      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-05-00465-CR



                            Luke Masood Arabzadegan, Appellant

                                                v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
     NO. D-1-DC-02-500454, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                              DISSENTING OPINION


               There is no question that Luke Arabzadegan attempted to waive his right to counsel

when he gave his statement to the police. Arabzadegan asserts, however, that the attempted waiver

was invalid, and that his confession was obtained in violation of his Sixth Amendment right to

counsel, because the State was on notice that he was represented by counsel before he

was interrogated.

               Justice Waldrop’s majority opinion concludes that the interrogation was proper

because Arabzadegan failed to prove that he had an attorney-client relationship with the attorneys

who contacted the sheriff’s office on his behalf. Justice Puryear, in his concurring opinion, also

concludes that the interrogation was proper because Arabzadegan did not personally invoke his right

to counsel. With all due respect to my colleagues, I find neither of these opinions persuasive.

Believing that Arabzadegan’s Sixth Amendment right to counsel was violated, I dissent.
                                                   I.

               “In all criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI.

               The right to the assistance of counsel guaranteed by the Sixth and Fourteenth

Amendments safeguards the other rights deemed essential for the fair prosecution of a criminal

proceeding. Maine v. Moulton, 474 U.S. 159, 168-69 (1985). Recognizing that a layman accused

of a crime is incapable of effectively representing himself, the amendment guarantees an accused

“the right to rely on counsel as a ‘medium’ between him and the State.” Id. at 176. “The Sixth

Amendment . . . imposes on the State an affirmative obligation to respect and preserve the accused’s

choice to seek this assistance. . . . [A]t the very least, the prosecutor and police have an affirmative

obligation not to act in a manner that circumvents or dilutes the protection afforded by the right to

counsel.” Id. at 171.

               Because the right to the assistance of counsel is shaped by the need for the assistance

of counsel, the right attaches at the initiation of adversarial judicial proceedings and applies to all

critical stages of the criminal justice process. Fellers v. United States, 540 U.S. 519, 523 (2004);

Moran v. Burbine, 475 U.S. 412, 429 (1986); Green v. State, 872 S.W.2d 717, 719 (Tex. Crim. App.

1994). All members of the panel agree that Arabzadegan’s Sixth Amendment right to counsel had

attached at the time he was interrogated. See Burbine, 475 U.S. at 328; Green, 872 S.W.2d at 720;

Upton v. State, 853 S.W.2d 548, 556 (Tex. Crim. App. 1993); Barnhill v. State, 657 S.W.2d 131,

132 (Tex. Crim. App. 1983).


                                                  II.

               Relying on the opinion in Terrell v. State, 891 S.W.2d 307, 313-14

(Tex. App.—El Paso 1994, pet. ref’d), the majority asserts that the Sixth Amendment right to


                                                   2
counsel requires a contractual attorney-client relationship.         See also Plattenburg v. State,

972 S.W.2d 913, 917 (Tex. App.—Beaumont 1998, pet. ref’d); Dams v. State, 872 S.W.2d 325, 328

(Tex. App.—Beaumont 1994, no pet.).1 The majority opinion concludes that Arabzadegan’s

situation does not come within the scope of the Sixth Amendment’s protection because Arabzadegan

did not prove that he had established, expressly or by conduct, a mutually binding contract for legal

services with Joe Turner’s law firm before the interrogation began.2 This conclusion is both

inconsistent with established authority and contrary to the interests served by the Sixth Amendment.


       1
            Both Plattenburg and Dams rely on the questionable authority of Lucas v. State,
791 S.W.2d 35, 47-48 (Tex. Crim. App. 1989). See Plattenburg v. State, 972 S.W.2d 913, 917
(Tex. App.—Beaumont 1998, pet. ref’d); Dams v. State, 872 S.W.2d 325, 328 (Tex.
App.—Beaumont 1994, no pet.). In Lucas, the court of criminal appeals stated that “it would be
counterproductive to our system of justice . . . to allow counsel to invoke the [Sixth Amendment]
constitutional protection on behalf of a criminal defendant who has not yet met with counsel and has
not himself expressed a desire to invoke that protection.” 791 S.W.2d at 47. As authority for this
holding, the court of criminal appeals improperly relied on its opinions in Holloway v. State and
Dunn v. State. See Lucas, 791 S.W.2d at 47 (citing Holloway v. State, 691 S.W.2d 608 (Tex. Crim.
App. 1984), rev’d 475 U.S. 1105 (1986); Dunn v. State, 696 S.W.2d 561 (Tex. Crim. App. 1985)).
At the time Lucas was decided, both Holloway and Dunn had been overruled by the United States
Supreme Court’s opinions in Michigan v. Jackson and Moran v. Burbine. See Holloway v. Texas,
475 U.S. 1105 (1986);Goodwin v. State, 799 S.W.2d 719, 729 (Tex. Crim. App. 1990) (“the holding
in Dunn has been implicitly overruled by the Supreme Court in Moran v. Burbine.”). Moreover,
Lucas was decided before the court of criminal appeals’ opinion on remand in Holloway and has
been implicitly overruled by that case. See Holloway v. State, 780 S.W.2d 787, 791 (Tex. Crim.
App. 1989).
        2
           In addition to Terrell, the majority cites several opinions, most of them civil and none of
them arising under the Sixth Amendment, holding that the attorney-client relationship is a
contractual one and that the parties must explicitly or by their conduct manifest an intention to create
it. See Hill v. Bartlette, 181 S.W.3d 541, 547 (Tex. App.—Texarkana 2005, no pet.) (wrongful death
action; issue was alleged conflict of interest of insurer’s attorney); State v. DeAngelis, 116 S.W.3d
396, 403 (Tex. App.—El Paso 2003, no pet.) (perjury prosecution; issue was attorney-client
privilege); Stephenson v. LeBoeuf, 16 S.W.3d 829, 836 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied) (civil action against attorney for breach of fiduciary duty; issue was when contract with client
terminated); Vinson & Elkins v. Moran, 946 S.W.2d 381, 405 (Tex. App.—Houston [14th Dist.]
2000, writ dism’d by agr.) (legal malpractice; issue was jury instruction’s definition of “agreed”);
Parker v. Carnahan, 772 S.W.2d 151, 156 (Tex. App.—Texarkana 1989, writ denied) (legal
malpractice; issue was whether attorneys were entitled to summary judgment).

                                                   3
                The notion that the Sixth Amendment protects only an attorney-client relationship

formed under contract law principles is contrary to the opinion of the United States Supreme Court

in Burbine. Burbine was arrested on a burglary charge and became a suspect in an unrelated murder.

475 U.S. at 416. Unbeknownst to Burbine, his sister attempted to retain a lawyer in the public

defender’s office to represent him. Id. at 415-17.3 That attorney then contacted the police to inform

them that Burbine was represented by counsel. Id. at 417. The attorney was assured by the police

that Burbine would not be questioned that day. Id. Later that evening, Burbine was questioned by

officers from another jurisdiction about the murder. Id. At the interrogation, Burbine stated that he

did not want counsel, waived his Miranda rights, and gave an inculpatory statement. Id. at 417-18;

see Miranda v. Arizona, 384 U.S. 436, 472-74 (1966) (discussing Fifth Amendment right to counsel

during custodial interrogation). Although the attorney contacted by Burbine’s sister had been misled,

the lower court found that the State had not colluded or conspired to secrete Burbine from his

attorney. Id. at 418. On this record, the Supreme Court held that Burbine had validly waived his

Fifth Amendment rights at the interrogation. See id. at 427.4

                The Court also rejected Burbine’s Sixth Amendment challenge to the admission of

his confession because the interrogation preceded the commencement of adversarial proceedings.

Id. at 432. The Court made it clear, however, that the police could not have initiated the

interrogation and obtained a valid waiver of counsel under these circumstances had Burbine’s Sixth

Amendment rights attached. See id. at 428. The Court wrote, “[W]e readily agree that once the right



       3
            The majority opinion posits that different standards govern the establishment of an
attorney-client relationship in retained and appointed counsel cases. Although a public defender, the
attorney in Burbine had not been appointed.
       4
           I will discuss this later in this opinion.

                                                    4
has attached, it follows that the police may not interfere with the efforts of a defendant’s attorney

to act as a ‘“medium” between [the suspect] and the State’ during the interrogation.” Id.

                The origin and nature of the relationship between Burbine and the attorney in that

case is remarkably similar to the origin and nature of the relationship between Arabzadegan and the

attorneys in this cause. Burbine, like Arabzadegan, was completely unaware of the activities of his

sister and the attorney on his behalf. Burbine, like Arabzadegan, had never met the attorney. In fact,

the state supreme court had held, as the majority does here, that no attorney-client relationship

existed between Burbine and the attorney, stating among other things that the right to counsel cannot

be invoked on behalf of a suspect by a family member or other third party. State v. Burbine,

451 A.2d 22, 29-30 (R.I. 1982). Although the existence of an attorney-client relationship was

conceded before the Supreme Court, the Court took the trouble to observe that “the type of

circumstances that would give rise to the right [to counsel under the Sixth Amendment] would

certainly have a federal definition.” See Burbine, 475 U.S. at 429 n.3. In other words, the Sixth

Amendment right to counsel cannot be circumscribed by state contract law, as the Rhode Island

Supreme Court had erroneously held in Burbine and as the majority erroneously suggests here.

                Whether an accused has a relationship with an attorney that is entitled to protection

under the Sixth Amendment must be determined in light of the interests the Sixth Amendment is

designed to serve, and not merely under principles of contract law. It cannot be overstated that the

right to the assistance of counsel safeguards the other rights deemed essential for the fair prosecution

of a criminal proceeding. Moulton, 474 U.S. at 168-69. The Sixth Amendment guarantees an

accused “the right to rely on counsel as a ‘medium’ between him and the State.” Id. at 176. The

State has an affirmative responsibility to respect and preserve the right to counsel, and prosecutors


                                                   5
and police have an affirmative obligation not to act in a manner that circumvents or dilutes the

protection afforded by the right to counsel. Id. at 171. The majority’s insistence on the creation of

an attorney-client relationship under civil contract law fails to honor these bedrock Sixth

Amendment principles.5

               It is a common occurrence for a third party—usually a parent, spouse, or other family

member—to obtain an attorney for a person who finds himself incarcerated and accused of a crime.

Whether or not such an arrangement creates a formal attorney-client relationship for the purpose of

deciding a question of attorney-client privilege, legal malpractice, or conflict of interest, it is

sufficient to create a relationship between the attorney and the accused warranting recognition under

the Sixth Amendment. The majority expresses the concern that an accused cannot be bound by an

attorney-client relationship established on his behalf by a third party. But the relevant question is

not whether the family’s retention of an attorney is binding on the accused, but whether it is binding

on the police. Contract principles do not bind the police; it is the Sixth Amendment safeguards

aimed at preserving the sanctity of the attorney-client relationship that constrain the police from

interfering with the efforts of an attorney to communicate with his client. See Patterson v. Illinois,

487 U.S. 285, 290 n.3, 297 n.9 (1988); Burbine, 475 U.S. at 428.


       5
           The majority opinion cites four court of criminal appeals opinions said to recognize the
contractual nature of the creation of the attorney-client relationship. Three of these opinions are not
Sixth Amendment cases. Mixon v. State, No. PD-0018-06, 2007 Tex. Crim. App. LEXIS 654, at *6-
7 (Tex. Crim. App. May 23, 2007) (holding that attorney-client privilege applied to information
acquired by lawyer during discussions looking toward employment); Strong v. State, 773 S.W.2d
543, 552 (Tex. Crim. App. 1989) (holding that letter from defendant to co-defendant’s lawyer was
not privileged); Green v. State, 667 S.W.2d 528, 532-33 (Tex. Crim. App. 1984) (holding that
defendant’s decision not to employ counsel due to inability to afford fee did not constitute waiver
of Fifth Amendment right to counsel under Miranda). The fourth opinion is a Sixth Amendment
case that supports my argument that Arabzadegan’s right to counsel was violated. Upton v. State,
853 S.W.2d 548, 556-57 (Tex. Crim. App. 1993).

                                                  6
               In light of the strong policy that the State not circumvent or dilute the Sixth

Amendment right to rely on counsel, no one can reasonably suggest that the police should be

permitted to decide the contractual merits of a lawyer’s claim that he represents an accused in

custody before allowing the lawyer to speak to his client. Not only is this idea inconsistent with

Sixth Amendment values, police officers and sheriff’s deputies are not qualified to make such an

evaluation and should not be expected to do so. Furthermore, to require the accused to prove the

existence of a contractual attorney-client relationship, as the majority would do, impermissibly shifts

to the accused the burden the constitution places on the State to prove a valid waiver of counsel. See

Michigan v. Jackson, 475 U.S. 625, 633 (1986). The State’s duty to act in a manner that does not

circumvent or dilute the right to counsel requires that prosecutors and police respect an attorney’s

claim of representation unless they have a reasonable basis to question the claim.6

               If the State’s agents had any reason to believe that Arabzadegan was not represented

by counsel, it is not apparent from the record. At the hearing on Arabzadegan’s motion to suppress,

Detective Halvorsen testified that Joe Turner called him before Arabzadegan was arrested to tell him

that he had been retained. Halvorsen added, “I don’t know if [Arabzadegan] retained [Turner] or if

his family retained him.” Josh Saegert, the attorney associated with Turner who went to the sheriff’s

office to speak to Arabzadegan, testified that he also did not know whether Turner had spoken

directly with Arabzadegan. Neither Arabzadegan nor Turner testified at the suppression hearing.

Thus, the record shows that (1) an attorney contacted the lead investigator at the sheriff’s office to


       6
           The majority opinion expresses the fear that in the absence of strict adherence to contract
law principles, third parties might “manipulate the process without the knowledge or involvement
of either the accused or the police.” Of course, I do not contend that the police can be bound by a
relationship between a lawyer and an accused, whatever its purported basis, of which they are not
aware.

                                                  7
inform him that Arabzadegan was represented by counsel,7 and (2) within minutes of Arabzadegan’s

arrest, an associate of the first attorney arrived at the sheriff’s office demanding to meet with

Arabzadegan. It is irrelevant whether the officers who interrogated Arabzadegan were personally

aware of these communications because we impute knowledge from one state actor to another. Id.

at 634; Holloway v. State, 780 S.W.2d 787, 796 n.11 (Tex. Crim. App. 1989).8 The State did not

elicit any evidence that Arabzadegan had knowingly rejected the assistance of Turner and Saegert,

a subject I discuss below, or that the police had any other reasonable basis to doubt the attorneys’

claims of representation. See Upton, 853 S.W.2d at 557. The evidence before us establishes as a

matter of law that Turner and his associate Saegert were Arabzadegan’s attorneys for the purposes

of the Sixth Amendment.


                                                 III.

               The concurring opinion argues that Arabzadegan’s Sixth Amendment right to counsel

was not violated at the interrogation because he did not personally invoke his right to counsel. In

this view, the interrogating officers were entitled to disregard the attorneys’ claims that they

represented Arabzadegan so long as Arabzadegan did not say that he wanted a lawyer. This




       7
          The State contends that Turner did not unambiguously state in this telephone call that he
represented Arabzadegan, but the court of criminal appeals has held that a similar communication
by an attorney was sufficient to conclusively establish representation.              See Upton,
853 S.W.2d at 556-57.
       8
           The concurring opinion suggests that it is unfair or impractical to “instantaneously” impute
to the officers interviewing Arabzadegan the knowledge that Saegert was outside wanting to talk to
him. This argument, and a similar argument in the majority opinion, overlooks Halvorsen’s
testimony, which shows that the lead investigator knew that Turner had been retained days before
Arabzadegan was arrested and questioned.

                                                  8
argument is contrary to holdings by both the Supreme Court and the Texas Court of Criminal Appeals.

               The State had the burden to show that Arabzadegan validly waived the Sixth

Amendment right to counsel.        See Jackson, 475 U.S. at 633; Upton, 853 S.W.3d at 553;

Robinson v. State, 851 S.W.2d 216, 224 (Tex. Crim. App. 1991). An accused who is not represented

by counsel and who has not invoked his right to counsel may submit to interrogation, validly waiving

both his Fifth and Sixth Amendment rights, if he is first given the Miranda warnings. See Patterson,

487 U.S. at 292-93; Robinson, 851 S.W.2d at 224 (citing Patterson). This does not mean, however,

that all Sixth Amendment challenges to the conduct of post-accusation interrogation will fail

whenever the challenged practice would pass constitutional muster under Miranda. Patterson, 487

U.S. at 296 n.9.


       [B]ecause the Sixth Amendment’s protection of the attorney-client relationship—“the
       right to rely on counsel as a ‘medium’ between [the accused] and the State”—extends
       beyond Miranda’s protection of the Fifth Amendment right to counsel [citing
       Moulton, 474 U.S. at 176], there will be cases where a waiver which would be valid
       under Miranda will not suffice for Sixth Amendment purposes.


Id. After a formal accusation has been made, and a “suspect” becomes an “accused” within the

meaning of the Sixth Amendment, “the constitutional right to the assistance of counsel is of such

importance that the police may no longer employ techniques for eliciting information from an

uncounseled defendant that might have been entirely proper at an earlier stage of their investigation.”

Jackson, 475 U.S. at 632.

               Once an accused has a lawyer, a distinct set of constitutional safeguards aimed at

preserving the sanctity of the attorney-client relationship takes effect, and the police may not

interfere with the efforts of an attorney to communicate with his client. Patterson, 487 U.S. at


                                                  9
290 n.3. In Patterson, the Supreme Court explained that the protections of the Sixth Amendment

are not coextensive with those provided by the Fifth Amendment. The Court wrote, “[W]e have

permitted a Miranda waiver to stand where a suspect was not told that his lawyer was trying to reach

him during questioning; in the Sixth Amendment context, this waiver would not be valid.” 487 U.S.

at 297 n.9. The Court was referring to its opinion in Burbine. Id.

               The Supreme Court held that Burbine had validly waived his Fifth Amendment rights

in accordance with Miranda even though, without his knowledge, his sister had obtained an attorney

for him and the attorney had contacted the police to inform them that Burbine was represented by

counsel. Burbine, 475 U.S. at 427. The Court explained that the procedure required by Miranda

represented a careful balance between the State’s legitimate interest in eliciting admissions and an

individuals’s right against self-incrimination. Id. The Court held that a rule requiring police to

inform the suspect of an attorney’s efforts to contact him “would upset this carefully drawn approach

in a manner that is both unnecessary for the protection of the Fifth Amendment privilege and

injurious to legitimate law enforcement.” Id. The Court made it clear, however, that once the Sixth

Amendment attaches, this balance shifts and the police may not interrogate an accused without

revealing the attorney’s presence: “[W]e readily agree that once the right has attached, it follows

that the police may not interfere with the efforts of a defendant’s attorney to act as a ‘“medium”

between [the accused] and the State’ during the interrogation.” Id. at 428.

               Drawing on the Supreme Court opinions discussed above, the court of criminal

appeals has held that when the police know that an accused is represented by counsel, the Sixth

Amendment precludes dissolution of that relationship in the absence of counsel. Holloway,

780 S.W.2d at 795. In such a case, the police may initiate interrogation only through notice to


                                                 10
defense counsel, and an accused’s unilateral waiver of his Sixth Amendment right to counsel is

invalid. Upton, 853 S.W.2d at 553. In Upton, the court further held that the application of this rule

does not depend on an accused’s invocation of his right to counsel, because the rule is designed to

preserve the integrity of the attorney-client relationship once it has been established. Id.

               By asserting that Arabzadegan forfeited his Sixth Amendment right to counsel by

failing to personally invoke it, the concurring opinion effectively equates the Sixth Amendment right

with the Fifth Amendment right. But the Fifth Amendment right to counsel recognized in Miranda

is designed to serve the narrow purpose of assuring that any confession resulting from custodial

interrogation is voluntary. See Burbine, 475 U.S. at 420. The Sixth Amendment right to counsel,

on the other hand, protects the attorney-client relationship. See Patterson, 487 U.S. at 290 n.3

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

sanctity of the attorney-client relationship takes effect.”); Burbine, 475 U.S. at 428 (“[O]nce the

[Sixth Amendment] right has attached, it follows that the police may not interfere with the efforts

of a defendant’s attorney to act as a ‘“medium” between [the suspect] and the State.’”); Holloway,

780 S.W.2d at 795 (“[W]e hold that where a relationship between the accused and his attorney has

become applicable, the Sixth Amendment precludes dissolution of that relationship in the absence

of counsel.”); Upton, 853 S.W.2d at 553 (“Application of the Holloway rule does not depend on an

accused’s invocation of his Fifth or Sixth Amendment rights to counsel, because this rule is designed

to preserve the integrity of the attorney-client relationship once it has been established.”).

Arabzadegan does not contend that his confession was involuntary or that his Fifth Amendment

rights were otherwise violated. Instead, Arabzadegan argues that the officers who interrogated him

did not respect his right to rely on counsel as a medium between him and the State. The concurring


                                                 11
opinion errs by holding that in the context of a custodial interrogation of a person formally accused

of a crime, the Sixth Amendment places no obligations on the police beyond those imposed by

Miranda under the Fifth Amendment.

               Arabzadegan’s failure to expressly request counsel during the interrogation does not

excuse the officers’ failure to notify him that retained counsel was present to assist him. Under the

circumstances shown here, Arabzadegan’s silence did not effectively waive or otherwise forfeit his

Sixth Amendment right to counsel.


                                                 IV.

               The majority insists that an accused is absolutely entitled to reject the assistance of

an attorney recruited by third parties. I insist that an accused must be given a reasonable opportunity

to make that decision. Arabzadegan did not knowingly reject the assistance of the attorneys

employed by his parents because the police kept their existence a secret from him. The majority

stresses the importance of mutuality in the attorney-client relationship, but it condones police

conduct designed to prevent Arabzadegan from knowingly and voluntarily choosing whether to

accept the assistance of Turner and Saegert or go it alone.

               I do not contend that an accused cannot waive his Sixth Amendment right to counsel

if a lawyer has been retained for him, but it would be foolish to suggest that knowledge that a

retained attorney is standing outside the door of the interrogation room would not influence the

accused’s decision. The police understand this; it is why they want to proceed with an interrogation

without imparting this knowledge to the accused. But a waiver of counsel made in the absence of

this crucial information cannot be truly voluntary. Once the police know that an attorney has been



                                                  12
retained for the accused and is present, the Sixth Amendment requires them to reveal this

information to the accused before proceeding with an interrogation.


                                                V.

               The record shows that the police were on notice that an attorney was working on

Arabzadegan’s case before Arabzadegan was arrested. In fact, an attorney was present at the

sheriff’s office when Arabzadegan waived his Miranda rights, but this attorney was unable to gain

access to his client. There is no evidence that would justify the officers’ ignoring the attorneys’

claims of representation. See Burbine, 475 U.S. at 428. Because Arabzadegan was represented by

counsel, the police could not initiate interrogation without notice to counsel, and Arabzadegan’s

unilateral waiver of his right to counsel was invalid. See Upton, 853 S.W.2d at 553. At the very

least, the officers violated their affirmative obligation not to act in a manner that circumvents or

dilutes the right to counsel by ignoring Turner’s and Saegert’s claims to represent Arabzadegan and

by obtaining Arabzadegan’s waiver of the right to counsel without informing him that an attorney

claiming to represent him was present and seeking to talk to him. See Patterson, 487 U.S. at

297 n.9. On this record, I would hold that Arabzadegan’s confession was obtained in violation of

his Sixth Amendment right to counsel and that the district court erred by overruling his motion to

suppress. See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).

               The rules of appellate procedure require us to reverse a conviction for constitutional

error unless we determine beyond a reasonable doubt that the error did not contribute to the

conviction. See Tex. R. App. P. 44.2 (incorporating holding in Chapman v. California, 386 U.S. 18,




                                                13
24 (1967)). We must be especially cautious when applying the Chapman standard in cases where

a defendant’s own confession was erroneously admitted:


                A confession is like no other evidence. Indeed “the defendant’s own
        confession is probably the most probative and damning evidence that can be admitted
        against him . . . [T]he admissions of a defendant come from the actor himself, the
        most knowledgeable and unimpeachable source of information about his past
        conduct. Certainly, confessions have a profound impact on the jury, so much so that
        we may justifiably doubt its ability to put them out of mind even if told to do so.”


Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting Bruton v. United States, 391 U.S. 123,

139-40 (1968) (White, J. dissenting)). I cannot conclude beyond a reasonable doubt that the district

court’s erroneous decision to admit Arabzadegan’s confession did not contribute to his decision to

plead guilty.

                   I would reverse the judgment of conviction and remand the cause to the district court

for a new trial.




                                                 Bea Ann Smith, Justice

Before Justices Puryear, Waldrop and B. A. Smith*

Filed: July 18, 2007

Publish




*Before Bea Ann Smith, Justice (retired), Third Court of Appeals, sitting by assignment. See
Tex. Gov’t Code Ann. § 74.003(b) (West 2005).



                                                    14
