             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. PD-1159-07



                         ALFREDO LEYVA PECINA, Appellant

                                                v.

                                  THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SECOND COURT OF APPEALS
                            TARRANT COUNTY

               K ELLER, P.J., filed a dissenting opinion.

       I think I read the record a little bit differently than the Court does. When Judge Maddock

approached appellant’s bedside, she pointed to the detectives and said, “They are here. They would

like to speak to you.” Appellant gave some sort of acknowledgement, nodding his head or saying

“yes.” The judge then proceeded with the magistration process. After giving the required warnings,

she asked appellant if he wanted a court-appointed attorney, and he said, “Yes.” She then asked, “Do

you still want to talk to them?”1 Again, appellant answered, “Yes.”

       Indisputably, appellant’s “yes” answer to the first question constituted an invocation of his


       1
           Emphasis mine.
                                                                            PECINA DISSENT — 2

right to counsel, but the scope of that invocation is another matter. It is possible for a suspect to

engage in a “limited” invocation of his right to counsel that permits communication with the police

without an attorney present.2 When there is ambiguity as to whether the suspect is invoking counsel

at all, the police are not required to clarify the ambiguous remarks and may assume that the

defendant has not in fact invoked his right to counsel.3 However, when the right to counsel has been

clearly invoked, and the ambiguity is to the scope of that invocation, the suspect’s request must be

interpreted broadly rather than narrowly.4 Though the Supreme Court has not explicitly held that

clarifying questions can be used to cure ambiguity as to the scope of the suspect’s invocation,5

comments by the Court in Davis strongly suggest it: “[I]t will often be good police practice for the

interviewing officers to clarify whether or not [the suspect] actually wants an attorney . . . .

Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he

wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial

second-guessing as to the meaning of the suspect’s statement regarding counsel.”6

       Before invoking his right to counsel, appellant gave an affirmative response to Judge

Maddock’s statement that the detectives would like to talk to him. That response could be

interpreted as either (1) acknowledging that he understood the police wanted an interview or (2)


       2
         Connecticut v. Barrett, 479 U.S. 523, 529 (1987)(the defendant’s “limited requests for
counsel” with respect to the taking of a written statement “were accompanied by affirmative
announcements of his willingness to speak [orally] with the authorities”).
       3
           Davis v. United States, 512 U.S. 452, 459 (1994).
       4
           Barrett, 479 U.S. at 529.
       5
           Id. at 529 n.3 (citing Smith v. Illinois, 469 U.S. 91, 96 n.3 (1984)).
       6
           Davis, 512 U.S. at 461 (emphasis added).
                                                                             PECINA DISSENT — 3

assenting to such an interview. In asking whether appellant “still” wanted to talk to the police, Judge

Maddock indicated that she held to the second interpretation, viewing appellant’s response as

assenting to an interview. If Judge Maddock’s interpretation is accepted, then ambiguity existed

with respect to the scope of appellant’s subsequent invocation of his right to counsel.7

        Accepting Judge Maddock’s interpretation may depend on the standard of review. In Davis,

the Supreme Court held that the inquiry into whether an accused actually invoked his right to counsel

(with respect to the interrogation) would be an objective one.8 It did so in order “[t]o avoid

difficulties of proof and to provide guidance to officers conducting interrogations,”9 which is similar

to the Supreme Court’s rationale for imposing a de novo review of the circumstances supporting a

warrantless search or arrest.10 But in this case, the police exercised uncommon and commendable

caution in bringing Judge Maddock to appellant’s hospital room. As a result, appellant’s invocation

of his right to counsel occurred, not in response to police interrogation, but in response to the inquiry

of a neutral and detached magistrate. Despite the general rule that Fourth Amendment search and

seizure issues are evaluated de novo, both the Supreme Court and this Court have recognized an

exception with respect to a magistrate’s determination of probable cause, which is reviewed under



        7
          See Marshall v. State, 210 S.W.3d 618, 627-28 (Tex. Crim. App. 2006)(defendant’s
“no sir” response when asked whether he wanted to waive his rights created ambiguity because
the defendant had re-initiated contact with the police).
        8
             Davis, 512 U.S. at 458-59 (citing Barrett, 479 U.S. at 529).
        9
             Id.
        10
          See Ornelas v. United States, 517 U.S. 690, 697-98 (1996)(“de novo review tends to
unify precedent and will come closer to providing law enforcement officers with a defined ‘set of
rules which, in most instances, makes it possible to reach a correct determination beforehand as
to whether an invasion of privacy is justified in the interest of law enforcement’”).
                                                                          PECINA DISSENT — 4

a deferential standard.11 Similarly, I believe deference should be accorded to a magistrate’s

interpretation of the defendant’s invocation of his right to counsel, either as a component of the

“objective” inquiry, or perhaps as an exception to the usual practice. Judge Maddock, who was also

a Spanish-speaker, was in a position to observe appellant’s tone of voice and demeanor in making

her evaluation.

       However, even if a de novo review of the circumstances were required, the circumstances

surrounding appellant’s initial affirmative response and his later request for counsel remain

ambiguous, and Judge Maddock was justified in asking a clarifying question. Once she did so, it

became clear that appellant’s invocation of his right to counsel was a limited one that did not apply

to speaking with the officers.

       Under these circumstances, appellant made an initial choice, under Patterson v. Illinois,12 to

confront the police without counsel.13 Michigan v. Jackson14 is distinguishable because the Supreme

Court’s decision in Jackson “turned on the fact that the accused had asked for the help of a lawyer

in dealing with the police.”15 The Court contends that Jackson forecloses a conclusion that a request


       11
         Ornelas, 517 U.S. at 699; Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex. Crim.
App. 2004).
       12
            487 U.S. 285 (1988).
       13
           Id. at 291 (“Preserving the integrity of an accused’s choice to communicate with police
only through counsel is the essence of Edwards and its progeny–not barring an accused from
making an initial election as to whether he will face the State's officers during questioning with
the aid of counsel, or go it alone. If an accused ‘knowingly and intelligently’ pursues the latter
course, we see no reason why the uncounseled statements he then makes must be excluded at his
trial.”)(emphasis in original).
       14
            475 U.S. 625 (1988).
       15
            Patterson, 487 U.S. at 291 (brackets and internal quotation marks omitted).
                                                                           PECINA DISSENT — 5

for appointed counsel before a magistrate could be construed as embracing only a future trial rather

police interrogation.16 But the cited passage in Jackson simply made the point that an accused’s

invocation of his right to counsel should be given a “broad, rather than narrow, interpretation.”17 An

accused “should not be expected to articulate exactly why or for what purposes he is seeking

counsel,”18 but if he articulates the boundaries of his right to counsel, then those boundaries can be

respected and enforced by the courts. Because appellant’s initial request for counsel was a limited

request that did not encompass the police interrogation, there was no need to show that he re-initiated

communication.19

       I respectfully dissent.

Filed: October 29, 2008
Publish




       16
            Court’s op. at 8 (quoting Jackson, 475 U.S. at 633).
       17
            Jackson, 475 U.S. at 633.
       18
            Id. at 633 n.7 (quoting People v. Bladel, 421 Mich. 39, 63, 365 N.W.2d 56, 67 (1984))
       19
            Patterson, 487 U.S. at 290-91.
