      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00829-CR



                                 The State of Texas, Appellant

                                                 v.

                                John Edward Morris, Appellee


     FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR2004-283, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                                          OPINION


               This appeal concerns the suppression of statements made by an accused who had

requested and been appointed counsel but who had not yet consulted with his appointed counsel.

After being arrested on the charge of attempted capital murder, appellee John Edward Morris

requested the court appoint counsel to represent him. The court granted this request and appointed

an attorney. Following the appointment, but before Morris had consulted with his appointed

attorney, the police initiated an interrogation during which Morris waived his Sixth Amendment

right to counsel and gave several statements to the police. Morris, through counsel, subsequently

filed a motion to suppress these statements on the basis that they were obtained in violation of his

Sixth Amendment right to assistance of counsel. The district court granted the motion to suppress.

               On appeal, the State challenges the district court’s order granting Morris’s motion to

suppress. The single issue presented is whether Morris and his appointed attorney had established
an attorney-client relationship at the time of the police-initiated interrogation that resulted in the

statements Morris sought to suppress. “Where a relationship between the accused and his attorney

is established after the Sixth Amendment has become applicable, the Sixth Amendment precludes

dissolution of that relationship in the absence of counsel.” Holloway v. State, 780 S.W.2d 787, 795

(Tex. Crim. App. 1989). Such an attorney-client relationship is “entitled to Sixth Amendment

protection that Miranda warnings and subsequent waiver by the client alone are incapable of

overcoming.” Id. In this case, the State contends that the suppressed statements were obtained prior

to the establishment of an attorney-client relationship between Morris and his appointed lawyer. The

State argues alternatively that, even if an attorney-client relationship had been established, Morris

waived his right to counsel during the interrogation. We conclude that Morris had established

an attorney-client relationship with his appointed counsel at the time the suppressed statements

were taken and that Morris’s waiver of his Sixth Amendment right to counsel during the police-

initiated interrogation was invalid. Accordingly, we affirm the ruling of the trial court.

               The following facts are undisputed and are included in the district court’s findings

of fact. On August 27, 2004, Morris was arrested pursuant to a warrant in Comal County. The

next day, he made a written request for court-appointed counsel. The district court appointed

Mr. Atanacio “Nacho” Campos to represent Morris on August 30, 2004. Although there is

no evidence that Campos personally contacted Morris before the police interrogation at issue,

the record shows that Campos requested discovery from the State on September 2, 2004, and

that the State sent him a notice of arraignment on September 3, 2004.

               On September 1, 2004, a Comal County grand jury indicted Morris for attempted

capital murder. On September 8, 2004, eight days after counsel had been appointed to represent

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Morris and six days after Morris’s counsel had communicated with the District Attorney’s

office about the case, law enforcement officers initiated a videotaped interrogation of Morris.

The law enforcement officers did not inform Campos or the District Attorney’s Office that

this interrogation would be taking place. During the interrogation, Morris was warned regarding

his rights pursuant to Miranda and article 38.22 of the Texas Code of Criminal Procedure. He stated

that although “an attorney” would probably advise him not to talk with the police, he would

“go ahead and talk to [them].” Morris then purportedly waived his right to be assisted by

counsel both verbally and in writing and made several statements to the law enforcement officers.

               After consulting with counsel, Morris filed a motion to suppress the

September 8, 2004, statements on the basis that the interrogation violated his right to assistance

of counsel under the Sixth Amendment and the right against self-incrimination under the

Fifth Amendment. He also argued that he did not make an intelligent and knowing waiver of

those rights. After a hearing, the trial court granted the motion to suppress.

               On appeal, the State contends that the trial court erred by entering the suppression

order on the basis that Morris’s Sixth Amendment rights had not yet attached because Morris

and Campos had not established an attorney-client relationship. Alternatively, the State argues

that even if an attorney-client relationship had been established, thereby bringing the

Sixth Amendment into play, Morris could validly waive his Sixth Amendment right to

assistance of counsel during the interrogation without the involvement of his attorney.

               The standard for reviewing a trial court’s ruling on a motion to suppress is a

bifurcated standard of review, giving almost total deference to a trial court’s determination of

historical facts and reviewing de novo the court’s application of the law. Maxwell v. State,

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73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (citing Carmouche v. State, 10 S.W.3d 323, 327

(Tex. Crim. App. 2000)).

                The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall

enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI. The

Sixth Amendment right to counsel attaches at the initiation of adversarial judicial proceedings

whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

Brewer v. Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689

(1972)(plurality opinion)); Robinson v. State, 851 S.W.2d 216, 224 (Tex. Crim. App. 1991). “[T]he

Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to

rely on counsel as a ‘medium’ between him and the State.” Maine v. Moulton, 474 U.S.159, 176

(1985). After a formal charge is made, a person ceases being a “suspect” and becomes an “accused.”

The government has committed itself to prosecute and formalized its adversarial position with

respect to the defendant. Kirby, 406 U.S. at 689. The defendant then “finds himself faced with the

prosecutorial forces of organized society, and immersed in the intricacies of substantive and

procedural criminal law.” Id. The Supreme Court reiterated this point in Moran v. Burbine: “It is

clear, of course, that, absent a valid waiver, the defendant has the right to the presence of an attorney

during any interrogation occurring after the first formal charging proceeding, the point at which the

Sixth Amendment right to counsel initially attaches.” Moran v. Burbine, 475 U.S. 412, 425 (1986).

                Following this authority, Texas courts have held that adversarial judicial proceedings

have commenced when a person is arrested pursuant to a warrant obtained through a complaint filed

with a court. See Barnhill v. State, 657 S.W.2d 131, 132 (Tex. Crim. App. 1983) (formal judicial

criminal proceedings had been instituted against the accused by the filing of a felony complaint in

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justice court); see also Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994) (noting that

Barnhill is “consistent with, if not dictated by,” United States Supreme Court authority to treat

the filing of a felony complaint as a point after which adversarial judicial proceedings

have commenced); Terrell v. State, 891 S.W.2d 307, 312 (Tex. App.—El Paso 1994, pet. ref’d);

Dams v. State, 872 S.W.2d 325, 328 (Tex. App.—Beaumont 1994, no pet.). At the time of the

interrogation in this case, Morris had been arrested on a felony warrant, had been given an

article 15.17 warning hearing, and had been indicted by a grand jury. His Sixth Amendment

right to counsel had plainly attached.       The State argues, however, that even if his Sixth

Amendment rights had attached, Morris’s waiver of those rights pursuant to the Miranda

warnings he received prior to the interrogation was valid.

               “One of the primary purposes of the Sixth Amendment right to counsel is to preserve

the integrity of the attorney-client relationship once it has been established.” State v. Frye, 897

S.W.2d 324, 327 (Tex. Crim. App. 1995) (citing Patterson v. Illinois, 487 U.S. 285 (1988)). Both

the Texas Court of Criminal Appeals and the United States Supreme Court have declared that once

an accused has a lawyer, “a distinct set of constitutional safeguards aimed at preserving the sanctity

of the attorney-client relationship takes effect.” Upton v. State, 853 S.W.2d 548, 553 n.2 (Tex. Crim.

App. 1993) (quoting Patterson, 487 U.S. at 289 n.3). Specifically,“after the Sixth Amendment right

to counsel attaches and the accused is represented by counsel, the police may initiate

interrogation only through notice to defense counsel.” Holloway, 780 S.W.2d at 795. If the

police initiate an interrogation of an accused who is represented by counsel, the accused’s waiver of

his Sixth Amendment right to counsel during the interrogation, without the involvement of



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his attorney, will be invalid. See id. This is true even in the situation where the accused has

received the required Miranda warnings. See id.

               In this case, we find that Morris had established an attorney-client relationship with

his court-appointed attorney prior to the police-initiated interrogation on September 8, 2004. The

record shows that on August 28, 2004, Morris made a written request for a court-appointed attorney

to represent him on the charge of attempted capital murder. The district court appointed

Campos to represent Morris on August 30, 2004. According to the court of criminal appeals,

“[o]nce an attorney is appointed the same attorney-client relationship is established and it should

be protected.” Stearnes v. Clinton, 780 S.W.2d 216, 222 (Tex. Crim. App. 1989); Damian v.

State, 807 S.W.2d 407 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d).1 Therefore, an attorney-

client relationship was established between Morris and Campos on August 30, 2004, and

Morris could not validly waive his Sixth Amendment rights simply on the basis of Miranda

warnings without the involvement of his counsel.

               The State contends that Terrell v. State, 891 S.W.2d 307 (Tex. App.—El Paso 1994,

pet. ref’d), supports the argument that an attorney-client relationship had not been established

between Campos and Morris. In Terrell, an accused gave a confession during a police-initiated

interrogation following his arrest for capital murder. Id. at 309. During the interrogation, he was



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          It is undisputed that the State was aware of this appointment. The State suggests that
there may be some significance to its assertion that the police officers who initiated the
interrogation on September 8, 2004, were not actually aware of the district court’s appointment
of Campos as Morris’s attorney. However, the appointment was a matter of record, and the
State does not dispute that it was on notice of the appointment. Under such circumstances,
whether certain individual officers were not aware of the appointment is irrelevant. See
Michigan v. Jackson, 475 U.S. 625, 634 (1986).

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not informed that his mother had retained an attorney, who was waiting in the hallway, to represent

him. Id. He also did not invoke his right to an attorney. Id. The court found that an attorney-client

relationship had not been established because the attorney, who was hired by a third party

unbeknownst to the accused, did not meet with the accused, discuss the case with him, or give him

any legal advice. Id. at 314. Because an attorney-client relationship had not been established with

the lawyer retained by a third party, the court concluded that the confession was not obtained in

violation of the accused’s Sixth Amendment right to counsel. Id.

               Critical factual differences blunt the precedential value of Terrell in this case. Terrell

had not invoked his right to counsel. He had not had an attorney appointed to represent him nor had

he consulted with the attorney retained by a third party—his mother. By contrast, Morris invoked

his right to an attorney and a lawyer had, indeed, been appointed to represent him. The appointment

of counsel by the court established an attorney-client relationship between Morris and the

appointed lawyer, Campos, until further order of the court. See Stearnes, 780 S.W.2d at 222.

Simply because Morris had not yet consulted with his appointed counsel prior to the

interrogation in question does not negate the existence of the attorney-client relationship

established by the court’s order appointing Campos as Morris’s attorney.

               The State argues that an attorney-client relationship was not established between

Morris and Campos prior to September 8, 2004, because Morris did not know that he was

represented by counsel. The State points to Morris’s general statement during the interrogation that

“an attorney” would probably tell him not to talk to police as evidence that Morris was not aware that

he had an appointed attorney and that, therefore, an attorney-client relationship had not been

established. Such an inference from Morris’s statement is not supported by the record. The record

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shows that Morris requested the assistance of counsel and was actually represented by counsel as

of August 30, 2004. Regardless of whether Morris was aware that the court had appointed

an attorney for him or whether Morris specifically referred to his attorney during the police-

initiated interrogation, the undisputed facts in this record show that an attorney-client

relationship was established between Morris and Campos on August 30, 2004, and was still in

place on September 8, 2004. An oblique reference by Morris to what “an attorney” would

advise him does not alter the material facts.

               Alternatively, the State contends that even if an attorney-client relationship existed

between Morris and Campos, Morris waived his Sixth Amendment right to counsel during the

police-initiated interrogation. We disagree. The United States Supreme Court has held that Miranda

waivers are sufficient to show the voluntary relinquishment required for waiver of the Sixth

Amendment right to counsel in a situation where the accused had not retained, requested, or accepted

by appointment, a lawyer at the time he was questioned by authorities. See Patterson, 487 U.S. at

290. However, if an attorney-client relationship has been established between an accused and his

attorney, the accused is “entitled to Sixth Amendment protection that Miranda warnings and

subsequent waiver by the client alone are incapable of overcoming.” Holloway, 780 S.W.2d at 795.

In other words, an accused who is represented by counsel may not waive his Sixth Amendment right

to counsel during a police-initiated interrogation without the involvement of his attorney. See id.

In this case, the police were required to notify Campos of any police-initiated interrogation of Morris

occurring after August 30, 2004, the day an attorney-client relationship was established between

Campos and Morris.        Because Campos was not notified of or otherwise involved in the



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September 8, 2004, police-initiated interrogation, Morris’s waiver of his Sixth Amendment right to

counsel during the interrogation was not valid.

               An attorney-client relationship existed between Morris and his court-appointed

counsel as of August 30, 2004. Therefore, the State was prohibited from initiating an interrogation

of Morris on September 8, 2004, without notice to Morris’s counsel. See Upton, 853 S.W.2d at 553

(citing Holloway, 780 S.W.2d at 795). Additionally, Morris’s purported waiver of his Sixth

Amendment right to counsel during the September 8, 2004, interrogation was not valid in the

absence of Morris’s counsel. Id. Therefore, the trial court did not err when it granted the

suppression order with respect to the September 8, 2004, videotaped statements because these

statements were obtained in violation of Morris’s Sixth Amendment right to assistance of counsel.

               We affirm the order of the trial court granting Morris’s motion to suppress.




                                             __________________________________________

                                             G. Alan Waldrop, Justice

Before Justices B. A. Smith, Puryear and Waldrop
  Justice B. A. Smith Not Participating

Affirmed

Filed: May 1, 2007

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