the State of Texas v. Juan Negrete ( 2021 )

Opinion issued May 4, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00357-CR
———————————
THE STATE OF TEXAS, Appellant
V.
JUAN NEGRETE, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 1524468
OPINION
In this interlocutory appeal,1 appellant, the State, challenges the trial court’s
order granting the pretrial motion to suppress filed by appellee, Juan Negrete. In its
sole issue, the State contends that the trial court erred in granting appellee’s motion
1
See TEX. CODE CRIM. PROC. art. 44.01(a)(5).
to suppress the videotape recording of appellee’s oral statement to law enforcement
officers.
We affirm.
Background
A Harris County grand jury issued a true bill of indictment, alleging that
appellee, on or about September 17, 2016, “did then and there unlawfully,
intentionally and knowingly commit the felony offense of deadly conduct by
knowingly discharging a firearm at and in the direction of a vehicle, namely a motor
vehicle, and [appellee] was reckless as to whether the vehicle was occupied, and
while in the course of and furtherance of said offense did commit an act clearly
dangerous to human life, to-wit: by shooting with a firearm and did thereby cause
the death of Jaime Rivera,” the complainant.2 (Emphasis omitted.)
Later, appellee moved to suppress his statement made to law enforcement
officers after he was arrested on September 20, 2016 for the felony offense of
murder. According to appellee, during his interview with law enforcement officers,
he invoked his Fifth Amendment right to counsel and requested counsel, but officers
did not cease their interrogation in violation of appellee’s Fifth Amendment right.3
Appellee also asserted that, during his interview, law enforcement officers
2
See TEX. PENAL CODE ANN. § 19.02(b) (“Murder”).
3
See U.S. CONST. amends. V, XIV.
2
threatened his family members, rendering his confession involuntary. Appellee
requested that the trial court suppress the videotaped recording of his oral statement
to law enforcement officers.
No witnesses testified at the hearing on appellee’s motion to suppress. The
trial court, however, viewed the videotaped recording of appellee’s statement to law
enforcement officers.4
The videotaped recording shows appellee handcuffed to a chair when two law
enforcement officers enter the room. Appellee remains handcuffed while officers
ask him questions. The handcuffs are removed about four minutes and fifty seconds
into the videotaped recording. About seven minutes and thirty seconds into the
videotaped recording, one of the law enforcement officers reads appellee the
required Miranda5 and Texas Code of Criminal Procedure article 38.22 warnings.6
The officer then tells appellee that the officers want to talk to him about “a
homicide,” and he immediately states that he and the other law enforcement officer
4
Although the videotaped recording of appellee’s statement was not admitted into
evidence at the suppression hearing, we previously ordered it included in the
appellate record, and we consider it in this appeal. See Amador v. State, 221 S.W.3d
666, 673–74 (Tex. Crim. App. 2007); Cornish v. State, 848 S.W.2d 144, 145 (Tex.
Crim. App. 1993) (“[E]vidence which, although not formally introduced is
nevertheless treated by the trial court and the parties as if it had been, may be
considered on appeal as if admitted.”).
5
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
6
See TEX. CODE CRIM. PROC. ANN. art. 38.22.
3
“don’t want [appellee’s] . . . younger brother” “to be wrapped up in this” and “mixed
up in this, if he is not involved.” Appellee responds, “He’s not.” The officer tells
appellee that he has information that appellee and “Ivan” were in the car, but the
officers need details on “who was involved,” “who was driving,” “the facts,” and
“what happened.” He says to appellee, “[O]bviously we got to your house.” And
the officer tells appellee he has a “big problem” because he does not “want to put
[appellee’s] mother and father in jail if [he] doesn’t have to.” When appellee asks
“why” his parents would be put “in jail,” the officer replies that there were “assault
rifles . . . in [a] bedroom that . . . [were] completely and totally accessible by
a . . . child.” Appellee tells the officer that his parents did not know that “they were
there.”
The law enforcement officer then asks appellee to “explain to [the
officers], . . . within th[e] last week when [appellee] and Ivan were together, what
happened.” Appellee responds, “[H]ow many people are y’all putting in the car?”
The officer states, “I want you to tell me.” And appellee replies, “I don’t want to
snitch without a lawyer.”7 In response to appellee’s statement, the law enforcement
officer says: “[W]e are not talking about snitching, what we are talking about is
keeping your mother and father from going to jail.” When appellee asks, “[F]or
7
Appellee makes this statement about thirteen minutes and ten seconds into the
videotaped recording and about five minutes and thirty seconds after he was read
the required warnings.
4
what though,” the officer states, “for the dope,” “for the rifles,” while the other law
enforcement officer interjects “for the narcotics paraphernalia,” “for the almost
$14,000 of illegal money that was up there,” and “for a lot of things.” Appellee
replies, “They don’t even know” and “They don’t even go up there.” The officer
tells appellee, “We know you smoke up there.” When appellee says that his mother
is “not a criminal,” she just “gets nervous,” the other officer tells appellee “she’s
gonna get a lot more nervous.”
The law enforcement officer then redirects the discussion “to get to the bottom
of this so that [the officers] can clear up a lot of stuff.” The officer tells appellee to
explain “what happened, what took place.” Appellee asks, “When? That night?”
Appellee expresses reluctance to talk about the people in the car because they know
that he was there. The law enforcement officer tells appellee to tell him what
appellee “know[s].” Appellee states that he was “driving under the influence” and
he was coming from “the club.” In response to the law enforcement officer’s
questions, appellee explains that “Ivan” was sitting in the front-passenger seat of the
sport utility vehicle (“SUV”). Appellee again expresses concern about “the other
people” and asks about “witness protection.” The law enforcement officer explains
that he obtained a search warrant for appellee’s SUV and house and the officers
knew that appellee was “involved” and that “Ivan was involved.” The officer
reiterates that appellee was driving and “Ivan” was the passenger in the front seat of
5
the SUV. And appellee tells the officer that there were “three more people.” The
officer asks what time appellee and “Ivan” left the club, and appellee responds,
“When it closed.” The officer asks appellee where he drove after leaving the club,
and appellee states that he went “back to the neighborhood” and picked up “three
people” they “saw . . . in the street.” The officer asks appellee what they did next,
and appellee says that they “went to pick somebody else up.” When asked who was
picked up, appellee states that he did not know the person, but he was a relative of
one of the people in the car. The officers then ask appellee, what happened next,
and appellee states, “What about my lawyer right there”8 and “I want to make sure
that I am going to be benefitted. That’s why I need a lawyer.”9 The officers respond
that appellee has been corroborating what they already know, and the other officer
states that appellee has not told them “who pulled the trigger” and the “circumstances
behind why the trigger was pulled.”
The first law enforcement officer then asks appellee about the firearm
involved and to whom the firearm belonged. Appellee replies that it belonged to one
of the “other boys” and they said that they had stolen it. The officer asks appellee
whether “Ivan” was “the one who used the gun.” And appellee responds, “Yup.”
8
Appellee makes this statement about nineteen minutes into the videotaped recording
and about six minutes after stating that he did not “want to snitch without a lawyer.”
9
Appellee makes this statement about twenty minutes and forty seconds into the
videotaped recording and about seven minutes and thirty seconds after stating that
he did not “want to snitch without a lawyer.”
6
The law enforcement officer reiterates that the officers “do not want to take
[appellee’s] mother and father to jail” or “take [appellee’s] little brother to jail,” but
the officers “have to have information from [appellee]” and “unfortunately,
[appellee’s little brother is] wrapped up in it.” The law enforcement officers
question appellee about “[the] homicide” for another thirty-eight minutes. The
videotaped recording shows that the law enforcement officers’ interview with
appellee lasted about sixty-one minutes.
After reviewing the videotaped recording, the trial court listed the “three
statements [by appellee that it] found invoke[ed] [the right to] counsel.” The first
statement by appellee, which occurs about thirteen minutes and ten seconds into the
videotape recording, was: “I don’t want to snitch without a lawyer.” (Internal
quotations omitted.) The second statement by appellee, which occurs about nineteen
minutes into the videotaped recording, was: “What about my lawyer right there.”
(Internal quotations omitted.) The third statement by appellee, which occurs about
twenty minutes and forty seconds into the videotaped recording, was: “I want to
make sure that I am going to be benefitted. That’s why I need a lawyer.”
Following the suppression hearing, the trial court, without specifying the
grounds, granted appellee’s motion to suppress the videotape recording of appellee’s
oral statement to law enforcement officers.
7
Motion to Suppress
In its sole issue, the State argues that the trial court erred in granting appellee’s
motion to suppress the videotape recording of appellee’s oral statement to law
enforcement officers because appellee did not unequivocally and unambiguously
invoke his right to counsel while being interviewed by the law enforcement officers.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. See Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.
Crim. App. 2013). We review the trial court’s factual findings for an abuse of
discretion and the trial court’s application of the law to the facts de novo. Id. At a
suppression hearing, the trial court is the sole and exclusive trier of fact and judge
of the witnesses’ credibility, and it may choose to believe or disbelieve all or any
part of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim.
App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When, as
here, a trial court does not make explicit findings of fact, we review the evidence in
a light most favorable to the trial court’s ruling, and we assume that the trial court
made implied findings of fact that support its ruling as long as those findings are
supported by the record. Ramirez-Tamayo v. State, 537 S.W.3d 29, 35–36 (Tex.
Crim. App. 2017); see also Walter v. State, 28 S.W.3d 538, 540 (Tex. Crim. App.
2000). We give almost total deference to a trial court’s implied findings, especially
those based on an evaluation of witness credibility or demeanor. Valtierra v. State,
8
310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We will sustain the trial court’s ruling
if it is reasonably supported by the record and is correct on any theory of law
applicable to the case. Id. at 447–48. This is so even if the trial court gives the
wrong reason for its decision. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App.
2003); State v. Brabson, 899 S.W.2d 741, 745–46 (Tex. App.—Dallas 1995)
(stating, in context of reviewing trial court order granting motion to suppress,
appellate court “cannot limit [its] review of the [trial] court’s ruling to the ground
upon which [the trial court] relied” and it “must review the record to determine if
there is any valid basis upon which to affirm the [trial] court’s ruling”), aff’d, 976
S.W.2d 182 (Tex. Crim. App. 1998).
The Fifth Amendment prohibits the government from compelling a criminal
defendant to make statements incriminating himself. See U.S. CONST. amends. V,
XIV; see also Edwards v. Arizona, 451 U.S. 477, 481–82 (1981). The United States
Supreme Court has “crafted safeguards to protect th[e] ‘privilege against
self-incrimination’ in the inherently coercive atmosphere of custodial
interrogations.” Pecina v. State, 361 S.W.3d 68, 74–75 (Tex. Crim. App. 2012)
(quoting Miranda v. Arizona, 384 U.S. 436, 441 (1966)). To protect the privilege
against self-incrimination, law enforcement officers “may not conduct a custodial
interrogation of a suspect who has requested the assistance of counsel.” Gaitan v.
State, 533 S.W.3d 19, 27 (Tex. App.—Corpus Christi–Edinburg 2016, pet. ref’d);
9
see also State v. Soto, Nos. 04-19-00427-CR to 04-19-00429-CR, 2020 WL
6293451, at *3 (Tex. App.—San Antonio Oct. 28, 2020, pet. ref’d) (mem. op., not
designated for publication) (“The right to counsel during custodial interrogation was
created as a procedural safeguard to ‘insure that the right against compulsory
self-incrimination was protected.’” (quoting Michigan v. Tucker, 417 U.S. 433, 444
(1973))); Mbugua v. State, 312 S.W.3d 657, 663 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d) (“Under the Fifth Amendment of the United States Constitution, an
accused has the right to have an attorney present during custodial interrogation.”).
Thus, “once a defendant in custody asks to speak with a lawyer, all interrogation
must cease until a lawyer is present” or the defendant himself reinitiates a dialogue
with law enforcement officers. Rhode Island v. Innus, 446 U.S. 291, 293 (1980);
State v. Gobert, 275 S.W.3d 888, 892 (Tex. Crim. App. 2009); see also Edwards,
451 U.S. at 484–85; Flores v. State, 299 S.W.3d 843, 852 (Tex. App.—El Paso 2009,
pet. ref’d); Mbugua, 312 S.W.3d at 663–64 (“Once an accused has invoked that
right, police interrogation must stop until counsel has been made available or the
accused himself initiates a dialogue with the police.”). When law enforcement
officers fail to cease their interrogation in violation of a defendant’s Fifth
Amendment right to counsel, the State may not use the defendant’s statement during
the prosecution of its case. See Jones v. State, 119 S.W.3d 766, 772 (Tex. Crim.
App. 2003); Ochoa v. State, 573 S.W.2d 796, 801 (Tex. Crim. App. 1978); see also
10
Williams v. State, No. 01-13-00111-CR, 2014 WL 1612399, at *8 (Tex. App.—
Houston [1st Dist.] Apr. 22, 2014, no pet.) (mem. op., not designated for
publication).
The right to counsel is invoked when a defendant indicates that he desires to
speak to an attorney or to have an attorney present during questioning. Dinkins v.
State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995); see also Bernard v. State, No.
01-18-00876-CR, 2019 WL 6869328, at *4 (Tex. App.—Houston [1st Dist.] Dec.
17, 2019, pet. ref’d) (mem. op., not designated for publication). Yet not every
mention of a lawyer will suffice to invoke the Fifth Amendment right to counsel
during questioning. Gobert, 275 S.W.3d at 892; Dinkins, 894 S.W.2d at 351; see
also Bernard, 2019 WL 6869328, at *4 (“The use of the word ‘attorney’ or ‘lawyer’
does not, in and of itself, invoke the right to counsel.”). An ambiguous or equivocal
statement about counsel does not require law enforcement officers to halt their
interrogation or even seek clarification. Gobert, 275 S.W.3d at 892; see also
Mbugua, 312 S.W.3d at 664 (“[A] person in custody must unambiguously and
unequivocally invoke his right to counsel before interrogation must cease.”). When
reviewing an alleged invocation of the right to counsel, we look at the statement
itself and the totality of the circumstances surrounding the statement to determine
whether the defendant’s statement constitutes an actual invocation of the right to
counsel. Dinkins, 894 S.W.2d at 351; see also Gobert, 275 S.W.3d at 892. The test
11
is an objective one: whether the defendant articulated his desire for the assistance
of counsel sufficiently clearly that a reasonable law enforcement officer in the
circumstances would understand the statement to be a request for an attorney.
Gobert, 275 S.W.3d at 892–93; Dinkins, 894 S.W.2d at 351–52; Mbugua, 312
S.W.3d at 664. While there are no “magical words” required to invoke a defendant’s
right to counsel, at a minimum, a defendant must “express a definite desire to speak
to someone, and [for] that person [to] be an attorney.” Dinkins, 894 S.W.2d at 352(internal quotations omitted); see also Lucas v. State, 791 S.W.2d 35, 45 (Tex. Crim.
App. 1989) (“The right to counsel is considered invoked where a person indicates
he or she desires to speak to an attorney or have an attorney present during
questioning.”).
The State asserts that appellee’s statement, “I don’t want to snitch without a
lawyer,” was not an unambiguous invocation of his Fifth Amendment right to
counsel because the word “snitch” is informal or slang and “it is not exactly clear
when a criminal defendant snitches,” thus, making the term “snitch” itself
ambiguous. (Internal quotations omitted.) Further, appellee’s statement only
indicated that his “desire for an attorney [was] condition[ed] on when he snitche[d],”
and it was not a blanket request for an attorney. (Internal quotations omitted.)
The videotaped recording shows that about seven minutes and thirty seconds
into appellee’s interview with law enforcement officers, one of the officers reads
12
appellee the required Miranda and Texas Code of Criminal Procedure article 38.22
warnings, which included informing appellee of his right to have an attorney present
and advise him before and during any questioning by law enforcement officers. See
Gobert, 275 S.W.3d at 892 (“Among the rights about which the police must advise
a suspect whom they have arrested is the right to have counsel present during any
police-initiated interrogation.”); Coffey v. State, 435 S.W.3d 834, 841–43 (Tex.
App.—Texarkana 2014, pet. ref’d) (holding defendant was not informed he had right
to have attorney present during questioning, as required by Miranda and Texas Code
of Criminal Procedure article 38.22); see also Soto, 2020 WL 6293451, at *3
(“Under the Fifth Amendment, an accused has the right to consult with an attorney
and to have an attorney present during a custodial interrogation and the police must
explain this right to the accused before questioning begins.”). After reading the
required Miranda and article 38.22 warnings, the law enforcement officer tells
appellee that the officers want to talk to him about “a homicide,” and they “don’t
want [appellee’s] . . . younger brother” “to be wrapped up in [it].” The law
enforcement officer also tells appellee that the officers need details on “who was
involved,” “who was driving,” “the facts,” and “what happened” because he has a
“big problem” as he “does not want to put [appellee’s] mother and father in jail if
[he] doesn’t have to.” The law enforcement officer next asks appellee to “explain
to [the officers], . . . within th[e] last week when [appellee] and Ivan were together,
13
what happened.” Appellee responds, “[H]ow many people are y’all putting in the
car?” And the officer states, “I want you to tell me.” Appellee replies, “I don’t want
to snitch without a lawyer.”
A “snitch” is a person “who supplies law-enforcement officers with
information in hopes of receiving lenient treatment.” Snitch, BLACK’S LAW
DICTIONARY (11th ed. 2019). To “snitch” means to inform or tattle, particularly to
law enforcement officers. See Metro. Transit Auth. of Harris Cty. v. Williams, No.
01-17-00724-CV, 2018 WL 541932, at *3 (Tex. App.—Houston [1st Dist.] Jan. 25,
2018, pet. denied) (mem. op.) (defining “[s]nitch” as to report on someone or to
“inform on someone” (internal quotations omitted)); Hill v. Herald-Post Publ’g Co.,
877 S.W.2d 774, 778–79 (Tex. App.—El Paso 1994), aff’d in part, rev’d in part on
other grounds, 891 S.W.2d 638 (Tex. 1994); Snitch, MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY (11th ed. 2014) (defining “snitch” as “inform” or “tattle”);
see also Myers v. State, Nos. 09-14-00365-CR, 09-14-00366-CR, 2015 WL
4571380, at *2 (Tex. App.—Beaumont July 29, 2015, no pet.) (mem. op., not
designated for publication) (witness testified he was known as “[a] snitch[]” because
he had “given law enforcement information” (internal quotations omitted)); Webb v.
State, No. 08-11-00126-CR, 2013 WL 1229012, at *2 n.5 (Tex. App.—El Paso Mar.
27, 2013, pet. ref’d) (mem. op., not designated for publication) (witness testified
term “snitch” meant “talking to or cooperating with law enforcement in their
14
investigations” (internal quotations omitted)); Blue v. State, No. 04-11-00726-CR,
2012 WL 4095988, at *1 (Tex. App.—San Antonio Sept. 19, 2012, pet. ref’d) (mem.
op., not designated for publication) (law enforcement officer testified that “people
were not willing to talk to the police for fear of being labeled a ‘snitch’”); Bell v.
State, No. 01-10-0143-CR, 2012 WL 761187, at *2 (Tex. App.—Houston [1st Dist.]
Mar. 8, 2012, pet. ref’d) (mem. op., not designated for publication) (witness testified
that she did not speak to law enforcement officers initially because she did not want
to be considered “a snitch” (internal quotations omitted)).
At the hearing on appellee’s motion to suppress, the trial court, when
discussing appellee’s invocation of his right to counsel through the statement, “I
don’t want to snitch without a lawyer,” explained: “I think if we removed the word
‘snitch’ and turned it into ‘talk to the police,’ I don’t think there would be any
question about whether or not th[ere] was an invocation. I think that’s a matter of
vernacular. . . . [W]hat he is saying is, I need a lawyer to protect me so when I tell
you this stuff, I’m going to get something out of it. . . . [T]his seems very obvious
what he’s saying is, I want a lawyer before I talk to the cops because I know I need
a lawyer to protect me.”
Under Texas law, there are no “magical words” required for a defendant to
invoke his right to counsel. Dinkins, 894 S.W.2d at 352 (internal quotations
omitted). Instead, the right to counsel is invoked when a defendant indicates that he
15
desires to speak to an attorney or to have an attorney present during questioning. Id.
at 351; see also Bernard, 2019 WL 6869328, at *4. In response to law enforcement
officers’ questions about the details of “a homicide,” appellee told the officers: “I
don’t want to snitch without a lawyer,” meaning appellee did not want to talk to law
enforcement officers about “[the] homicide” without a lawyer. See Ochoa, 573
S.W.2d at 800–01 (“Although [defendant] did not make a ‘formal request’ or
absolute demand for a lawyer, he did in some manner indicate to [the law
enforcement officer] that he wanted to exercise his right to counsel. This was
sufficient to require a cessation of interrogation.”). Appellee’s statement was an
unambiguous and unequivocal invocation of his right to counsel, and it is not unlike
the statements made by the defendants in other cases in which courts have held that
the defendant clearly invoked his right to counsel. See Jones v. State, 742 S.W.2d
398, 405–06 (Tex. Crim. App. 1987) (defendant’s statement, “I think I want a
lawyer,” was clear and unequivocal assertion of her right to consult with counsel
(internal quotations omitted)); Ochoa, 573 S.W.2d 799–801 (defendant’s statement
“that he probably ought to talk to a lawyer or . . . didn’t want to sign anything until
he talked to a lawyer” was sufficient to invoke his right to counsel and required
cessation of interrogation); Goodnough v. State, 627 S.W.2d 841, 843–44 (Tex.
App.—San Antonio 1982, pet. ref’d) (defendant invoked right to counsel by stating,
“I might better talk to a lawyer first” (internal quotations omitted)); see also Davis
16
v. United States, 512 U.S. 452, 455 (1994) (questioning by law enforcement ceased
when defendant said, “I think I want a lawyer before I say anything else” (internal
quotations omitted)); United States v. Johnson, 400 F.3d 187, 195–97 (4th Cir. 2005)
(defendant unequivocally invoked right to counsel by asserting that he did not want
to make statement without lawyer); Tindle v. United States, 778 A.2d 1077, 1083–
84 (D.C. 2001) (defendant clearly invoked right to counsel by asserting he did not
want to make statement without lawyer); United States v. McCluskey, 893 F. Supp.
2d 1117, 1122, 1138–39 (D.N.M. 2012) (defendant’s statement, “I don’t want to talk
to nobody without a lawyer,” constituted “an unambiguous and unequivocal
invocation of his Miranda right to counsel” (internal quotations omitted)); cf.
Miranda, 384 U.S. at 444–45 (there can be no questioning if defendant indicates in
any manner and at any stage of interrogation process that he wishes to consult with
attorney). Here, appellee expressed a definite desire to speak to someone and for
that person to be an attorney. See Dinkins, 894 S.W.2d at 352; see also Davis, 512
U.S. at 459 (invocation of right to counsel requires “some statement that can
reasonably be construed to be an expression of a desire for the assistance of an
attorney” (internal quotations omitted)).
The State asserts that this case is like Molina v. State, in which a defendant
sought to have his statements to law enforcement officers suppressed because he had
purportedly invoked his right to counsel. 450 S.W.3d 540, 545 (Tex. App.—
17
Houston [14th Dist.] 2014, no pet.). In that case, the defendant, while in custody,
was interviewed by law enforcement officers about “a double murder.” Id. at 545–
46. The defendant, during the interview, stated: “If I’m getting blamed for
something like that well shit I’m going to just go ahead and call my lawyer,” but law
enforcement officers did not cease their interrogation. Id. The trial court found that
the defendant’s statement was not a clear and unambiguous invocation of his right
to counsel. Id. On appeal, the Fourteenth Court of Appeals agreed, reasoning that
the defendant’s “statement was not in the form of a request, nor did [the defendant]
expressly say that he wanted a lawyer.” Id. at 547. Thus, the court held, under the
circumstances in the case, that the defendant’s statement was not a clear and
unambiguous request for counsel. Id.
Molina is distinguishable, particularly because here, appellee did “expressly
say that he wanted a lawyer.” Cf. id. And we do not agree with the State’s assertion
that appellee’s expressed desire for an attorney was conditional, a point which the
defendant conceded in Molina.10 See id.
Examining appellee’s statement and the totality of the circumstances, we
conclude that appellee articulated his desire for the assistance of counsel sufficiently
10
Even if appellee’s statement, “I don’t want to snitch without a lawyer,” could be
construed as conditional, just because a statement is conditional does not mean it is
equivocal, ambiguous, or otherwise unclear. See State v. Gobert, 275 S.W.3d 888,
893 (Tex. Crim. App. 2009); see also Trejo v. State, 594 S.W.3d 790, 797–98 (Tex.
App.—Houston [14th Dist.] 2019, no pet.).
18
clear that a reasonable law enforcement officer in the circumstances would have
understood that the statement was a request for an attorney. See Gobert, 275 S.W.3d
at 892–93; Dinkins, 894 S.W.2d at 351–52; Mbugua, 312 S.W.3d at 664. We also
conclude that appellee unambiguously and unequivocally invoked his right to
counsel and the law enforcement officers conducting the interview had a duty to
terminate their interrogation. See Davis, 512 U.S. at 454; Gobert, 275 S.W.3d at
892. Because they did not do so, we hold that the trial court did not err in granting
appellee’s motion to suppress the videotape recording of appellee’s oral statement
to law enforcement officers.11 See Ochoa, 573 S.W.2d at 800 (“[T]his Court must
conclude that if [the defendant] in any manner indicated his desire to have a lawyer,
the continued interrogation was a violation of his Miranda rights and the confession
obtained therefrom is inadmissible.” (emphasis added)).
We overrule the State’s sole issue.12
11
The State does not assert in its brief that appellee, after stating, “I don’t want to
snitch without a lawyer,” reinitiated a dialogue with the law enforcement officers.
See Rhode Island v. Innus, 446 U.S. 291, 293 (1980); Gobert, 275 S.W.3d at 892;
see also Edwards v. Arizona, 451 U.S. 477, 484–85 (1981); Flores v. State, 299
S.W.3d 843, 852 (Tex. App.—El Paso 2009, pet. ref’d); Mbugua v. State, 312
S.W.3d 657, 663–64 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (“Once an
accused has invoked that right, police interrogation must stop until counsel has been
made available or the accused himself initiates a dialogue with the police.”).
Instead, the State only argues, in regard to this particular statement by appellee, that
the statement did not constitute an unambiguous invocation of appellee’s right to
counsel. See TEX. R. APP. P. 38.1(i).
12
Due to our disposition, we need not address the State’s assertions that appellee’s
later interview statements about a “lawyer” did not constitute invocations of his
right to counsel. See TEX. R. APP. P. 47.1. We also need not address the State’s
19
Conclusion
We affirm the order of the trial court.
Julie Countiss
Justice
Panel consists of Justices Hightower, Landau, and Countiss.
Publish. TEX. R. APP. P. 47.2(b).
argument in its reply brief that appellee’s confession was not involuntary or consider
whether that argument is properly before this Court. See id.; see also Deutsch v.
State, 566 S.W.3d 332, 341 n.9 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(appellate court need not consider arguments raised for first time in reply brief);
Barrios v. State, 27 S.W.3d 313, 321–23 (Tex. App.—Houston [1st Dist.] 2000, pet.
ref’d) (appellant not entitled to relief on issue raised for first time in reply brief).
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