                           NUMBER 13-16-00388-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

SCOTT PAUL MADLOCK,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 207th District Court
                         of Comal County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Contreras and Benavides
             Memorandum Opinion by Justice Contreras

      Appellant Scott Paul Madlock appeals his conviction for four counts of aggravated

sexual assault of a child younger than six years of age, a first degree felony, and one

count of indecency with a child, a second degree felony. See TEX. PENAL CODE ANN. §§
21.11, 22.021 (West, 2017 Westlaw through 1st C.S.). By one issue, appellant contends

the trial court erred when it overruled his objection and admitted into evidence

incriminating statements he had made to investigators. We affirm.

                                         I.      BACKGROUND1

        Appellant was being held in a Bexar County Jail on a probation violation when his

three children were taken into custody by the Department of Family and Protective

Services (DFPS). The children had been living with appellant’s wife, but they were taken

by DFPS due to unsanitary home conditions. While they were living in a shelter, two of

the children acted out in a sexual manner. As a result, all three children were taken for a

forensic interview at a Child Advocacy Center, and all three children stated that appellant

had sexual contact with them.

        On December 5, 2014, Detective Danny Dufur questioned appellant at the Bexar

County Jail about the children’s statements and recorded the interview. Detective Dufur

read appellant his Miranda2 warnings, and appellant acknowledged that he understood

his rights and voluntarily waived them. After speaking for around forty-five minutes,

appellant made the following statement:

        I guess I do have issues, I ain’t going to lie. And you’re right, they do
        progress and become even worse and worse and worse. As far as the
        details, I would like to have an attorney present please just for the sake of
        my wife because I don’t want to put her or say something stupid that would
        put her in a position of being considered endangerment. She was never
        even around anyway so that’s why I said she has nothing to do with this.




        1 This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §
73.001 (West, Westlaw through 2017 1st C.S.).
        2   See Miranda v. Arizona, 384 U.S. 436 (1966).

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       Detective Dufur sought clarification from appellant on whether he wanted to end

the interview, and appellant responded that he would continue to talk. Appellant then

made incriminating statements admitting to having sexual contact with his children. He

was subsequently indicted and brought to trial.

       At trial, the State sought to introduce the audio recording of the interview, and

appellant objected to its admission. A hearing was held outside the presence of the jury,

and the following exchange took place between the trial court and appellant’s trial counsel

in regard to the objection:

       [The Court]:           Well, don’t you agree that the law – it has to be an
                              unequivocal invocation of his right to counsel?

       [Trial counsel]:       And, of course, it’s our position that it is. He said he
                              wanted a lawyer before he went out and –

       [The Court]:           Said he would like –

       [Trial counsel]:       – it had to do with his wife

       [The Court]:           I thought he said, for the sake of my wife, I would like
                              to have an attorney present.

       [Trial counsel]:       Right. I think that’s unequivocal. I don’t think he has
                              to state his reasons, even, for having a lawyer.

                              ...

       [The Court]:           All right. Well, in that case, just using plain rules of
                              grammar and English and syntax, he qualified his
                              request for an attorney for the sake of his wife, not for
                              the sake of him – for his prosecution. And that’s
                              certainly not an unequivocal request for an attorney to
                              protect his rights.

       The trial court overruled appellant’s objection and admitted the incriminating

statements into evidence. Appellant’s trial counsel then placed his objection on the record

and stated:



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        In regard to the legal issue . . . the defendant objects to the introduction of
        all incriminating statements concerning this case for the reason that the
        defendant requested a lawyer pursuant to Article 38.22 and to his rights
        pursuant to Miranda, the 6th and 5th Amendment to the United States
        Constitution, and the corresponding amendments to the Texas Constitution.
        And we object to the Court’s introduction, thereof, for reason that those
        rights were violated as well as his rights to due process of law and due
        course of law both with regard to the United States Constitution and the
        Texas Constitution.
        The jury convicted appellant on all charges, and the trial court sentenced him to

life without parole for each count.3 See TEX. PENAL CODE ANN. §§ 12.42, 21.11, 22.021

(West, Westlaw through 2017 1st C.S.). This appeal followed.

                                          II.     DISCUSSION

        By one issue, which we construe as two sub-issues, appellant argues that the trial

court erred when it overruled his objection and admitted into evidence his incriminating

statements to Detective Dufur because: (1) he invoked his right to an attorney; and (2)

his statements were involuntary and the result of police coercion.

    A. Standard of Review & Applicable Law

        An individual subject to custodial interrogation has a Fifth Amendment right to

consult with an attorney and to have counsel present during questioning. Miranda v.

Arizona, 384 U.S. 436, 469–73 (1966); see TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2

(West, Westlaw through 2017 1st C.S.). The invocation of this right must be clear and

unambiguous, and the mere mention of the word “attorney” or “lawyer” without more does

not automatically invoke it. Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995)

(en banc). If a suspect clearly and unequivocally asserts his right to have counsel




        3  Appellant’s punishment was enhanced to an automatic life sentence due to his previous conviction
for the felony offense of indecency with a child. See TEX. PENAL CODE ANN. § 12.42(c)(2) (West, Westlaw
through 2017 1st C.S.).

                                                    4
present, then law enforcement officers must immediately stop questioning him. Edwards

v. Arizona, 451 U.S. 477, 485 (1981); Dinkins, 894 S.W.2d at 350–51. But, “if a suspect

makes a reference to an attorney that is ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood only that the suspect might

be invoking his right to counsel, [it does] not require the cessation of questioning.” Davis

v. U.S., 512 U.S. 452, 455 (1994) (emphasis in original).

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

totality of the circumstances surrounding the interrogation, as well as the contents of the

alleged invocation, in order to determine whether a suspect’s statement can be construed

as an actual invocation of his right to counsel. State v. Gobert, 275 S.W.3d 888, 892

(Tex. Crim. App. 2009); Dinkins, 894 S.W.2d at 351. The inquiry into whether a suspect

has invoked his right to counsel is an objective one, i.e., “the suspect must articulate [a]

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.” Gobert,

275 S.W.3d at 892–93 (quoting Davis, 512 U.S. at 458–59).

   B. Invocation of Right to Counsel

       By his first sub-issue, appellant argues that his objection to the admission of his

incriminating statements should have been sustained because he invoked his right to

counsel.

       As noted, a defendant’s invocation of his right to counsel must be clear and

unambiguous, and we must look at the totality of the circumstances for the purpose of our

review. Gobert, 275 S.W.3d 892; Dinkins, 894 S.W.2d at 351. In other words, not every

mention of a lawyer by a suspect will trigger the Fifth Amendment right to the presence



                                             5
of counsel during questioning. Gobert, 275 S.W.3d at 892; see, e.g., Hartwell v. State,

476 S.W.3d 523, 531 (Tex. App.—Corpus Christi 2015, pet. ref’d) (holding that defendant

did not invoke right to counsel by asking, “should I maybe call my attorney friend and see

what he thinks?”); Mbugua v. State, 312 S.W.3d 657, 665 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d) (holding that defendant did not invoke right to counsel by asking, “Can I

wait until my lawyer gets here?”); see also In re H.V., 252 S.W.3d 319, 325 (Tex. 2008)

(noting that defendant does not invoke right to counsel by saying, “Maybe I should talk to

a lawyer,” “I might want to talk to a lawyer,” “I think I need a lawyer,” “Do you think I need

an attorney here?” or “I can’t afford a lawyer but is there any way I can get one?”).

         Here, we find relevant the following exchanges between appellant and Detective

Dufur:

         [Dufur]:           When we talk about the children, we want them to
                            grow, we want them to heal, we want them to become
                            good citizens, basically, in society. Okay. If we
                            stopped their progress right now, they wouldn’t heal,
                            they wouldn’t grow up to be something of good. Okay.
                            Because they are still living back in the past, and
                            they’ve got the issues of their childhood. And you’ve
                            heard of it before. Okay. So now is where the point
                            where we change these children, and hopefully get
                            them to grow to be happy, to live the life that you want
                            them to live –

         [Appellant]:       – With their mother?

         [Dufur]:           Okay. Possibly. You know, I don’t know that.
                            Unfortunately, I don’t know work for [DFPS], so I don’t
                            have any of those, those controls, over – because they
                            do the child protective services, they do the removals,
                            and the safety plans, and all that. I don’t do that, but
                            they do. Is this the best environment for the child? with
                            the mom?

         [Appellant]:       Yeah.

                            ...

                                              6
[Dufur]:       I know I’m telling ya – I know I’m talking a lot to you.
               And, I see, man to man I see you hurt. I see the pain
               in you, Scott.

[Appellant]:   I don’t want the kids taken from my wife.

[Dufur]:       And I understand that. I do. Maybe that’s something
               we can work on. That’s something I can talk to [DFPS]
               about, Scott.

               ...

[Appellant]:   I’m not going to blow smoke up your butt, I – whatever
               they say I just want to say no contest to. I put my hands
               up in the air. I’m not going to argue. I’m not going to
               take my kids to trial. I’m not going to put my wife
               through all that.

               ...

[Dufur]:       What the children, obviously they’re telling me, hey, this is
               not a one time incident. Was it just a one time incident?
[Appellant]:   No.

[Dufur]:       How long has this been going on?

[Appellant]:   Months, months.

[Dufur]:       Are we talking months, are we talking years?

[Appellant]:   A month.

[Dufur]:       What is happening? All you can do is move forward.
               I’m here to listen to you, Scott. I’m here to explain. I’ll
               shut up, and I’ll listen.

               ...

[Appellant]:   I guess I do have issues, I ain’t going to lie. And you’re
               right, they do progress and become even worse and
               worse and worse. As far as the details, I would like to
               have an attorney present please just for the sake of my
               wife because I don’t want to put her or say something
               stupid that would put her in a position of being
               considered endangerment. She was never even
               around anyway so that’s why I said she has nothing to
               do with this.

                                7
[Dufur]:       Let me – let me cut you off real quick, okay. Let me
               explain to you. You said you want an attorney present.
               That’s your right. You have that right. And I want to
               make sure that you’re clear, that if you want an attorney
               present, I can’t talk to you anymore, okay. I feel that
               you explaining your side of the story has nothing to do
               with hurting or helping your wife, okay. I don’t think it
               will hurt your wife, I don’t know – because like you said,
               she didn’t have anything to do with it and I’ve talked to
               her, okay. And I’ve told, you know, I don’t have control
               over the children but I do work closely with [DFPS] and
               I’m able to communicate with them, alright. But in order
               to talk to you anymore, you know once you bring up the
               attorney thing, I can’t. I can’t hear what you have to
               say unless you want me to, okay. But with that said,
               do you want to talk to me anymore, right now or do you
               want . . . .

[Appellant]:   I just don’t know what else to say

[Dufur]:       The biggest thing is – is to let the children know that
               they’re not on their own, okay – that things are true and
               that – man what do you, what do, what do you tell them.
               They just want to know.

[Appellant]:   But to hear the words of what they said coming out of
               my mouth makes me want to vomit.

[Dufur]:       I understand that.

[Appellant]:   I don’t wish to speak, I don’t want to go down that road
               again. I don’t want to go there anymore. I mean there
               is a reason I am not supposed to be around them. I’ll
               admit, I’m not going to lie.

[Dufur]:       You’re a good person Scott.

[Appellant]:   No I’m not.

[Dufur]:       You just have – problems man.

[Appellant]:   Look at what I did to my own kids.

[Dufur]:       I know. But they’re going to be okay. I know they are.
               I seen it. I seen that they’re going to be okay. They’re
               young, too. So that’s, that’s a good thing.

[Appellant]:   Oh, God.

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       [Dufur]:             Do you want to talk to me anymore, at all?

       [Appellant]:         Fine. I’ll talk. I’ll talk. I’ll talk.

       [Dufur]:             Is that okay with you?

       [Appellant]:         That’s fine.

       Appellant argues that he invoked his right to counsel when he said: “I would like

to have an attorney present please just for the sake of my wife because I don’t want to

put her or say something stupid that would put her in a position of being considered

endangerment.” The State argues that by stating that the reason he wanted an attorney

was “for the sake of my wife”, appellant’s request became ambiguous as to whether he

was trying to get a lawyer for his wife or for his own purposes. We agree with the State.

       The ambiguity in appellant’s statement is especially evident after reviewing the

totality of the circumstances, see Gobert, 275 S.W.3d at 892, from which we note the

following: (1) appellant was read his Miranda warnings and voluntarily waived his right to

an attorney, (2) DFPS had originally taken the children from appellant’s wife’s care, (3)

the interviewing officer and appellant were aware of this fact, (4) statements made by

appellant during the interview could expose his wife to criminal or civil consequences, see

TEX. FAM. CODE ANN. § 161.001 (West, Westlaw through 2017 1st C.S.) (actions resulting

in involuntary termination of parent-child relationship); TEX. PENAL CODE ANN. § 22.041

(West, Westlaw through 2017 1st C.S.) (actions constituting abandoning or endangering

a child), and (5) during the portion of the interview that preceded the alleged invocation,

appellant repeatedly expressed concern for his wife and any prejudice this might bring to

her, while not denying the children’s statements or his guilt. These factors accentuate

the qualifying phrase “for the sake of my wife” and make appellant’s statement ambiguous

as to his request for an attorney. See Luna v. State, 301 S.W.3d 322, 325 (Tex. App.—

                                                 9
Waco 2009, no pet.) (“Ambiguity exists when the suspect’s statement is subject to more

than one reasonable interpretation under the circumstances.”); see also Davis, 512 U.S.

at 460–61 (“A suspect who knowingly and voluntarily waives his right to counsel after

having that right explained to him has indicated his willingness to deal with the police

unassisted.”).

      Furthermore, after appellant’s alleged invocation, Detective Dufur attempted to

clear up the ambiguity—something which he was not prohibited from doing. Berghuis v.

Thompkins, 560 U.S. 370, 381 (2010) (quoting Davis, 512 U.S. at 455) (“If an ambiguous

act, omission, or statement could require police to end the interrogation, police would be

required to make difficult decisions about an accused’s unclear intent and face the

consequence of suppression ‘if they guess wrong.’”); see also Davis, 512 U.S. at 462

(“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 the subsequent judicial second-guessing as to the meaning of the suspect’s

statement regarding counsel.”).    Appellant responded by stating that he wanted to

continue the interview.

      Therefore, after reviewing the totality of the circumstances from the objective

standpoint of a reasonable officer in Detective Dufur’s position, we conclude that

appellant did not make a clear and unambiguous invocation of the right to counsel. See

Dinkins, 894 S.W.2d at 351.

      We overrule appellant’s first sub-issue.

   C. Voluntariness and Police Coercion




                                           10
       By his second sub-issue, appellant argues that the trial court erred in overruling

his objection to the introduction of his incriminating statements because they were

involuntary and the result of police coercion.

       In order for an issue to be preserved on appeal, there must be a timely objection

that specifically states the legal basis for the objection. TEX. R. APP. P. 33.1(a); Rezac v.

State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Armstrong v. State, 718 S.W.2d 686,

689 (Tex. Crim. App. 1985). A general or imprecise objection will not preserve error for

appeal unless “the legal basis for the objection is obvious to the court and to the opposing

counsel.” Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016) (quoting

Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (emphasis in original)).

In addition, when a complaint on appeal differs from that made at trial, the error is waived.

Cook v. State, 858 S.W.2d 467, 474 (Tex. Crim. App. 1993) (citing Rezac, 782 S.W.2d at

870) (“An objection stating one legal basis may not be used to support a different legal

theory on appeal.”).

       Here, appellant objected to the admission of the interrogation on the basis that he

had requested an attorney and was not provided with one. As a result, the State’s

response and the trial court’s decision had to do with whether appellant had invoked his

right to counsel or whether he had asked for counsel for his wife. After the court ruled on

the objection and found that appellant had requested an attorney for his wife, trial counsel

placed his objection on the record as set forth above.

       Appellant’s argument that his incriminating statements should have been

suppressed because they were involuntary as a result of police coercion is legally distinct

from the argument that they should have been suppressed because he invoked his right



                                             11
to counsel. See TEX. CODE CRIM. PROC. ANN. arts. 38.21, 38.22 (West, Westlaw through

2017 1st C.S.); see also Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997)

(en banc); Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997).              And,

appellant’s trial counsel’s objection did not refer to voluntariness or coercion in any way

so as to indicate that appellant was objecting on that legal basis in addition to his claim

of invocation of counsel. See Resendez, 306 S.W.3d at 315; Buchanan, 207 S.W.3d at

777. Thus, after reviewing the record, we cannot conclude that appellant objected to the

introduction of his statements on the basis of coercion or involuntariness. See Vasquez,

483 S.W.3d at 554. Therefore, we find that appellant’s complaint is waived. See TEX. R.

APP. P. 33.1(a); Vasquez, 483 S.W.3d at 554; Resendez, 306 S.W.3d at 312.

       We overrule appellant’s second sub-issue.

                                   III.   CONCLUSION
       We affirm the trial court’s judgment.
                                                        DORI CONTRERAS
                                                        Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
11th day of January, 2018.




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