
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


ON MOTION FOR REHEARING





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


D I S S E N T I N G   O P I N I O N

		Because Gobert's statement that "I don't want to give up any right, though, if I don't
got no lawyer" is sufficiently and clearly an invocation of his right to consult with counsel, I would
conclude that this Court's original opinion and judgment affirming the trial court's suppression order
was correct.  The State now urges on rehearing that Gobert's statement is a "conditional request"
for counsel and therefore not a sufficient invocation. (1)  The experienced trial judge--with the benefit
of the actual videotaped interview not in the record on appeal (2)--found otherwise.  So should we. 
Accordingly, I respectfully dissent to the substituted opinion and judgment reversing the trial court's
order.
		The majority opinion agrees with the State that Gobert's statement to the interrogating
officer was not a clear assertion of the right to counsel.  The State asserts that Gobert "never
expressly asked for a lawyer" and "never expressly stated he wanted an attorney there."  Therefore,
the State argues, the statement was not a "clear, unequivocal, unambiguous" invocation of his right
to counsel but was "conditional" and therefore no assertion:

	[Gobert] may have meant he did not want to waive his right to silence since there was
no lawyer there.  That is not a request for an attorney.  Or [Gobert] may have meant
he wanted to talk to a lawyer before he decided whether or not he would waive his
right to remain silent.  What exactly he meant is just not clear.  His statement being
subject to more than one interpretation, the State submits it did not constitute an
unambiguous, unequivocal request for counsel, nor did it constitute an unambiguous,
unequivocal assertion of his right to remain silent.  When the detectives immediately
asked [Gobert] for clarification, [Gobert] promptly and definitely indicated his
willingness to talk to them.

		This argument confuses the right to counsel with the right to remain silent.  It may
have been unclear, as the State argues, whether Gobert "did not want to waive his right to silence
since there was no lawyer there" or whether Gobert "wanted to talk to a lawyer before he decided
whether or not he would waive his right to remain silent."  But no reasonable police officer in the
circumstances could construe Gobert's statement to mean that he was waiving a right to counsel. 
That Gobert thereafter evinced a willingness to talk to officers must be viewed in context.

The Controversy
		As the facts have evolved and now seem to be disputed, it is instructive to recite the
passage of the interview at issue.  It occurs at the very inception of the interview as Detectives Burgh
and Scanlon enter the interview room.  As the State acknowledges in its brief on appeal, "It was
during the first few moments of the videotaped interview that the transaction at issue took place." 
The transcribed videotape (3) shows the following questioning by Detective Burgh:

	Q.	Hey?  Hey, Milton.  I'm Detective Burgh.  This is Detective Scanlon.

	A.	Okay.

	Q.	Do you know a girl named Christine?

	A.	Yeah.

	Q.	You do?

	A.	My ex-girlfriend.  My ex-fiancee.

	Q.	Okay.  Before we get started, I--I mean, its--we have to read you your rights
because you're under arrest right now.  Okay?  It's something we have to do.

	A.	What's the charge?

	Q.	Well, you're--they picked you up on a parole violation.  You're in custody.

		Detective Scanlon then stated, "And the assault involving Christine."  Detective
Burgh continued, "So that's what we need to talk about.  I want to read you this thing, okay?  It's
just--we got to do it.  All right?  Okay.  Milton, you have the right to remain silent . . . ."
		Immediately after Detective Burgh advised appellant of his rights, the following
exchange occurred:

	Q.	Do you understand those rights I just read to you?

	A.	Yes, sir.

	Q	Q.	Okay.  Can you--do you have a problem reading?

	A.	No.

	Q.	Can you read that out loud to me, the top line there?

	A.	I have received and understand (inaudible) statement.

	Q.	They're the one I just read to you.

	A.	I don't want to give up any right, though, if I don't got no lawyer.

	Detective Scanlon:	You don't want to talk?

	Detective Burgh:	You don't want to talk to us?

	A.	I mean, I'll talk to y'all. I mean, I know, you know, what she had said about
it, you know.  I'll speak with y'all, but (inaudible), man.  I mean, I'll speak
with y'all, you know.

	Detective Scanlon:	Okay, signing this--signing this is not giving up your right.
Signing this is acknowledging that this was read to you.

	Detective Burgh:	Yeah.

	Detective Scanlon:	Okay?  Your choice to talk to us is different.  This--all this
is, is acknowledging you were warned.

After asking whether he should read "it" again, Burgh began questioning Gobert.  Minutes later, as
appellant discusses "Christine," Scanlon returns to the subject of the lawyer and the verbatim
transcript reflects the following exchange between Scanlon and Gobert:

	Q.	I want to clear something up, though, because earlier you said you don't want
to give up your right to a lawyer. I want you--I want you--I want to clear up
the fact that you want to talk to us about this.  Okay?  You understand what
I'm saying?

	A.	Yeah.

	Q.	I want to clear it up.  I mean, that's--that's what you want to do, right?

	A.	Yeah.

	Q.	Okay. Where is Christina now?


		At issue is Gobert's statement, "I don't want to give up any right, though, if I don't
got no lawyer."  Following a hearing, the trial court concluded that this was an unequivocal
invocation of the right to counsel during custodial interrogation.

The Hearing
		The motion to suppress sought the exclusion of the statement under Article 38.22 of
the code of criminal procedure based on the denial of due process, the denial of the defendant's state
and federal constitutional rights, and Jackson v. Denno, 378 U.S. 368, 380 (1964).  At the initial
hearing on the motion to suppress, the defense argued that Gobert's statement was a clear invocation
of the right to counsel and that he had been deceived about why he was at the police station and what
the detectives wanted to talk about. (4)  After several pretrial hearings addressing the motion to
suppress, the trial court granted Gobert's motion on the ground that Gobert's invocation of his right
to counsel was unequivocal.  Relying on Edwards v. Arizona, 451 U.S. 477 (1981), the trial judge
found that Gobert invoked his right to a lawyer:  "I don't know what he can say to them that invokes
his right to a lawyer any more than this."
		The trial court dictated its findings and conclusions into the record, satisfying the
requirements of Article 38.22 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc.
Ann. art. 38.22 (West 2005).  The findings and conclusions were transcribed and were made a part
of the appellate record.  See Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003).  The
court announced its findings and conclusions as follows:

		I just don't find anything that is unequivocal [sic] about the statement 'I'm
not going to waive any rights if I don't got no lawyer.'  I mean, I think that that's as
unequivocal as I can imagine a statement being.

		I mean, if I were a defense lawyer and I was advising my client what to say,
I can't imagine what advice I'd give him to say anything better than that.  I mean,
he's saying that he's not going to waive any rights until he has a lawyer.  Under
Edwards, once he makes that statement, he's got a right to a lawyer before anything
else happens, you know.


		I just--you know, and he was not provided a lawyer.  They just--as soon as
he says that, instead of saying, okay, you want a lawyer, we will get you a lawyer, or
instead of--instead of asking him about the lawyer question, they just go totally
around that and they start saying, well you don't want to talk to us, which is not really
what he had asked.

		The right that he asked to invoke was his right to a lawyer, and he says at the
same time he doesn't want to waive any rights until he's got one.  I think the fact that
they totally ignored what he said and kept on talking to him about does he want to
make a statement, I think that that implies . . . they really don't believe in the
warnings they have given him . . . .

* * *


		And that's what he's saying, is he doesn't want to give up any right.  He
doesn't want to give up his right to remain silent; he doesn't want to give up his right
to have a lawyer appointed for him; he doesn't want to give up his right to terminate
the interview.  You know, that what he says.  I assume that that's what he means.

		Now, the thing is, at that time what he says, 'if I don't got no lawyer,' maybe
they might have some question at that point about whether he wanted a lawyer from
that.  I don't know how they could have that question.

		But if they were going to ask any question, at that point, it seems to me, it was
incumbent upon them to ask, okay, so you're saying you want a lawyer right now?
Is that what you're saying?  They want him to repeat his assertion that he wanted a
lawyer, and then they could proceed along that line.  But they don't ask that.  They
totally blow by the question of the lawyer deal.

* * *


		Well, either Edwards means what it says or it doesn't.  Either you can invoke
your right to a lawyer or you can't.  I don't know what he can say to them that
invokes his right to a lawyer any more than this. . . .  Under Edwards, it seems to me
that once he says, I want a lawyer, that's it.  I mean, that's the end of the ball game. 


The Appeal
		The procedural posture of this case has become relevant to this appeal.  On appeal
from the trial court's ruling suppressing the statement, the State addressed two issues raised at the
pretrial hearings:  whether Gobert's statements were made in violation of his right to counsel and
whether the police deceived Gobert, rendering his statement involuntary by their manner of
questioning.  By a majority, this Court affirmed the trial court's ruling that the statements were
obtained in violation of Gobert's right to counsel.  Pursuant to Rule 50 of the Texas Rules of
Appellate Procedure, and without requesting a response from Gobert's counsel, (5) a new majority
substituted an opinion reversing the trial court's ruling.  See Tex. R. App. P. 50 (allowing a majority
of the justices who participated in a decision to summarily reconsider and correct or modify the
court's opinion or judgment within 30 days after a petition for discretionary review is filed).  The
new majority opinion addressed the trial court's determination that the officers conducting the
interrogation failed to honor Gobert's invocation of the right to counsel.  The majority concluded
then and now again in a revised opinion that Gobert's statement that "I don't want to give up any
right, though, if I don't got no lawyer" was not an invocation of his right to an attorney.

Standard of Review
		The majority considers this issue under a de novo standard.  Because the application
of the standard of review is relevant, I set it forth.  We review a trial court's ruling on a motion
to suppress evidence under a bifurcated standard of review.  Ford v. State, 158 S.W.3d 488, 493
(Tex. Crim. App. 2005); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).  In
reviewing the trial court's decision, we do not engage in our own factual review.  Rather, the trial
judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given
to their testimony.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  We give almost complete deference to the trial court's
ruling on (i) questions involving historical facts, and (ii) application-of-law-to-fact questions
that turn on an evaluation of credibility and demeanor.  Johnson v. State, 68 S.W.3d 644, 652-53
(Tex. Crim. App. 2002); Carmouche, 10 S.W.3d at 327.  We may review de novo mixed questions
of law and fact that do not turn on the credibility and demeanor of witnesses.  Johnson, 68 S.W.3d
at 652-53; Ross, 32 S.W.3d at 856.  We must affirm the trial court's ruling if it is supported by the
record and correct under some theory of law applicable to the case.  St. George v. State, 237 S.W.3d
720, 725 (Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.
2003).
		In this case, a videotape of the interview was provided to the trial court, and the
record makes clear that the trial judge reviewed and considered its content to determine contested
issues.  See Carmouche, 10 S.W.3d at 332 (determining that the videotape contradicted officer's
testimony in hearing on motion to suppress).  The videotape, however, was not included in the record
on appeal.  Instead, the State included a verbatim transcription of the videotape.  Whether a
defendant has unambiguously invoked his right to counsel may involve--as here--a factual as well
as a legal determination.  See, e.g., Ross, 32 S.W.3d at 857 (case falls within "almost total deference"
standard of review because trial court's factual findings were dispositive).
		Here, whether we defer to the factual findings of the trial court or review the issue
de novo, I would reach the same conclusion.  But any deference to the findings of the trial court
compels the conclusion it then reached.

Invocation of Right to Counsel
		Over twenty-five years after the landmark Edwards case and forty years after
Miranda, certain bright lines have emerged.  See Edwards v. Arizona, 451 U.S. 477, 485 (1981); 
Miranda v. Arizona, 384 U.S. 436, 479 (1966).  Prior to custodial interrogation, a suspect must
be advised that he has a right to consult with an attorney.  Miranda, 384 U.S. at 467-68. 
Interrogation must cease immediately if the suspect states that he wants an attorney.  Id.; see also
Edwards, 451 U.S. at 485; McCarthy v. State, 65 S.W.3d 47, 51 (Tex. Crim. App. 2001); Dinkins
v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995).  If the suspect indicates in any manner, at any
time prior to or during questioning, that he wishes to remain silent, the questioning must cease. 
Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Cross v. State, 144 S.W.3d 521, 526 (Tex. Crim.
App. 2004).  A suspect's invocation of his right to counsel must be "scrupulously honored." 
Michigan v. Mosley, 423 U.S. 96, 103 (1975).  An invocation of counsel must not be ambiguous,
meaning the suspect must "articulate his desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would understand the statement to be a request for an
attorney."  Davis v. United States, 512 U.S. 452, 459 (1994).
		In Miranda, the Supreme Court held that once an individual in custody invokes his
right to counsel, interrogation "must cease until an attorney is present." 384 U.S. at 474.  At that
point, "the individual must have an opportunity to confer with the attorney and to have him present
during any subsequent questioning."  Id.  Edwards then made clear that the admonitions of Miranda
did not require any invocation to be in the syntax and grammar demanded of an interrogatory.
Rather, in Edwards the Court found it "inconsistent with Miranda and its progeny for the authorities,
at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." 
Id. at 485.  The Court held that "when an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right cannot be established by showing only that
he responded to further police-initiated custodial interrogation even if he has been advised of his
rights."  Id. at 484.
		By its assertion on appeal that Gobert "never expressly asked for a lawyer," "never
expressly stated he wanted an attorney there," and that his statement was not a "clear, unequivocal,
unambiguous invocation of the right to counsel," the State applies an erroneous standard for
determining waiver when the accused has specifically invoked his right to counsel.  The facts in
Edwards are similar to those here.  In the aspects in which the cases differ, the facts are more
compelling here.
		In Edwards, the defendant said:  "I want an attorney before making a deal."  Id. at
479.  Similarly, Gobert announced:  "I don't want to give up any right, though, if I don't got
no lawyer."  In Edwards, two detectives who were colleagues of the officer who had interrogated
Edwards the previous night, came to the jail the next morning, stated they wanted to talk to Edwards,
and readvised him of his Miranda rights.  Id.  Linking the assertion of right to counsel to an
accused's response to his advice of rights, the Court in Edwards reasoned:  "Miranda itself indicated
that the assertion of the right to counsel was a significant event and that once exercised by the
accused, 'the interrogation must cease until an attorney is present.'"  Id. at 485 (quoting Miranda,
384 U.S. at 474).
		Here, the same detectives advised Gobert that by signing the form he was not giving
up any rights.  They then plainly ignored his desire not to relinquish his rights in the absence of
counsel.  Immediately after Gobert refused to give up "any" rights "if I don't got no lawyer," both
detectives said, "You don't want to talk?" and "You don't want to talk to us?"  Then Scanlon assured
Gobert that "signing [the Miranda warnings] is not giving up your right," and "Signing this is
acknowledging that this was read to you," which was followed by "Your choice to talk to us is
different."  What could it mean to an accused to then be told that "all this is, is acknowledging that
you were warned?"
		In Edwards, the defendant agreed to make a statement as long as it was not tape-recorded:  "I'll tell you anything you want to know, but I don't want it on tape."  Id. at 479. 
Likewise, Gobert agreed that he wanted to "clear it up," but apparently believed that, having invoked
his right to an attorney, nothing he thereafter said to the officers could be used against him until
counsel had been provided.  After Gobert had given a confession and the interrogation was winding
down, Detective Burgh asked if Gobert would be willing to sign a written statement.  Gobert became
agitated and said, "I'm telling you that I done it, man. Why you have to type up a statement and all
of that?"  He added, "Oh, man, I mean why we have to go back through all this, you know, this is
just like what to present to the judge or something, to the D.A., make your job easier or something?" 
Gobert's attempts to terminate the interview were similarly ignored.  In response to Gobert's plea
to "just take me to a lock-up, man," the officers continued their questioning.  At the conclusion of
the interview, as he repeatedly asks the detectives why they are reducing his statement to writing,
Gobert realized he has given up every right he had.
 Edwards could not be more clear.  To impose an "additional safeguard," the Edwards
Court held that a valid waiver of a defendant's right to counsel cannot be established by showing
only that he responded to further police-initiated custodial interrogation even if he has been advised
of his rights.  Id. at 484.  But the Court further held that an accused, "having expressed his desire to
deal with the police only through counsel, is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police."  Id. at 484-85.  Likewise, the Texas
Court of Criminal Appeals has recognized that "the Edwards rule acts as a 'clear and unequivocal'
guideline to law enforcement precisely because it is 'relatively rigid.'"  McCarthy, 65 S.W.3d at 51
(quoting Arizona v. Roberson, 486 U.S. 675, 681 (1988)).  The court of criminal appeals held:

	[T]he Edwards rule does not take into account the good intentions of the individual
police officer, the lack of official coercion or badgering in the particular case, or the
actual voluntariness of a person's custodial statement.  Edwards represents a bright
and firm constitutional rule that applies to all suspects and all law enforcement
officers.


Id.
		The right to consult with counsel before and during any custodial interrogation is
independent of the right to remain silent.  Although Gobert did not expressly request a lawyer to be
present, he unambiguously, if ungrammatically, told the officers that he did not want to give up
"any" right "if I don't got no lawyer."  This was a clear statement that Gobert was unwilling to waive
any of his rights under Miranda and article 38.22 without first consulting counsel.  At least one of
the officers, Scanlon, showed he understood this when he said, "I want to clear something up,
though, because earlier you said you don't want to give up your right to a lawyer."  Gobert's
willingness to speak to the officers did not serve to waive his right to counsel. (6)
		The opinions cited by the majority are distinguishable on their facts.  In Davis
v. United States, the Supreme Court held that a suspect's statement, "Maybe I should talk to a
lawyer," uttered over an hour and a half into a custodial interrogation and after the suspect had
previously waived his Miranda rights was an ambiguous assertion of the right to counsel.  512 U.S.
at 458-59.  Likewise, the Texas Court of Criminal Appeals held that the suspect's question in
Robinson v. State, "Do I need to talk to a lawyer before I sign?" was plainly ambiguous; it was
neither an assertion of the right to counsel nor a request for counsel.  851 S.W.2d 216, 223-24
(Tex. Crim. App. 1991).  In the unpublished case of Harper v. State, a case cited by the majority,
after the suspect confessed to the armed robbery in which a murder occurred, he said "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?"  No. 03-00-00677-CR, 2001 Tex. App. LEXIS 7497, at *4-6 (Tex. App.--Austin Nov. 8,
2001, no pet.).  No further interrogation took place until after one of the officers asked a question
not posed to Gobert, "Are you telling us you want to terminate this interview and speak to an
attorney or do you want us to continue to discuss this matter?"  Id.  The suspect expressed his desire
to continue without counsel.  Id.; cf. Jones v. State, 742 S.W.2d 398, 405 (Tex. Crim. App. 1987)
(defendant's statement "I think I want a lawyer" was a clear and unequivocal assertion of right to
counsel.)
		Of course, waiver is possible when a request for counsel is equivocal and an
interrogation need not cease following an ambiguous or equivocal reference to an attorney.  See
Edwards, 451 U.S. at 484; Nash v. Estelle, 597 F.2d 513, 517 (5th Cir. 1979).  To avoid difficulties
of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. 
Davis, 512 U.S. at 458-59.  Invocation of the Miranda right to counsel "requires, at a minimum,
some statement that can reasonably be construed to be an expression of a desire for the assistance
of an attorney."  McNeil v. Wisconsin, 501 U.S. 171, 178 (1991).  The Supreme Court in Miranda
held that if a defendant indicates "in any manner" that he wishes an attorney before speaking or that
he does not wish to be interrogated further, questioning must cease.  384 U.S. at 444-45.  Although
a suspect must "articulate his desire to have counsel present sufficiently clearly that a reasonable
police officer in the circumstances would understand the statement to be a request for an attorney,"
Davis, 512 U.S. at 459, he need not speak with the level of clarity or "discrimination of an Oxford
don."  Id. at 476 (Souter, J., concurring).  Whether viewed as an invocation of his right to remain
silent or to invoke his right to counsel, I agree with the trial court that Gobert adequately
communicated his desire to speak to an attorney before giving a statement that could be used against
him.  That the officers recognized this is clear from their retort "You don't want to talk to us?" and
their return, after questioning, to clarify Gobert's intent.
		When reviewing alleged invocations of the right to counsel, we look at the totality
of circumstances surrounding the interrogation, as well as the alleged invocation, to determine
whether a suspect's statement can be construed as an actual invocation of right to counsel.  Dinkins,
894 S.W.2d at 351; Lucas v. State, 791 S.W.2d 35, 45-46 (Tex. Crim. App. 1989).  Because the trial
court is the sole judge of the credibility of the witnesses and the weight of their testimony, I would
hold that the trial court's findings and conclusions are supported by the record.  Ross, 32 S.W.3d at
855.  That the trial court performed its function in evaluating credibility and demeanor is clear.  The
trial court observed:

		The problem, as far as I'm concerned, is this:  You-all say that he has not
stated specifically that he wants to invoke his right to remain silent or to invoke his
right to cut off the interview.  But the words that he uses--and, actually, if you watch
the tape, his voice gets noticeably louder.  Because, you know, there [are] a lot of
things that he says on the tape that I couldn't understand and that he talks so low and
mumbles and that sort of thing.

 But one is very clear.  When he gets particular to this point, he says out loud
and pretty loudly, he says, 'I don't want to give up any right though, if I don't got no
lawyer.'  He tells--that is the loudest thing he says throughout that interview.

* * *


 And that's what he's saying, is he doesn't want to give up any right.  He
doesn't want to give up his right to remain silent; he doesn't want to give up his right
to have a lawyer appointed for him; he doesn't want to give up his right to terminate
the interview.  You know, that's what he says.  I assume that that's what he means.

		Now, the thing is, at that time what he says, 'if I don't got no lawyer,' maybe
they might have some question at that point about whether he wanted a lawyer from
that.  I don't know how they could have that question.

		But if they were going to ask any questions, at that point, it seems to me, it
was incumbent upon them to ask, okay, so you're saying you want a lawyer right
now?  Is that what you're saying?  They want him to repeat his assertion that he
wanted a lawyer, and then they could proceed along that line.  But they don't ask that.
They totally blow by the question of the lawyer deal.

		And as far as I'm concerned, after Edwards--it does seem to me that one of
the paramount rights that's established in Miranda after Edwards is the right to a
lawyer.  I mean, I think that that's kind of a high trump card in Miranda litigation
after Edwards, is you say you want a lawyer, that's the end of the ball game.

(Emphasis added.)  The trial court then concluded:

	[E]ither Edwards means what it says or it doesn't.  Either you can invoke your right
to a lawyer or you can't.  I don't know what he can say to them that invokes his right
to a lawyer any more than this.  He says he doesn't want to waive any rights unless
he's got a lawyer, and at that time, it seems to me, under Edwards, they have got to
respect that right and they have got to say--maybe they can say to him--and I am not
even sure they can do this under Edwards, but maybe they can say to him, okay,
you're saying to us you want a lawyer, so you understand under the law we can't talk
to you now until you get a lawyer or until you come back to talk to us individually
or something like that.  Maybe they can say that to him.  I don't see how they can say
anything else to him, though.

Not surprisingly, the trial court found that a statement that "I don't want to give up any right"
necessarily means that one is giving up no rights.
		These are explicit findings of historical fact made by the trial court; they must
be given "almost complete" deference.  See Carmouche, 10 S.W.3d at 327; see also St. George,
237 S.W.3d at 725.  We review the record to determine whether the trial court's ruling is supported
by the record and correct under some theory of law applicable to the case.  See Armendariz,
123 S.W.3d at 404.  Here, the trial court made explicit findings of fact.  Moreover, the trial court was
favored with the presentation of a videotape of the interview, which was not included in the record
on appeal.  See Carmouche, 10 S.W.3d at 332 (regarding importance of videotape).  Applying a
bifurcated standard of review, we afford "almost total deference" to the trial court's findings of
historical fact.  See Guzman, 955 S.W.2d at 89.  We review de novo mixed questions of law and fact
that do not turn on an evaluation of credibility and demeanor.  Id.  In other words, we review de novo
the trial court's application of law to the facts as found by the trial court.  Id.  Because the trial court
is the sole judge of the credibility of the witnesses and the weight of their testimony, I would hold
that the trial court's findings and conclusions are supported by the record.
		Viewing the totality of the circumstances, see Dinkins, 894 S.W.2d at 351; Lucas,
791 S.W.3d at 45-46, I would hold that Gobert's statement, made immediately after he was advised
of his rights under Miranda and article 38.22, that "I don't want to give up any right, though, if I
don't got no lawyer" was a clear invocation of the right to counsel.  The majority concludes that
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."  This is precisely the type of police
conduct Edwards forbids.  See 451 U.S. at 484-85.  Under Edwards, all interrogation should have
ceased until counsel was provided.  Id.  Because the interrogation continued in violation of Edwards,
I would hold that Gobert's statements to the police are inadmissible against him on the trial of any
criminal case.  See Tex. Code Crim. Proc. Ann. art. 38.22.
 Miranda and Edwards together etch a bright line here. It is disturbing at best that in
2008 we are still debating whether a defendant is entitled to an attorney once he indicates a clear
intent to invoke that constitutional right, and the State insists on parsing the grammar and syntax of
double negatives to deprive an accused of his right to consult with an attorney, arguing that
the statement was "conditional" and just not clear to "a reasonable police officer."  That it was
sufficiently clear to the police officer is apparent from the officer's statement that "earlier you said
you don't want to give up your right to a lawyer."  The officer determined that he ought to at least
clarify Gobert's statement but, instead of clarifying Gobert's declaration, he "clear[ed] up the fact
that you want to talk to us about this.  Okay?  You understand what I'm saying?"  Attempting to
make a record to continue the interview and not to clarify Gobert's wishes regarding an attorney, the
officers, as the trial court found, bypassed any opportunity to clarify the issue of counsel.
		The indispensable right to counsel during custodial interrogation cannot function
effectively as Miranda requires if the police are free to ignore an accused's invocation of his right
to counsel.  Indeed, the Supreme Court has made it clear beyond peradventure that this right
is indispensable as well to the protection of an accused's Fifth Amendment privilege.  See Fare
v. Michael C., 442 U.S. 707, 719-20 (1979); see also Miranda, 384 U.S. at 469.  We should not be
quibbling over an accused's clear intent to invoke the most basic of rights.


						__________________________________________
						Jan P. Patterson, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Filed:   February 1, 2008
Publish
1.   The State also now claims on rehearing that, contrary to its original brief on appeal, "parts
of this comment are close to being inaudible" and the tape "might also support his comment as being
'I don't want to give up these rights, though, before I got no lawyer.'"  The State then argues:
"Regardless of the precise words used, the conditional 'tenor and sense' of this early interchange,
including its cryptic nature and possible use of a double negative, vividly depict the reasonableness
of the detectives' responses, and illustrate the limitations of drawing conclusions from the cold
written record, as have the courts and parties so far."
2.   Although the videotape was attached to the State's petition for discretionary review, it was
not in the record before us on appeal.
3.   The interview was videotaped.  The videotape was presented to the judge at the suppression
hearing.  The record reflects that the trial court reviewed the actual videotape.  A verbatim transcript
of the videotape was included in the record on appeal; the videotape itself was not included in the
record on appeal.  The State attached a copy of the transcript to its brief on appeal.
4.   Gobert urged two issues at the hearings on his motion to suppress.  In addition to the
ground on which the trial court ruled and suppressed the evidence, he also urged that the statements
were involuntary based on the deception of the police officers.  The trial court did not rule on the
second ground.
5.   Gobert's counsel complains that the opinion was substituted and the result changed without
permitting a response.
6.   Although the defendant carries the burden of unequivocally asserting his right to counsel,
see Davis v. United States, 512 U.S. 452, 461-62 (1994), the State has the burden of establishing by
a preponderance of the evidence that the defendant subsequently voluntarily waived his right to
counsel.  Moran v. Burbine, 475 U.S. 412, 421 (1986) (holding State is required to establish alleged
waiver "made with a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it").  The State challenges only the trial court's finding that
Gobert unequivocally invoked his right to counsel; it does not claim that, after invoking the right to
counsel, Gobert subsequently waived that right.
