            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0202-08

                                THE STATE OF TEXAS

                                             v.

                       MILTON DWAYNE GOBERT, Appellee

           ON APPELLEE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE THIRD COURT OF APPEALS
                            TRAVIS COUNTY

      P RICE, J., delivered the opinion of the Court in which M EYERS, W OMACK,
J OHNSON, K EASLER, H ERVEY, H OLCOMB and COCHRAN, JJ., joined. K ELLER, P.J.,
concurred in the result.

                                       OPINION

       During a custodial interrogation, right after his Miranda rights were read to him,1 the

appellee made a statement that referenced his right to a “lawyer.” The police detectives

continued the interrogation without providing counsel. We granted the appellee’s petition

for discretionary review in order to determine whether the continued interrogation, resulting


       1

       Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                                   Gobert — 2

in a confession, violated the appellee’s Fifth Amendment right to the presence of counsel

during custodial interrogation. We hold that it did.

                        FACTS AND PROCEDURAL POSTURE

       The Austin Court of Appeals recited the facts as follows:

                The relevant facts are not in dispute. Gobert, who was suspected of
       committing the murder for which he now stands indicted, was arrested for a
       parole violation and for the assault of a woman named Christine or Christina.
       Following his arrest, Gobert was questioned by Austin detectives Burgh and
       Scanlon. Burgh began the interview by advising Gobert of his constitutional
       and statutory rights. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct.
       1602, 16 L.Ed.2nd, 694 (1966); Tex Code Crim. Proc. Ann. Art. 38.22, §§ 2,
       3 (West 2005). Asked if he understood his rights, Gobert replied that he did
       and then said, “I don’t want to give up any right, though, if I don’t got no
       lawyer.” Scanlon immediately asked, “You don’t want to talk?” The question
       was repeated by Burgh, “You don’t want to talk to us?” Gobert answered, “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.” Scanlon then said, “Okay, signing this – signing this is not
       giving up your right. Signing this is acknowledging that this was read to you.”
       He then added, “Okay? Your choice to talk to us is different. This – all this
       is, is acknowledging that you were warned.”

              Burgh then began to question Gobert regarding his relationship with
       Christina. After a number of questions were asked and answered, Scanlon
       interrupted to ask, “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?” Gobert answered, “Yeah.” Scanlon continued,
       “I want to clear it up. I mean, that’s – that’s what you want to do, right?”
       Gobert again answered, “Yeah.” The interrogation continued for several hours
       and ultimately resulted in appellant confessing to the murder of Mei Kernena
       Cotton.2


       2

       Gobert v. State, 228 S.W.2d 221, 223 (Tex. App.—Austin 2007) (Gobert I); Gobert v. State,
244 S.W.3d 861, 863 (Tex. App.—Austin 2008) (Gobert II).
                                                                                   Gobert — 3

       The trial court ruled that the appellee’s statement constituted an unequivocal

invocation of his Fifth Amendment right to counsel during any ensuing interrogation, and

therefore suppressed the appellee’s confession. Upon the State’s interlocutory appeal, the

court of appeals at first affirmed the trial court’s judgment after conducting a de novo

review.3 The State filed a motion for rehearing, which the court of appeals denied. The State

then filed a petition for discretionary review. Pursuant to Rule 50 of the Texas Rules of

Appellate Procedure, the court of appeals withdrew its original opinion and substituted a

modified one.4 This time the court of appeals held that the appellee’s statement was not

unequivocal, and that the detectives therefore did not violate his Fifth Amendment right to

counsel by continuing to question him.5 We granted the appellee’s subsequent petition for

discretionary review in order to examine this revised holding.6

                                     FACTUAL DISPUTE?

       During the pre-trial suppression hearings, the State introduced three DVDs containing

an audio/visual recording of the appellee’s interrogation, plus a transcription it had prepared.

The purported invocation of counsel was transcribed exactly as the court of appeals reported



       3

        Gobert I, supra.
       4

        TEX . R. APP . P. 50.
       5

        Gobert II, supra.
       6

        TEX . R. APP . P. 66.3(c).
                                                                                   Gobert — 4

it, viz: “I don’t want to give up any right, though, if I don’t got no lawyer.” The trial court

watched the DVD recordings and reviewed the transcript. In ruling that the confession was

inadmissible, the trial court observed: “I just don’t find anything that is unequivocal 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.” Later, the trial court observed:

       You know, there is a lot of things that [the appellee] 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 particularly 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
       the interview.

In its brief on direct appeal, it is this statement, taken from its own transcript of the

interrogation, that the State argues was equivocal. The court of appeals originally found this

fact to be undisputed—as, indeed, at that point, it was.

       In its motion for rehearing following the court of appeals’s initial opinion, however,

the State took issue with the content of the appellee’s statement for the first time. “Listening

closely to the videotape,” the State asserted, “reveals that parts of this comment are close to

being inaudible.” 7 When the court of appeals denied the motion for rehearing, the State

argued in its petition for discretionary review that the best transcription that can be made of

the actual words spoken by the appellee at this critical juncture in the recording is: “I don’t




       7

        State’s Motion for Rehearing, at 5.
                                                                                              Gobert — 5

want to give up those rights, though, ___ ___ ___ ___ got no lawyer.” 8 The State also

pointed to the fact that the defense had commented during the suppression proceedings that

“some corrections” to the transcript might be warranted, and, for the first time, the State

agreed.9 The State argued that the court of appeals had erred to rely solely on the written

transcript in identifying the relevant facts, especially in view of the fact that the DVD

recordings were also in evidence which, in the State’s estimation, demonstrate “that the

[appellee’s] statement was mumbled, unintelligible, and ambiguous.” 10 In issuing its Rule

50 opinion, however, the court of appeals persisted in describing the facts as “undisputed.” 11

        The State also argued its new interpretation of the facts during oral argument before

this Court. We decline, however, to adopt it. First, up until the time the State filed its motion

for rehearing in the court of appeals, both parties assumed that the appellant’s statement had

been as the court of appeals has described it. The State challenged the accuracy of its own


        8

         State’s Petition for Discretionary Review, at 2.
        9

         Id. The defense suggested no specific corrections, however, and neither did the State
endorse the need to correct its own transcription during proceedings in the trial court, much less did
it ever suggest that its own particular transcription of the statement at issue was, in any respect,
inaccurate. For the first time in its PDR, the State argued: “It is difficult to discern parts of this
‘invocation,’ but it is clear that the transcript does not paint the complete picture. According to the
State’s [new] understanding of the video, [the appellee] said ‘these rights,’ rather than ‘any right.’
Second, the State does not understand [the appellee] as saying the phrase ‘if I don’t got.’ He might
have said ‘before I got,’ or possibly something else, but most likely not ‘if I don’t got . . .’” Id. at 2-3.
        10

         Id. at 3.
        11

         Gobert II, supra, at 863.
                                                                                         Gobert — 6

transcript only after it lost the argument based on that version of the appellant’s statement on

original submission. The court of appeals is not required to entertain a new argument from

an appellant (here, the State) for the first time on rehearing, and when it refuses to exercise

its discretion to do so, it renders no decision on that new argument that is available for

discretionary review.12 Second, the trial judge viewed the DVD with the State’s transcript

in hand, and he found that the appellee did in fact actually declare, “I don’t want to give up

any right though, if I don’t got no lawyer.” The record supports that conclusion, even as it

might also support a different conclusion. Therefore, we will not second-guess the trial

court’s determination of the facts,13 especially at this stage of the proceedings.


       12

         Rochelle v. State, 791 S.W.2d 121, 124-25 (Tex. Crim. App. 1990). Because the State did
not prevail in the trial court, it cannot take advantage of our recently announced rule that “[a]n
appellee’s failure to make a particular argument [on appeal] is a factor that may be considered when
this Court decides whether to exercise its discretion to grant [discretionary] review, but it does not
bar this Court from granting review to address the issue if the Court, in its discretion, decides that
review is warranted.” Volosen v. State, 227 S.W.3d 77, 80 (Tex. Crim. App. 2007). See also Rhodes
v. State, 240 S.W.3d 882, 887, n.9 (Tex. Crim. App. 2007) (“the party who loses at the trial level
who then complains about a decision of the court of appeals must address both the holding and
reasoning of the court of appeals, but the party who wins at the trial level who complains about a
decision of the court of appeals need only address the holding of the court of appeals.”). The
reasoning of the court of appeals in this case was based upon an understanding of the applicable facts
that was, indeed, undisputed. The State, as appellant, should not be heard now to challenge that
reasoning based upon a new, unilateral understanding of the applicable facts that was not timely
presented to, and never considered by (nor required to be considered by), the court of appeals.
       13

         The State cites Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000), for the
proposition that appellate deference was inappropriate because audio/video evidence indisputably
belied testimony that was the only evidence in the record that supported a particular finding of
historical fact made by the trial court. But the DVD in this case does not indisputably refute the trial
court’s finding that what the appellant said was, indeed, what the State’s own transcript showed it
to be. Under these circumstances, it is appropriate that we defer to the trial court’s primary fact-
finding function. Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006).
                                                                                      Gobert — 7

                                           THE LAW

       Unlike the Sixth Amendment right to counsel, which is offense-specific, the Fifth

Amendment right to have an attorney present during police interrogation applies to any

offense about which the police might wish to question a suspect.14 Among the rights about

which the police must advise a suspect whom they have arrested is the right to have counsel

present during any police-initiated interrogation.15 Once the suspect has invoked his Fifth

Amendment right to counsel, police interrogation must cease until counsel has been provided

or the suspect himself reinitiates a dialogue.16

       Not every mention of a lawyer will suffice, of course, to invoke the Fifth Amendment

right to the presence of counsel during questioning.17 An ambiguous or equivocal statement

with respect to counsel does not even require officers to seek clarification, much less halt

their interrogation.18 Whether the mention of a lawyer constitutes a clear invocation of the

right to counsel will depend upon the statement itself and the totality of the surrounding




       14

        McNeil v. Wisconsin, 501 U.S. 171 (1991).
       15

        Miranda v. Arizona, supra, at 479.
       16

        Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
       17

       E.g., Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995) (“the mere mention of
the word ‘attorney’ or ‘lawyer’ without more, does not automatically invoke the right to counsel.”).
       18

        Davis v. United States, 512 U.S. 452, 461-62 (1994).
                                                                                   Gobert — 8

circumstances.19 The test is an objective one, viz: 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.” 20 We look to the totality of

circumstances to determine whether any statement referencing counsel was really a clear

invocation of the Fifth Amendment right; we do not look to the totality of the circumstances,

however, to determine in retrospect whether the suspect really meant it when he

unequivocally invoked his right to counsel.21 Finally, when a suspect makes a clear, but

limited, invocation of the right to counsel, the police must honor the limits that are thereby

placed upon the interrogation, but they may question their suspect outside the presence of

counsel to the extent that his clearly expressed limitations permit.22

                      APPLICATION OF THE LAW TO THE FACTS

       The court of appeals believed that “it is clear that [the appellee’s] statement is not an

unequivocal request for counsel.” 23 We agree that the appellee did not make a direct and



       19

        Id. at 459.
       20

        Id. at 458-59.
       21

        See Smith v. Illinois, 469 U.S. 91, 100 (1984) (“under the clear logical force of settled
precedent, an accused’s postrequest responses to further interrogation may not be used to cast
retrospective doubt on the clarity of the initial request itself.”).
       22

        Connecticut v. Barrett, 479 U.S. 523, 529 (1987).
       23

        Gobert II, supra, at 864.
                                                                                        Gobert — 9

straightforward request for a lawyer. But that does not necessarily mean that he did not

adequately communicate his desire to deal with his police interrogators only through, or at

least in the presence of, counsel. Here, we think the appellee made that desire abundantly

clear.

         Immediately following the administration of his Miranda rights, upon being asked

whether he understood them, the appellee unequivocally stated that he did not want to “give

up any right” in the absence of a lawyer.24 Under the circumstances, we may safely assume

he meant “any” of the rights that had just been read to him, and that the lawyer he referred

to was the counsel to which the officers had just informed him he was legally entitled.

Among the rights the appellee had just been informed of, and which he did not wish to “give

up” in the absence of counsel, was the right to silence. We therefore construe the appellee’s

phrase to be an indirect expression of a possible willingness to waive, inter alia, his right to

silence, but only on the unqualified condition that he first be afforded his right to have

counsel present.

         Just because a statement is conditional does not mean it is equivocal, ambiguous, or

otherwise unclear. The only aspect of the appellee’s statement that was tentative was



         24

        Common experience counsels that, in the context of this particular dialogue with the police,
the appellee’s use of the double negative should be disregarded. We reasonably construe the
appellee’s phrase, “if I don’t got no lawyer,” to be functionally equivalent to the phrase in standard
English, “if I don’t have a lawyer,” or “unless I have a lawyer.” In context, it is clear enough (and
would have been clear to the interrogating officers) that the appellee meant that he did not desire to
“give up any right” in the absence of the lawyer the police had just informed him he was entitled to.
                                                                                        Gobert — 10

whether he would in fact be willing to “give up” any of his Miranda rights. What was

absolutely crystal clear about his statement was that he did not desire to do so (or to be

pressured by the police to do so) in the absence of counsel. It was more than sufficient to

alert the interrogating officers that if they desired to speak with the appellee further, in an

attempt to persuade him to waive any of the other rights that Miranda confers upon him, then

they must first afford him the right to have counsel present during that attempt.25 Before they

could take advantage of the appellee’s apparent amenability to talk, and thereby forego his

constitutional right to stand mute, the interrogating officers were obliged to abide by his

clearly stated condition.

       This case is inversely analogous to Connecticut v. Barrett.26 There the suspect clearly

indicated to the police that he was willing to talk to them, but just as unequivocally refused

to give them a written statement without counsel being present.27 The Connecticut Supreme

Court construed his refusal broadly as an invocation of the right to counsel for all purposes,




       25

        It is telling that Officer Scanlon did in fact recognize that the appellee had requested to deal
with the police only through counsel (“I want to clear something up, though, because earlier you said
you don’t want to give up your right to a lawyer”), but that rather than attempt to verify any
invocation of that right, he proceeded directly to persuade the appellee to give up his right to silence
(“I want you – I want you – I want to clear up the fact that you want to talk to us about this”).
       26

        479 U.S. 523.
       27

        Id. at 525-26.
                                                                                Gobert — 11

including oral interrogation.28 The United States Supreme Court reversed, holding that the

suspect had clearly communicated only a limited desire for counsel, and that the interrogating

officers had honored that limitation.29 The Court remarked: “To conclude that respondent

invoked his right to counsel for all purposes requires not a broad interpretation of an

ambiguous statement, but a disregard of the ordinary meaning of respondent’s statement.” 30

Similarly, to construe the appellee’s statement here as equivocal with respect to the

invocation of his right to counsel is to ignore the manifest clarity of his condition, as

expressed by the ordinary meaning of his words. For while the appellee initially expressed

what the police might reasonably have taken to be a tentative willingness to waive his right

to silence and talk to them (“I don’t want to give up any right, though, if . . .”), any such

willingness was forthrightly predicated upon the firm and unqualified condition (“. . . I don’t

got no lawyer”) that they first provide him the assistance of the attorney to which they had

just told him the Fifth Amendment entitled him.          In failing to honor the appellee’s

unambiguous and unqualified condition, and instead continuing to interrogate him in an

effort to persuade him to talk to them, the officers violated his right to counsel.

       The court of appeals went on to observe that “immediately after making the statement



       28

       Id. at 526-27.
       29

       Id. at 529-30.
       30

       Id.
                                                                                   Gobert — 12

in question, [the appellee] 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.” 31 Such

post-request statements, however, “may not be used to cast retrospective doubt on the clarity

of the initial request itself.” 32 Because we have concluded that the appellee’s condition that

counsel be present before he would talk to the police was unequivocal, we discount the court

of appeals’s observation as immaterial to the analysis. Once a suspect has clearly invoked

his right to counsel, no subsequent exchange with the police (unless the suspect has initiated

it himself) can serve to undermine the clarity of the invocation.

                                            CONCLUSION

       We reverse the judgment of the court of appeals and reinstate the order of the trial

court granting the appellee’s motion to suppress. The cause is remanded to the trial court for

further proceedings consistent with this opinion.




Delivered:     January 28, 2009
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       31

        Gobert II, supra, at 865.
       32

        Smith v. Illinois, supra, at 100.
