DISSENT and Opinion Filed October 3, 2019




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00870-CR
                                       No. 05-18-00871-CR
                                       No. 05-18-00872-CR
                             THE STATE OF TEXAS, Appellant
                                         V.
                            KEVIN CASTANEDANIETO, Appellee

                       On Appeal from the Criminal District Court No. 6
                                     Dallas County, Texas
              Trial Court Cause Nos. F17-57212-X, F17-57213-X & F17-18-00407-X

                                DISSENTING OPINION
                                    Opinion by Justice Bridges
       I withdraw my October 2, 2019 dissenting opinion. This is now my dissenting opinion.

       This State’s appeal involves whether the trial court properly granted appellee’s motion to

suppress a second videotaped oral statement to police. Appellee presented two arguments to the

trial court supporting suppression: (1) appellee’s first confession to police was involuntary because

he did not understand his Miranda rights; therefore, his second confession was tainted; and (2)

officers violated his Sixth Amendment right to counsel by conducting the second interview.

Because the record establishes sufficient attenuating circumstances between the confessions to

remove any alleged taint, the trial court abused its discretion by suppressing appellee’s second

confession.     Accordingly, I would reverse the trial court’s order and remand for further

proceedings. I respectfully dissent from the majority opinion.
                                                       Background

           Appellee was arrested on August 10, 2017 for four aggravated robberies arising from two

criminal episodes involving different victims. He was indicted on three charges in which he

allegedly exhibited a handgun while in the course of committing theft.

           At approximately 3:00 a.m. on August 10, 2017, Detective Thayer1 advised appellee of his

Miranda rights and conducted a custodial interview. Detective Thayer then interviewed appellee

for approximately twenty-two minutes. Appellee admitted consuming alcohol, marijuana, and

cocaine prior to the crime spree and claimed not to remember some details. He admitted to

touching a gun and firing it once in the air, but denied ownership of the gun or shooting it toward

a white truck. He recalled stealing two cell phones from two women at different apartment

complexes, but he threw them away. At the end of the interview, Detective Thayer explained

appellee would appear before a judge who would talk to him and explain the charges. Detective

Thayer reiterated appellee could obtain a lawyer.

           A magistrate arraigned appellee at 7:36 p.m. that evening. Appellee requested a court-

appointed attorney.

           On August 11, 2017, at 12:21 p.m., the trial court appointed counsel; however, counsel

declined the appointment. The record does not indicate the time counsel declined the appointment.

Around “dinnertime,” Detective Olegario Garcia transported appellee from jail to the police station

for questioning. Detective Garcia removed appellee’s handcuffs and let him eat food from

McDonald’s before the interview. Appellee received Miranda warnings again and willingly

participated in the interview.

           Appellee’s counsel, who accepted the appointment on August 14, 2017, filed an omnibus

pretrial motion requesting, among other things, a hearing prior to the introduction of any


   1
       His full name is not reflected in the record.

                                                          –2–
statements allegedly made, either orally or in writing, “to determine the admissibility of same,”

citing Texas Code of Criminal Procedure articles 38.22 and 38.23.

       During the suppression hearing, the State communicated it was offering only the second

confession and not the first confession. Appellee, however, argued suppression of the second

interview was appropriate because (1) the second interview was inadmissible based on taint from

the first interview in which he involuntarily waived his Miranda rights, and (2) Detective Garcia

violated his Sixth Amendment right to counsel. The State again emphasized it was not trying to

admit or rely on the first interview because appellee admitted he consumed alcohol and drugs

earlier in the evening. Rather, the State sought to admit the second interview, which appellee

voluntarily participated in after any effects of the drugs had worn off.

       At the conclusion of the hearing, the trial court recessed and resumed the following day.

The record does not contain an order on appellee’s motion to suppress prior to the recess; however,

the trial court clearly granted it in light of the trial court reconvening the following day to consider

the State’s motion to reconsider. Following further arguments from both sides, the trial court

orally granted the motion to suppress and signed an order.

                                        Standard of Review

       A trial court’s denial of a motion to suppress is reviewed under a bifurcated standard of

review. Brodnex v. State, 485 S.W.3d 432, 436–37 (Tex. Crim. App. 2016). We afford almost

complete deference to the trial court’s determination of historical facts, “especially if those are

based on an assessment of credibility and demeanor.” Crain v. State, 315 S.W.3d 43, 48 (Tex.

Crim. App. 2010). However, when, as here, we have a videotape of the confessions and an

uncontroverted version of events, we review the trial court’s ruling on an application of law to

facts de novo. See Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (refusing to

turn a blind eye to videotape evidence presenting “indisputable visual evidence” contradicting

                                                 –3–
portions of officer’s testimony when evidence in videotape did not “pivot ‘on an evaluation of

credibility and demeanor’”); see also Nunez v. State, No. 05-08-00711-CR, 2009 WL 1677821, at

*3 (Tex. App.—Dallas June 17, 2009, pet. ref’d) (not designated for publication); Herrera v. State,

194 S.W.3d 656, 659 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). When, as in this case,

the trial court does not make express findings of fact, we view the evidence in the light most

favorable to the trial court’s rulings and assume it made implicit findings supported by the record.2

Brodnex, 485 S.W.3d at 436. We sustain the trial court’s decision if we conclude the decision is

correct under any applicable theory of law. Id. at 437.

                                                Voluntariness of the Confessions

           The State has the burden of showing that a defendant knowingly, intelligently, and

voluntarily waived his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444, 475 (1966);

Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010). The State must prove waiver by a

preponderance of the evidence. Joseph, 309 S.W.3d at 24. “A valid waiver will not be presumed

simply from the silence of the accused after warnings are given or simply from the fact that a

confession was in fact eventually obtained.” Miranda, 384 U.S. at 475. But a waiver need not

assume a particular form and, in some cases, a “waiver can be clearly inferred from the actions

and words of the person interrogated.” Joseph, 309 S.W.3d at 24–25 (quoting North Carolina v.

Butler, 441 U.S. 369, 373 (1979)).

           The question, however, is not whether appellee “explicitly” waived his Miranda rights, but

whether he did so knowingly, intelligently, and voluntarily. Id. at 25. To evaluate whether

appellee knowingly, intelligently, and voluntarily waived his Miranda rights, a reviewing court



        2
          Because the majority agrees with the trial court’s implicit finding that appellee’s statements were involuntary, we need not abate the appeal
for the mandatory findings required pursuant to Texas Code of Criminal Procedure, article 38.22, section 6. See TEX. CODE CRIM. PROC. ANN. art.
38.22, § 6 (“In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding
. . . as to whether the statement was made under voluntary conditions.”); see also State v. Perez, No. 14-16-00690-CR, 2017 WL 5505855, at *9
(Tex. App.—Houston [14th Dist.] Nov. 16, 2017) (mem. op., not designated for publication) (concluding article 38.22 requires trial court to file
findings and conclusions “only if it decides that the statement is voluntarily made”) (emphasis added).

                                                                        –4–
determines whether (1) the relinquishment of the right was voluntary in the sense that it was the

product of a free and deliberate choice rather than intimidation, coercion, or deception, and (2) the

waiver was made with full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it. Id. (citing Moran v. Burbine, 475 U.S. 412, 421

(1986)). Only if the “totality of the circumstances surrounding the interrogation” reveals both an

uncoerced choice and the requisite level of comprehension may a court properly conclude that a

defendant waived his Miranda rights. Id. The “totality-of-the-circumstances approach” requires

the consideration of “all the circumstances surrounding the interrogation,” including the

defendant’s experience, background, and conduct. Id.

       The videotape reveals that after Detective Thayer gave appellee Miranda warnings, the

following exchange occurred:

               Thayer: Do you understand the rights I have read to you?

               Appellee: (waves his hand sideways)

               Thayer: A little bit. Ok. Well.

               Appellee: It’s ’cause [sic] I don’t, I don’t speak a lot of English.

               Thayer: Do you, can you read Spanish?

               Appellee: Yes.

               Thayer: Read that for me and tell me if you understand.

               Appellee: (reads the Miranda warnings aloud in Spanish)

               Thayer: Ok do you understand?

               Appellee: (shakes head affirmatively)

               Thayer: Ok. Are you willing to talk to me try to figure this all out?

               Appellee: Which one? It’s ’cause [sic] I don’t understand.

               Thayer: Let’s talk about what happened last night.

               Appellee: Yes, sir.

                                                 –5–
Detective Thayer then continued with the interview for approximately twenty-two minutes.

During the interview, appellee conceded he made bad decisions but stated, “I’m telling you the

truth” and “let me tell you the truth” when Detective Thayer asked him about the events of the

evening.3

           The majority emphasizes Detective Thayer’s “declarative statements” and “gestures” to

reinforce its conclusion that appellee did not fully comprehend his rights or consequences of

abandoning them. Chastising the officer for using a declaratory sentence when questioning a

suspect is adding a layer of review unsupported by Texas case law. Whether Detective Thayer

“was authoritative, using gestures” during the interview might be relevant to our inquiry if appellee

had argued, which he did not, that his confession was the result of coercion, intimidation, or

deception. Regardless, Detective Thayer did not raise his voice or physically intimidate appellee

in any way. Nothing in his demeanor or tone reflects intimidation. More importantly, the majority

fails to explain how Detective Thayer’s statements directing appellee that they “were gonna have

a conversation, be truthful with each other” reveals appellee’s lack of understanding of his

Miranda rights.

           The majority concludes Detective Thayer went “through the motion of providing Miranda

warnings” but failed to “elicit any verbal or non-verbal assent.” However, the “indisputable visual


      3
        During the suppression hearing, it appears appellee’s counsel played only the first four minutes of the first interview. He replayed the
portion of the video where appellee said, “I don’t understand,” and said, “We can stop it there. I rest.” The following exchange then occurred:
     Court: Okay. The question was, “You want to talk to me?” “I don’t understand.”
     Defense: Yes, sir.
     State: The question actually was, “You willing to talk to me and try to figure this all out?” He says, “It’s because I do not understand.”
     Court: “Because I do not understand.”
     Defense: Does not understand.
     Court: Uses the word “because?”
     State: He says, “It’s ‘cause.’”
     Court: “It’s ‘cause.”
     State: After the question, “Do you understand?” Then he nods in the affirmative. Then it’s the “figure out” part.
     Court: Okay.

                                                                      –6–
evidence” confirms that when Detective Thayer asked appellee if he understood his Miranda

rights, appellee nodded affirmatively. See Carmouche, 10 S.W.3d at 332 (refusing to turn a blind

eye to indisputable video evidence); see also Montanez v. State, 195 S.W.3d 101, 113 (Tex. Crim.

App. 2006) (Johnson, J., dissenting) (noting a trial court can glean demeanor and assess credibility

from language and tone of witnesses during the suppression hearing, but videotapes are a different

matter as “they are what they are” and an appellate court “is in no worse position to determine fact

issues presented by the tape than is a trial court”). To the extent appellee verbalized he did not

understand after Detective Thayer asked him if he was “willing to talk . . . to figure this all out,”

the record is unclear about what appellee did not understand. However, the trial court could not

have implicitly found appellee involuntary waived his Miranda rights because he did not

understand English. The trial court asked at the beginning of the suppression hearing if appellee

needed an interpreter, and defense counsel answered, “No, it’s not that bad, Judge.” Appellee’s

counsel emphasized during the hearing, “we’re not talking about a language barrier. We’re talking

about whether or not the defendant understands his rights and the consequences of waiving them.”

Further, Detective Garcia testified he did not have any issues communicating with appellee in the

second interview. The videotape of the second interview confirms his testimony. In fact, Detective

Garcia testified appellee used the slang word for gun (a “strap”) during the interview, which

indicated he was “ingrained into the culture of the United States.”

       I recognize our review of the video is somewhat limited because in answering the issue of

knowing and voluntary waiver we must consider Detective Thayer’s demeanor in asking the

questions and appellee’s demeanor in answering those questions. See, e.g., Armendariz v. State,

No. 08-13-00125-CR, 2015 WL 2174481, at *4 (Tex. App.—El Paso May 8, 2015, pet. ref’d) (not

designated for publication). I likewise acknowledge we are required to give almost total deference

to the trial court’s determination of demeanor even when that determination is based on a video

                                                –7–
recording. See State v. Duran, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013). Thus, giving almost

complete deference to the trial court’s determination of historical facts, “especially if those are

based on an assessment of credibility and demeanor,” I must defer to the trial court’s implicit

finding that appellee’s lack of understanding referred to his Miranda rights. See Crain, 315

S.W.3d at 48.

       This, however, does not end the analysis. To determine whether the first confession’s

inadmissibility tainted the second confession, a reviewing court considers the following factors:

(1) did the condition rendering the first confession inadmissible persist through later questioning;

(2) how long was the break in time between the two confessions; (3) was the defendant given

renewed Miranda warnings; (4) did defendant initiate the police interview which resulted in the

later confession; and (5) “any other relevant circumstances.” Sterling v. State, 800 S.W.2d 513,

519 (Tex. Crim. App. 1990). “Other relevant circumstances” include (6) was the defendant taken

before a magistrate to be warned of his rights between confessions; (7) was there particular

evidence that defendant’s later confession was motivated by a desire to exculpate himself, rather

than by any earlier improper influences brought to bear on him; (8) did the defendant remain in

custody between the confessions; (9) did the defendant confer with counsel between confessions,

or make any kind of request for counsel; and (10) was there particular evidence to suggest that

defendant was motivated by “cat out of the bag” thinking—i.e., he gave the second confession

when he otherwise might not have because he had already given the first one. Id. at 519–20.

       The majority acknowledges the Sterling factors as “guiding principles to govern courts’

analysis of the situation we have here” but then glosses over them without meaningful analysis.

As detailed below, my review of the undisputed facts in light of the Sterling factors indicates

appellee’s second confession was not tainted by the first.




                                                –8–
           Notwithstanding my review of the first confession in which appellee affirmatively nodded

his head when asked if he understood the Miranda rights he had read out loud in Spanish, but

instead deferring to the trial court’s implicit finding to the contrary, the record indicates a change

in conditions from the first confession to the second confession.

           Approximately one and a half days passed between appellee’s first and second confession

giving him time to eat, drink, and reflect on his situation. See id. at 520 (considering passage of

one day between confessions and defendant’s ability to eat, drink, and reflect as factors favoring

second confession not tainted by first).4 Cf. McBride v. State, 803 S.W.2d 741, 746 (Tex. App.—

Dallas 1990, pet. dism’d) (concluding evidence showing a two-hour break between first and

subsequent confession during which time defendant was unable to sleep weighed against

attenuation). More importantly, the passage of time allowed any effects of drugs and alcohol to

wear off that may have hindered appellee’s ability to fully appreciate a voluntary waiver of his

Miranda rights in the first interview.

           The State introduced an arraignment sheet indicating appellee went before a magistrate at

7:36 p.m. on August 10, 2017, and the magistrate “in clear language informed the person arrested”

of his Miranda rights—a fact the majority omits. Thus, appellee received Miranda warnings again

approximately sixteen hours after his first interview and twenty-four hours before his second

interview, in which he was yet again Mirandized before Detective Garcia proceeded with the

second interview. Although Miranda warnings alone are not enough to attenuate taint, it is an

important factor weighing in favor of attenuation. See McBride, 803 S.W.2d at 746 (noting a

“fresh set of Miranda warnings alone are not determinative”); see also Perkins v. State, 779




      4
        Although the Texas Court of Criminal Appeals has included a defendant’s ability to eat between confessions as a factor favoring admissibility
of a second confession, the majority insinuates that the officers’ purchase of a McDonald’s hamburger overpowered his ability to stay silent.

                                                                       –9–
S.W.2d 918, 922 (Tex. App.—Dallas 1989, no pet.) (same). Here, the record establishes appellee

received Miranda warnings two additional times between his first and second interviews.

            Of the first four Sterling factors, only the fourth weighs against attenuation because

appellee did not initiate the second interview.

            As for “other relevant circumstances,” as noted above, appellee was taken before a

magistrate and warned of his rights between confessions. The record contains no “particular

evidence” suggesting appellee was motivated by “cat out of the bag thinking.”5 See Griffin v.

State, 765 S.W.2d 422, 430 (Tex. Crim. App. 1989) (“The mere possibility such a ‘psychological

disadvantage was at work . . . absent some evidentiary corroboration is insufficient to rebut the

State’s otherwise adequate showing of voluntariness.”). Detective Garcia’s comment at the

beginning of the second interview that “basically we are going to go over everything that you

talked about with the other detective . . . ,” without more, is no evidence that appellee was prompted

by “cat out of the bag thinking.” See Bell v. State, 724 S.W.2d 780, 793 (Tex. Crim. App. 1986)

(observing that “[t]he workings of the human mind are too complex to infer such a motivation

without any objective evidence thereof”).6                              The majority emphasizes that nothing in the second

video demonstrates appellee was not motivated at least in part by “cat out of the bag thinking.”

This approach contradicts Sterling’s directive that when considering the “cat out of the bag



     5
         The “cat out of the bag” theory stems from Justice Jackson’s opinion in United States v. Bayer, 331 U.S. 532, 540–41 (1947):
                        [A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement,
                        he is never thereafter free of the psychological and practical disadvantages of having confessed. He
                        can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession
                        may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that
                        making a confession under circumstances which preclude its use, perpetually disables the confessor
                        from making a usable one after those conditions have been removed.

     Here, the arrest warrant indicates officers engaged in a car chase with appellee, who was a passenger. Inside the vehicle, officers recovered
two cell phones and a wallet with one victim’s identification and credit cards. This “particular evidence” supports the theory appellee was motivated
to engage in a second interview not because of some psychological influence from his previous confession but because he knew officers caught
him with stolen property fleeing the scene near the robberies.

      6
        At 1:28:14 of the 1:30:14 interview, appellee stated, “If I got out I can work and help pay, ‘cause [sic] bro, like I said to the other officer, if
I can get out I will pay for them.” Given that this isolated statement referring to the first interview occurred at the end of an hour and a half long
interview, I cannot infer the statement amounts to “particular evidence” supporting “cat out of the bag” motivation.

                                                                         –10–
thinking” factor, the reviewing court considers whether the record includes particular evidence of

a defendant’s motivation to give a second confession. 800 S.W.2d at 520. The absence of such

particular evidence cannot support the majority’s conclusion that “cat out of the bag thinking” was

an “acceptable part” of the court’s reasoning for granting the motion to suppress. Moreover, this

Court has recognized that the “cat out of the bag” theory has limited value with respect to adult

offenders. B__A__G__ v. State, 715 S.W.2d 790, 793 (Tex. App.—Dallas 1986), rev’d on other

grounds by Griffin, 765 S.W.2d at 430.

           Finally, there is some “particular evidence” appellee’s second confession was motivated

by a desire to exculpate himself because he included self-serving statements. For example, when

Detective Garcia asked appellee if he fired a gun, appellee said, “I don’t remember it real good,

but I was there but I wasn’t shooting nobody.” When describing the incident in which appellee

said the white truck tried to “roll over” him, he told Detective Garcia “the other guy” told him,

“Hey, shoot the car and I was like drunk and everything and I shoot. . . . I didn’t mean to do that

but the other guy told me and I was like drunk.” See, e.g., Sterling, 800 S.W.2d at 520 (second

confession may have been motivated by desire to exculpate himself when he said, “I was just going

to rob her” and “I wasn’t intended to kill her or anything like that” [sic]).

            That appellee remained in custody and did not consult with counsel militates against

admissibility, but these two factors do not outweigh the strong indications that appellee voluntarily

gave his second confession. Considering the totality of the circumstances and weighing the

Sterling factors, I would conclude any implied taint from the first confession was attenuated prior

to appellee’s second confession.7




     7
       It is noteworthy that in Sterling, the defendant had an IQ of 69 yet the court of criminal appeals, applying the factors, concluded any taint
from a first interview was attenuated from a subsequent interview. Sterling, 800 S.W.2d at 518, 520.

                                                                      –11–
            The majority indicates it is “not our job” to reweigh each Sterling factor. This is exactly

what the court of criminal appeals requires when a criminal defendant complains a later confession

is tainted by a prior one. Such review of the evidence is not treating the trial court as a “try out”

or functioning as an “instant replay booth.”8 This Court has followed Sterling, and the majority

fails to explain why we should not consider each factor in a totality of the circumstances review.

See McBride, 803 S.W.2d at 745–46.9 I recognize few cases have considered the Sterling factors

over the past twenty-five years, and those cases involve a defendant’s appeal of the trial court

denying a motion to suppress rather than a State’s appeal. However, to agree with the majority

eviscerates appellate review for the State when a trial court concludes the taint from a first

confession is not sufficiently attenuated and suppresses the second confession. If the majority is

correct and the State is not entitled to a meaningful review of the Sterling factors, then I

respectfully encourage the court of criminal appeals to clarify the standard.

            The trial court has broad discretion in its rulings, but its rulings are not unfettered. Here,

any alleged taint from appellee’s first confession was removed before his second confession;

therefore, the State proved, by a preponderance of the evidence, that appellee knowingly,

intelligently, and voluntarily waived his Miranda rights. Joseph, 309 S.W.3d at 24 (State must

prove waiver by a preponderance of the evidence). Accordingly, the trial court abused its

discretion by granting appellee’s motion to suppress.

                                             Sixth Amendment Right to Counsel

            Because I conclude the trial court could not have suppressed appellee’s second confession

because it was involuntary, I must now determine whether the trial court could have suppressed



     8
         See majority opinion page 2 and footnote 11.
     9
       Other courts of appeals have likewise engaged in such analysis. See, e.g., Brown v. State, No. 07-03-00347-CR, 2005 WL 1742984, at *5
(Tex. App.—Amarillo July 25, 2005, no pet.) (mem. op., not designated for publication); Ikes v. State, No. 01-96-01540-CR, 1998 WL 734014, at
*3 (Tex. App.—Houston [1st Dist.] Oct. 22, 1998, pet. ref’d) (mem. op., not designated for publication).

                                                                  –12–
the second confession based on appellee’s Sixth Amendment right to counsel. See Armendariz,

123 S.W.3d at 404 (reviewing court must uphold trial court’s ruling if supported by the record and

correct under any theory of law applicable to the case).

       During the suppression hearing, appellee argued his Sixth Amendment right to counsel

attached once he requested an attorney during his arraignment; therefore, the subsequent police-

initiated interview without a lawyer violated his constitutional right. He relied on Holloway v.

State, 780 S.W.2d 787 (Tex. Crim. App. 1989), in which the court held a defendant’s unilateral

wavier of his Sixth Amendment right to counsel during interrogation, without his defense attorney,

was invalid even if he received Miranda warnings. Id. (“Only through notice to defense counsel

may authorities initiate the interrogation of an indicted and represented defendant.”). The State

argued, as it does on appeal, that Holloway is no longer the applicable law after the United States

Supreme Court’s decision in Montejo v. Louisiana, 556 U.S. 778 (2009), which the Texas Court

of Criminal Appeals applied in Pecina v. State, 361 S.W.3d 68 (Tex. Crim. App. 2012). I agree.

       Before the United States Supreme Court’s decision in Montejo, a distinction was drawn

between the waiver of a Fifth Amendment right to interrogation counsel and a Sixth Amendment

right to trial counsel. See Pecina, 361 S.W.3d at 74–78. Under the prior law, when an attorney-

client relationship was established after a defendant’s Sixth Amendment right to counsel attached,

the police could initiate an interrogation only through notice to defense counsel. See Holloway,

780 S.W.2d at 794. After Montejo, however, both the Fifth and Sixth Amendment rights to counsel

during custodial interrogation are “waived in exactly the same manner.” Pecina, 361 S.W.3d at

70. Therefore, when law enforcement officers approach a defendant and provide him with

Miranda warnings, the defendant must invoke his Sixth Amendment right to counsel at that time.

Id. at 78. As the Montejo court concluded:

               Under Miranda’s prophylactic protection of the right against
               compelled self-incrimination, any suspect subject to custodial
                                               –13–
                interrogation has the right to have a lawyer present if he so requests,
                and to be advised of that right. . . . Under the Miranda-Edwards-
                Minnick line of cases (which is not in doubt), a defendant who does
                not want to speak to the police without counsel present need only
                say as much when he is first approached and given the Miranda
                warnings. At that point, not only must the immediate contact end,
                but “badgering” by later requests is prohibited. If that regime
                suffices to protect the integrity of “a suspect’s voluntary choice not
                to speak outside his lawyer’s presence” before his arraignment
                [citations omitted], it is hard to see why it would not also suffice to
                protect that same choice after arraignment, when Sixth Amendment
                rights have attached.

Montejo, 556 U.S. at 794–95.

        Here, the record is clear appellee requested an attorney during magistration; however, this

invocation of his right to counsel “says nothing about his possible invocation of his right to counsel

during later police-initiated custodial interrogation.” Pecina, 361 S.W.3d at 78. Rather, if the

evidence establishes appellee invoked his right to counsel after being read his Miranda warnings

in the second interview, then the trial court’s ruling could still be upheld because appellee’s

statements would have been taken in violation of his right to counsel. Id.; see also State v. Reising,

No. 04-16-00794-CR, 2017 WL 4518287, at *2–3 (Tex. App.—San Antonio Oct. 11, 2017, no

pet.) (mem. op., not designated for publication) (applying Pecina and reversing trial court’s order

granting motion to suppress when record did not support an unequivocal request for counsel). The

record does not support such a conclusion. Detective Garcia read appellee his Miranda warnings

at the beginning of the interview. “That [was] the time and place to either invoke or waive the

right to counsel for purposes of police questioning.” Pecina, 361 S.W.3d at 78. Appellee did not

invoke his right to counsel but instead said he understood his rights and was willing to talk. Thus,

he waived his Sixth Amendment right to trial counsel. Accordingly, to the extent the trial court

suppressed appellee’s second confession based on a Sixth Amendment right to counsel violation,

it abused its discretion.



                                                –14–
                                         Conclusion

       Because the trial court’s order cannot be upheld under any law applicable to the case, I

would reverse the trial court’s order suppressing appellee’s second confession and remand for

further proceedings.




                                                /David L. Bridges/
                                                DAVID L. BRIDGES
                                                JUSTICE

180870DF.P05




                                            –15–
