









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





No. PD-1552-07


THE STATE OF TEXAS, Appellant

v.


DAVID MALDONADO, Appellee




ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS

NUECES  COUNTY



Holcomb, J., filed a dissenting opinion.


 I respectfully dissent.  After reviewing the record, I conclude that the trial court did not abuse
its discretion in suppressing appellee's confession. (1) Therefore, I would reverse the judgment of the
court of appeals and affirm the order of the trial court.    
 I do not disagree with the facts as outlined by the majority.  However, I conclude that it is
necessary to highlight additional, relevant testimony.   Detective Ramirez was the only witness who
testified at the suppression hearing.  The following are portions of his testimony:
	Q.  Did you file an affidavit and complaint seeking a warrant for Mr. David A.
Maldonado?
 
	A.  Yes, I did.
 
	Q.  Do you recall the date that you filed the complaint?
 
	A.  I believe dated May 1, 2006. 
 
	Q.  In fact, was Mr. Maldonado arrested on the warrant?
 
	A.  Yes, he was.
 
 * * * * * 

 
	Q.  So you actually called the jail inquiring if the defendant was there?
 
	A.  If he was in custody, yes.

	Q.  Was he in the jail?
 
	A.  Yes.  They told me he was there.  I told them I would be over to talk to him and
they said okay.  
 
 * * * * * 

 
	Q.  When you arrived at the jail, what happens?
 
	A.  We arrive, I went to the jailer and said I am here for David.  He said, okay, we's
[sic] got him ready.  They brought him out.  I introduced myself and told him I am
Detective Ramirez and this is Detective Flores.  At that time, he handed me a letter
that was folded.  He said, I been waiting to talk to somebody, waiting to talk to you,
something to that effect, and handed me the letter.  I asked him what is this.  He says,
that's what happened that night.  So I said, you want to talk to me about what
happened and he said yes.  Okay.  We have to go to the station.  If you want to go to
the station with me and he said yes.  So we took him to the station.



* * * * *

 
	Q.  So when Mr. Maldonado was brought up to you, did you tell him who you were?
 
	A.  Yes, ma'am.
 
	Q.  Identified yourself?
 
	A.  Yes, ma'am - yes, sir.
 
	Q.  Did you tell him why you were there?
 
	A.  I told him that I was going to talk to him or we were going to talk.  When I
introduced myself, he gave me the form, the document.
 
	Q.  Did you continue to tell him why you were there, to talk to him?
 
	A.  Yes.
 
	Q.  Did you tell him that before you read the letter?
 
	A.  Yes.  I told him before I read the letter.  

	The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy
the right ...to have the Assistance of Counsel for his defence."  "Once adversary proceedings have
commenced against an individual, he has the right to legal representation when the government
interrogates him."  Brewer v. Williams, 430 U.S. 387, 401 (1977).  "The Sixth Amendment
guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as
a 'medium' between him and the State."   Maine v. Moulton, 474 U.S. 159, 176 (1958).  Implicit in
this guarantee is the "[s]tate's affirmative obligation not to act in a manner that circumvents the
protections accorded the accused by invoking this right."  Moulton, 474 U.S. at 176.  
	Once a defendant has invoked the Sixth Amendment right to counsel, "[i]f...subsequent
interrogation is initiated by law enforcement, no waiver of counsel (no matter how apparently
knowing and voluntary) is valid."  Holloway v. State, 780 S.W.2d 787, 789-90 (Tex.Crim.App.
1989).  Moreover, knowledge of an invocation of the Sixth Amendment is "impute[d]" from "one
state actor to another."  Michigan v. Jackson, 475 U.S. 625, 634 (1986); See Holloway, 780 S.W.2d
at 795.  
	Given the evidence before the trial court at the time it ruled on appellee's motion, a
reasonable trial court would have necessarily concluded that appellee's confession was taken in
violation of his Sixth Amendment right to counsel.  The testimony by Officer Ramirez established 
that he took affirmative steps by calling the jail, going to the jail, requesting that appellee be brought
out into an open area of the jail, introducing himself and Detective Flores (an accompanying officer),
and telling appellee that he was there to talk to him.  All of these actions were taken at a time when
the police knew that appellee had previously requested that counsel be appointed. Ramirez's
testimony further showed that he took the initiative to set up an encounter with appellee outside the
presence of his attorney, which is the exact conduct that violates what the Sixth Amendment
guarantees.  Moulton, 474 U.S. at 176. 	
	The majority relies on the argument that Officer Ramirez did not have time to initiate the
interrogation because appellee immediately handed Ramirez the letter before he could ask any
questions.  However, "[i]n a motion to suppress hearing, the trial court is the sole trier of fact and
judge of credibility of the witnesses [and] may believe or disbelieve all or any part of the witness's
testimony, even if that testimony is not controverted."  State v. Ross, 32 S.W.3d 853, 855
(Tex.Crim.App. 2000).   The trial court's findings of fact and conclusions of law show that the trial
court based its ruling on Edwards v. Arizona, 451 U.S. 477 (1981), and Holloway, 780 S.W.2d 787;
therefore, the trial court was clearly aware of the implication of these cases when it made its
decision.  The trial court must have been convinced that Officer Ramirez initiated the
communication by taking affirmative steps to set up the encounter with appellee, after appellee had
requested counsel, and stating that he was there to talk to appellee outside the presence of counsel. 
It is reasonable to believe that when Officer Ramirez introduced himself, he stated in the same breath
that he was there to talk to appellee about the offense.  By making this statement, he initiated
communication about the offense with appellee.  Moreover, there was no evidence presented that
Officer Ramirez went to the jail for any other purpose except to question appellee about the offense. 
Therefore, I would hold that the trial court's implicit finding that Officer Ramirez initiated the
communication was absolutely reasonable.  
	Furthermore, the letter that appellee handed to Officer Ramirez was not a confession.  It was
a self-serving explanation of the events that occurred that night, not an invitation to be interrogated. 
The trial court could have reasonably concluded that Officer Ramirez, not appellee, initiated
communication about the offense.  Therefore, any subsequent waiver of counsel was invalid. 
Holloway, 780 S.W.2d at 789-90.  
	Had appellee called law enforcement or indicated to jail personnel that he wished to speak
with someone about the offense, then I would be convinced that appellee initiated the conversation. 
However, that is not what occurred in this case.  
	In this case, Officer Ramirez had imputed knowledge that appellee had invoked his right to
counsel.  With this knowledge, Ramirez "circumvent[ed] the protections accorded the accused by
invoking this right" when he set up an encounter with appellee outside the presence of his attorney. 
Moulton, 474 U.S. at 176.  

	Therefore, I respectfully dissent.  
 
FILED: JUNE 4, 2008

PUBLISH
1.  A trial court's ruling on a motion to suppress is reviewed on appeal for abuse of
discretion.  State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006). In other words, the trial
court's ruling will be upheld if it is reasonably supported by the record and is correct under any
applicable legal theory.  Ibid. 
