          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

      P RICE, J., filed a dissenting opinion.

                                DISSENTING OPINION

      In summarizing the substantive Fifth and Sixth Amendment regime in place after the

United States Supreme Court’s opinion in Montejo v. Louisiana,1 the Court today says:

              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

      1

       556 U.S. 778, 129 S.Ct. 2079 (2009).
                                                                                    Pecina — 2


       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 purpose of custodial interrogation when the police or other law-
       enforcement 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.2

I gather that this conclusion stems from the observation, identified earlier in the Court’s

opinion as deriving from a footnote in McNeil v. Wisconsin, that the Supreme Court has “in

fact never held that a person can invoke his Miranda rights anticipatorily, in a context other

than ‘custodial interrogation[.]’”3 Ultimately the Court concludes that “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.” 4 I agree that,

ordinarily, it is probably accurate to say that, even though it includes the issuance of Miranda

warnings, a “magistration hearing is not an interrogation event.” But nothing in either

Montejo or McNeil compels us invariably to regard these—a “magistration hearing” versus

an “interrogation”—as mutually exclusive events for Fifth Amendment purposes. And it

strikes me as unwise to hold as a categorical matter that a magistration hearing under Article

15.17 can never constitute any part of an “interrogation event.” To my mind, the facts of this

case amply illustrate why.

       2

        Majority opinion, at 15-16.
       3

        Id. at 11 (quoting McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991).
       4

        Id. at 19.
                                                                                        Pecina — 3


       This is not a case that turns on the credibility of the witnesses at the suppression

hearing or the reliability of their testimony, neither of which is disputed. Two Arlington

police detectives picked up Judge Maddock from the municipal courthouse and took her with

them to the appellant’s hospital room, where he was already under the guard of a Dallas

County deputy sheriff. Pointing to the detectives, Judge Maddock told the appellant, “They

are here. They would like to speak to you.” Judge Maddock remembered that the appellant

either nodded or said “yes,” thus “acknowledg[ing]” her statement as to why the detectives

were present.5 The detectives then stepped out of the room for “probably fifteen or twenty

minutes” while Judge Maddock administered the Article 15.17 warnings, in Spanish,

informing the appellant of what he was charged with and then issuing all of the

admonishments that are enumerated in footnote four of the Court’s opinion today.6 These

warnings explicitly and exclusively refer to the appellant’s right to counsel, whether retained

or appointed, “during any interview and questioning by peace officers or attorneys

representing [the] [S]tate[.]” They nowhere refer, even implicitly, to the appellant’s right to

representation at any other time or for any other purpose. At the conclusion of this process,

Judge Maddock asked the appellant whether he wanted “a court appointed attorney. And he


       5

        Later in her testimony, Judge Maddock would clarify that the appellant “never said to me that
he wanted to talk to” the detectives. I take this to mean that she did not construe his initial
acknowledgment that the detectives would like to “speak” to him as an indication that he was willing
to do so.
       6

        Majority opinion, at 4 n.4.
                                                                                    Pecina — 4


stated he did.”

       Judge Maddock testified that she took this to mean that the appellant wanted her to

appoint an attorney to represent him “for court[,]” for “these proceedings.” She did not

elaborate, and it is unclear to me why she would think so, since the warnings she had just

administered to the appellant made no allusion whatsoever to the right to an attorney for trial.

She told the waiting detectives that the appellant “had initially asked for a lawyer,” but that

he had then told her “that he wanted to talk to” the detectives. From their respective

testimonies, one gets the distinct impression (or at least I do) that the detectives understood

Maddock to mean that the appellant had first indicated that he wanted counsel appointed for

purposes of the police interrogation, but that he had subsequently relented. In any event, it

does not matter what either Judge Maddock or the detectives believed since, as the Court

correctly acknowledges today, the standard is an objective one7 —a suspect must articulate

that his desire is for counsel for purposes of custodial interrogation, and he must do so with

sufficient clarity that a reasonable officer under the circumstances would understand it to be

just that.8 I agree with the court of appeals that the objective circumstances in this case can

only reasonably be construed to indicate that the appellant’s initial, clearly expressed desire




       7

        Majority opinion, at 16-17.
       8

        State v. Gobert, 275 S.W.3d 888, 892-93 (Tex. Crim. App. 2009).
                                                                                           Pecina — 5


was to have the assistance of counsel for purposes of custodial interrogation.9

       Of course, it is also undisputed that what I take from the circumstances to be a clear

invocation of the right to interrogation counsel—not trial counsel—occurred in front of the

magistrate alone, out of the immediate presence of the interrogating officers themselves.

Although I am not entirely certain, I think what the Court is saying today is that this makes

all the difference because what happened in the hospital room in the absence of the detectives

was merely a “magistration” and not an “interrogation event.” But even the Court seems to

concede that an “interrogation event” may be initiated either by law-enforcement or some


       9

       The court of appeals majority’s view is well expressed and bears repeating:

                We . . . disagree with the dissent’s assertion that whatever occurred at the
       article 15.17 hearing did not implicate Edwards [v. Arizona, 451 U.S. 477 (1981)]
       because Pecina had somehow “not yet been approached for interrogation.” Dissenting
       op. at 272. The record belies any such interpretation. The detectives did not just
       happen to show up at Pecina’s hospital room. They went to the hospital to arrest
       Pecina and to interrogate him and brought with them the magistrate to administer his
       Miranda warnings; they walked into his room with the magistrate; the magistrate
       explained to Pecina that the detectives wanted to talk to him; and they waited in the
       hall while she administered the warnings. After he had invoked his right to counsel,
       they proceeded to re-enter the room and conduct their interrogation after reading
       Pecina his Miranda rights a second and third time.

                                                ***

               Nor did Pecina invoke his Fifth Amendment right to counsel “anticipatorily,”
       as the dissent asserts, using a term referenced in dictum by the majority opinion in
       Montejo. . . . Pecina asked for appointed counsel in response to being advised that he
       was entitled to counsel during any questioning and while the police waited to do just
       that. His request was precisely for the sort of assistance of counsel that is the subject
       of Miranda.

Pecina v. State, 326 S.W.3d 249, 267 & n.101 (Tex. App.—Fort Worth 2010).
                                                                                   Pecina — 6


“other state agent[ ].”10 Any reasonably objective viewer would conclude from the peculiar

facts of this case that Judge Maddock was acting as a de facto agent of the interrogating

detectives. She arrived with them at the hospital room, where the appellant was already

under the guard of law enforcement. The first thing she told him was that the detectives

wanted to “speak” to him. She then pointedly and exclusively informed him of his Fifth

Amendment right to counsel for purposes of custodial interrogation, and, after he invoked

it, nevertheless asked him whether he “still” wanted to talk to the detectives—though she

would later acknowledge that he had not told her, up to that point, that he did want to talk to

them. In other words, by all objective indicators, Judge Maddock was doing her utmost to

facilitate the appellant’s immediate subjugation to custodial interrogation.

       “Most rights[,]” Justice Scalia observed in his footnote in McNeil, “must be asserted

when the government seeks to take the action [those rights] protect against.” 11 Like the court

of appeals, I believe that this is exactly what the appellant did in this case.12 To avoid the

consequences of that assertion by categorizing Judge Maddock’s conduct as nothing more

than a “magistration,” which, by the Court’s definition, can never form any part of an

“interrogation event,” amounts to the proverbial exaltation of form over substance—it



       10

       Majority opinion, at 11.
       11

       McNeil, supra, at 182 n.3.
       12

       See note 9, ante.
                                                                                    Pecina — 7


willfully ignores the objective reality of the situation as accurately perceived by the court of

appeals. I understand that it is sometimes difficult to stomach the consequences of a doubly

prophylactic rule such as Edwards under circumstances, like those presented by this case, in

which a suspect appears later to freely and voluntarily relinquish the Fifth Amendment right

to counsel that he had earlier invoked. But, just as it is never our prerogative to ignore

Supreme Court precedent, neither should we conjure new strategies, as the Court appears to

do today, that carve out artificial legal distinctions in order to avoid those unpalatable

consequences. The appellant clearly invoked his right to counsel for custodial interrogation

in the context of what was unmistakably an “interrogation event.” That the invocation also

occurred during a simultaneous “magistration,” while accurate, does not detract from its

essential character for Fifth Amendment purposes. And once a suspect has made it clear that

he desires the assistance of counsel in coping with police interrogation, we are not entitled

to look at his subsequent responses to official entreaties “to determine in retrospect whether

the suspect really meant it when he unequivocally invoked the right to counsel.” 13

       I agree with the court of appeals’s conclusion that the appellant’s Fifth Amendment

right to interrogation counsel was violated, and I would therefore affirm its judgment.

Because the Court does not, I respectfully dissent.

FILED:         January 25, 2012
PUBLISH


       13

        Gobert, supra, at 893.
