            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                              Nos. PD-1123-08 & PD-1124-08



                        JEFFERY DANIEL HUGHEN, Appellant

                                               v.

                                 THE STATE OF TEXAS

         ON APELLANT’S PETITIONS FOR DISCRETIONARY REVIEW
              IN CAUSE NOS. 06-07-00092-CR & 06-07-00093-CR
                  FROM THE SIXTH COURT OF APPEALS
                          FANNIN COUNTY


       HOLCOMB, J., delivered the opinion of the Court, in which KELLER , P.J., and
       MEYERS, HERVEY , and COCHRAN , JJ., joined. WOMACK and KEASLER , JJ.,
       concurred in the result. PRICE, J., filed a dissenting opinion, in which JOHNSON ,
       J., joined.


       We granted appellant Jeffery Daniel Hughen’s petitions for discretionary review in order to

determine whether the court of appeals erred in upholding the trial court’s denial of Hughen’s

pretrial motion to suppress. We affirm.

       On the evening of July 15, 2006, in Fannin County, Hughen and several others were involved
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in a violent altercation. At the conclusion of that altercation, Bonham police arrested Hughen and

took him to the Fannin County Jail.

       On July 17, 2006, at around 8:20 a.m., Bonham police, pursuant to Article 15.17 of the Texas

Code of Criminal Procedure, took Hughen before a Fannin County magistrate, who explained to him

that he was charged with attempted murder, a felony of the second degree. See Tex. Pen. Code §§

15.01(d) & 19.02(c). The magistrate also explained to Hughen that: (1) he had the right to remain

silent; (2) any statements he made could be used against him at trial; (3) he had the right to the

presence of counsel during questioning; and (4) if he could not afford counsel, one would be

appointed for him. See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (consistent with the Fifth

Amendment, law enforcement officials must give these warnings to suspects before custodial

interrogation). After the magistrate explained these matters to Hughen, he acknowledged that he

understood them. He then asked that counsel be appointed to represent him.

       Three hours after Hughen’s Article 15.17 initial appearance, Bonham Police Detective Lisa

Herrington and Sergeant Wendell Bockman, without waiting for the appointment of Hughen’s

counsel, took Hughen from his jail cell and placed him in an interview room. One of the officers

activated a digital video disc (DVD) recorder, and that device recorded what transpired in the

interview room.1 Herrington asked Hughen whether he understood what he had been charged with,

and Hughen responded that he did. Herrington then explained to Hughen (again) his Miranda rights.

       After Herrington explained to Hughen these rights, she asked him the following three



       1
          The resulting DVD is part of the record, and we have reviewed it. One can reasonably
conclude from the DVD that, at the time in question, Hughen was an able-bodied male
approximately 40 years of age; he was lucid and of normal intelligence; he understood the
English language; he knew how to read the English language; and he knew how to sign his name.
                                                                                       HUGHEN - 3

questions and received his responses: (1) “Do you understand your rights, Jeff?” Hughen nodded

in the affirmative. (2) “And understanding these rights, do you need to have a lawyer present before

any questioning?” He answered, “I guess not right now, no.” (3) “Having these rights in mind, will

you talk to me now?” Hughen answered, “Okay.”

       Herrington then presented Hughen with a fill-in-the-blank waiver form. The upper half of

the form was titled “Miranda Warning,” and below that title were listed the rights that Herrington

had explained to Hughen. The lower half of the form was titled “Waiver,” and below that title were

the three questions that Herrington had asked Hughen, along with blanks for “yes” or “no”

appropriately checked by Herrington to reflect Hughen’s answers to those three questions. Thus, the

waiver form, if signed, would memorialize: (1) Hughen’s acknowledgment that he understood the

rights that Herrington had explained to him; (2) his waiver of his right to have counsel present for

police questioning at that time; and (3) his agreement to talk to the police at that time.

       Hughen looked over the waiver form and, at Herrington’s request, wrote his initials beside

each of the rights listed, indicating that he had read and understood each right. Then, just before he

signed the form, he asked Herrington, “This ain’t waiving my right for an attorney, is it?”

Herrington responded, “No, sir. This is just talking with us about what happened and what was

going on and all that good stuff.” Hughen then signed the waiver form. Immediately thereafter,

Herrington questioned him about the altercation that had occurred on July 15th.

       On July 25, 2006, the trial court appointed counsel to represent Hughen. On September 22,

2006, a Fannin County grand jury returned one indictment charging Hughen with attempted murder

and a second indictment charging him with aggravated assault with a deadly weapon, a felony of the

second degree. See Tex. Pen. Code § 22.02.
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        On February 1, 2007, Hughen filed a pretrial motion to suppress “any conversations between

[him] and law enforcement officers” on the grounds that such conversations had occurred while he

“was [unlawfully] deprived of his right to counsel” under both the Fifth and Sixth Amendments to

the Constitution of the United States. On May 14, 2007, the trial court held an evidentiary hearing

on Hughen’s motion to suppress. At that hearing, Hughen first explained to the trial court the

relevant facts, which we have recounted above, and then argued that the DVD of Herrington’s

interrogation of him should be suppressed because the waiver of counsel that he had given to

Herrington had been invalid. He argued further that the waiver had been invalid, under both the

Fifth and Sixth Amendments, because: (1) Herrington and Bockman had approached him and

questioned him without first contacting his counsel and (2) Herrington had given “inaccurate

information” to him when she had assured him that he was not waiving his right to counsel.

        The State argued in response that Hughen had “voluntarily, knowingly, and intelligently

waive[d] his right to an attorney for purposes of [Herrington’s] questioning, and, therefore, [the

DVD] should not be suppressed.” The State’s argument continued:

        “[T]his defendant was made aware of his rights, he knew he had a right to an attorney
        to be present, not only throughout his trial and throughout the prosecution of his
        cases but at [the time] when he spoke with the officers. He chose to waive that right,
        and any question that he asked of those officers, am I waiving my right to an attorney,
        was reasonably interpreted as applying to the entire process, not to [the questioning],
        especially in light of the very obvious written warnings that he had in front of him,
        which he initialed it himself.”

        The trial court, after viewing the DVD and a copy of the waiver form, denied Hughen’s

motion to suppress. The trial court did not issue any findings of fact or conclusions of law.

        On May 15, 2007, the State brought Hughen to trial under both indictments, before a single

jury, on his pleas of not guilty. During the course of the guilt stage of trial, the trial court admitted
                                                                                        HUGHEN - 5

in evidence, over Hughen’s continued objection, the DVD of Herrington’s interrogation of him. The

jury viewed the DVD and later found Hughen guilty as charged in both indictments. After hearing

additional evidence at the punishment stage, the jury assessed Hughen’s punishment for the

attempted murder at imprisonment for life and a fine of $10,000, and it assessed his punishment for

the aggravated assault at imprisonment for twenty years and a fine of $5,000.

       On direct appeal, Hughen, again citing both the Fifth and Sixth Amendments, argued that the

trial court had erred in denying his pretrial motion to suppress. “The unconstitutional contact by [the

Bonham police] rendered [the DVD] inadmissible,” Hughen argued. More specifically, he argued,

as he had in the trial court, that the waiver of counsel that he had given to the Bonham police had

been invalid because they had approached him and interrogated him without first contacting his

counsel.2 Hughen’s argument continued:

       “After the invocation of the right to counsel under the Fifth Amendment, and after
       the Sixth Amendment right to counsel attaches, both accomplished facts in this case
       prior to [the] interrogation, any subsequent waiver of counsel, to be effective, must
       be the product of either accused-initiated communications with the police, or police-
       initiated communications with the accused in the presence of counsel.”

       The court of appeals, after a lengthy analysis, rejected Hughen’s federal constitutional claims

and affirmed the trial court’s judgments of conviction. Hughen v. State, 265 S.W.3d 473, 482-84,

486 (Tex.App.–Texarkana 2008) (the attempted murder case); Hughen v. State, No. 06-07-00092-CR

(Tex.App.–Texarkana 2008) (the aggravated assault case) (not designated for publication).

       We granted Hughen’s petitions for discretionary review in order to determine whether the


       2
          Hughen, in his brief to the court of appeals, did not argue, as he had in the trial court,
that the waiver of counsel that he had given to Herrington had been invalid because she had
given “inaccurate information” to him when he had asked whether he was waiving his right to
counsel. Thus, Hughen, in the court of appeals, effectively abandoned his earlier argument that
Herrington’s “inaccurate information” had rendered his waiver invalid.
                                                                                     HUGHEN - 6

court of appeals erred in holding that the trial court did not violate his Sixth Amendment right to

counsel when it admitted the DVD of his interrogation into evidence at his trial.3 See Tex. R. App.

Proc. 66.3(c). In his brief, Hughen argues that “the Court of Appeals erred in failing to recognize

that this case is controlled by the Sixth Amendment.” He argues further, as he did below, that once

his Sixth Amendment right to counsel attached and was asserted, as it was three hours before the

Bonham police interrogated him, his right to counsel could not be validly waived unless (1) he

initiated contact with police, which did not happen here, or (b) his counsel agreed to the waiver,

which also did not happen here.4 In support of his Sixth Amendment claim, Hughen relies primarily

on Rothgery v. Gillespie County, ___U.S.___, 128 S.Ct. 2578 (2008), and Michigan v. Jackson, 475

U.S. 625 (1986).

       The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to have the Assistance of Counsel for his defence.” The Sixth Amendment right to

counsel applies in all state criminal prosecutions in which the defendant is accused of a felony.

Gideon v. Wainwright, 372 U.S. 335, 342 (1963). Once the adversarial judicial process has been



       3
          Hughen’s ground for review in case No. PD-1124-08 reads: “The Court of Appeals
erred in failing to recognize that this case is controlled by the Sixth Amendment, Brewer v.
Williams [430 U.S. 387 (1977)] and Rothgery v. Gillespie Co. [___U.S.___, 128 S.Ct. 2578
(2008)].” In case No. PD-1123-08, we granted review of the following question on our own
motion: “Was Appellant’s waiver of counsel during police interrogation valid when he
previously invoked his right to counsel at the time he was brought before a magistrate?”
        In neither of his petitions for discretionary review does Hughen challenge the court of
appeals’s Fifth Amendment holding, and we did not grant review to consider it.
       4
           Appellant also argues that the written waiver that he gave to Herrington is “suspect in
light of the confusion seeded” when she told him, immediately before he signed the waiver, that
he was not waiving his right to an attorney. See discussion, infra. This argument was not made
to the court of appeals, however, so we do not consider it. See Monreal v. State, 947 S.W.2d
559, 564 n. 7 (Tex.Crim.App. 1997).
                                                                                          HUGHEN - 7

initiated, the Sixth Amendment right to counsel guarantees an accused the right to have counsel

present at all “critical” stages of the criminal proceeding. United States v. Wade, 388 U.S. 218, 227-

28 (1967). Interrogation by the police, after charges have been brought, is such a critical stage.

Brewer v. Williams, 430 U.S. 387, 401 (1977); Massiah v. United States, 377 U.S. 201, 204-05

(1964).

          The Sixth Amendment right to have counsel present during interrogation, once the

adversarial judicial process has been initiated, may be waived, as long as the waiver is voluntary,

knowing, and intelligent. Patterson v. Illinois, 487 U.S. 285, 292 n. 4 (1988). And when an accused

is read his Miranda rights, which include the right to have counsel present during interrogation, and

he agrees to waive those rights, that typically is sufficient to validly waive the Sixth Amendment

right to have counsel present during interrogation. Id. at 296.

          In the instant case, Hughen’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. Rothgery v. Gillespie County, ___U.S. at ___, 128 S.Ct. at 2591-92.

Therefore, under the Sixth Amendment, Hughen had the right to have counsel present when

Herrington interrogated him. Brewer v. Williams, 430 U.S. at 401; Massiah v. United States, 377

U.S. at 204-05. However, when Herrington read Hughen’s Miranda rights to him and he agreed to

waive those rights, that was sufficient, on the record and arguments before us, to validly waive his

Sixth Amendment right to have counsel present during the interrogation. Patterson v. Illinois, 487

U.S. at 296.

          Hughen’s reliance on Michigan v. Jackson, 475 U.S. 625, is unavailing. Jackson held that

“if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding,
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of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated

interrogation is invalid.” 475 U.S. at 636. Hughen argues that under the rule of Jackson, the waiver

that he gave to Herrington was invalid and the DVD of that interrogation was inadmissible against

him at his trial. Unfortunately for Hughen, the United States Supreme Court overruled Jackson in

Montejo v. Louisiana, ___U.S.___, ___, 129 S.Ct. 2079, 2091 (2009).

       After Montejo, the Sixth Amendment does not bar police-initiated interrogation of an accused

who has previously asserted his right to counsel. On the other hand, the Fifth Amendment does bar

police-initiated interrogation of an accused who, in the context of custodial interrogation, has

previously asserted his right to counsel during such interrogation, unless the accused’s counsel is

actually present. Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Edwards v. Arizona, 451 U.S.

477, 484-85 (1981).5

       We affirm the judgments of the court of appeals.



DELIVERED OCTOBER 7, 2009

PUBLISH




       5
         The Minnick-Edwards rule is “designed to prevent police from badgering a defendant
into waiving his previously asserted Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350
(1990).
