                           NUMBER 13-14-00175-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

MANUEL PEÑA,                                                              Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 107th District Court
                        of Cameron County, Texas.


                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
             Memorandum Opinion by Justice Benavides

      A Cameron County jury found appellant Manuel Peña guilty of capital murder, see

TEX. PENAL CODE ANN. § 19.03(a)(2) (West, Westlaw through 2013 3d C.S.), and he was

sentenced to life imprisonment without the possibility of parole.   By one issue, Peña

asserts that the trial court erred in denying his motion to suppress statements made in
violation of his Sixth Amendment right to counsel. We affirm.

                                        I.      BACKGROUND1

        The State alleged that Peña murdered Ramon Pinon while in the course of

committing or attempting to commit a burglary of Pinon’s habitation.                   See id. Before

trial, Peña filed a motion to suppress two statements that Peña provided to the police

following his arrest.

        At the suppression hearing, the State called Martin Morales, Jr., a former detective

and current chief of police for the San Benito Police Department. Morales testified that

he took part in the Pinon homicide investigation, after Pinon’s body was discovered on

April 19, 2009.     Morales testified that on April 20, 2009, Cecilia Paz entered the police

department with information about the Pinon murder. According to Morales, Paz told

him that Peña arrived at her residence on April 19 and “began speaking about the incident

that occurred . . . the day before.” Paz later identified Peña through a photo lineup.                Paz

told Morales that Peña attempted to sell her a small CD radio, a small television set, and

an electric circular saw.       Paz indicated that she had purchased the circular saw from

Peña.       Morales further testified that these items were the same items reported missing

from Pinon’s residence.        Paz told Morales that Peña had told her that “he had beaten up

a [Spanish word for old man]”. Pinon’s son, Ramon Pinon Jr., provided a statement to

police and identified a Black & Decker circular saw, retrieved from Paz, as belonging to

his father.




        1 As this is a memorandum opinion, and the parties are familiar with the facts, we will recite only
the relevant facts necessary for the disposition of this appeal. See TEX. R. APP. P. 47.4.


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       Morales applied for an arrest warrant and attached a “complaint affidavit,” as well

as other documents, including the statements from Paz and Pinon Jr. An arrest warrant

was issued on April 20, 2009, and Peña was arrested later that evening.        Shortly after

his arrest, police read Peña his Miranda warnings.    See TEX. CODE CRIM. PROC. ANN. art.

38.22 (West, Westlaw through 2013 3d C.S.). On April 21, 2009, Peña appeared before

a magistrate, and Peña requested court-appointed counsel.        See id. art. 15.17 (West,

Westlaw through 2013 3d C.S.).

       After his arrest and request for court-appointed counsel, Peña made two

statements to the San Benito police—the first on April 22, 2009 and the second on April

30, 2009. The trial court ordered the April 22nd statement suppressed, after the State

stipulated at the suppression hearing that it was inadmissible. The April 30th statement,

however, was the result of Peña sending police a handwritten note asking to speak to

them about the investigation “without [his] attorney present.” The State argued that the

second statement was the product of Peña’s “free will” and after his Miranda warnings

were read to him four times. The trial court agreed with the State and denied Peña’s

motion to suppress his April 30th statement.

       The trial proceeded, and after four days of receiving evidence and arguments, the

jury found Peña guilty of capital murder. The trial court assessed Peña’s punishment at

life imprisonment without parole in the Texas Department of Criminal Justice—

Institutional Division.   This appeal followed.

                                 II.   MOTION TO SUPPRESS

       By his sole issue, Peña asserts that the trial court erred in failing to suppress his

April 30th statement to police because it was obtained in violation of his Sixth Amendment

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right to counsel.2

A.      Standard of Review

        In reviewing a trial court’s ruling on a motion to suppress, we must view the

evidence in the light most favorable to the trial court’s ruling.            Johnson v. State, 414

S.W.3d 184, 192 (Tex. Crim. App. 2013); State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008). When the trial court does not make explicit findings of fact, we

infer the necessary factual findings that support the trial court’s ruling if the record

evidence (viewed in light most favorable to the ruling) supports these implied facts.

Johnson, 414 S.W.3d at 192.

        Motions to suppress are reviewed pursuant to a bifurcated standard under which

the trial judge’s determinations of historical facts and mixed questions of law and fact that

rely on credibility are granted almost total deference when supported by the record.                 Id.

But when mixed questions of law and fact do not depend on the evaluation of credibility

and demeanor, we review the trial judge’s ruling de novo.              Id. (citing State v. Kerwick,

393 S.W.3d 270, 273; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).

        Both parties acknowledge the trial court did not file findings of fact and conclusions

of law.     However, we agree with the State’s concession that such findings are

unnecessary because the issue on appeal is not related to disputed facts, but turns upon

an application of law to facts, whose resolution does not turn on an evaluation of credibility




        2Although Peña asserts that his statement was obtained in violation of his Sixth Amendment right
to counsel, his arguments appear to challenge his right to counsel under the Fifth Amendment.
Accordingly, we will analyze it as such.

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and demeanor. See Guzman, 955 S.W.2d at 89.               Accordingly, we will conduct a de

novo review of this issue.

B.      Discussion

        Peña argues that “even though there is a purported waiver of right to counsel”

related to his April 30th statement, such a waiver is invalid because he was represented

by counsel at the time he made the purported waiver and made the waiver without the

benefit of counsel. We disagree.

        The United States Supreme Court devised a prophylactic rule in Edwards v.

Arizona, 451 U.S. 477, 484 (1981) designed to “protect an accused in police custody from

being badgered by police officers.”     Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983);

see Cross v. State, 144 S.W.3d 521, 526 (Tex. Crim. App. 2004) (recognizing the

Edwards rule and the reasoning behind it).       Simply stated, “an accused . . . having

expressed his desire to deal with police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made available to him, unless the

accused himself initiates further communication, exchanges or conversation with the

police.”    Edwards, 451 U.S. at 484.    Thus, under Edwards, a defendant’s “discomfort”

in dealing with police without the guiding hand of counsel is presumed to persist unless

the suspect himself initiates further conversation about the investigation.      Cross, 144

S.W.3d at 526 (citing Arizona v. Roberson, 486 U.S. 675, 684 (1988)). But the Supreme

Court has also explicitly stated that a suspect is not “powerless to countermand his

election” to speak only with the assistance of counsel.    Id.   (citing Edwards, 451 U.S. at

485).      The Supreme Court clarified the Edwards rule and established a two-step

procedure to determine whether a suspect has waived his previously invoked right to

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counsel.   Id. at 526–27 (citing Oregon v. Bradshaw, 462 U.S. 1039 (1983) (plurality op.)).

The first step requires proof that the suspect himself initiates further communication with

the authorities after invoking the right to counsel.   Id.   The second step requires proof

that, after he reinitiates communication with authorities, the suspect validly waives the

right to counsel voluntarily, constituting a knowing and intelligent relinquishment or

abandonment of a known right or privilege, depending upon the particular facts and

circumstances surrounding the case, including the background, experience, and conduct

of the accused.   Edwards, 451 U.S. at 482; Cross, 144 S.W.3d at 527.

       The critical inquiry at this stage of the proceedings then turns to whether Peña was

further interrogated before he reinitiated conversation with law enforcement officials.    Id.

at 529 (citing Willie v. Maggio, 737 F.2d 1372, 1384 (5th Cir. 1984)). If he was not, the

Edwards rule is not violated.   Id.; see also McCarty v. State, 65 S.W.3d 47, 52 n.6 (“Of

course, if the arrestee reinitiates the conversation, the Edwards rule is satisfied.”).   The

court of criminal appeals further explained the Edwards rule in the following manner,

which we find helpful:

       A suspect's invocation of his right to counsel acts like a protective Edwards
       bubble, insulating him from any further police-initiated questioning. Only the
       suspect himself can burst that bubble by both initiating communications with
       police and expressly waiving his right to counsel. Once that bubble is burst,
       however, Edwards disappears, and the police are free to reinitiate any
       future communications and obtain any further statements as long as each
       statement is voluntarily made after the waiver of Miranda rights.

Cross, 144 S.W.3d at 529.

       The day after Peña’s arrest, he appeared before a magistrate and requested court-

appointed counsel. At that point, it was presumed under Edwards that Peña invoked his

Fifth Amendment right to counsel and did not want to deal with the police without the

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“guiding hand of counsel” present.        See Edwards, 451 U.S. at 484–85; Cross, 144

S.W.3d at 526. As a result, the State conceded at the suppression hearing that Peña’s

first statement to police on April 22nd was unconstitutional, which obligated the trial court

to suppress that statement.      However, eight days later, Peña voluntarily sent police a

witnessed handwritten note that stated the following:

       I Manuel Peña would like to talk to S.B.P.D. about my case. I do this on my
       free will. I don’t have not promise nothing [sic] in return. .without out my
       attorney present [strikethrough in original]

       As a result of Peña sending this note, the presumption that Peña chose not to

speak to police without the assistance of counsel under Edwards disappeared.              See id.

at 529.   Furthermore, prior to making his April 30th statement to police, Peña knowingly

and intelligently relinquished several of his rights in writing, including his right: (1) to “have

a lawyer present to advise [him] either prior to any questioning or during any questioning;

(2) to have a lawyer appointed “prior to or during any questioning; (3) “to remain silent

and not make any statement at all and that any statement [made by him] may be used in

evidence against [him] at trial;” and (4) “to terminate [the] interview at any time.” Peña

also acknowledged that he understood all of the aforementioned rights, and did not wish

to consult with a lawyer. Finally, he, again, in writing waived his right to counsel and

right to remain silent.

       We conclude that the protections provided under Edwards disappeared in this case

because Peña himself initiated further communication with the police through his

handwritten note, despite invoking his right to counsel nine days prior, and after

reinitiating that communication, Peña validly waived his right to counsel voluntarily,

constituting a knowing and intelligent relinquishment and abandonment of his rights.

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See Edwards, 451 U.S. at 482; Cross, 144 S.W.3d at 527.        Accordingly, the trial court

did not err in denying Peña’s motion to suppress his April 30th statement. We overrule

Peña’s sole issue on appeal.

                                   III.   CONCLUSION

       We affirm the trial court’s denial of Peña’s motion to suppress.



                                                              GINA M. BENAVIDES,
                                                              Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
25th day of June, 2015.




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