      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-06-00330-CR



                                  The State of Texas, Appellant

                                                  v.

                                Milton Dwayne Gobert, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
         NO. D1DC06-904006, HONORABLE BOB PERKINS, JUDGE PRESIDING



                               DISSENTING OPINION


               Because I believe that Gobert did not invoke his right to counsel, I respectfully dissent

from the majority’s decision to affirm the suppression order. To invoke the right to counsel, a

“suspect must unambiguously request counsel.” Davis v. United States, 512 U.S. 452, 459 (1994)

(emphasis added); see Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995) (invocation

must be clear and unambiguous); see also Smith v. Illinois, 469 U.S. 91, 97-98 (statement is either

invocation of right to counsel or it is not). At a minimum, the suspect must make a statement that

could reasonably be interpreted as “an expression of a desire for the assistance of an attorney.”

McNeil v. Wisconsin, 501 U.S. 171, 178 (1991) (emphasis added). The invocation must be clear

enough that a reasonable officer “in the circumstances would understand the statement to be a

request for an attorney.” Davis, 512 U.S. at 459 (emphasis added). In other words, a suspect does

not invoke his right to an attorney if he merely mentions the word “attorney” or makes an equivocal
statement that, in light of the circumstances, would have lead a reasonable officer to believe “only

that the suspect might be invoking the right to counsel.” Id. (emphasis in original); see Dinkins, 894

S.W.2d at 351; Robinson v. State, 851 S.W.2d 216, 223 (Tex. Crim. App. 1991). There are no magic

words needed to invoke the right, but the words must communicate that the suspect desires to speak

to someone who is an attorney. Dinkins, 894 S.W.2d at 352. If a suspect makes an equivocal or

ambiguous statement while being questioned, there is no requirement that the officers attempt to

clarify the statement, and the officers may continue their questioning. Davis, 512 U.S. at 459, 461;

see also Moran v. Burbine, 475 U.S. 412, 434 n.4 (1986) (unless suspect communicates that he

wants attorney, interrogation can continue).

               Gobert’s statement that “I don’t want to give up any right, though, if I don’t got no

lawyer” is not an invocation of his right to an attorney. It is unclear what Gobert was trying to

convey when he made the statement, but it is clear that the statement is not an unequivocal request.

As proof that Gobert “was unwilling to waive any of his rights . . . without first consulting an

attorney,” the majority points to the following comment made by one of the interviewing officers:

“I want to clear something up, though, because earlier you said you don’t want to give up your right

to a lawyer.” I strongly dispute the clarity of Gobert’s statement. While it may indeed be a statement

that he does not have the present intent to “give up any right,” it is not a request for counsel as it

must be to halt further interrogation by the officers. Although the word “lawyer” appears in the

statement, it is not used in any manner that could reasonably be interpreted as expressing a desire

for the assistance of counsel or to speak to an attorney. At the very most, the statement is an

equivocal and ambiguous statement that Gobert might want to invoke his right to counsel. See



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Robinson, 851 S.W.2d at 223-24 (question “Do I need to talk to a lawyer before I sign?” was

equivocal at best); Harper v. State, No. 03-00-00677-CR, 2001 Tex. App. LEXIS 7497, at *4, 19

(Tex. App.—Austin Nov. 8, 2001, pet. ref’d) (not designated for publication) (concluding that

statement “I don’t even want to talk unless I have me a lawyer and go through this shit. I don’t have

to go through this shit, right?” was ambiguous and equivocal and did not invoke right to counsel).

Although it might be beneficial for police officers to clarify whether a suspect is invoking his right

to counsel when this type of statement is made, there is no requirement that they do so and no

requirement that they cease questioning the suspect. Moreover, after being read his Miranda rights

and immediately after making the statement in question, Gobert told the police three times that he

was willing to talk to the police, indicating that he was willing to proceed without having the

assistance of counsel. Dinkins, 894 S.W.2d at 351 (courts may consider totality of circumstances

surrounding interrogation when determining whether individual invoked his right to counsel). The

officers, by immediately seeking to clarify the meaning of Gobert’s statement, did all that we

should expect them to do.

               While the majority might believe that the defendant should receive the benefit of the

doubt, the Supreme Court addressed this concern in Davis v. United States and expressly declined

“petitioner’s invitation to extend Edwards and require law enforcement officers to cease questioning

immediately upon the making of an ambiguous or equivocal reference to an attorney.” 512 U.S. at

459. The “need for effective law enforcement” was factored in to the court’s decision making. The

requirement that an invocation be clear and unambiguous has the benefit of providing “a bright line

that can be applied by officers in the real world of investigation and interrogation without unduly



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hampering the gathering of information.” Id. at 461. The majority’s holding blurs the boundaries

of this rule. Essentially, their conclusion requires police officers to cease questioning when a

statement is made that might possibly be a request for counsel. With this decision, we have

burdened police officers with the difficult task of determining whether a suspect really wants an

attorney, despite not having specifically asked for one, at the risk of having any information obtained

through questioning suppressed. See id. at 461.

               In light of the preceding, I believe that the district court erred when it granted

Gobert’s motion to suppress and, therefore, respectfully dissent from the opinion of the majority.




                                               ____________________________________

                                               David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Filed: April 19, 2007

Publish




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