyer there” or whether Gobert “wanted to talk to a lawyer before he decided

whether or not he would waive his right to remain silent.” But no reasonable police officer in the




         2
          Although the videotape was attached to the State’s petition for discretionary review, it was
not in the record before us on appeal.

                                                  2
circumstances could construe Gobert’s statement to mean that he was waiving a right to counsel.

That Gobert thereafter evinced a willingness to talk to officers must be viewed in context.


The Controversy

               As the facts have evolved and now seem to be disputed, it is instructive to recite the

passage of the interview at issue. It occurs at the very inception of the interview as Detectives Burgh

and Scanlon enter the interview room. As the State acknowledges in its brief on appeal, “It was

during the first few moments of the videotaped interview that the transaction at issue took place.”

The transcribed videotape3 shows the following questioning by Detective Burgh:


       Q.      Hey? Hey, Milton. I’m Detective Burgh. This is Detective Scanlon.

       A.      Okay.

       Q.      Do you know a girl named Christine?

       A.      Yeah.

       Q.      You do?

       A.      My ex-girlfriend. My ex-fiancee.

       Q.      Okay. Before we get started, I—I mean, its—we have to read you your rights
               because you’re under arrest right now. Okay? It’s something we have to do.

       A.      What’s the charge?

       Q.      Well, you’re—they picked you up on a parole violation. You’re in custody.


       3
          The interview was videotaped. The videotape was presented to the judge at the suppression
hearing. The record reflects that the trial court reviewed the actual videotape. A verbatim transcript
of the videotape was included in the record on appeal; the videotape itself was not included in the
record on appeal. The State attached a copy of the transcript to its brief on appeal.

                                                  3
               Detective Scanlon then stated, “And the assault involving Christine.” Detective

Burgh continued, “So that’s what we need to talk about. I want to read you this thing, okay? It’s

just—we got to do it. All right? Okay. Milton, you have the right to remain silent . . . .”

               Immediately after Detective Burgh advised appellant of his rights, the following

exchange occurred:


       Q.      Do you understand those rights I just read to you?

       A.      Yes, sir.

       Q.      Okay. Can you—do you have a problem reading?

       A.      No.

       Q.      Can you read that out loud to me, the top line there?

       A.      I have received and understand (inaudible) statement.

       Q.      They’re the one I just read to you.

       A.      I don’t want to give up any right, though, if I don’t got no lawyer.

       Detective Scanlon:     You don’t want to talk?

       Detective Burgh:       You don’t want to talk to us?

       A.      I mean, I’ll talk to y’all. I mean, I know, you know, what she had said about
               it, you know. I’ll speak with y’all, but (inaudible), man. I mean, I’ll speak
               with y’all, you know.

       Detective Scanlon:     Okay, signing this—signing this is not giving up your right.
                              Signing this is acknowledging that this was read to you.

       Detective Burgh:       Yeah.

       Detective Scanlon:     Okay? Your choice to talk to us is different. This—all this
                              is, is acknowledging you were warned.

                                                 4
After asking whether he should read “it” again, Burgh began questioning Gobert. Minutes later, as

appellant discusses “Christine,” Scanlon returns to the subject of the lawyer and the verbatim

transcript reflects the following exchange between Scanlon and Gobert:


       Q.      I want to clear something up, though, because earlier you said you don’t want
               to give up your right to a lawyer. I want you—I want you—I want to clear up
               the fact that you want to talk to us about this. Okay? You understand what
               I’m saying?

       A.      Yeah.

       Q.      I want to clear it up. I mean, that’s—that’s what you want to do, right?

       A.      Yeah.

       Q.      Okay. Where is Christina now?


               At issue is Gobert’s statement, “I don’t want to give up any right, though, if I don’t

got no lawyer.” Following a hearing, the trial court concluded that this was an unequivocal

invocation of the right to counsel during custodial interrogation.


The Hearing

               The motion to suppress sought the exclusion of the statement under Article 38.22 of

the code of criminal procedure based on the denial of due process, the denial of the defendant’s state

and federal constitutional rights, and Jackson v. Denno, 378 U.S. 368, 380 (1964). At the initial

hearing on the motion to suppress, the defense argued that Gobert’s statement was a clear invocation

of the right to counsel and that he had been deceived about why he was at the police station and what




                                                  5
the detectives wanted to talk about.4 After several pretrial hearings addressing the motion to

suppress, the trial court granted Gobert’s motion on the ground that Gobert’s invocation of his right

to counsel was unequivocal. Relying on Edwards v. Arizona, 451 U.S. 477 (1981), the trial judge

found that Gobert invoked his right to a lawyer: “I don’t know what he can say to them that invokes

his right to a lawyer any more than this.”

               The trial court dictated its findings and conclusions into the record, satisfying the

requirements of Article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc.

Ann. art. 38.22 (West 2005). The findings and conclusions were transcribed and were made a part

of the appellate record. See Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). The

court announced its findings and conclusions as follows:


              I just don’t find anything that is unequivocal [sic] about the statement ‘I’m
       not going to waive any rights if I don’t got no lawyer.’ I mean, I think that that’s as
       unequivocal as I can imagine a statement being.

               I mean, if I were a defense lawyer and I was advising my client what to say,
       I can’t imagine what advice I’d give him to say anything better than that. I mean,
       he’s saying that he’s not going to waive any rights until he has a lawyer. Under
       Edwards, once he makes that statement, he’s got a right to a lawyer before anything
       else happens, you know.


               I just—you know, and he was not provided a lawyer. They just—as soon as
       he says that, instead of saying, okay, you want a lawyer, we will get you a lawyer, or
       instead of—instead of asking him about the lawyer question, they just go totally




       4
         Gobert urged two issues at the hearings on his motion to suppress. In addition to the
ground on which the trial court ruled and suppressed the evidence, he also urged that the statements
were involuntary based on the deception of the police officers. The trial court did not rule on the
second ground.

                                                 6
       around that and they start saying, well you don’t want to talk to us, which is not really
       what he had asked.

               The right that he asked to invoke was his right to a lawyer, and he says at the
       same time he doesn’t want to waive any rights until he’s got one. I think the fact that
       they totally ignored what he said and kept on talking to him about does he want to
       make a statement, I think that that implies . . . they really don’t believe in the
       warnings they have given him . . . .

                                                ***

               And that’s what he’s saying, is he doesn’t want to give up any right. He
       doesn’t want to give up his right to remain silent; he doesn’t want to give up his right
       to have a lawyer appointed for him; he doesn’t want to give up his right to terminate
       the interview. You know, that what he says. I assume that that’s what he means.

               Now, the thing is, at that time what he says, ‘if I don’t got no lawyer,’ maybe
       they might have some question at that point about whether he wanted a lawyer from
       that. I don’t know how they could have that question.

               But if they were going to ask any question, at that point, it seems to me, it was
       incumbent upon them to ask, okay, so you’re saying you want a lawyer right now?
       Is that what you’re saying? They want him to repeat his assertion that he wanted a
       lawyer, and then they could proceed along that line. But they don’t ask that. They
       totally blow by the question of the lawyer deal.

                                                ***

               Well, either Edwards means what it says or it doesn’t. Either you can invoke
       your right to a lawyer or you can’t. I don’t know what he can say to them that
       invokes his right to a lawyer any more than this. . . . Under Edwards, it seems to me
       that once he says, I want a lawyer, that’s it. I mean, that’s the end of the ball game.


The Appeal

               The procedural posture of this case has become relevant to this appeal. On appeal

from the trial court’s ruling suppressing the statement, the State addressed two issues raised at the

pretrial hearings: whether Gobert’s statements were made in violation of his right to counsel and



                                                  7
whether the police deceived Gobert, rendering his statement involuntary by their manner of

questioning. By a majority, this Court affirmed the trial court’s ruling that the statements were

obtained in violation of Gobert’s right to counsel. Pursuant to Rule 50 of the Texas Rules of

Appellate Procedure, and without requesting a response from Gobert’s counsel,5 a new majority

substituted an opinion reversing the trial court’s ruling. See Tex. R. App. P. 50 (allowing a majority

of the justices who participated in a decision to summarily reconsider and correct or modify the

court’s opinion or judgment within 30 days after a petition for discretionary review is filed). The

new majority opinion addressed the trial court’s determination that the officers conducting the

interrogation failed to honor Gobert’s invocation of the right to counsel. The majority concluded

then and now again in a revised opinion that Gobert’s statement that “I don’t want to give up any

right, though, if I don’t got no lawyer” was not an invocation of his right to an attorney.


Standard of Review

               The majority considers this issue under a de novo standard. Because the application

of the standard of review is relevant, I set it forth. We review a trial court’s ruling on a motion

to suppress evidence under a bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493

(Tex. Crim. App. 2005); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In

reviewing the trial court’s decision, we do not engage in our own factual review. Rather, the trial

judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given

to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman v. State,


       5
         Gobert’s counsel complains that the opinion was substituted and the result changed without
permitting a response.

                                                  8
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost complete deference to the trial court’s

ruling on (i) questions involving historical facts, and (ii) application-of-law-to-fact questions

that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53

(Tex. Crim. App. 2002); Carmouche, 10 S.W.3d at 327. We may review de novo mixed questions

of law and fact that do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d

at 652-53; Ross, 32 S.W.3d at 856. We must affirm the trial court’s ruling if it is supported by the

record and correct under some theory of law applicable to the case. St. George v. State, 237 S.W.3d

720, 725 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003).

               In this case, a videotape of the interview was provided to the trial court, and the

record makes clear that the trial judge reviewed and considered its content to determine contested

issues. See Carmouche, 10 S.W.3d at 332 (determining that the videotape contradicted officer’s

testimony in hearing on motion to suppress). The videotape, however, was not included in the record

on appeal. Instead, the State included a verbatim transcription of the videotape. Whether a

defendant has unambiguously invoked his right to counsel may involve—as here—a factual as well

as a legal determination. See, e.g., Ross, 32 S.W.3d at 857 (case falls within “almost total deference”

standard of review because trial court’s factual findings were dispositive).

               Here, whether we defer to the factual findings of the trial court or review the issue

de novo, I would reach the same conclusion. But any deference to the findings of the trial court

compels the conclusion it then reached.




                                                  9
Invocation of Right to Counsel

               Over twenty-five years after the landmark Edwards case and forty years after

Miranda, certain bright lines have emerged. See Edwards v. Arizona, 451 U.S. 477, 485 (1981);

Miranda v. Arizona, 384 U.S. 436, 479 (1966). Prior to custodial interrogation, a suspect must

be advised that he has a right to consult with an attorney. Miranda, 384 U.S. at 467-68.

Interrogation must cease immediately if the suspect states that he wants an attorney. Id.; see also

Edwards, 451 U.S. at 485; McCarthy v. State, 65 S.W.3d 47, 51 (Tex. Crim. App. 2001); Dinkins

v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995). If the suspect indicates in any manner, at any

time prior to or during questioning, that he wishes to remain silent, the questioning must cease.

Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Cross v. State, 144 S.W.3d 521, 526 (Tex. Crim.

App. 2004). A suspect’s invocation of his right to counsel must be “scrupulously honored.”

Michigan v. Mosley, 423 U.S. 96, 103 (1975). An invocation of counsel must not be ambiguous,

meaning the suspect must “articulate his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand the statement to be a request for an

attorney.” Davis v. United States, 512 U.S. 452, 459 (1994).

               In Miranda, the Supreme Court held that once an individual in custody invokes his

right to counsel, interrogation “must cease until an attorney is present.” 384 U.S. at 474. At that

point, “the individual must have an opportunity to confer with the attorney and to have him present

during any subsequent questioning.” Id. Edwards then made clear that the admonitions of Miranda

did not require any invocation to be in the syntax and grammar demanded of an interrogatory.

Rather, in Edwards the Court found it “inconsistent with Miranda and its progeny for the authorities,



                                                 10
at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.”

Id. at 485. The Court held that “when 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.” Id. at 484.

                By its assertion on appeal that Gobert “never expressly asked for a lawyer,” “never

expressly stated he wanted an attorney there,” and that his statement was not a “clear, unequivocal,

unambiguous invocation of the right to counsel,” the State applies an erroneous standard for

determining waiver when the accused has specifically invoked his right to counsel. The facts in

Edwards are similar to those here. In the aspects in which the cases differ, the facts are more

compelling here.

                In Edwards, the defendant said: “I want an attorney before making a deal.” Id. at

479. Similarly, Gobert announced: “I don’t want to give up any right, though, if I don’t got

no lawyer.” In Edwards, two detectives who were colleagues of the officer who had interrogated

Edwards the previous night, came to the jail the next morning, stated they wanted to talk to Edwards,

and readvised him of his Miranda rights. Id. Linking the assertion of right to counsel to an

accused’s response to his advice of rights, the Court in Edwards reasoned: “Miranda itself indicated

that the assertion of the right to counsel was a significant event and that once exercised by the

accused, ‘the interrogation must cease until an attorney is present.’” Id. at 485 (quoting Miranda,

384 U.S. at 474).




                                                    11
               Here, the same detectives advised Gobert that by signing the form he was not giving

up any rights. They then plainly ignored his desire not to relinquish his rights in the absence of

counsel. Immediately after Gobert refused to give up “any” rights “if I don’t got no lawyer,” both

detectives said, “You don’t want to talk?” and “You don’t want to talk to us?” Then Scanlon assured

Gobert that “signing [the Miranda warnings] is not giving up your right,” and “Signing this is

acknowledging that this was read to you,” which was followed by “Your choice to talk to us is

different.” What could it mean to an accused to then be told that “all this is, is acknowledging that

you were warned?”

               In Edwards, the defendant agreed to make a statement as long as it was not tape-

recorded: “I’ll tell you anything you want to know, but I don’t want it on tape.” Id. at 479.

Likewise, Gobert agreed that he wanted to “clear it up,” but apparently believed that, having invoked

his right to an attorney, nothing he thereafter said to the officers could be used against him until

counsel had been provided. After Gobert had given a confession and the interrogation was winding

down, Detective Burgh asked if Gobert would be willing to sign a written statement. Gobert became

agitated and said, “I’m telling you that I done it, man. Why you have to type up a statement and all

of that?” He added, “Oh, man, I mean why we have to go back through all this, you know, this is

just like what to present to the judge or something, to the D.A., make your job easier or something?”

Gobert’s attempts to terminate the interview were similarly ignored. In response to Gobert’s plea

to “just take me to a lock-up, man,” the officers continued their questioning. At the conclusion of

the interview, as he repeatedly asks the detectives why they are reducing his statement to writing,

Gobert realized he has given up every right he had.



                                                 12
               Edwards could not be more clear. To impose an “additional safeguard,” the Edwards

Court held that a valid waiver of a defendant’s right to counsel cannot be established by showing

only that he responded to further police-initiated custodial interrogation even if he has been advised

of his rights. Id. at 484. But the Court further 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 himself initiates further

communication, exchanges, or conversations with the police.” Id. at 484-85. Likewise, the Texas

Court of Criminal Appeals has recognized that “the Edwards rule acts as a ‘clear and unequivocal’

guideline to law enforcement precisely because it is ‘relatively rigid.’” McCarthy, 65 S.W.3d at 51

(quoting Arizona v. Roberson, 486 U.S. 675, 681 (1988)). The court of criminal appeals held:


       [T]he Edwards rule does not take into account the good intentions of the individual
       police officer, the lack of official coercion or badgering in the particular case, or the
       actual voluntariness of a person’s custodial statement. Edwards represents a bright
       and firm constitutional rule that applies to all suspects and all law enforcement
       officers.


Id.

               The right to consult with counsel before and during any custodial interrogation is

independent of the right to remain silent. Although Gobert did not expressly request a lawyer to be

present, he unambiguously, if ungrammatically, told the officers that he did not want to give up

“any” right “if I don’t got no lawyer.” This was a clear statement that Gobert was unwilling to waive

any of his rights under Miranda and article 38.22 without first consulting counsel. At least one of

the officers, Scanlon, showed he understood this when he said, “I want to clear something up,



                                                  13
though, because earlier you said you don’t want to give up your right to a lawyer.” Gobert’s

willingness to speak to the officers did not serve to waive his right to counsel.6

               The opinions cited by the majority are distinguishable on their facts. In Davis

v. United States, the Supreme Court held that a suspect’s statement, “Maybe I should talk to a

lawyer,” uttered over an hour and a half into a custodial interrogation and after the suspect had

previously waived his Miranda rights was an ambiguous assertion of the right to counsel. 512 U.S.

at 458-59. Likewise, the Texas Court of Criminal Appeals held that the suspect’s question in

Robinson v. State, “Do I need to talk to a lawyer before I sign?” was plainly ambiguous; it was

neither an assertion of the right to counsel nor a request for counsel. 851 S.W.2d 216, 223-24

(Tex. Crim. App. 1991). In the unpublished case of Harper v. State, a case cited by the majority,

after the suspect confessed to the armed robbery in which a murder occurred, he said “I don’t even

want to talk unless I have me a lawyer and go through this shit. I don’t have to go through this shit,

right?” No. 03-00-00677-CR, 2001 Tex. App. LEXIS 7497, at *4-6 (Tex. App.—Austin Nov. 8,

2001, no pet.). No further interrogation took place until after one of the officers asked a question

not posed to Gobert, “Are you telling us you want to terminate this interview and speak to an

attorney or do you want us to continue to discuss this matter?” Id. The suspect expressed his desire




       6
         Although the defendant carries the burden of unequivocally asserting his right to counsel,
see Davis v. United States, 512 U.S. 452, 461-62 (1994), the State has the burden of establishing by
a preponderance of the evidence that the defendant subsequently voluntarily waived his right to
counsel. Moran v. Burbine, 475 U.S. 412, 421 (1986) (holding State is required to establish alleged
waiver “made with a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it”). The State challenges only the trial court’s finding that
Gobert unequivocally invoked his right to counsel; it does not claim that, after invoking the right to
counsel, Gobert subsequently waived that right.

                                                 14
to continue without counsel. Id.; cf. Jones v. State, 742 S.W.2d 398, 405 (Tex. Crim. App. 1987)

(defendant’s statement “I think I want a lawyer” was a clear and unequivocal assertion of right to

counsel.)

                Of course, waiver is possible when a request for counsel is equivocal and an

interrogation need not cease following an ambiguous or equivocal reference to an attorney. See

Edwards, 451 U.S. at 484; Nash v. Estelle, 597 F.2d 513, 517 (5th Cir. 1979). To avoid difficulties

of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry.

Davis, 512 U.S. at 458-59. Invocation of the Miranda right to counsel “requires, at a minimum,

some statement that can reasonably be construed to be an expression of a desire for the assistance

of an attorney.” McNeil v. Wisconsin, 501 U.S. 171, 178 (1991). The Supreme Court in Miranda

held that if a defendant indicates “in any manner” that he wishes an attorney before speaking or that

he does not wish to be interrogated further, questioning must cease. 384 U.S. at 444-45. Although

a suspect must “articulate his desire to have counsel present sufficiently clearly that a reasonable

police officer in the circumstances would understand the statement to be a request for an attorney,”

Davis, 512 U.S. at 459, he need not speak with the level of clarity or “discrimination of an Oxford

don.” Id. at 476 (Souter, J., concurring). Whether viewed as an invocation of his right to remain

silent or to invoke his right to counsel, I agree with the trial court that Gobert adequately

communicated his desire to speak to an attorney before giving a statement that could be used against

him. That the officers recognized this is clear from their retort “You don’t want to talk to us?” and

their return, after questioning, to clarify Gobert’s intent.




                                                   15
               When reviewing alleged invocations of the right to counsel, we look at the totality

of circumstances surrounding the interrogation, as well as the alleged invocation, to determine

whether a suspect’s statement can be construed as an actual invocation of right to counsel. Dinkins,

894 S.W.2d at 351; Lucas v. State, 791 S.W.2d 35, 45-46 (Tex. Crim. App. 1989). Because the trial

court is the sole judge of the credibility of the witnesses and the weight of their testimony, I would

hold that the trial court’s findings and conclusions are supported by the record. Ross, 32 S.W.3d at

855. That the trial court performed its function in evaluating credibility and demeanor is clear. The

trial court observed:


                The problem, as far as I’m concerned, is this: You-all say that he has not
       stated specifically that he wants to invoke his right to remain silent or to invoke his
       right to cut off the interview. But the words that he uses—and, actually, if you watch
       the tape, his voice gets noticeably louder. Because, you know, there [are] a lot of
       things that he says on the tape that I couldn’t understand and that he talks so low and
       mumbles and that sort of thing.

              But one is very clear. When he gets particular to this point, he says out loud
       and pretty loudly, he says, ‘I don’t want to give up any right though, if I don’t got no
       lawyer.’ He tells—that is the loudest thing he says throughout that interview.

                                                ***

               And that’s what he’s saying, is he doesn’t want to give up any right. He
       doesn’t want to give up his right to remain silent; he doesn’t want to give up his right
       to have a lawyer appointed for him; he doesn’t want to give up his right to terminate
       the interview. You know, that’s what he says. I assume that that’s what he means.

               Now, the thing is, at that time what he says, ‘if I don’t got no lawyer,’ maybe
       they might have some question at that point about whether he wanted a lawyer from
       that. I don’t know how they could have that question.

              But if they were going to ask any questions, at that point, it seems to me, it
       was incumbent upon them to ask, okay, so you’re saying you want a lawyer right
       now? Is that what you’re saying? They want him to repeat his assertion that he

                                                 16
       wanted a lawyer, and then they could proceed along that line. But they don’t ask that.
       They totally blow by the question of the lawyer deal.

               And as far as I’m concerned, after Edwards—it does seem to me that one of
       the paramount rights that’s established in Miranda after Edwards is the right to a
       lawyer. I mean, I think that that’s kind of a high trump card in Miranda litigation
       after Edwards, is you say you want a lawyer, that’s the end of the ball game.


(Emphasis added.) The trial court then concluded:


       [E]ither Edwards means what it says or it doesn’t. Either you can invoke your right
       to a lawyer or you can’t. I don’t know what he can say to them that invokes his right
       to a lawyer any more than this. He says he doesn’t want to waive any rights unless
       he’s got a lawyer, and at that time, it seems to me, under Edwards, they have got to
       respect that right and they have got to say—maybe they can say to him—and I am not
       even sure they can do this under Edwards, but maybe they can say to him, okay,
       you’re saying to us you want a lawyer, so you understand under the law we can’t talk
       to you now until you get a lawyer or until you come back to talk to us individually
       or something like that. Maybe they can say that to him. I don’t see how they can say
       anything else to him, though.


Not surprisingly, the trial court found that a statement that “I don’t want to give up any right”

necessarily means that one is giving up no rights.

               These are explicit findings of historical fact made by the trial court; they must

be given “almost complete” deference. See Carmouche, 10 S.W.3d at 327; see also St. George,

237 S.W.3d at 725. We review the record to determine whether the trial court’s ruling is supported

by the record and correct under some theory of law applicable to the case. See Armendariz,

123 S.W.3d at 404. Here, the trial court made explicit findings of fact. Moreover, the trial court was

favored with the presentation of a videotape of the interview, which was not included in the record

on appeal. See Carmouche, 10 S.W.3d at 332 (regarding importance of videotape). Applying a



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bifurcated standard of review, we afford “almost total deference” to the trial court’s findings of

historical fact. See Guzman, 955 S.W.2d at 89. We review de novo mixed questions of law and fact

that do not turn on an evaluation of credibility and demeanor. Id. In other words, we review de novo

the trial court’s application of law to the facts as found by the trial court. Id. Because the trial court

is the sole judge of the credibility of the witnesses and the weight of their testimony, I would hold

that the trial court’s findings and conclusions are supported by the record.

                Viewing the totality of the circumstances, see Dinkins, 894 S.W.2d at 351; Lucas,

791 S.W.3d at 45-46, I would hold that Gobert’s statement, made immediately after he was advised

of his rights under Miranda and article 38.22, that “I don’t want to give up any right, though, if I

don’t got no lawyer” was a clear invocation of the right to counsel. The majority concludes that

Gobert “told the police three times that he was willing to talk to the police, indicating that he was

willing to proceed without having the assistance of counsel.” This is precisely the type of police

conduct Edwards forbids. See 451 U.S. at 484-85. Under Edwards, all interrogation should have

ceased until counsel was provided. Id. Because the interrogation continued in violation of Edwards,

I would hold that Gobert’s statements to the police are inadmissible against him on the trial of any

criminal case. See Tex. Code Crim. Proc. Ann. art. 38.22.

                Miranda and Edwards together etch a bright line here. It is disturbing at best that in

2008 we are still debating whether a defendant is entitled to an attorney once he indicates a clear

intent to invoke that constitutional right, and the State insists on parsing the grammar and syntax of

double negatives to deprive an accused of his right to consult with an attorney, arguing that

the statement was “conditional” and just not clear to “a reasonable police officer.” That it was



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sufficiently clear to the police officer is apparent from the officer’s statement that “earlier you said

you don’t want to give up your right to a lawyer.” The officer determined that he ought to at least

clarify Gobert’s statement but, instead of clarifying Gobert’s declaration, he “clear[ed] up the fact

that you want to talk to us about this. Okay? You understand what I’m saying?” Attempting to

make a record to continue the interview and not to clarify Gobert’s wishes regarding an attorney, the

officers, as the trial court found, bypassed any opportunity to clarify the issue of counsel.

                The indispensable right to counsel during custodial interrogation cannot function

effectively as Miranda requires if the police are free to ignore an accused’s invocation of his right

to counsel. Indeed, the Supreme Court has made it clear beyond peradventure that this right

is indispensable as well to the protection of an accused’s Fifth Amendment privilege. See Fare

v. Michael C., 442 U.S. 707, 719-20 (1979); see also Miranda, 384 U.S. at 469. We should not be

quibbling over an accused’s clear intent to invoke the most basic of rights.




                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Filed: February 1, 2008

Publish




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