2008-10

Pecina, Alfredo Leyva ( 2008 )

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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1159-07
ALFREDO LEYVA PECINA, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
K ELLER, P.J., filed a dissenting opinion.
I think I read the record a little bit differently than the Court does. When Judge Maddock
approached appellant’s bedside, she pointed to the detectives and said, “They are here. They would
like to speak to you.” Appellant gave some sort of acknowledgement, nodding his head or saying
“yes.” The judge then proceeded with the magistration process. After giving the required warnings,
she asked appellant if he wanted a court-appointed attorney, and he said, “Yes.” She then asked, “Do
you still want to talk to them?”1 Again, appellant answered, “Yes.”
Indisputably, appellant’s “yes” answer to the first question constituted an invocation of his
1
Emphasis mine.
PECINA DISSENT — 2
right to counsel, but the scope of that invocation is another matter. It is possible for a suspect to
engage in a “limited” invocation of his right to counsel that permits communication with the police
without an attorney present.2 When there is ambiguity as to whether the suspect is invoking counsel
at all, the police are not required to clarify the ambiguous remarks and may assume that the
defendant has not in fact invoked his right to counsel.3 However, when the right to counsel has been
clearly invoked, and the ambiguity is to the scope of that invocation, the suspect’s request must be
interpreted broadly rather than narrowly.4 Though the Supreme Court has not explicitly held that
clarifying questions can be used to cure ambiguity as to the scope of the suspect’s invocation,5
comments by the Court in Davis strongly suggest it: “[I]t will often be good police practice for the
interviewing officers to clarify whether or not [the suspect] actually wants an attorney . . . .
Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he
wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial
second-guessing as to the meaning of the suspect’s statement regarding counsel.”6
Before invoking his right to counsel, appellant gave an affirmative response to Judge
Maddock’s statement that the detectives would like to talk to him. That response could be
interpreted as either (1) acknowledging that he understood the police wanted an interview or (2)
2
Connecticut v. Barrett,

479 U.S. 523

, 529 (1987)(the defendant’s “limited requests for
counsel” with respect to the taking of a written statement “were accompanied by affirmative
announcements of his willingness to speak [orally] with the authorities”).
3
Davis v. United States,

512 U.S. 452

, 459 (1994).
4

Barrett, 479 U.S. at 529

.
5

Id. at 529

n.3 (citing Smith v. Illinois,

469 U.S. 91

, 96 n.3 (1984)).
6

Davis, 512 U.S. at 461

(emphasis added).
PECINA DISSENT — 3
assenting to such an interview. In asking whether appellant “still” wanted to talk to the police, Judge
Maddock indicated that she held to the second interpretation, viewing appellant’s response as
assenting to an interview. If Judge Maddock’s interpretation is accepted, then ambiguity existed
with respect to the scope of appellant’s subsequent invocation of his right to counsel.7
Accepting Judge Maddock’s interpretation may depend on the standard of review. In Davis,
the Supreme Court held that the inquiry into whether an accused actually invoked his right to counsel
(with respect to the interrogation) would be an objective one.8 It did so in order “[t]o avoid
difficulties of proof and to provide guidance to officers conducting interrogations,”9 which is similar
to the Supreme Court’s rationale for imposing a de novo review of the circumstances supporting a
warrantless search or arrest.10 But in this case, the police exercised uncommon and commendable
caution in bringing Judge Maddock to appellant’s hospital room. As a result, appellant’s invocation
of his right to counsel occurred, not in response to police interrogation, but in response to the inquiry
of a neutral and detached magistrate. Despite the general rule that Fourth Amendment search and
seizure issues are evaluated de novo, both the Supreme Court and this Court have recognized an
exception with respect to a magistrate’s determination of probable cause, which is reviewed under
7
See Marshall v. State,

210 S.W.3d 618

, 627-28 (Tex. Crim. App. 2006)(defendant’s
“no sir” response when asked whether he wanted to waive his rights created ambiguity because
the defendant had re-initiated contact with the police).
8

Davis, 512 U.S. at 458-59

(citing

Barrett, 479 U.S. at 529

).
9

Id. 10 See

Ornelas v. United States,

517 U.S. 690

, 697-98 (1996)(“de novo review tends to
unify precedent and will come closer to providing law enforcement officers with a defined ‘set of
rules which, in most instances, makes it possible to reach a correct determination beforehand as
to whether an invasion of privacy is justified in the interest of law enforcement’”).
PECINA DISSENT — 4
a deferential standard.11 Similarly, I believe deference should be accorded to a magistrate’s
interpretation of the defendant’s invocation of his right to counsel, either as a component of the
“objective” inquiry, or perhaps as an exception to the usual practice. Judge Maddock, who was also
a Spanish-speaker, was in a position to observe appellant’s tone of voice and demeanor in making
her evaluation.
However, even if a de novo review of the circumstances were required, the circumstances
surrounding appellant’s initial affirmative response and his later request for counsel remain
ambiguous, and Judge Maddock was justified in asking a clarifying question. Once she did so, it
became clear that appellant’s invocation of his right to counsel was a limited one that did not apply
to speaking with the officers.
Under these circumstances, appellant made an initial choice, under Patterson v. Illinois,12 to
confront the police without counsel.13 Michigan v. Jackson14 is distinguishable because the Supreme
Court’s decision in Jackson “turned on the fact that the accused had asked for the help of a lawyer
in dealing with the police.”15 The Court contends that Jackson forecloses a conclusion that a request
11

Ornelas, 517 U.S. at 699

; Swearingen v. State,

143 S.W.3d 808

, 810-11 (Tex. Crim.
App. 2004).
12

487 U.S. 285

(1988).
13

Id. at 291

(“Preserving the integrity of an accused’s choice to communicate with police
only through counsel is the essence of Edwards and its progeny–not barring an accused from
making an initial election as to whether he will face the State's officers during questioning with
the aid of counsel, or go it alone. If an accused ‘knowingly and intelligently’ pursues the latter
course, we see no reason why the uncounseled statements he then makes must be excluded at his
trial.”)(emphasis in original).
14

475 U.S. 625

(1988).
15

Patterson, 487 U.S. at 291

(brackets and internal quotation marks omitted).
PECINA DISSENT — 5
for appointed counsel before a magistrate could be construed as embracing only a future trial rather
police interrogation.16 But the cited passage in Jackson simply made the point that an accused’s
invocation of his right to counsel should be given a “broad, rather than narrow, interpretation.”17 An
accused “should not be expected to articulate exactly why or for what purposes he is seeking
counsel,”18 but if he articulates the boundaries of his right to counsel, then those boundaries can be
respected and enforced by the courts. Because appellant’s initial request for counsel was a limited
request that did not encompass the police interrogation, there was no need to show that he re-initiated
communication.19
I respectfully dissent.
Filed: October 29, 2008
Publish
16
Court’s op. at 8 (quoting

Jackson, 475 U.S. at 633