                                 MEMORANDUM OPINION
                                         No. 04-11-00474-CR

                                   Calvin Jerome MASSENGALE,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009CR12809B
                           Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: June 6, 2012

AFFIRMED

           The sole issue presented in this appeal is whether the trial court erred in denying Calvin

Jerome Massengale’s motion to suppress because statements were obtained from him after his

request for an attorney was not honored by the investigating officer.             Because we hold

Massengale’s statement referring to an attorney was not a clear and unequivocal request for an

attorney, we affirm the trial court’s judgment.
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                                         BACKGROUND

       During the course of a custodial interrogation involving a capital murder, the following

exchange occurred between Massengale and the investigating officer:

       Massengale:    I need to find out what y’all are sayin’ and ch… that I’ve done and
                      how I did it and all this. So, if we’re goin’ — we might as well
                      just go to the next step. You know what I’m sayin’. ‘Cause that’s,
                      hat’s, that’s what I want to do.
       Officer:       And you understand that going to that next step means that you
                      don’t have the opportunity to talk. Because what we’re gonna do
       Massengale:    No, I’m sayin’. Okay, what are y’all gonna do?
       Officer:       — what we’re gonna do is um — when it comes time — ‘cause the
                      next step is basically trial, alright? That’s kind of what we’re
                      talking about. So the next step that …
       Massengale:    So, yeah, I already been charged? Is that what you’re saying?
       Officer:       Yeah, yeah, you’ve been charged.
       Massengale:    Yeah. So then, I’m just going to wait and talk to my lawyer then.
       Officer:       Ok. The problem with that is it — when it comes time for trial,
                      we’re going to testify that we gave you the opportunity to tell us
                      what happened because inevitably —
       Massengale:    I mean can I get my lawyer to talk to y’all?
       Officer:       Yeah. You can. It’s possible.
       Massengale:    I mean, so what’d be the difference?
       Officer:       Well, he won’t talk to us.
       Massengale:    Yeah.
       Officer:       What he’ll do is he’ll go —I mean he’s going to wait and he’s
                      going to talk to the judge and he’s going to talk to the jury. And at
                      that time your lawyer’s probably gonna tell you something like you
                      know what we’re gonna say that this happened or this happened.
                      We’re gonna say it was self-defense. We’re gonna say that – you
                      know – you were crazy. Whatever the case may be. The problem
                      is, we’re gonna get up and say we talked to him the day after, the
                      next day, and he didn’t tell us it was self-defense, he didn’t tell us
                      he went crazy, he didn’t tell us he was high….

       Massengale filed a motion to suppress, asserting that his reference to a lawyer was a

request for an attorney and that the officer violated his constitutional right to counsel by

continuing to question him. At the hearing on the motion to suppress, the investigating officer

acknowledged that he and Massengale engaged in a conversation regarding a lawyer. When the

officer was asked his reason for continuing to interrogate Massengale after that conversation, the

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officer responded that whether a defendant has clearly invoked a right to counsel is a legal

determination that he leaves up to the courts. 1 The officer later explained that if he believes a

defendant has clearly invoked his right to counsel, he will cease the interrogation. 2 The trial

court denied the motion to suppress, stating his reasoning on the record as follows:

                 But as to the rest, and I do think that when one looks at the context and
         then really at the case law, that kind of explains what constitutes an unambiguous
         and unequivocal request. One of them is kind of close, I think, to the facts on
         [sic] this case because it seems like more of a discussion about whether it’s a
         good idea to talk now, whether it’s a better idea to wait and go to the next step.
         And so because there’s all that discussion about timing and when would be a good
         time, and maybe I’ll just talk to my lawyer then.
                 And so I think the facts and what — you know, whatever the Defendant
         was saying in this case, if you look at it — and I did — closely to what he actually
         said, and in the context of the discussion prior to what he said, there was really
         more of a discussion about timing and how the system works, and whether it
         would be better to talk now or wait until later and talk to a lawyer when we take it
         to the next step. And that, coupled with the testimony, which I find credible from
         [the investigating officer] who just testified that, hey, if it had been unequivocal in
         his opinion, he would have stopped. He didn’t perceive it to be a certain and
         unambiguous request for an attorney at that time, but it was more ambiguous than
         that. So I’m going to rule that those statements made by Calvin Massengale are
         — that part of the video is admissible.

Massengale appeals the trial court’s order.

                                                    DISCUSSION

         If a suspect requests an attorney at any time during a custodial interrogation, the

interrogation must cease and he is not subject to further questioning until an attorney is made

available to him or the suspect himself reinitiates further communication with the police. Davis

1
  The officer stated, “In the short amount of time I was over there, I learned that it was better to continue speaking to
an individual and allow the courts to determine whether or not the statement would be admissible or not, especially
in cases where there could be other individuals involved. He may be able to give information on someone else other
than himself, which may be admissible, even though something might — he might say against himself would be
inadmissible. Instead of trying to deal with all those issues there in the room, continue talking, and then let it be
decided among people that do this on a regular basis.”
2
  The officer explained, “If he were to have said, I do not want to talk to you anymore until I speak to my attorney,
which I’ve had that happen to me in interrogation rooms, when they make a clear invocation, I have ceased speaking
to them. … A clear indication. It doesn’t have to be verbatim but something that tells me then and there that they
want an attorney, they don’t want to go another step, and I need to stop talking to them, or if they ask me to stop
talking to them.”

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v. United States, 512 U.S. 452, 458 (1994); Davis v. State, 313 S.W.3d 317, 339 (Tex. Crim.

App. 2010), cert. denied, 132 S. Ct. 122 (2011). “To avoid difficulties of proof and to provide

guidance to officer conducting interrogations,” whether the suspect has actually invoked his right

to counsel is an “objective inquiry.” Davis v. United States, 512 U.S. at 458-59; see also Davis

v. State, 313 S.W.3d at 339. Invocation of the right to counsel “‘requires, at a minimum, some

statement that can reasonably be construed to be an expression of a desire for the assistance of an

attorney.’” Davis v. United States, 512 U.S. at 459 (quoting McNeil v. Wisconsin, 501 U.S. 171,

178 (1991)). “But if a suspect makes a reference to an attorney that is ambiguous or equivocal in

that a reasonable officer in light of the circumstances would have understood only that the

suspect might be invoking the right to counsel, our precedents do not require the cessation of

questioning.” Id. (emphasis in original). “Rather the suspect must unambiguously request

counsel.” Id. A suspect “must articulate his desire to have counsel present sufficiently clearly

that a reasonable police officer in the circumstances would understand the statement to be a

request for an attorney.” Id. “If the statement fails to meet the requisite level of clarity,” the law

“does not require that the officers stop questioning the suspect.” Id.

       The rule as stated “provides a bright line rule that can be applied by officers in the real

world of investigation and interrogation without unduly hampering the gathering of

information.” Id. at 461. “But if we were to require questioning to cease if a suspect makes a

statement that might be a request for an attorney, this clarity and ease of application would be

lost.” Id. “Police officers would be forced to make difficult judgment calls about whether the

suspect in fact wants a lawyer even though he has not said so, with the threat of suppression if

they guess wrong.” Id. Accordingly, “law enforcement officers may continue questioning until

and unless the suspect clearly requests an attorney.” Id.



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       The United States Supreme Court has held that a suspect’s statement “Maybe I should

talk to a lawyer” was not a request for an attorney. Id. at 462. The Texas Court of Criminal

Appeals has held that a suspect’s statement “I should have an attorney” was not in the form of a

request or an express statement that the suspect wanted a lawyer. Davis v. State, 313 S.W.3d at

341. Similarly, given the context in which Massengale made references to a lawyer in this case,

we hold that “a reasonable police officer in the circumstances would [not] understand the

statement to be a request for an attorney.” Davis v. United States, 512 U.S. at 459; see also

Jernigan v. State, No. 06-10-00221-CR, 2011 WL 4954168, at *2 (Tex. App.—Texarkana Oct.

19, 2011, pet. ref’d) (holding suspect’s questions “Do I need to get a lawyer?” and “Can I talk to

one first?” did not clearly request an attorney).

                                           CONCLUSION

       Because Massengale did not clearly request an attorney, the questioning was permitted to

continue, and the trial court did not err in denying the motion to suppress. The trial court’s

judgment is affirmed.

                                                     Catherine Stone, Chief Justice

DO NOT PUBLISH




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