             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. PD-1552-07



                                  THE STATE OF TEXAS

                                                v.

                             DAVID MALDONADO, Appellee

           ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE THIRTEENTH COURT OF APPEALS
                            NUECES COUNTY



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



       We must decide whether an officer introducing himself at the jail to a defendant who is

represented by counsel constitutes an “initiation of communications” under Michigan v. Jackson.1

We hold that it does not, and consequently, we affirm the judgment of the court of appeals.




       1
           451 U.S. 477, 484-85 (1981).
                                                                                 MALDONADO – 2
                                        I. BACKGROUND

       The facts are not in dispute.2 On May 4, 2006, appellee was indicted for indecency with a

child. That same day, he submitted a written request for the appointment of counsel, and counsel was

appointed.3 On May 9, Detective Sergio Ramirez went to the jail to speak with appellee. At that

time, Detective Ramirez was unaware that counsel had been appointed or that appellee had been

indicted. Detective Ramirez requested that appellee be brought out to a large open area in the jail,

which was used for processing new arrivals. Immediately after the detective introduced himself,

appellee handed over a folded letter and said that he had been waiting to talk to somebody.

       Specifically, Detective Ramirez testified as follows regarding the sequence of events:4

       Q. [By the prosecutor] When you arrived at the jail, what happens?

       A. We arrive, I went up to the jailer and said I am here for David. He said, okay,


       2
           In summary form, the court of appeals recited Detective Ramirez’s account of events and
concluded that the “only issues to be determined here are under what circumstances the suspect may
communicate with police absent counsel after the attorney-client relationship has attached and what
acts and statements constitute an ‘initiation’ of communication between a suspect and the police”
and that these issues “must be reviewed de novo.” State v. Maldonado, 2007 Tex. App. LEXIS
6581, 1-3 (Tex. App.– Corpus Christi, August 16, 2007). Relying upon State v. Ross, 32 S.W.3d 853
(Tex. Crim. App. 2000), the dissent contends that the testimony presents conflicting factual
inferences such that the trial court could have believed that events occurred differently than outlined
in the court of appeals’s opinion. But appellee adopts the court of appeals’s recitation of the facts
verbatim. He is not claiming before us that the court of appeals failed to follow Ross. Rather, he
is simply claiming that the court of appeals came to the wrong legal conclusion based upon its own
fact recitation. We point out that the trial court’s findings of fact do not deal with the question
before us, the State had requested a supplemental fact finding that Detective Ramirez’s account of
the sequence of events was credible, and the trial court did not respond to the request.
       3
           The clerk’s record contains an order appointing counsel that is dated May 4, 2006, but
the trial court’s findings state that counsel was appointed in open court on May 8, 2006. This
discrepancy does not affect our analysis.
       4
         This quotation is not contained in the court of appeals’s opinion but is consistent with and
supportive of its summary of events.
                                                                                 MALDONADO – 3
        we’s got him ready. They brought him out. I introduced myself and told him I am
        Detective Ramirez and this is Detective Flores. At that time, he handed me a letter
        that was folded. He said, I been waiting to talk to somebody, waiting to talk to you,
        something to that effect, and he handed me the letter. I asked him what is this. He
        says, that’s what happened that night. So I said, you want to talk to me about what
        happened and he said yes. Okay. We have to go to the station. If you want to go to
        the station with me and he said yes. So we took him to the station.

        Q. Let’s back up. Did you identify yourself as a police officer?

        A. Yes.

        Q. And what did you say to the defendant before he handed you the letter?

        A. Just introduced myself. I am Detective Ramirez. This is Detective Flores. He

        said I have been waiting to talk to somebody or talk to you guys and he handed me

        the letter.

(Emphasis added.) The above colloquy, occurring on direct examination, reveals that Detective

Ramirez did not bring up the subject of talking to appellee until after appellee handed him the letter.5


        5
          Nothing in the later testimony set out in the dissent, occurring on cross-examination,
indicates that the questions or answers were a chronological description of events. The final
question in the excerpt does not even purport to ask when the events occurred in relation to each
other. The answer, however, confirms that appellee gave Detective Ramirez the letter directly on
the heels of his introduction:

        Q. So when Mr. Maldonado was brought up to you, did you tell him who you
        were?

        A. Yes, ma’am.

        Q. Identified yourself?

        A. Yes ma’am – yes sir.

        Q. Did you tell him why you were there?

        A. I told him that I was going to talk to him or we were going to talk. When I
        introduced myself, he gave me the form, the document.
                                                                                 MALDONADO – 4
       Appellee had written the letter before his meeting with Detective Ramirez, voluntarily and

without prompting from the police. At the police station, the detective took appellee’s statement by

video. Before giving his statement, appellee was advised of his Miranda6 rights, which he waived.

On May 10, appellee first met with counsel.

       In a motion to suppress, appellee contended that his videotaped confession was taken in

violation of his Sixth Amendment right to counsel. The trial judge granted the motion, and the State

appealed. The court of appeals addressed the following two issues: “(1) under what circumstances

a suspect may communicate with the police absent counsel after the attorney-client relationship has

attached, and (2) whether the appellee’s actions while in custody constituted an initiation of

communication with the police.”7 Finding that both issues were mixed questions of law and fact that

did not turn on credibility and demeanor, the court of appeals reviewed the issues de novo.8

Determining that detective Ramirez’s introduction of himself to appellee did not constitute

“interrogation” because Ramirez had no reason to know that such conduct was reasonably likely to

elicit an incriminating response,9 the court of appeals concluded that appellee, not Ramirez, initiated

the communication leading to the confession.10 Consequently, the court of appeals reversed the trial




(Emphasis added).
       6
            Miranda v. Arizona, 384 U.S. 436 (1966); see also Tex. Code Crim. Proc. art. 38.22.
       7
            Maldonado, 2007 Tex. App. LEXIS 6581 at 1.
       8
            Id. at 3-4 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
       9
            Id. at 8-11 (discussing Rhode Island v. Innis, 446 U.S. 291, 301 (1980)).
       10
            Id. at 11-17.
                                                                                   MALDONADO – 5
court’s judgment granting the motion to suppress and remanded the case for further proceedings.11

                                           II. ANALYSIS

       The parties agree that the outcome of this case turns upon who “initiated communications.”

Appellee contends that the police initiated communications by arranging for appellee to meet

Detective Ramirez at the jail. The State contends that appellee initiated communications by

presenting the letter and volunteering his desire to speak with the authorities.

       The question of who initiated a communication between an accused and law enforcement

first became important in Edwards v. Arizona, which held that an accused in custody who invokes

his Fifth Amendment right to counsel under Miranda may not be questioned by law enforcement (in

the absence of counsel) unless and until “the accused himself initiates further communication,

exchanges, or conversations with the police.”12 In Michigan v. Jackson, the Supreme Court extended

the Edwards initiation rule to an accused’s invocation of his Sixth Amendment right to counsel,

which attaches after a defendant has been formally charged.13 The Court extended the rule to the

Sixth Amendment context because it found “the reasons for prohibiting interrogation of an

uncounseled prisoner who has asked for the help of a lawyer” to be “even stronger after he has been

formally charged with an offense than before.”14 Because the Sixth Amendment guarantees the

accused “the right to rely on counsel as a ‘medium’ between him and the State,”15 “the Sixth



       11
            Id. at 17.
       12
            Jackson, 451 U.S. at 484-85.
       13
            475 U.S. 625 (1986).
       14
            Id. at 631.
       15
            Id. at 632 (quoting Maine v. Moulton, 474 U.S. 159, 176 (1985)).
                                                                                  MALDONADO – 6
Amendment right to counsel” at an “interrogation” that occurs after formal charges have been filed

“requires at least as much protection as the Fifth Amendment right to counsel at any custodial

interrogation.”16 Consequently, the Court held that “if police initiate interrogation after a defendant’s

assertion . . . of his [Sixth Amendment] right to counsel, any waiver of the defendant’s right to

counsel for that police-initiated interrogation is invalid.”17

        In articulating its holding in Jackson, the Supreme Court did not say that the rules in the Fifth

and Sixth Amendment contexts were identical; rather the Supreme Court held that the Sixth

Amendment context required a rule that was at least as protective. Jackson set a “floor” for what

the Sixth Amendment required, but the Supreme Court and other courts would be left to determine

whether and to what extent the Sixth Amendment rule would exceed that floor, conferring more

protection than its Fifth Amendment counterpart. Obviously, the Sixth Amendment rule would not

require a custodial setting: the Jackson initiation rule would apply, for example, even if the

interrogation was not custodial because it was performed by an undercover officer or informant.18

        The question the Supreme Court would next confront was whether, after the Sixth

Amendment right to counsel has attached, the accused must invoke that right in order to trigger

Jackson’s protections. The Supreme Court gave a qualified answer to that question in Patterson

v. Illinois. There, the Court held that law enforcement could validly initiate communication and seek

a waiver of counsel after a defendant’s right to counsel had attached when the defendant had not


        16
          Id. (citing Massiah v. United States, 377 U.S. 201 (1964), United States v. Henry, 447
U.S. 264 (1980), and Moulton in supporting discussion contained in next paragraph of its
opinion).
        17
             Id. at 636.
        18
             Patterson v. Illinois, 487 U.S. 285, 296 n.9 (1988).
                                                                                   MALDONADO – 7
already invoked his right to counsel and was not yet represented by counsel.19 “Preserving the

integrity of an accused’s choice to communicate with police only through counsel” did not require

“barring an accused from making an initial election as to whether he will face the State’s officers

during questioning with the aid of counsel, or go it alone.”20 The Supreme Court suggested that the

case would be different, even absent an invocation of the right to counsel, if a lawyer-client

relationship had already been established: in that situation, “a distinct set of constitutional safeguards

aimed at preserving the sanctity of the attorney-client relationship takes effect.”21 Relying heavily

on Patterson and Powell v. Texas,22 we concluded in Holloway v. State that the Sixth Amendment

did not permit the “police-initiated interrogation of an indicted accused who has retained or been

appointed defense counsel” absent notice to defense counsel.23

        The Supreme Court later made clear, however, that an existing attorney-client relationship

under the Sixth Amendment did not prevent a defendant from unilaterally waiving his right to

counsel, so long as the defendant initiated the communication. In answering a defendant’s

contention that statements taken in violation of Jackson should not be admissible for impeachment

purposes, the Supreme Court said in Michigan v. Harvey, albeit in dicta: “But nothing in the Sixth

        19
             487 U.S. at 290 n.3, 291.
        20
             Id. at 291 (emphasis in original).
        21
             Id. at 290 n.3.
        22
             492 U.S. 680 (1989).
        23
           780 S.W.2d 787, 795 (Tex. Crim. App. 1989). We do not address in this case whether
a defendant who had not requested counsel would have to do some act to accept an appointment
or meet with counsel in order for an attorney-client relationship to be established. See Patterson,
487 U.S. at 290 n. 3 (noting “as a matter of some significance” that the accused “had not
retained, or accepted by appointment, a lawyer to represent him”); Holloway, 780 S.W.2d at 796
(observing that the defendant “had been appointed counsel” and “had met with counsel”).
                                                                                MALDONADO – 8
Amendment prevents a suspect charged with a crime and represented by counsel from voluntarily

choosing, on his own, to speak with police in the absence of an attorney.”24 “Although 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. To hold that a defendant is inherently incapable

of relinquishing his right to counsel once it is invoked would be ‘to imprison a man in his privileges

and call it the Constitution.’”25 In Ripkowski v. State, we adopted this dicta in answering a

defendant’s claim that his right to counsel prevented the State from using statements made by him

to a jail psychiatrist whose services the defendant had sought.26 We found that the defendant had

“effectively relinquished his counsel’s assistance by seeking out mental health treatment on his

own.”27

       Although the Supreme Court cases discussed above focused mainly upon which party

precipitated an “interrogation,” the Supreme Court’s Sixth Amendment “right to counsel”

jurisprudence has historically employed different and broader terminology for the types of

communication or communicative conduct that will trigger a Sixth Amendment violation. In

Massiah v. United States, a case involving the use of an undercover informant to elicit a defendant’s

incriminating statements, the Court pointed to concurring opinions in Spano v. New York28 for the

proposition that a confession should be excluded as unconstitutionally obtained in violation of the



          24
               494 U.S. 344, 352 (1990).
          25
               Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 280 (1942)).
          26
               61 S.W.3d 378, 384-87 (Tex. Crim. App. 2001).
       27
               Id. at 387.
          28
               360 U.S. 315 (1959).
                                                                                 MALDONADO – 9
Sixth Amendment right to counsel when that confession was “deliberately elicited” by law

enforcement.29 In Brewer v. Williams, the Court found that a police officer’s “Christian burial

speech” – in which no questions were asked – resulted in a Sixth Amendment violation when the

defendant responded by giving the officers directions to the body of the victim.30 The Court found

that the officer had “deliberately and designedly set out to elicit information from [the defendant]

just as surely as – and perhaps more effectively than – if he had formally interrogated him.”31

Whether the Court’s use of the words “deliberately and designedly . . . elicit” was intended to convey

broader meaning than mere “interrogation” may be unclear given the Court’s acknowledgment that

state courts in the case below recognized the “Christian burial speech” as “tantamount to

interrogation.”32     But subsequent cases have accorded more sweeping significance to the

“deliberately elicited” language.

       Citing Massiah and Brewer, the Court in Edwards suggested that a waiver of the Sixth

Amendment right to counsel could not be inferred “from the mere response by the accused to overt

or more subtle forms of interrogation or other efforts to elicit incriminating information.”33 In Rhode

Island v. Innis, the Supreme Court rejected the notion that the Brewer case was relevant to

determining the meaning of “interrogation” under the Fifth Amendment because Brewer was a Sixth

       29
            Massiah, 377 U.S. at 204.
       30
            430 U.S. 387, 392-93, 398-401 (1977).
       31
           Id. at 399. We note that the Court had no problem extending the holding of Massiah
beyond the undercover informant scenario: “That the incriminating statements were elicited
surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant.” Brewer,
430 U.S. at 400.
       32
            Id. at 400.
       33
            451 U.S. at 484 n.8 (emphasis added).
                                                                                MALDONADO – 10
Amendment case: “The definitions of ‘interrogation’ under the Fifth and Sixth Amendments, if

indeed the term ‘interrogation’ is even apt in the Sixth Amendment context, are not necessarily

interchangeable, since the policies underlying the two constitutional protections are quite distinct.”34

In United States v. Henry, the Court responded to a Government claim that Brewer had imposed an

“affirmative interrogation” requirement as part of a Sixth Amendment inquiry by stating: “While

affirmative interrogation, absent waiver, would certainly satisfy Massiah, we are not persuaded . .

. that Brewer modified Massiah’s ‘deliberately elicited’ test.”35

        The Supreme Court again confronted the question of the scope of the “deliberately elicited”

test in Fellers v. United States.36 In Fellers, police officers came to the defendant’s home and

advised him that “they had come to discuss his involvement in methamphetamine distribution.”37

They also told the defendant that they had a federal warrant for his arrest, that he had been indicted,

and that the indictment referred to coconspirators, whom the officers proceeded to name.38 The

defendant “then told the officers that he knew the four people and had used methamphetamine during

his association with them.”39 Under those circumstances, the Supreme Court held, there was no




        34
             Innis, 446 U.S. at 300 n.4.
       35
          Henry, 447 U.S. at 271; see also Moulton, 474 U.S. at 175 n.11 (rejecting same
contention made by Solicitor General as amicus, quoting from Henry)
        36
             540 U.S. 519 (2004).
        37
             Id. at 521.
        38
             Id.
        39
             Id.
                                                                              MALDONADO – 11
question that the officers had “deliberately elicited” the defendant’s statements.40 The Court

explicitly rejected a lower court’s determination that “interrogation” was a required element of a

Sixth Amendment “right to counsel” violation.41 In its discussion, the Supreme Court cited a

statement made in Jackson that “the Sixth Amendment provides a right to counsel . . . even when

there is no interrogation.”42

        But the Supreme Court’s precedents recognize that “deliberate elicitation” involves some

conduct designed to obtain incriminating statements. In Henry, the Court specifically refrained from

addressing the situation in which a device serves merely as a passive “listening post” or “where an

informant is placed in close proximity but makes no effort to stimulate conversations about the crime

charged.”43 This latter situation was addressed in Kuhlman v. Wilson.44 The Supreme Court held

there that, to show a Sixth Amendment violation, “the defendant must demonstrate that the police

and their informant took some action, beyond merely listening, that was designed deliberately to

elicit incriminating remarks.”45

        So, to determine whether an officer initiated a communication for Sixth Amendment

purposes, we must determine whether the officer engaged in conduct designed to elicit an


        40
          Id. at 524; see also Moulton, 474 U.S. at 177 n.13 (reserving question of how to treat
informant who “acts simply as a ‘listening post’” and “does not participate in active conversation
and prompt particular replies”).
        41
             Id. at 524.
        42
          Id. (quoting Jackson)(ellipsis in Fellers, original lower case from Jackson used instead
of bracketed capitalization in Fellers).
        43
             447 U.S. at 271 n.9.
        44
             477 U.S. 436 (1986).
        45
             Id. at 459.
                                                                                  MALDONADO – 12
incriminating response from the accused before the accused communicated information about the

offense or his desire to convey information about the offense. The question we confront in the

present case, then, is whether Detective Ramirez, by merely introducing himself, engaged in conduct

designed to elicit incriminating information. We readily answer that question “no.” Obviously,

Detective Ramirez intended to talk with appellee, and if he had followed through with that intention

before appellee had communicated his own intent to talk, then the Jackson rule could have been

triggered. If Detective Ramirez had simply told appellee that he was investigating the offense for

which appellee had been charged, without asking any questions, before appellee’s own

communication, that might well have been sufficient to constitute a “deliberate elicitation” under

Fellers. But in this case, Detective Ramirez did not have the opportunity to do so because appellee

spoke up so quickly.46 We conclude that appellee initiated the communication, and as a result, was

in a position to unilaterally waive his Sixth Amendment right to counsel.




        46
            Relying upon Moulton, the dissent contends that Detective Ramirez’s acts of arranging
appellee to be brought to the open area of the jail at a time when counsel was not present amounts
to a violation of the right to counsel. But Moulton explained that the right to counsel was violated
when “the State’s agent engaged Moulton in conversation about the charges pending against him.”
474 U.S. at 177 n.14. Here, the detective had not yet engaged appellee in conversation about the
pending charges when appellee handed over the letter and initiated the conversation on his own. The
dissent says that Detective Ramirez intended to talk to appellee, but his subjective intent is not
enough by itself to establish a violation of the right to counsel, and we cannot agree that subjective
intent can transform into right-to-counsel violations acts that otherwise fall short. Finally, the dissent
complains that the letter was not a confession, but was a self-serving explanation of the events that
occurred that night. But a self-serving initiation of communications by the accused is still an
initiation of communications by the accused. If the accused initiates communications, then he can
unilaterally waive the right to counsel.
                                                           MALDONADO – 13
       The judgment of the court of appeals is affirmed.

Delivered: June 4, 2008
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