                                       NO. 07-02-0151-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                     JANUARY 2, 2003
                             ______________________________

                                       TONY ROMO, JR.,

                                                              Appellant

                                                  v.

                                    THE STATE OF TEXAS,

                                                  Appellee
                          _________________________________

              FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2001-436,154; HON. MACKEY K. HANCOCK, PRESIDING
                        _______________________________

Before QUINN and JOHNSON, JJ. and BOYD, SJ.1

       Tony Romo, Jr. (appellant) appeals his conviction for burglary of a habitation with

intent to commit robbery. Via two issues, he contends that the trial court erred in failing

to suppress his confession which allegedly was obtained in violation of his “right to counsel

. . . at every significant stage of a criminal proceeding after counsel ha[d] been appointed.”

We affirm the judgment.




       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Code Ann. §75.002(a)(1) (Vernon Supp. 2002).
                                             Background

        Several robberies had occurred in the Lubbock, Texas area. The Lubbock City

police had a general description of the robber, and believed him to be appellant. Upon

investigation, the police discovered that appellant had an outstanding warrant for his arrest

arising from an application to revoke his probation. Furthermore, an attorney had been

appointed to represent him on that matter.

        With the aforementioned warrant in hand, the police arrested appellant and took

him to the station. They gave him his Miranda warnings and began questioning him about

the robberies, as opposed to matters encompassed by the pending motion to revoke

probation. During the interrogation, appellant voluntarily waived his right to have counsel

present and then admitted to committing various burglaries. The State subsequently

indicted him for one of those burglaries, and thus began the present controversy.

        Before trial, appellant moved to suppress his confession about the burglary for

which he was indicted, contending that it was obtained in violation of his Sixth Amendment

right to counsel.2 The court held a hearing on the motion and then denied it. At that point,

appellant pled guilty but opted to have the jury assess punishment. The jury levied upon

him a life sentence. Appellant now appeals his conviction, alleging that the trial court

erred in denying the motion to suppress his confession.




        2
          The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI.




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                                         Authority

       The applicable standard of review is discussed in Benitez v. State, 5 S.W.3d 915,

918 (Tex. App.—Amarillo 1999, pet. ref’d). We cite the parties to it.

       Next, the Sixth Amendment guarantees a criminal defendant the assistance of

counsel at the initiation of an adversary proceeding and at any subsequent “critical stage”

of the proceeding. Estelle v. Smith, 451 U.S. 454, 469-70, 101 S.Ct. 1866, 1876, 68

L.Ed.2d 359 (1981). However, the right is “offense specific.” Texas v. Cobb, 532 U.S. 162,

167-68, 121 S. Ct. 1335, 1340, 149 L.Ed.2d 321, 328 (2001), citing McNeil v. Wisconsin,

501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991); see Maine v. Moulton, 474 U.S.

159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985). That is, the amendment prohibits law

enforcement personnel from further interrogating one after he has invoked his right to an

attorney, unless the individual re-initiates the process. Cobb v. State, 85 S.W.3d 258,

263-64 (Tex. Crim. App. 2002). Yet, this prohibition extends only to questioning about the

same offense. Id. It does not prevent officers from asking about an offense different from

that to which he invoked his right to counsel. Id. In other words, the invocation of the right

viz one charge or prosecution does not encompass all future, yet distinct, offenses and

prosecutions therefor. Texas v. Cobb, 532 U.S. at 168, 121 S.Ct. at 1340, 115 L.Ed.2d at

328.

       Thus, the critical inquiry is whether the offenses at issue were the same. Cobb v.

State, 85 S.W.3d at 264. And, whether they were is determined by applying the test

enunciated in Blockburger v. United States, 284 U.S. 304, 52 S.Ct. 182, 76 L.Ed. 309;

Cobb v. State, 85 S.W.3d at 264. Simply put, the offenses are the same if they are


                                              3
established by the same facts; if one requires proof of a fact that the other does not, then

they are not the same. Id. at 264, citing Blockburger v. United States, 284 U.S. 299, 52

S.Ct. 180, 76 L.Ed. 306 (1932).

                                             Analysis

       Appellant admits that he was Mirandized and that he waived his rights guaranteed

him under the Fifth Amendment of the United States Constitution.3 However, he contends

that his Sixth Amendment right to counsel was violated because counsel had been

appointed to represent him in the pending revocation proceeding numbered 93-416191.

And, because he had counsel viz the revocation matter, that counsel should have been

present during his interrogation about the burglaries. This is especially so, according to

appellant, since the motion to revoke was later amended to include the offenses to which

he confessed. We disagree.

       It is undisputed that at the time of his arrest and interrogation, the State had

pending a motion to revoke appellant’s probation. Similarly undisputed, however, is that

the grounds upon which the motion was based did not include the burglaries about which

he was being interrogated and to which he subsequently confessed and pled guilty. In

short, the misconduct purportedly authorizing the revocation was quite distinct from the

burglaries about which the police were interrogating him. Thus, the facts needed by the

State to succeed upon the pending motion to revoke differed from those needed to prove

the burglary.     And, because they differed, the offenses were not the same under



       3
         The Fifth Amendment is a guarantee that "[n]o person . . . shall be compelled to be a witness
against himself." U.S. Const. amend. V.

                                                  4
Blockburger or Cobb. And, because they were not the same, the officers did not violate

his Sixth Amendment right by questioning him about the burglaries without counsel (who

was appointed solely for purposes of the revocation) being present.

      Finally, that the motion to revoke was later amended to include the burglaries to

which appellant confessed is of no consequence. This is so because at the time of the

interrogation, the pending motion did not encompass the subject matter of the

interrogation. Indeed, the Court of Criminal Appeals held as much in Cobb. There, Cobb

had been charged with and admitted to burglarizing a home. Furthermore, counsel was

obtained to represent him viz that charge. However, he admitted to murdering those within

the house during police interrogation conducted several years later. Thereafter, the State

added a count sounding in capital murder to the pending burglary prosecution. This,

according to Cobb, evinced that the offenses were the same for purposes of Blockburger.

The court disagreed, suggesting that appellant was confusing the concept of a lesser-

included offense with the concept of the same offense. Cobb v. State, 85 S.W.3d at 265

n.18. More importantly, in rejecting the contention, the court implicitly recognized that

simply joining two distinct offenses for trial in one proceeding did not make them the same

offense. They remained different. The focus is on whether the offenses are the same, not

on whether they can be disposed of in the same proceeding. So, because the grounds

asserted via the motion to revoke at bar differed from the burglary to which appellant

confessed and pled guilty, the State’s decision to later include the burglary in its motion

to revoke did not somehow result in a violation of appellant’s Sixth Amendment right to

counsel.


                                            5
      Therefore, we affirm the judgment of the trial court.


                                                       Brian Quinn
                                                         Justice


Publish.




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