             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. PD-1095-10



                           ALFREDO LEYVA PECINA, Appellant

                                                 v.

                                    THE STATE OF TEXAS

               ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE SECOND COURT OF APPEALS
                              TARRANT COUNTY

        C OCHRAN, J., delivered the opinion of the Court in which K ELLER, P.J., and
M EYERS, W OMACK, J OHNSON, K EASLER, H ERVEY and A LCALA, JJ., joined. A LCALA,
J., filed a concurring opinion in which J OHNSON, J., joined. P RICE, J., filed a
dissenting opinion.


       A Tarrant County jury convicted appellant of the murder of his wife. The trial judge

denied appellant’s motion to suppress his statements to police during custodial questioning

at a hospital after a magistrate had given him his Article 15.17 rights.1 The trial judge

rejected appellant’s claim that he had invoked both his Fifth and Sixth Amendment rights to



       1
           TEX . CODE CRIM . PROC. art. 15.17.
                                                                                        Pecina – 2

counsel when he asked the magistrate for an appointed attorney but also said that he wanted

to talk to the police who were standing outside the hospital room. On remand from this

Court, the court of appeals, over a dissent, held that appellant had invoked his Fifth

Amendment right to interrogation counsel during the magistration process.2

       We granted the State’s petition for discretionary review to clarify the distinction after

Montejo between the Fifth Amendment right to interrogation counsel and the Sixth

Amendment right to trial counsel.3          Under Montejo, the Fifth Amendment right to

interrogation counsel is triggered by the Miranda warnings that police must give before

beginning any custodial questioning. The Sixth Amendment right to trial counsel is triggered

by judicial arraignment or Article 15.17 magistration. Both the Fifth and Sixth Amendment

rights to counsel apply to post-magistration custodial interrogation, but each is invoked and

waived in exactly the same manner–under the Fifth Amendment prophylactic Miranda rules.

We hold that, because appellant never invoked his right to interrogation counsel after the

police gave him Miranda warnings, the trial judge did not err in denying appellant’s motion




       2
         Pecina v. State, 326 S.W.3d 249, 265-66 (Tex. App.–Fort Worth 2010) (“When Pecina
requested appointment of counsel, which is undisputed, he invoked his Fifth Amendment right to
consult with and have counsel present, as the magistrate explained that right to him, at any police
questioning. The police were waiting in the hall to question him at that moment.”).
       3
        The State’s Grounds for Review are as follows:
(1)    The Fort Worth Court’s opinion improperly conflates Appellant’s noninterrogative
       arraignment with his subsequent interrogation.
(2)    The Fort Worth Court misapplied this Court’s opinion in Hughen v. State.
(3)    Appellant could not anticipatorily invoke his Fifth Amendment rights at a
       noninterrogative arraignment.
                                                                                     Pecina – 3

to suppress.

                                               I.

A.     Factual Background.

       Arlington paramedics responded to a 911 call and found appellant and his wife,

Michelle, in their apartment, both bleeding from stab wounds. Michelle, who had been

stabbed fifty-five times, died before the paramedics arrived. Appellant was taken to the

hospital. A serrated kitchen knife with a seven-inch blade was found on the bathroom floor.

Based on their initial investigation, detectives believed that appellant had killed Michelle and

then stabbed himself. After several days, they obtained an arrest warrant. Then Detectives

Nutt and Frias took Judge Maddock, a local magistrate, to appellant’s hospital room.

       Judge Maddock testified at the suppression hearing that she normally performs

magistration hearings at the Arlington City Jail, but she went to the hospital for appellant’s

hearing, as she had done in some other cases, “due to the policy of the sheriff’s office [that

it will not] transfer . . . a Defendant until he has been fully magistrated.” The two detectives

drove Judge Maddock to the hospital and entered appellant’s room with her. They all

introduced themselves. Judge Maddock, who was fluent in Spanish, told appellant, while

pointing to the detectives, “They are here. They would like to speak to you.” Appellant either

said yes or nodded.

       The detectives then left the room and stood outside while Judge Maddock arraigned

appellant. She read appellant a Spanish version of the Article 15.17 “Adult Warning Form,”
                                                                                       Pecina – 4

although she had only an English version for him to sign.4 After reading appellant his rights,

Judge Maddock asked if he “want[ed] a court appointed attorney. And he stated he did.” She

then asked appellant, “Do you still want to talk to [the detectives]?” He said that he did.

Appellant signed the Article 15.17 form acknowledging that he understood his rights.

       Judge Maddock stated that, in her opinion, appellant’s decision to speak with the

detectives was free and voluntary and there was “absolutely no coercion.” She believed that,

when appellant asked for counsel, he was asking for trial counsel. She said that appellant

never indicated that he wanted a lawyer to be present when detectives questioned him. Judge

Maddock then went into the hall and told the detectives that appellant “had initially asked for

a lawyer, but [that] she had been told by Mr. Pecina that he wanted to talk to them.” She

gave the signed Article 15.17 form to the detectives, and she waited in the hallway.



       4
         Judge Maddock read the Spanish version of the rights printed on the English version,
including the following:
(2)    You have a right to hire a lawyer and have him/her present prior to and during any
       interview and questioning by peace officers or attorneys representing [the] state;
(3)    If you cannot afford a lawyer, you have the right to request the appointment of a lawyer to
       be present prior to and during any such interview and you have the right to have an
       attorney appointed to represent you if you cannot afford an attorney. This means you may
       obtain your own lawyer or have a lawyer appointed for you. You may have reasonable
       time and opportunity to consult your lawyer if you desire. [The form then describes the
       paperwork necessary to obtain indigent status for counsel];
(4)    You have the right to remain silent. You do not have to speak to the police;
(5)    You are not required to make a statement, and any statement you make can and [may be]
       used against you in court;
(6)    You have the right to stop any interviewing or questioning at any time. If you decide to
       answer questions, you may stop the questioning at any time;
(7)    You have the right to have an examining trial if you are charged with a felony offense;
       and
(8)    You may be subject to deportation if you are not a U.S. citizen.
                                                                                        Pecina – 5

       Detectives Frias and Nutt then came back into appellant’s room. Det. Frias spoke

Spanish and explained to appellant who they were and that they wanted to question him about

his wife’s murder. Appellant said that he wanted to talk with them, so Det. Frias wrote, in

Spanish, on the 15.17 form, “I asked for a lawyer, but also I wanted to speak with the

Arlington police.” The officers told appellant that they would record the interview, and as

they prepared their equipment, Det. Frias gave appellant the Miranda 5 warnings orally in

Spanish. The audio equipment malfunctioned at first, so Det. Frias orally warned Pecina

again once the tape started. Appellant also signed a card that listed his Miranda rights in

Spanish. At every point, appellant waived his Miranda rights. While taping the oral

statement, Det. Frias wrote out a written version for appellant, and he signed it.6

       The detectives said that appellant never asked to stop the interview and never asked

to speak with counsel. They denied making any promises, and they stated that they believed

appellant’s waiver was knowing, intelligent, and voluntary. After their interview, the

detectives took Judge Maddock back to her office, and she began the process to appoint

appellant’s trial counsel.

       Appellant testified that, if an attorney had advised him not to speak with police, he


       5
           Miranda v. Arizona, 384 U.S. 436 (1966).
       6
         In his taped statement, appellant said that he did not remember much about the day his
wife died. He said that they had argued about her not wanting to be with him. He became angry,
and they started to fight. Appellant admitted that he had cut his wife and that no one else was
present when these events occurred. He had no memory of cutting himself. In his written
statement, appellant said that he picked up the knife from the kitchen and cut his wife, but he did
not remember how many times he cut her.
                                                                                   Pecina – 6

would not have talked with them. The rest of his testimony dealt with whether he was

advised that he could contact the Mexican Consulate.

       The trial judge denied the motion to suppress. He found that appellant was fully

informed of his rights and “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.”

B.     Appellate History.

       On original submission, the Fort Worth Court of Appeals affirmed appellant’s murder

conviction, finding that, when appellant agreed to speak with police in response to the

magistrate’s question, he initiated contact with police.7 Appellant’s action waived both the

Fifth Amendment right to interrogation counsel and the Sixth Amendment right to trial

counsel, regardless of which he may have invoked.8 On discretionary review, we reversed,

holding that, under Michigan v. Jackson,9 appellant “had invoked his [Sixth Amendment]

rights to counsel when arraigned by the magistrate at the hospital,” and appellant’s “yes”

reply when the magistrate asked if he still wanted to talk with the police was insufficient to

reinitiate contact and waive his previously invoked Sixth Amendment right.10 We remanded

       7
        Pecina v. State, No. 2-05-456-CR, 2007 WL 1299263, *7-8 (Tex. App.—Fort Worth
May 3, 2007) (not designated for publication) (Pecina I).
       8
           Id.
       9
           475 U.S. 625 (1986).
       10
          Pecina v. State, 268 S.W.3d 564, 568 (Tex. Crim. App. 2008) (“While we agree with
the court of appeals that Appellant’s Sixth Amendment right to counsel attached when he was
                                                                                        Pecina – 7

the case for the court of appeals to conduct a harm analysis.

       While this case was pending in the court of appeals on remand, the United States

Supreme Court overruled Michigan v. Jackson–the very case that we relied on in holding that

appellant’s invocation of his Sixth Amendment right to counsel at the magistration hearing

rendered his subsequent waiver of the right to counsel for the police-initiated interview

invalid–in Montejo v. Louisiana.11 However, the court of appeals held that, even after

Montejo, appellant’s statements should have been suppressed because he invoked his Fifth

Amendment right to an interrogation attorney by asking the magistrate for an appointed

lawyer.12 We granted review to discuss the distinct Fifth and Sixth Amendment rights to

counsel after Montejo and to apply those differences to custodial interrogation.

                                                II.

       Over the past four decades, the jurisprudence concerning the Fifth Amendment right

to counsel during police interrogation and the Sixth Amendment right to counsel at all

“critical” stages of criminal proceedings had become intertwined in complex and confusing

ways. It was increasingly difficult for courts to determine which right can be invoked when

and whether invocation of the right to counsel under one amendment invoked the right to

counsel under the other amendment. Finally, in Montejo, the United States Supreme Court



arraigned by the magistrate, we disagree that Appellant himself initiated contact with the
police.”) (Pecina II).
       11
            Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079 (2009).
       12
            Pecina v. State, 326 S.W.3d 249, 264–67 (Tex. App.—Fort Worth 2010) (Pecina III).
                                                                                        Pecina – 8

disentangled the two right-to-counsel constitutional provisions and clarified their separate

purposes and applications by overruling Michigan v. Jackson and reaffirming the bright-line

rule of Miranda and Edwards.13 As Justice Scalia noted in his Montejo conclusion,

       This case is an exemplar of Justice Jackson’s oft quoted warning that this
       Court “is forever adding new stories to the temples of constitutional law, and
       the temples have a way of collapsing when one story too many is added. We
       today remove Michigan v. Jackson’s fourth story of prophylaxis.14

We examine how the lessons of Montejo apply in this case, one that is factually very similar

to Montejo.15




       13
            Montejo, 556 U.S. at ___, 129 S.Ct. at 2091-92.
       14
            Montejo, 556 U.S. at __, 129 S.Ct. at 2092 (citation omitted).
       15
           Jesse Jay Montejo was arrested for murder and questioned by police detectives. He
admitted that he had shot and killed the victim in a botched burglary. Several days later he was
charged with murder and, at a preliminary hearing, the judge ordered that counsel be appointed to
represent him. 129 S.Ct. at 2082. Later that same day, police detectives visited Montejo in jail.
They read him his Miranda rights and asked him to accompany them to find the murder weapon.
Montejo agreed, and, during the trip, he wrote “an inculpatory letter of apology to the victim’s
widow.” Id. Only later did Montejo meet his court-appointed lawyer, “who was quite upset that
the detectives had interrogated his client in his absence.” Id. On appeal, Montejo claimed that
the inculpatory letter should not have been admitted because he had invoked his Sixth
Amendment right to counsel at the preliminary hearing and thus police officers were barred from
questioning thereafter without the presence of counsel. Id. at 2083. The Supreme Court held
that neither a defendant’s request for counsel at a preliminary hearing nor appointment of that
counsel affects the validity of the defendant’s waiver of his Miranda rights during a subsequent
custodial interrogation by police. Id. at 2091-92. But the Court remanded the case to determine
whether Montejo had “made a clear assertion of the right to counsel when the officers had
approached him about accompanying them on the excursion for the murder weapon,” because (1)
the question of whether Montejo had validly waived his Miranda rights had not been fully
litigated; and (2) he could still press his claim that his Sixth Amendment rights had been violated
if the police misrepresented whether he had been appointed a lawyer when he purportedly waived
his Miranda rights during that custodial interrogation. Id.
                                                                                        Pecina – 9

A.     The Fifth Amendment Right to Interrogation Counsel.16

       The Fifth Amendment prohibits the government from compelling a criminal suspect

to bear witness against himself.17 In Miranda v. Arizona,18 the Supreme Court crafted

safeguards to protect this “privilege against self-incrimination” in the inherently coercive

atmosphere of custodial interrogations.19 Before questioning a suspect who is in custody,

police must give that person Miranda warnings. Only if the person voluntarily and

intelligently waives his Miranda rights, including the right to have an attorney present during

questioning, may his statement be introduced into evidence against him at trial.20

       Under Edwards v. Arizona,21 once a person invokes his right to have counsel present


       16
          We refer to this right to counsel as the “Fifth Amendment right to interrogation counsel”
to distinguish it from the “Sixth Amendment right to trial counsel.” To be clear, this
     is something of a misnomer to the extent that it indicates that the Fifth Amendment
     itself creates a right to counsel. The rights created by Miranda, including the right to
     have counsel present during custodial interrogation, “are not themselves rights protected
     by the Constitution but [are] instead measures to insure that the right against
     compulsory self-incrimination [is] protected.” However, because of the pervasiveness of
     the term’s use in the cases of the Supreme Court . . . interpreting the right to counsel
     created by Miranda, we use it here.
Goodwin v. Johnson, 132 F.3d 162, 179 n.12 (5th Cir. 1997) (quoting Duckworth v. Eagan, 492
U.S. 195, 203 (1974) (all other citations and quotation marks omitted).
       17
         U.S. CONST . amend V (“No person . . . shall be compelled in any criminal case to be a
witness against himself”).
       18
            384 U.S. 436 (1966).
       19
          Id. at 441; see also Dickerson v. United States, 530 U.S. 428, 437-38 (2000)
(describing the Fifth Amendment right to interrogation counsel as a prophylactic rule necessary
to mitigate the inherently coercive environment of custodial interrogation).
       20
            Miranda, 384 U.S. at 475.
       21
            451 U.S. 477 (1981).
                                                                                       Pecina – 10

during custodial interrogation, a valid waiver of that right cannot be established by merely

showing that the suspect responded to police-initiated interrogation after being advised of

his rights again.22 The purpose of the Edwards rule is to “prevent police from badgering a

defendant into waiving his previously asserted Miranda rights.”23 That prophylactic rule

protects the suspect–who has made the decision not to speak to law-enforcement officers

without his lawyer and clearly communicated that decision to the police–from further police

badgering.24 In Montejo, the Supreme Court again praised the “clear and unequivocal

guidelines to the law enforcement profession” that Edwards provides.25

       It is the police officer or other law-enforcement agent who administers Miranda

warnings, and he does so immediately before custodial interrogation.26 Thus, the police must

give the Fifth Amendment Miranda warnings during the process of custodial interrogation

       22
            Id. at 485.
       23
            Michigan v. Harvey, 494 U.S. 344, 350 (1990).
       24
            Texas v. Cobb, 532 U.S. 162, 175 (2001) (Kennedy, J., concurring).
       25
            Montejo, 556 U.S. at __, 129 S.Ct. at 2091 (internal quotation marks omitted).
       26
          Miranda, 384 U.S. at 444-45 (suspect may invoke his Fifth Amendment right to
interrogation counsel “prior to” interrogation or during interrogation if he indicates “in any
manner, and at any stage of the process that he wishes to consult with an attorney before
speaking”). In Montejo, the Supreme Court repeatedly referred to the Fifth Amendment right to
counsel during “police initiated” custodial interrogation, thus it is that factual
scenario–questioning by police officers or their agents–that gives rise to the prophylactic
Miranda warnings, and the invocation or waiver of the Fifth Amendment right to counsel during
such questioning. See Montejo, 556 U.S. at ___, 129 S.Ct. at 2086 (stating that “antibadgering”
by police officers is the rationale of Edwards), id. at 2087 (rejecting Montejo’s proposed rule that
would prevent “police-initiated interrogation entirely once the Sixth Amendment right” to
counsel attaches), id. at 2089 (purpose of Jackson rule, like that of Edwards, “is to preclude the
State from badgering defendants into waiving their previously asserted rights”).
                                                                                       Pecina – 11

but before questioning actually begins.27 But, as the Supreme Court noted in McNeil v.

Wisconsin,28 it has never accepted the notion of an “anticipatory” invocation of Miranda

rights (1) given by someone other than law-enforcement officers or other state agents; or (2)

outside the context of custodial interrogation.

       We have in fact never held that a person can invoke his Miranda rights
       anticipatorily, in a context other than “custodial interrogation”–which a
       preliminary hearing will not always, or even usually, involve. . . . Most rights
       must be asserted when the government seeks to take the action they protect
       against. The fact that we have allowed the Miranda right to counsel, once
       asserted, to be effective with respect to future custodial interrogation does not
       necessarily mean that we will allow it to be asserted initially outside the



       27
           Id. at 467. As the Miranda Court stated, “An individual need not make a pre-
interrogation request for a lawyer. While such request affirmatively secures his right to have one,
his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to
counsel during interrogation can be recognized unless specifically made after the warnings we
here delineate have been given.” 384 U.S. at 470. Thus, a suspect who, before the police have
begun reading him his Miranda warnings, asks them for an attorney, is entitled to one before
being questioned. Similarly, a suspect who, upon being given his Miranda warnings, asks the
police for an attorney, is entitled to one before being questioned. And a suspect who initially
states that he understands all of his rights and wishes to waive them, but, at any point during the
questioning, stops and asks for an attorney, is entitled to one before being questioned further.
       28
           501 U.S. 171 (1991); see also Green v. State, 934 S.W.2d 92, 97 (Tex. Crim. App.
1996) (“Like the hearing in McNeil, appellant’s request for an attorney at his appearance
associated with the robbery was not an expression for assistance in dealing with custodial
interrogation by the police.”); Flamer v. Delaware, 68 F.3d 710, 725-26 (3d Cir. 1995) (murder
defendant’s request for counsel at his arraignment did not constitute a Fifth Amendment request
for counsel at a subsequent police interrogation; “McNeil stands for the proposition that a request
for an attorney at arraignment is, in itself, insufficient to invoke the Fifth Amendment right to
counsel at subsequent custodial interrogation—even if that interrogation concerns the offense on
which the defendant was arraigned.”); Alston v. Redmond, 34 F.3d 1237, 1246 (3d Cir. 1994)
(“The antipathy expressed in McNeil towards the anticipatory invocation of the Miranda rights is
consistent with Miranda’s underlying principles. The Miranda right to counsel is a prophylactic
rule that does not operate independent from the danger it seeks to protect against—‘the
compelling atmosphere inherent in the process of in-custody interrogation’—and the effect that
danger can have on a suspect’s privilege to avoid compelled self-incrimination.”).
                                                                                        Pecina – 12

       context of custodial interrogation, with similar future effect.29

       Thus, in Montejo, the Supreme Court stated that, under its Fifth Amendment

jurisprudence, “a defendant who does not want to speak to the police without counsel present

need only say as much when he is first approached and given the Miranda warnings.” 30 And

if he does invoke his Fifth Amendment right to counsel, “not only must the immediate

contact [by police] end, but ‘badgering’ by later requests is prohibited.” 31

       Once formal adversary proceedings begin, the Sixth Amendment right to counsel

applies in exactly the same way as the Fifth Amendment right applies to custodial

interrogation.32 Thus, Miranda warnings serve the arrestee’s interests in both the Fifth and

Sixth Amendment rights to counsel during custodial interrogations conducted after a person

has been formally charged. Because the “doctrines ensuring voluntariness of the Fifth

Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment

waiver,”33 both the Fifth and Sixth Amendment rights to interrogation counsel are fully



       29
            501 U.S. at 182 n.3.
       30
          Montejo, 556 U.S. at __, 129 S.Ct. at 2090 (citing “the Miranda- Edwards-Minnick line
of cases”).
       31
            Id.
       32
          Id. (noting that cases like Jackson “protect the right to have counsel during custodial
interrogation–which right happens to be guaranteed (once the adversary judicial process has
begun) by two sources of law. Since the right under both sources is waived using the same
procedure, doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously
ensure the voluntariness of the Sixth Amendment waiver”) (citations omitted).
       33
            Id. at 2090.
                                                                                         Pecina – 13

encompassed by the Fifth Amendment Miranda doctrine.

B.      The Sixth Amendment Right to Trial Counsel.

       The Sixth Amendment right to counsel attaches once the “adversary judicial process

has been initiated,” and it guarantees “a defendant the right to have counsel present at all

‘critical’ stages of the criminal proceedings.”34 We refer to this Sixth Amendment right with

the short-hand term “trial counsel.” Generally, an Article 15.17 initial appearance and

magistration marks the initiation of adversarial judicial proceedings in Texas and “plainly

signals” the attachment of a defendant’s Sixth Amendment right to counsel.35

       In Michigan v. Jackson, the Supreme Court had held 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.”36 That is the rule that the Supreme Court explicitly overruled in



       34
           Montejo, 556 U.S. at __, 129 S.Ct. at 2085. An accused may invoke his Sixth
Amendment right “at or after the initiation of adversary judicial criminal proceedings – whether
by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v.
Illinois, 406 U.S. 682, 689 (1972). This is the “starting point” for the Sixth Amendment right to
trial counsel because “it is only [when adversary proceedings commence] that the government
has committed itself to prosecute, and only then that the adverse positions of government and
defendant have solidified.” Id.
       35
          Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008) (stating that Texas’s article
15.17 magistration hearing “plainly signals” the attachment of the Sixth Amendment right to
counsel, “even if it is not itself a critical stage.”); see also Hughen v. State, 297 S.W.3d 330, 335
(Tex. Crim. App. 2009) (defendant’s “Article 15.17 initial appearance marked the initiation of
adversarial judicial proceedings against him and thus ‘plainly signal[ed] attachment’ of his Sixth
Amendment right to counsel.”).
       36
            Michigan v. Jackson, 475 U.S. 625, 636 (1986).
                                                                                        Pecina – 14

Montejo because it was deemed “unworkable,” “superfluous,” and a “policy driven” doctrine

whose “policy is being adequately served through other means.” 37

       Furthermore, the Jackson rule simply did not take account of the practical realities and

goals of the arraignment event and its relationship to the separate event of custodial

interrogation. When a person is brought before a magistrate, told that he is formally accused

of committing a crime, and asked if he wants a lawyer to represent him in those criminal

proceedings, that is an entirely different question from whether he wants a lawyer to be with

him during any police questioning. A defendant’s response, “Yes, I want a lawyer,” is fatally

ambiguous because it may mean “I want a lawyer for these judicial proceedings,” or “I want

a lawyer before I talk to the police,” or “I want a lawyer for all purposes and I do not want

to say anything more to anyone–you or the police–until I have one.” 38

       As Montejo concluded, this ambiguity is easy to resolve: a Sixth Amendment request

for an attorney at an arraignment, initial appearance, or Article 15.17 hearing is a request for

the guiding hand of counsel for all judicial criminal proceedings. If the defendant also

wishes to invoke his Sixth Amendment right to counsel during the “critical stage” of post-




       37
          Montejo, 556 U.S. at __, 129 S.Ct. at 2089-91 (concluding that, “when the marginal
benefits of the Jackson rule are weighed against its substantial costs to the truth-seeking process
and the criminal justice system, we readily conclude that the rule does not ‘pay its way.’”).
       38
         See Montejo, 556 U.S. at __, 129 S.Ct. at 2086 (noting that even the Jackson Court
acknowledged “doubt that defendants ‘actually intend[ed] their request for counsel to encompass
representation during any further questioning’”).
                                                                                       Pecina – 15

arraignment custodial interrogation,39 he may certainly do so. But he does so by invoking

that right to counsel, pursuant to Miranda, Edwards, and Minnick when law enforcement or

other state agents embark upon custodial interrogation.40

       Thus, both the Fifth and Sixth Amendment rights to counsel during custodial

interrogation depend upon the same thing: “What matters for Miranda and Edwards is what

happens when the defendant is approached for interrogation, and (if he consents) what

happens during the interrogation–not what happened at any preliminary hearing.” 41

       Distilled to its essence, Montejo means that a defendant’s invocation of his right to

counsel at his Article 15.17 hearing says nothing about his possible invocation of his right

to counsel during later police-initiated custodial interrogation. The magistration hearing is

not an interrogation event. An uncharged suspect may invoke his Fifth Amendment right to

counsel (and a defendant who has been arraigned may invoke his Sixth Amendment right to

counsel) for purposes of custodial interrogation when the police or other law-enforcement



       39
         See Montejo, 556 U.S. at ___, 129 S.Ct. at 2085 (citing Massiah v. United States, 377
U.S. 201, 204-05 (1967)).
       40
           Montejo, 556 U.S. at ___, 129 S.Ct. at 2089-90 (stating that, even without Jackson,
“any suspect subject to custodial interrogation has the right to have a lawyer present if he so
requests, and to be advised of that right. . . . These three layers of prophylaxis are sufficient.
Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does
not want to speak to the police without counsel present need only say as much when he is first
approached and given the Miranda warnings. . . . If that regime suffices to protect the integrity of
a ‘suspect’s voluntary choice not to speak outside his lawyer’s presence’ before his arraignment,
it is hard to see why it would not also suffice to protect that same choice after arraignment, when
Sixth Amendment rights have attached.”) (citation omitted).
       41
            Id. at 2091.
                                                                                       Pecina – 16

agents approach him and give him his Miranda warnings. That is the time and place to either

invoke or waive the right to counsel for purposes of police questioning.

C.     Standard of Review

       In reviewing claims concerning Miranda violations and the admission of statements

made as the result of custodial interrogation, we conduct the bifurcated review articulated

in Guzman v. State.42 We afford almost total deference to the trial court’s rulings on

questions of historical fact and on application of law to fact questions that turn upon

credibility and demeanor while we review de novo the trial court’s rulings on application of

law to fact questions that do not turn upon credibility and demeanor.43

       However, the Supreme Court has held that, in deciding whether an accused “actually

invoked his right to counsel,” reviewing courts must use an objective standard “[t]o avoid

difficulties of proof and to provide guidance to officers conducting interrogations[.]” 44 The

accused “must unambiguously request counsel” during a custodial interrogation; thus, “he

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




       42
           955 S.W.2d 85, 89 (Tex. Crim. App. 1997); see Leza v. State, 351 S.W.3d 344, 349
(Tex. Crim. App. 2011) (“[W]e measure the propriety of the trial court’s ruling with respect to
alleged Miranda violations under the totality of the circumstances, almost wholly deferring to the
trial court on questions of historical fact and credibility, but reviewing de novo all questions of
law and mixed questions of law and fact that do not turn on credibility determinations.”);
Ripkowski v. State, 61 S.W.3d 378, 381-82 (Tex. Crim. App. 2001).
       43
            Leza, 351 S.W.3d at 349.
       44
            Davis v. United States, 512 U.S. 452, 458-59 (1994).
                                                                                       Pecina – 17

officer in the circumstances would understand the statement to be a request for an attorney.”45

We view the totality of circumstances from the viewpoint of the objectively reasonable police

officer conducting custodial interrogation.

       With that general background, we turn to the present case.

                                                III.

       In this case, there were two separate events: magistration followed by a custodial

interrogation.46 Judge Maddock conducted the magistration and gave appellant his Article

15.17 warnings in Spanish. Appellant told her, “I want a lawyer, but I also want to speak

with the Arlington Police.” In her opinion, appellant asked for the appointment of a trial

attorney, but he wanted to talk to the police who were standing right outside the hospital

door. She did not believe that appellant invoked his right to counsel for purposes of custodial

interrogation.47 As a neutral magistrate, acting in her judicial capacity, she concluded that




       45
            Id. at 459.
       46
          The court of appeals mistakenly concluded that, during the magistration, appellant was
“approached for interrogation.” Pecina III, 326 S.W.3d at 267 (“The detectives–acting through
the magistrate–initiated interrogation by asking Pecina if he still wanted to talk to them.”). These
are entirely distinct events, and the officers were not even in the hospital room when Judge
Maddock performed her magistration duties, nor could it be said that, as a judge, she was
somehow a conduit for custodial interrogation by the detectives.
       47
          Indeed, such a request would be entirely inconsistent with the words that appellant
actually used. See, e.g., McNeil v. Wisconsin, 501 U.S. 171, 178-79 (1991) (“[T]o find that [the
accused] invoked his Fifth Amendment right to counsel on the present charges merely by
requesting the appointment of counsel at his arraignment on the unrelated charge is to disregard
the ordinary meaning of that request.”) (internal quotations marks omitted).
                                                                                        Pecina – 18

appellant was willing to talk to the police officers without counsel.48 The detectives then

entered and gave appellant his Miranda warnings in Spanish three separate times. At no time

did he hesitate, invoke his right to an attorney at that interview, or ask the officers to stop

their questioning. The officers concluded that appellant freely, voluntarily, and intelligently

waived his right to counsel during their questioning. There is nothing in the record that

would contradict their conclusion.

       Under the totality of these circumstances, we agree with the trial judge that an

objective and reasonable police officer, conducting a custodial interrogation, would conclude

that appellant had voluntarily waived both his Fifth and Sixth Amendment rights to counsel

for purposes of the custodial questioning by Detectives Frias and Nutt. Because appellant

was in custody at the time the police questioned him, he had a Fifth Amendment right to

counsel if he wished to invoke it. Because formal adversary proceedings had begun against

appellant and were triggered by Judge Maddock’s magistration, he had a Sixth Amendment




       48
          The article 15.17 hearing assures suspects that judges, not police, are in charge of the
justice system in America. As Professors Dix and Schmolensky have noted,

       A primary function of the appearance before the magistrate, of course, is the
       provision of the interrogation warnings, but by a person with less interest in
       having waivers than interrogating officers. In addition, presentation demonstrates
       to suspects that the law enforcement agency holding them acknowledges outside
       limits upon its power over suspects. Both impartial warnings and the
       demonstration of judicial dominance may reduce the inherently coercive impact of
       later custodial interrogation upon suspects.

41 G. DIX & J. SCHMOLENSKY , TEXAS PRACTICE SERIES: CRIMINAL PRACTICE AND PROCEDURE
§20:5 (3d ed. 2011).
                                                                                       Pecina – 19

right to counsel if he wished to invoke it. He could invoke either or both in precisely the

same manner–by telling the officers, after they gave him the Miranda warnings, that he

wished to have an attorney before speaking to them. He did not do so. He, therefore, waived

both his Fifth and Sixth Amendment rights to counsel during custodial interrogation.49

       A majority of the court of appeals, in its opinion, acknowledged the Supreme Court’s

decision in Montejo, and stated that “Miranda and Edwards are still the law for suspects in

custody subjected to police interrogation. . . . To protect the Fifth Amendment privilege

against self-incrimination, the police may not initiate custodial interrogation of a suspect who

has previously requested assistance of counsel.” Not exactly. Under Montejo, and following

Miranda, Edwards, and Minnick, the correct statement is, “To protect the Fifth Amendment

privilege against self-incrimination, the police may not continue or re-initiate custodial

interrogation of a suspect who has previously requested assistance of counsel after the police

informed him of his right to counsel at the beginning of a custodial interrogation.” 50 Judge

Maddock’s magistration did not trigger any Fifth Amendment right concerning custodial

interrogation; that was done by the detectives at the beginning of their interrogation.




       49
           Appellant aptly notes, “Once counsel is invoked, whether it is called 5th Amendment
invocation or a 6th Amendment invocation is a distinction without a lot of difference.”
Appellant’s Brief at 6. He is correct in the context of post-arraignment custodial interrogation, as
a defendant has both a Fifth and Sixth Amendment right to counsel during that interrogation and
either (or both) is triggered by the police giving him the Miranda warnings.
       50
         See Montejo, 556 U.S. at __, 129 S.Ct. at 2090 (“[A] defendant [i.e. one who has been
formally charged with a crime] who does not want to speak to the police without counsel present
need only say as much when he is first approached and given the Miranda warnings.”).
                                                                                    Pecina – 20

       Justice Holman, in his dissenting opinion in the court below, correctly noted that “the

‘Miranda-Edwards regime’ does not apply to ‘non interrogative types of interaction between

the defendant and the State.’”51 He stated that both the Supreme Court decision in Montejo

and our post-Montejo decision in Hughen52 make it clear that “whatever occurred at

[appellant’s] preliminary hearing did not even implicate Edwards because Pecina had not yet

been approached for interrogation nor had he ever unambiguously expressed his desire to

deal with the police only through his attorney.”53 Further, Justice Holman correctly noted,

“now that the Montejo court has overruled Jackson, neither a defendant’s request for counsel

at arraignment or similar proceeding nor appointment of counsel by a court gives rise to a

presumption that any subsequent waiver by a defendant to police-initiated interrogation is

invalid.”54 We agree with this analysis.

       Because, under Montejo, appellant never invoked his Fifth or Sixth Amendment rights

to counsel during custodial interrogation, we conclude that the trial judge properly denied



       51
            Pecina III, 326 S.W.3d at 271 (Holman, J., dissenting).
       52
          In Hughen, the defendant was taken to a magistrate who read him his rights under
article 15.17. 297 S.W.3d at 331-32. The defendant requested appointment of counsel. Id.
Three hours later, a detective initiated custodial interrogation by reading the defendant his
Miranda rights, and the defendant waived those rights and agreed to talk to the officer without
counsel. Id. at 332. We held that the Fifth Amendment Miranda waiver was sufficient to waive
his Sixth Amendment right to counsel during that interview. Id. at 335. Hughen specifically
dealt only with a waiver under the Sixth Amendment because that was his specific claim. Under
Montejo, the result is exactly the same under either a Fifth or Sixth Amendment claim.
       53
            Pecina III, 326 S.W.3d at 271 (Holman, J., dissenting).
       54
            Id. at 272.
                                                                                 Pecina – 21

appellant’s motion to suppress his statements made as a result of that police questioning. We

therefore reverse the judgment of the court of appeals and affirm the trial court’s judgment.

Delivered: January 25, 2012
Publish
