                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-12-00819-CR

                                       Rafael Reyes SMITH,
                                             Appellant

                                                v.
                                            The State of
                                       The STATE of Texas,
                                             Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011CR7442
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: January 15, 2014

AFFIRMED

           Appellant, Rafael Reyes Smith, pled no contest to murder. On appeal, appellant contends

the trial court erred when it denied his motion to suppress his statements to police in violation of

the United States Constitution, Texas Constitution, and Article 15.17 of the Texas Code of

Criminal Procedure. Because appellant did not unambiguously and unequivocally invoke his right

to counsel, we affirm the trial court’s denial of his motion to suppress.
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                                   STANDARD OF REVIEW

       An appellate court must view the evidence in the light most favorable to the trial court’s

ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We review a trial

court’s denial of a motion to suppress under a bifurcated standard of review. Martinez v. State,

348 S.W.3d 919, 922 (Tex. Crim. App. 2011) (citing Guzman v. State, 955 S.W.2d 85, 87 (Tex.

Crim. App. 1997)). We review the trial court’s factual findings for an abuse of discretion and the

application of those facts to the law de novo. Id. The trial court’s ruling will be upheld unless it

was so arbitrary as to be outside the zone of reasonable disagreement. Id.

                                           ANALYSIS

       Appellant argues the trial court erred by denying his motion to suppress because his

statements to police occurred after invoking his right to counsel. Liberally construing appellant’s

brief, he appears to be asserting two arguments: (1) he invoked his right to counsel during his

Article 15.17 hearing which also invoked his right to counsel for his subsequent interrogation, and

(2) he unambiguously invoked his right to counsel during his interrogation.

1. Request During Article 15.17 Hearing

       Appellant requested and was appointed an attorney at his Article 15.17 hearing. However,

the Court of Criminal Appeals recently determined that a request for court-appointed counsel

during an Article 15.17 hearing does not invoke the right to counsel for a subsequent police

interrogation in Pecina v. State. There, the Court discussed the difference between the Fifth and

Sixth Amendment rights to counsel after the United States Supreme Court’s decision in Montejo

v. Louisiana. Pecina v. State, 361 S.W.3d 68, 73 (Tex. Crim. App. 2012). While in the hospital,

Pecina was arrested for killing his wife. Id. at 71. After police obtained an arrest warrant, a

magistrate was taken to his hospital room where Pecina was arraigned pursuant to Article 15.17.

Id. at 72. During the Article 15.17 hearing, Pecina requested a court-appointed attorney. Id. The
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magistrate then asked if Pecina wished to speak with police officers waiting outside, and Pecina

responded that he did. Id. Prior to speaking with the detectives, the officers advised Pecina of his

Miranda rights, and Pecina waived them. Id.

       Pecina later sought to have the trial court suppress the statements he gave to the officers.

The Court determined Pecina waived his Fifth and Sixth Amendment rights to counsel—after

asking for a court-appointed attorney at an Article 15.17 hearing—because he “never invoked his

right to interrogation counsel after police gave him Miranda warnings.” Id. at 71. The Pecina

court analyzed Montejo and summarized its application by stating:

       Distilled to its essence, Montejo means that a defendant’s invocation of his right to
       counsel at his Article 15.17 hearing says nothing about his possible invocation of
       his right to counsel during later police-initiated custodial interrogation. The
       [Article 15.17] magistration hearing is not an interrogation event. An uncharged
       suspect may invoke his Fifth Amendment right to counsel (and a defendant who
       has been arraigned may invoke his Sixth Amendment right to counsel) for purposes
       of custodial interrogation when the police or other law-enforcement agents
       approach him and give him his Miranda warnings. That is the time and place to
       either invoke or waive the right to counsel for purposes of police questioning.

Id. at 78. In accordance with Montejo and Pecina, we conclude appellant’s invocation of his right

to counsel at his Article 15.17 hearing did not invoke his right to counsel for his subsequent

interrogation.

2. Request During Interrogation

       Appellant also argues he unambiguously invoked his right to counsel during his

interrogation. Appellant does not challenge the voluntariness of his statements. He argues only

that his statements were obtained after he invoked his right to counsel.

       Once a suspect invokes his right to counsel, all interrogation must stop until an attorney is

provided, or until the suspect reinitiates conversation. Edwards v. Arizona, 451 U.S 477, 484–85

(1981); Miranda v. Arizona, 384 U.S. 436, 474 (1966). However, a suspect must unambiguously

and unequivocally invoke his right to counsel “sufficiently clearly that a reasonable officer in the
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circumstances would understand the statement to be a request for an attorney.” Davis v. United

States, 512 U.S. 452, 459 (1994) (requiring no cessation of questioning if suspect “might be

invoking the right to counsel”); Dinkins v. State, 894 S.W.2d 330, 351–52 (Tex. Crim. App. 1995).

In deciding whether an accused “actually invoked his right to counsel,” we use an objective

standard “[t]o avoid difficulties of proof and to provide guidance to officers conducting

interrogations . . . .” Davis, 512 U.S. at 458–59; Pecina, 361 S.W.3d at 79. We review the totality

of the circumstances from the viewpoint of an objectively reasonable police officer conducting the

interrogation. Pecina, 361 S.W.3d at 79. “[T]he mere mention of the word ‘attorney’ or ‘lawyer’

without more, does not automatically invoke the right to counsel.” Dinkins, 894 S.W.2d at 351.

       During the motion to suppress hearing, the State introduced a video recording of

appellant’s interrogation. The video recording shows appellant was read his Miranda rights prior

to police initiating questioning. The interrogating officers asked appellant if he understood his

rights, and appellant responded, “No, because you don’t have my lawyer here.” The officers

acknowledged appellant’s statement, then further inquired whether appellant understood what was

just read to him. Appellant responded that he understood what was read to him, but asked, “Why

is my lawyer not here?” The officers advised appellant that if he wanted to have his lawyer present,

that was his choice.

       Over the next several minutes, appellant asks the officers why it took such a long time to

interrogate him and can be heard expressing concerns over his personal safety due to fear of

retaliation from the victim’s family or friends because they “don’t even know the real story.” The

officers then asked appellant to tell his side of the story. Appellant responded that he was scared

to speak with the officers because his lawyer told him that he should be present if appellant spoke

to the police. The officers told appellant they were trying to uncover the facts, and in their

experience, appellant’s lawyer would tell him not to answer any questions. The officers then stated
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they wanted to make it clear that if appellant wanted his attorney present, the officers could not

speak with him.

       Appellant did not affirmatively respond to the officers. Instead, he began reciting his

version of events. At this point, the officers interrupted appellant and the following exchange

occurred:

       Q (officer): We need to be sure that we have an understanding. You’re willing to talk to
       us without your attorney here? (Pause) That needs to be perfectly clear bro.

       A (appellant): I’m willing to tell you, on my behalf . . .

       Q: Your side of the story. I got you.

       A: About me not killing anybody.

       Q: Okay look. Yes or no? Are you willing to talk to us without your attorney here? Plain
       and simple man.

       A: I will, without him here, I will tell you that I didn’t kill anybody.

       Q: What happened? Start from the beginning. How did everything happen that day?

Appellant then explained the shooting occurred due to a “drug deal gone bad.” After speaking

with the officers for approximately thirty minutes, appellant terminated the interview.

       Here, appellant did not unequivocally request to have his attorney present. See, e.g., Davis,

512 U.S. at 462 (“Maybe I should talk to a lawyer.”); Davis v. State, 313 S.W.3d 317, 341 (Tex.

Crim. App. 2010) (“I should have an attorney.”); Mbugua v. State, 312 S.W.3d 657, 665 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d) (“Can I wait until my lawyer gets here?”); Saldana v.

State, 59 S.W.3d 703, 710–11 (Tex. App.—Austin 2001, no pet.) (“If I wanted a lawyer, where

would a lawyer come from . . . I ain’t got no money for a damn lawyer. I mean I got a lawyer,

but—it’s too expensive.”); Flores v. State, 30 S.W.3d 29, 33–34 (Tex. App.—San Antonio 2000,

pet. ref’d) (“Should I be answering these questions without my lawyer?”); Cooper v. State, 961

S.W.2d 222, 226 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (“Where is my layer? Where
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is he?”). The officers also asked appellant several clarifying questions in an attempt to ascertain

whether appellant desired his attorney be present. See Davis, 512 U.S. at 461–62 (“If the suspect’s

statement is not an unambiguous or unequivocal request for counsel, the officers have no

obligation to stop questioning him.”). Considering the totality of the circumstances from the

viewpoint of an objectively reasonable officer, we conclude appellant did not sufficiently articulate

his desire to have counsel present so that a reasonable police officer would understand the

statement to be a request for an attorney.

                                         CONCLUSION

       We conclude the trial court did not err in denying appellant’s motion to suppress, and we

affirm the trial court’s order denying appellant’s motion to suppress.



                                                  Sandee Bryan Marion, Justice


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