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

MEYERS, J., delivered the opinion of the Court, in which PRICE,

WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined. 

KELLER, P.J., filed a dissenting opinion.

O P I N I O N

Appellant, Alfredo Leyva Pecina, was found guilty of murder and sentenced to life

in prison. He appealed his conviction, arguing that the trial court erred in denying his

motion to suppress his statements to the police. The court of appeals affirmed the trial

court. Pecina v. State, No. 2-05-456-CR (Tex. App.–Fort Worth May 3, 2007) (not

designated for publication), 2007 Tex. App. LEXIS 3424. We granted review to consider
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whether an attorney should have been provided for Appellant before he was questioned

by the police, and whether Appellant waived his Fifth and Sixth Amendment rights. We

hold that Appellant’s rights to counsel had attached when he was arraigned, and that he

did not initiate the contact with the police as required to validly waive those rights. 

Therefore, he should not have been questioned without an attorney present. We will

reverse the court of appeals.

FACTS

Appellant and his wife, Michelle, lived with her father and her sister, Gabriela. 

One evening, Gabriela came home and found Appellant and Michelle lying on the floor

of their bedroom, bleeding from stab wounds. When she picked up the phone to call 911,

Appellant stood up and came toward her. She left the apartment and went to get a

neighbor. The neighbor called 911 and then went with Gabriela back to the apartment. 

When police and paramedics arrived, they found Appellant on the floor suffering from

stab wounds and took him to the hospital. Michelle was pronounced dead at the scene,

and it was later determined that she had been stabbed more than fifty times.

Because the police believed that Appellant had murdered his wife and had

attempted to kill himself, detectives prepared a warrant for his arrest. The detectives

brought a Spanish-speaking magistrate, Judge Maddock, to the hospital to arraign

Appellant before the detectives attempted to interview him. The magistrate testified that

she and the detectives entered Appellant’s hospital room and introduced themselves. She
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went over to Appellant’s bedside and pointed to the detectives and said, “They are here. 

They want to speak to you.” She stated, “[H]e nodded his head or said ‘yes.’ I can’t

remember, but there was an acknowledgment.” She then read him his rights and asked

him if he wanted a court-appointed attorney. He said that he did. The magistrate wrote

on the bottom of the waiver of counsel form, “Per court motion, appoint defendant an

attorney.” She asked him if he wanted to speak to the detectives, and he said, “Yes.” She

said that he did not indicate that he wanted counsel present before he talked to the

detectives. 

Before speaking with detectives, Appellant also signed the “Adult Warning Form,”

which says that you have the right to counsel, the right to remain silent, you do not have

to speak to the police, you are not required to make a statement, and you have the right to

stop any interview or questioning at any time. One of the detectives wrote in Spanish on

the side of the waiver of counsel form Appellant had already signed, “I asked for a

lawyer, but I also wanted to speak with the Arlington police.” The officers read

Appellant the Miranda warnings twice, once before they started recording the interview

and again after turning on the recording device. See Miranda v. Arizona, 384 U.S. 436

(1966). 

During the interview with the police, Appellant said that he and his wife had

argued. When asked if he had cut his wife, he said, “yes.” He then signed a confession

written by one of the detectives stating that he had cut his wife. 
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Appellant filed a motion to suppress both his oral and written statements, claiming

that the statements were not voluntarily given and were obtained in violation of his

Fourth, Fifth, Sixth, and Fourteenth Amendment rights. At the suppression hearing, the

State asked the magistrate whether Appellant freely, intelligently, knowingly and

voluntarily spoke to the police officers. She testified, “He said he still – I said, I asked

them – him, ‘do you still want to talk to them?’ And he said, ‘Yes.’ He never said to me

that he wanted to talk to them.”

The trial court denied the motion to suppress and made findings of fact and

conclusions of law including that Appellant was fully informed of his rights and that

Appellant “indicated that although he did want a lawyer, that he wished to also talk with

detectives from Arlington, meaning that he basically was waiving his rights at that time . . 

.” The trial court found that Appellant also signed various waivers of counsel and was

not under the influence of drugs or alcohol when he gave a statement that was recorded

and put in writing. Based on these findings, the trial court ruled that the statement was

taken voluntarily and was admissible. 

The jury found Appellant guilty of murder and sentenced him to life in prison. 

Appellant appealed, raising several issues, including that his statement to police was

obtained in violation of his right to counsel.

COURT OF APPEALS

The court of appeals addressed Appellant’s issues related to the right to counsel
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under the Fifth and Sixth Amendment and held that the trial court did not err in finding

that Appellant voluntarily waived his rights. The court reasoned that Appellant waived

his Fifth Amendment right to counsel “either by failing to invoke it, because nothing in

the testimony at the hearings or at trial clearly showed that Appellant indicated to Judge

Maddock or the detectives at the time of the interview that he wanted to speak to an

attorney about the questioning or to have one present during questioning, or because he

reinitiated the contact by answering ‘yes’ when asked by the magistrate if he still wanted

to speak with the detectives and by telling the detectives that he wanted to speak to them.” 

Pecina, 2007 Tex. App. LEXIS 3424 at *21-22. 

Considering the Sixth Amendment, the court concluded that Appellant’s right to

counsel had attached when he was arraigned by the magistrate and requested a courtappointed attorney. Id. at *23-24. The court determined that Appellant invoked his right

to counsel and then reinitiated contact with the detectives when he said, “I asked for a

lawyer, but also I wanted to speak with the Arlington police.” He also waived his right to

counsel when he was advised of his Miranda rights by the detectives prior to the

interview. Id. at *25-27, citing Cross v. State, 144 S.W.3d 521 (Tex. Crim. App. 2004) 

(stating that a suspect has waived his previously invoked right to counsel if the suspect

himself reinitiated the communication with the police and thereafter expressly waived the

right to counsel). The court of appeals deferred to the trial court’s findings of fact and

rejected Appellant’s arguments that his Fifth and Sixth Amendment rights were violated.
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Appellant filed a petition for discretionary review asking us to consider the

following two grounds for review:

When a defendant who had been given Miranda rights by a magistrate

simultaneously requests a lawyer and requests to speak to the police, must

an attorney be provided before the police can begin their interrogation?

When the police enter a hospital room to take a statement from defendant in

custody after the police have been informed that the accused has requested

an attorney and simultaneously indicated a willingness to speak to the

police, has the accused ‘reinitiated’ contact with the police and voluntarily

waived his fifth and sixth amendment rights to counsel and rights against

self incrimination?

CASELAW

In Edwards v. Arizona, 451 U.S. 477 (1980), the Supreme Court held that, 

[W]hen an accused has invoked his right to have counsel present during

custodial interrogation, a valid waiver of that right cannot be established by

showing only that he responded to further police-initiated custodial

interrogation even if he has been advised of his rights. We further hold that

an accused, such as Edwards, having expressed his desire to deal with the

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 conversations with

the police. 

Id. at 484-85. 

The Court then extended Edwards to the Sixth Amendment in Michigan v.

Jackson, 475 U.S. 625 (1985). As in the case before us, in the two cases that were

consolidated and discussed in Jackson, the appellants requested appointment of counsel at

the arraignment. And, in each case, the investigating officers were present at the

arraignment and questioned the accused after counsel was requested, but before the
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appellants had spoken with counsel. Each appellant was advised of his Miranda rights

prior to questioning and agreed to proceed with the interview without counsel. The Court

concluded that when a defendant requested counsel at an arraignment proceeding, the

police could not then initiate contact with the defendant and request a waiver of those

rights for the purpose of interrogation. Id. at 636.

We considered Edwards in Cross v. State and held that if an appellant has invoked

his right to counsel but then initiates contact with the police and expressly waives the

right to counsel, then the Edwards rule is satisfied and “the suspect has countermanded

his original election to speak to authorities only with the assistance of counsel.” 144

S.W.3d at 527 (citing Oregon v. Bradshaw, 462 U.S. 1093 (1983)). 

ANALYSIS

Despite the fact that the grounds for review characterize the requests for a lawyer

and to speak to the police as simultaneous, as noted above, the record indicates that the

magistrate read Appellant his rights and asked if he wanted a court-appointed attorney. 

When he said that he did, she filled out the paperwork to begin the appointment process. 

She then asked Appellant if he wanted to speak to the detectives, who were waiting in his

hospital room.

The State argues that Appellant failed to invoke his Fifth Amendment right to

counsel during interrogation; that his Sixth Amendment rights were not triggered by the

reading of the statutory warnings; and, even if Appellant invoked his Sixth Amendment
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rights, he waived them. 

Because Appellant did not unambiguously request that an attorney be provided for

the interrogation, the State asserts that the request for appointment of counsel was in the

event of a future trial, and not for the purpose of assisting him during questioning by the

detectives who were waiting to speak to him. The Supreme Court addressed and rejected

this argument in Michigan v. Jackson, stating that “We thus reject the State’s suggestion

that respondents’ requests for the appointment of counsel should be construed to apply

only to representation in formal legal proceedings.” 475 U.S. at 633. This also directly

addresses the State’s second argument, that adverse judicial proceedings are not initiated

by an arrest or by the magistrate reading Appellant his rights under Texas Code of

Criminal Procedure Article 15.17. See id. at 636 (once the Sixth Amendment attached in

dealings with magistrate, police could talk to a defendant only if he himself initiated the

contact.) Recently, the Supreme Court specifically considered Sixth Amendment rights in

relation to Texas Code of Criminal Procedure Article 15.17 and held that a defendant’s

initial appearance before a magistrate judge, where he learns the charge against him and

his liberty is subject to restriction, marks the initiation of adversary judicial proceedings

that trigger attachment of the Sixth Amendment right to counsel. Rothgery v. Gillespie

County, 128 S.Ct. 2578, 2592 (2008). Because Appellant in this case had invoked his

rights to counsel when arraigned by the magistrate at the hospital, the remaining issue is

whether Appellant initiated the contact with the police and then validly waived his
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We acknowledge that it was the magistrate, not the detectives who actually initiated the 1

contact between Appellant and the police. However, as the Supreme Court noted in Jackson,

“Sixth Amendment principles require that we impute the State’s knowledge from one state actor

to another.” Jackson, 475 U.S. at 634.

previously invoked rights. See Cross, 144 S.W. 3d at 528. 

The record indicates that Appellant did not himself initiate contact with the

detectives. The detectives came to the hospital with a warrant for Appellant’s arrest and

brought a magistrate with them for the purpose of arraigning Appellant. The magistrate

informed Appellant of his rights and began the process of appointing an attorney for him. 

Only after she asked him if he wanted to speak to detectives did he reply, “Yes.” In no

way does this indicate that Appellant himself initiated contact or opened the dialog with

the authorities. The magistrate testified that Appellant agreed to speak with the detectives

only after she asked him if he wanted to, stating, “He never said to me that he wanted to

talk to them.” Therefore, there was no initiation of contact with the police by Appellant. 

Just as in Edwards, the State showed only that Appellant responded to further policeinitiated questioning.1

As the Supreme Court stated in Jackson, “We thus hold that, if police initiate

interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his

right to counsel, any waiver of the defendant’s right to counsel for that police-initiated

interrogation is invalid.” Jackson, 475 U.S. at 636. 

CONCLUSION

While we agree with the court of appeals that Appellant’s Sixth Amendment right
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to counsel attached when he was arraigned by the magistrate, we disagree that Appellant

himself initiated contact with the police. Saying “yes” when asked by the magistrate if he

wanted a court appointed attorney is enough to invoke the Sixth Amendment right to

counsel; however, answering “yes” when asked if he wanted to speak to detectives does

not indicate that Appellant initiated the contact as required under the Edwards bright-line

rule. The court of appeals erred in holding that Appellant initiated contact with the police

and waived his previously invoked rights to counsel. The judgment of the court of

appeals is reversed and the case is remanded for a harm analysis.

Meyers, J.

Delivered: October 29, 2008

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