                                 NO. 07-08-0514-CR

                           IN THE COURT OF APPEALS

                    FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL C

                               DECEMBER 16, 2009


                       ______________________________


                          ROBERT D. HALL, APPELLANT

                                          V.

                        THE STATE OF TEXAS, APPELLEE

                     _________________________________

          FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2008-418,741; HONORABLE CECIL PURYEAR, JUDGE

                       _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                      OPINION


     The ability to obtain uncoerced confessions is not an evil but an unmitigated
     good. Justice Scalia, McNeil v. Wisconsin, 501 U.S. 171, 181, 111 S.Ct.
     2204, 115 L.Ed.2d 158 (1991).
       Appellant, Robert D. Hall, was convicted by a jury of possession with intent to deliver

cocaine1 weighing less than two hundred grams but at least four grams, a first degree felony2

and was sentenced to confinement for forty years. In a single point of error, Appellant

asserts the trial court violated his Sixth Amendment right to counsel when it admitted into

evidence his inculpatory statements made to police during an Appellant-initiated interrogation

in the absence of his attorney. We affirm.


                                             Background


       The indictment in this cause alleged that on or about November 29, 2007, in Lubbock

County, Texas, Appellant knowingly possessed with intent to deliver, a controlled substance

in penalty group one, namely cocaine, by aggregate weight of less than two hundred grams

but at least four grams. Shortly after his arraignment on January 24, 2008, Appellant

obtained counsel and was freed on a $40,000 bail bond.


       At trial, Officer Billy Koontz of the Lubbock Police Department testified that, in July

2008, Appellant came to see him at the Drug Enforcement Administration’s office in

Lubbock. He testified Appellant requested the meeting and was there of his own free will.

Although subjected to questioning, Appellant was not given any Miranda warnings prior to

or during their meeting. See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16


       1
        Cocaine is a controlled substance listed in Penalty Group 1. See Tex. Health & Safety Code Ann.
§ 481.102(3)(D) (Vernon 2003).

       2
           Tex. Health & Safety Code Ann. § 481.112(d) (Vernon 2003).

                                                    2
L.Ed.2d 694 (1966). According to Officer Koontz’s testimony, Appellant wanted to cut a deal

to avoid prison time. In return, Appellant offered to supply Officer Koontz with information

about drug deals in the Lubbock area. Officer Koontz responded he could not promise

Appellant anything in return for the information and would have to contact the district

attorney’s office. He also indicated any deal would depend on the information Appellant

could provide.


        Without objection, Officer Koontz testified that, in addition to other information related

to the local drug trade, Appellant admitted he obtained the crack cocaine found in his car the

day of his arrest from a drug dealer in Lubbock.3 Based upon the meeting, Officer Koontz

concluded Appellant was knowledgeable about the local drug trade and Appellant’s

knowledge was likely gained from being a drug dealer.


        Following his conviction, Appellant’s counsel filed a motion for a new trial that did not

mention Appellant’s inculpatory statements made to Officer Koontz. After the trial court

denied Appellant’s motion, this appeal followed.


                                               Discussion


        Appellant asserts his inculpatory statements were obtained in violation of his Sixth

Amendment right to counsel and the trial court committed error by permitting Officer Koontz



        3
        Because the contraband in question was not located on Appellant’s person at the tim e of his arrest,
possession was a critical issue in his prosecution.

                                                      3
to testify regarding their meeting. The State counters that: (1) Appellant failed to preserve

error because he did not object to the admissibility of his inculpatory statements at trial; and

(2) Appellant waived his Sixth Amendment right to have counsel present when he initiated

the contact with Officer Koontz.


        I.         Preservation of Error


        We will first address the State’s preservation of error contention. As a general rule,

in order to preserve a complaint for appellate review, the record must show that (1) the

complaint was made known to the trial court, and (2) the trial court either ruled on the

request, or refused to rule and the complaining party objected to the refusal.4 See Tex. R.

App. P. 33.1(a)(2). While Appellant concedes that his counsel made no objection to Officer

Koontz’s testimony at trial,5 he counters the State’s argument by contending that the

preservation of error rule has no application to his complaint because the violation of his

Sixth Amendment rights constitutes “fundamental” or “structural” error.




        4
           Typically, a party preserves error for appeal by presenting a tim ely request, objection or m otion to
the trial court that states the specific grounds for the desired ruling unless the specific grounds are apparent
from the record. Tex. R . App. P. 33.1(a)(1)(A); Tex. R. Evid. 103(a)(1). This gives the trial judge and the
opposing party an opportunity to correct the error at a tim e when the judge is in the best position to take
testim ony, if necessary, consider counsels’ argum ents, and rule on the objection in the context of the original
proceeding. See Pena v. State, 285 S.W .3d 459, 464 (Tex.Crim .App. 2009). W ithout a contem poraneous
objection, a defendant generally waives error, and in that instance, a reviewing court m ay only review
fundam ental error. Jasper v. State, 61 S.W .3d 413, 420 (Tex.Crim .App. 2001). See Tex. R. Evid. 103(d).


        5
            Neither did Appellant file a m otion to suppress his inculpatory statem ents prior to trial.

                                                           4
       In the absence of proper procedural perfection of error, the only type of errors that

may be raised for the first time on appeal are complaints that the trial court disregarded an

absolute or systemic requirement or that the appellant was denied a waivable-only right that

he did not waive. Bessey v. State, 239 S.W.3d 809, 812 (Tex.Crim.App. 2007); Mendez v.

State, 138 S.W.3d 334, 342 (Tex.Crim.App. 2004); Marin v. State, 851 S.W.2d 275, 280

(Tex.Crim.App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262

(Tex.Crim.App. 1997). Therefore, because Appellant failed to procedurally perfect his

objection to Officer Koontz’s testimony at trial, we are prohibited from considering his

assignment of error, unless the admission of that testimony violated an absolute or systemic

requirement or Appellant did not forfeit a right that was “waivable-only.”


       A.      Systemic or Absolute Requirements


            Recognized as being absolute, systemic requirements are not necessarily

constitutional. Systemic or absolute requirements include, but are not limited to, personal

jurisdiction, subject-matter jurisdiction, a penal statute’s compliance with the Separation of

Powers section of the state constitution, a constitutional requirement that a district court

conduct its proceedings at the county seat, a constitutional prohibition against ex post facto

laws, and certain constitutional restraints on the comments of a judge. Saldano v. State, 70

S.W.3d 873, 888-89 (Tex.Crim.App. 2002).


       At issue here is the Sixth Amendment guarantee that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”

                                              5
U.S. Const. amend. VI. See Gideon v. Wainright, 372 U.S. 335, 340-45, 83 S.Ct. 792, 9

L.Ed.2d 799 (1963).          The Sixth Amendment right to counsel applies in all state criminal

prosecutions in which the defendant is accused of a felony. Id. at 342. Once the adversarial

judicial process has been initiated,6 the Sixth Amendment guarantees a defendant the right

to have counsel present at all “critical” stages of the criminal proceeding. Montejo v.

Louisiana, ___ U.S. ___, 129 S.Ct. 2079, 2085, 173 L.Ed.2d 955 (2009); Hughen v. State,

Nos. PD-1123-08 & PD-1124-08, ___S.W.3d ___ 2009 WL 3189187, at *3 (Tex.Crim.App.

Oct. 7, 2009).7 Interrogation by the police, after charges have been filed, is considered to

be a critical stage. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed. 2d 424 (1977).

Hughen, 2009 WL 3189187 at *3.


        The right to have counsel present during a post-indictment interrogation by the police

may, however, be waived, as long as the waiver is voluntary, knowing, and intelligent.8

Patterson v. Illinois, 487 U.S. 285, 292 n.4, 108 S.Ct. 2389, 101 L.Ed,2d 261, (1988);

Hughen, 2009 WL 3189187, at *4. In Montejo, the United States Supreme Court discarded



        6
          Adversary proceedings are initiated by form al charge, prelim inary hearing, indictm ent, inform ation
or arraignm ent. Cloer v. State, 88 S.W .3d 285, 288 (Tex.App.–San Antonio 2002, no pet.) (citing Robinson
v. State, 851 S.W .2d 216, 224 (Tex.Crim .App. 1991)).

        7
         Not every event following inception of adversarial judicial proceedings constitutes a “critical stage”
so as to invoke the right to counsel under the Sixth Am endm ent. Green v. State, 872 S.W .2d 717, 720
(Tex.Crim .App. 1994). A pretrial stage is “critical” only if the accused requires aid in coping with legal
problem s or assistance in m eeting his adversary. Id.

        8
          In the context of waiver of rights, an “intelligent” waiver is not the sam e thing as a “wise” decision to
forego a right. For purposes of determ ining whether there has been an intelligent waiver, courts exam ine the
specific facts and circum stances surrounding the waiver, including the background, experience and conduct
of the accused.

                                                          6
the presumption established in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89

L.Ed.2d 631 (1986), that, once a defendant has requested counsel at an arraignment or

similar proceeding, law enforcement is automatically forbidden from initiating an interrogation

of the defendant in the absence of his counsel’s consent. Montejo, 129 S.Ct. at 2086-2088.

Furthermore, “nothing in the Sixth Amendment prevents a suspect charged with a crime and

represented by counsel from voluntarily choosing, on his own, to speak with the police in the

absence of an attorney.” Michigan v. Harvey, 494 U.S. 344, 352, 110 S.Ct. 1176, 108

L.Ed.2d 293 (1990). “To hold otherwise would be to refuse to grant proper respect to [an

accused’s] desire to confess his criminal conduct on his own terms”; Lucas v. State, 791

S.W.2d 35, 49 (Tex.Crim.App. 1989), and, “[a]lthough a defendant may sometimes later

regret his decision to speak with police, the Sixth Amendment does not disable a criminal

defendant from exercising his free will.”               State v. Maldonado, 259 S.W.3d 184, 189

(Tex.Crim.App. 2008) (quoting Harvey, 494 U.S. at 353).


        As a procedural safeguard, a defendant has at least two opportunities to seek redress

for any alleged violation of his or her right to assistance of counsel during a post-indictment

interrogation by: (1) filing a pretrial motion to suppress evidence and having it heard and

ruled upon before trial;9 Tex. Code Crim. Proc. Ann. art. 28.01, § 1(6) (Vernon 2006); or (2)

objecting to the admission of the evidence at the time it is offered at trial and request a

        9
            A m otion to suppress is a specialized objection regarding the adm issibility of evidence. Galitz v.
State, 617 S.W .2d 949, 952 n. 10 (Tex.Crim .App. 1981). Such a m otion is the proper rem edy when evidence
is illegally obtained in violation of a defendant’s rights. W ade v. State, 814 S.W .2d 763, 764 (Tex.App.–W aco
1991, no pet.) (citing Jackson v. State, 717 S.W .2d 713, 715 (Tex.App.–San Antonio 1986, pet. ref’d, untim ely
filed)).

                                                        7
hearing outside the presence of the jury. Tex. R. Evid. 103(c). See Holmes v. State, 248

S.W.3d 194, 199 (Tex.Crim.App. 2008). In either case, the accused is empowered by

statute to have his or her counsel seek redress of any Sixth Amendment violation during a

post-indictment interrogation before there is any possibility the violation might affect his

ability to receive a fair trial.10


        Based upon these precedents and the procedural safeguards in place to protect the

accused in the event of a violation of the right to counsel in such circumstances, we find that

the right to have counsel present during post-indictment defendant-initiated interrogations

is not a systemic or absolute right.


        B.       Waivable-Only Rights


        Waivable-only rights are rights that cannot be waived merely by omission. Instead,

those rights can only be waived by affirmative acts of commission. Waivable-only rights

include the right to assistance of counsel, the right to trial by jury, and the right of appointed




        10
          An accused also has a Fifth and Fourteenth Am endm ent right to have counsel present during a
custodial interrogation. Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
Unlike the right to counsel under the Sixth Am endm ent, however, which attaches autom atically at the initiation
of an adversary crim inal proceeding; see Davis v. United States, 512 U.S. 452, 456-57, 114 S.Ct. 2350, 129
L.Ed.2d 362 (1994), the Fifth Am endm ent right to counsel attaches when affirm atively invoked by the accused
at any tim e prior to, or during, questioning. Miranda, 384 U.S. at 473-74. Further, because the right to
counsel during an interrogation under both constitutional sources m ay be waived using the sam e procedure;
Patterson v. Illinois, 487 U.S. at 296, doctrines ensuring voluntariness of a Fifth Am endm ent waiver
sim ultaneously ensure the voluntariness of a Sixth Am endm ent waiver. See Montejo, 129 S.Ct. at 2090.



                                                        8
counsel to have ten days of trial preparation. See Aldrich v. State, 104 S.W.3d 890, 895-96

(Tex.Crim.App. 2003); Saldano, 70 S.W.3d at 888.


        The fact that an accused is already represented by counsel at the time an

incriminating statement is obtained by police does not automatically preclude a finding of

waiver. Hughen, 2009 WL 3189187, at *12. Stone v. State, 612 S.W.2d 542, 546

(Tex.Crim.App. 1981). For a unilateral waiver of assistance of counsel to be effective, the

law requires that the accused initiate the contact with the police that leads to waiver and not

vice versa. Maldonado, 259 S.W.3d at 186.11 Initiation is an inquiry representing a desire

on the part of the accused to open up a more generalized discussion relating directly or

indirectly to the officer’s investigation.                Baldree v. State, 784 S.W.2d 676, 686

(Tex.Crim.App. 1989).


        Although the Court of Criminal Appeals has yet to expressly decide whether an

accused’s Sixth Amendment right to counsel during post-indictment interrogation is a

“waivable-only” right, their opinion in Swain v. State, 181 S.W.3d 359 (Tex.Crim.App. 2005),

is instructive. In Swain, the appellant asserted, on appeal, that the police violated his right

to counsel under the Fifth and Sixth Amendments when they continued to question him after

        11
            W here a defendant initiates the contact with police, the unilateral waiver of his right to counsel has
been upheld. Baldree v. State, 784 S.W .2d 676, 685-86 (Tex.Crim .App. 1989), cert. denied, 495 U.S. 940,
110 S.Ct. 2193, 109 L.Ed.2d 521 (1990). See Flores v. State, 49 S.W .3d 29, 33 (Tex.App.–San Antonio 2001,
pet. ref’d). Further, even though an accused has invoked his right to counsel during custodial interrogation,
the United States Suprem e Court recognizes that the police m ay resum e an interrogation without counsel if
“the accused himself initiates communication, exchanges, or conversations with the police.” Edwards v.
Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (em phasis added). Accord Montejo,
___ U.S. ___, 129 S.Ct. at 2085-86, 2090; Maldonado, 259 S.W .3d at 188-89; Cross v. State, 144 S.W .3d
521, 528-30 (Tex.Crim .App. 2004).

                                                         9
the accused had appeared before a magistrate and requested counsel be appointed. Id. at

365. In his written motion to suppress submitted to the trial court, the accused asserted a

violation of his right to counsel and his right against self-incrimination under the Fifth, Sixth,

and Fourteenth amendments of the United States Constitution and article one, §§ 10 and

19 of the Texas Constitution. Id. Because the accused’s global statements consisting of

little more than citations to constitutional and statutory provisions failed to assert a specific

complaint, the Swain Court held that the accused’s “global statements in his pretrial motion

to suppress were not sufficiently specific to preserve the arguments he [was] making on

appeal” under Rule 33.1 of the Texas Rules of Appellate Procedure. Id.12


        Again, based upon these precedents and the procedural safeguards in place, we find

that the right to have counsel present during post-indictment defendant-initiated

interrogations is not a waivable-only right. Therefore, because Appellant failed to make a

timely objection to the admission of his inculpatory statements, he failed to preserve the

argument on appeal.


        II.      Waiver


        Furthermore, even if the right to have counsel present during post-indictment

defendant-initiated interrogations is a “waivable-only” right, the record establishes Appellant

did not forfeit that right by inaction but instead affirmatively waived that right by initiating

        12
           See also Sabedra v. State, No. 05-03-01709-CR, 2005 W L 1155068, at *2 (Tex.App.–Dallas 2005,
pet. dism ’d, untim ely filed) (not designated for publication) (failure to m ake a specific objection at trial that
adm ission of tape recording violated Sixth Am endm ent right to counsel waived point on appeal).

                                                         10
contact. The uncontroverted evidence indicates Appellant initiated the communication with

Officer Koontz under circumstances evidencing a voluntary, knowing, and intelligent desire

to engage in a generalized discussion of his ongoing investigation for purposes of his own

personal benefit. See Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77

L.Ed.2d 405 (1983); Baldree, 784 S.W.2d at 685-86.


        The record reveals that Appellant alone requested the meeting with Officer Koontz.

At the meeting, Appellant indicated he wished to negotiate a deal permitting him to avoid

serving time in prison in return for giving information. Appellant’s actions and statements

indicated that he wished to “go it alone” without counsel and open up a more generalized

discussion related to Officer Koontz’s investigation.


        Further, there is no evidence of record that Officer Koontz “deliberately elicited”

incriminating information from Appellant.13 Officer Koontz neither coerced, threatened,

promised nor induced Appellant to make any incriminating statements. The record is

uncontroverted that Officer Koontz informed Appellant he could promise him nothing in

exchange for the information and Appellant’s subsequent statements were made in

furtherance of his unilateral desire to obtain a deal. True, Appellant received no Miranda


        13
            “Deliberate elicitation” is “intentionally creating a situation likely to induce [a person] to m ake
incrim inating statem ents without the assistance of counsel.” United States v. Henry, 447 U.S. 264, 274, 100
S.Ct. 2183, 65 L.Ed.2d 115 (1980). W hether the law enforcem ent officer engaged in deliberate elicitation m ay
be established by proof that the officer engaged in conduct designed to elicit an incrim inating response from
the accused before the accused com m unicated inform ation about the offense or his desire to convey
inform ation about the offense. Maldonado, 259 S.W .3d at 191. See Lara v. State, 740 S.W .2d 823, 833
(Tex.App.–Houston [1 st Dist.] 1987, pet. ref’d), cert. denied, 493 U.S. 827, 110 S.Ct. 92, 107 L.Ed.2d 57
(1989).

                                                       11
warnings when the conversation took place, however he was free on bail and could have left

the DEA office at any moment. See Montejo, 129 S.Ct. at 2090 (“When a defendant is not

in custody, he is in control, and need only shut his door or walk away to avoid police

badgering . . . noninterrogation interactions with the State do not involve the ‘inherently

compelling pressures,’[citation omitted], that one might reasonably fear could lead to

involuntary waivers.”)


       Accordingly, considering all the facts and circumstances surrounding Appellant’s

meeting with Officer Koontz in July 2008, we find Appellant waived his Sixth Amendment

right to counsel when he initiated the contact with Officer Koontz. Appellant’s single point

of error is overruled.

                                        Conclusion


       The trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice

Publish.




                                             12
