COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

THE STATE OF TEXAS , Appellant,

v. CLEVY MUCHETTE NELSON , Appellee

. § § § § § No. 08

- 22

- 00174

- C R Appeal from the 210th Judicial District Court

of El Paso County, Texas (TC# 20210D02380)

DISSENTING OPINION I write separately because I disagree with t he second part of the Court’s analysis whereby it reverses th e trial court ’s suppression ruling. After reviewing the transcript of the suppression hearing , and viewing as well, the digital r ecord ing of Nelson’s audio and video statement , and doing so in the light most favorable to the trial court’s ruling, I would conclude the trial court properly suppressed the challenged evidence based on a violation of Nelson’s constitutional rights. Because the majority concludes otherwise, I respectfully dissent.
A. Fifth Amendment right to interrogation counsel The Fifth Amendment of the United States Constitution prohibits the government from compelling a criminal suspect to bear witness against h erself. U.S. C ONST

. amend

. V (“No person

. . . shall be compelled in any criminal case to be a witness against [herself]

. . . . ”). In Pecina v.2 State , the Texas Court of Criminal Appeals described the procedural safeguards protect ing such right against self

- incrimination. 361 S.W.3d 68, 75 (Tex. Crim. App. 2012)

. First, the Court described that t he United States Supreme Court “crafted safeguards to protect this ‘ privilege against self

- incrimination ’ in the inherently coercive atmosphere of custodial interrogations. ”
Pecina , 361 S.W.3d at 75 ( quoting Miranda v. Ariz ona , 384 U.S. 436 , 441 (1966) ). As relevant here, “ [b] efore questioning a suspect who is in custody, police must give that person Miranda warnings. ” Id

. “ Only if the person voluntarily and intelligently waives [her] Miranda rights, including the right to have an attorney present during questioning, may [her] statement be introduced into evidence against [her] at trial. ” Id

. Second, “ once a person invokes [ h er ] right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by merely showing that the suspect responded to police

- initiated interrogation after being advised of [ h er] rights again. ” Id

. (citing Edwa rds v. Arizona , 451 U.S. 477, 485 (1981) ).
Pecina explained: “[t] he purpose of the Edwards rule is to ‘ prevent police from badgering a defendant into waiving [her] previously asserted Miranda rights. ’ ” Id

. ( quoting Michigan v. Harvey , 494 U.S. 344, 350 (1990) )

. “ That prophylactic rule protects the suspect

— who has made the decision not to speak to law

- enforcement officers without [her] lawyer and clearly communicated that decision to the police

— from further police badgering. ” Id

. Based on these safeguards , we are instructed that a trial court commits a constitutional violation by admitting evidence that Miranda and its progeny proscribes. Contreras v. State , 312 S.W.3d 566, 582 (Tex. Crim. App. 2010) (providing that Miranda operates as an exclusionary rule when law enforcement fails to honor an invocation of rights and no ex ception applies).3 B. Nelson’s invocation of h e r right to counsel The majority initially decides the record established that law enforcement officers cre ated a situation that would lead a reasonable person in Nelson’s position to believe their freedom of movement had been significantly restricted. Thus, the Court concludes the trial court did not abuse its discretion when it impliedly found Nelson was in c ustody when she was questioned by law enforcement. On that preliminary point, I fully agree. I t follows, then, that police were obligated to give Miranda warnings including the right to counsel during questioning . No party disputes that Miranda warnings we re given prior to the start of questioning. Rather, in dispute is whether the officers honored Nelson’s request for counsel, which followed such reading of rights. First, in looking at Nelson’s initial invocation of her right to have counsel present to advise her prior to or during questioning , a court must determine whether the officers honored her request

. When a suspect asks for a lawyer, interrogation must cease until counsel has been provided

or the suspect herself initiates further communication

. Davis v. State , 313 S.W.3d 317, 339 (Tex. Crim. App. 2010) (citing Edwards , 451 U.S. at 484

– 85 ). T o trigger law enforcement’s duty to terminate the interrogation, the suspect’s request must be clear. Id. Moreover, “ [ i ] f the accused’s invocation of the right to counsel is clear, [ her ] responses to further questioning may not be used
to cas t doubt retrospectively on the clarity of [ he r ] initial request. ” Davis , 313 S.W.3d at 339 (citing Smith v. Illinois, 469 U.S. 91, 100 (1984) ).
At the start of the interview, Detective Garcia properly warn ed Nelson that before he c ould ask her any questions, he need ed to advise her of her rights. After he reads the Miranda warnings , he then turns to Nelson requesting that she confirm her knowing, intelligent, and voluntary waiv er of rights he had just read

. Nelson respond s saying, “I’d like to speak to my attorney.” Garcia replies : “You want to speak to your attorney? ” Nelson seemingly mumbles or nods her he ad.4 Garcia next says: “ So , we can’t ask you nothing then. We’re going to have to terminate the interview. Okay. We don’t know what happened. That was the whole reason why. Okay. So, we -

- the only way we can know what happened is if we talk to you. But if you request an attorney the interview will be terminated.” Nelson responds, “Can he just come here?” Detective Garcia says, “ Can w ho come here?” She clarifies, “My attorney.” He responds : “I don’t know who your attorney is.” Nelson replies: “It’s the milit ary , Chief of J ustice.” Garcia replies: “ I don’t. I mean. Again, I’m assuming you’re military then , correct ? You’re active? I don’t know how that works. I don’t

-- w e don’t deal with them. Okay. Like I said our whole purpose here was to find out what happe ned this morning ‘c ause we don’t know what happened . Okay . But before we can ask you any questions, we have to advise you of your rights. Okay. If you’re requesting an attorney, then we have to terminate the interview and we can’t ask you anything. Okay.” Nelson next says : “Is it a lot of questions?” He responds: “Well we’re going to ask you what happened this morning because we don’t know what happened this morning . That’s the main question. And we were just going to hear you.” After a slight pause, Nelson says: “I have strep throat. But I can answer the questions.” Detective Garcia says: “So, then you’re saying that you chang e your mind , and you will talk to us. So, you do understand your rights and you hereby knowingly, intelligently , and voluntarily waiv e these rights then and you’ll speak to us.” After a slight pause, Nelson says: “Yes.” Garcia then reconfirms her willingness to waive her rights. Throughout th is exchange, neither Detective Garcia nor his partner ever moved from the ir seated position in chairs they had positioned directly across from Nelson . She herself sat in a chair across from them while dressed in a hospital gown

. At the motion hearing and on appeal, the State readily conceded t hat Nelson immediately invoked her right to c ounsel by stating she wanted to talk to her attorney before confirming whether5 she intended to waiv e any of her Miranda rights

. Indeed, the recorded interview plainly shows that when Detective Garcia asked whether she knowingly and voluntarily waived her rights, she immediately requested an opportunity to speak with her attorney. Rather than cease the interview, Detective Garcia plowed forward casting doubt on her request. He ask ed questions clarifying whether she actually wanted an attorney, told her he did not know who her attorney was, and repeated multiple times that they were simply trying to find out what happened. For our purposes, however, s tatements made after a n unequivo cal request “ may not be used to cast retrospective doubt on the clarity of the initial request itself. ” See State v. Gobert , 275 S.W.3d 888, 893 (Tex. Crim. App. 2009) (quoting Smith v. Illinois , 469 U.S. 91, 100 (1984) ) (holding an unequivocal invocation of a right to counsel was not honored by officers when a suspect immediately invoked his rights stating , “I don’t want to give up any right, though if I don’t got no lawyer” )

. In my view, Nelson’s initial invocation was u nambiguous and unequivocal. She repeated it at least twice, before asking a third time whether h e r attorney could “just come here.” However, Detective Garcia continue d with a series of statements, without interruption or pausing, persuading her to let them know what had happened regarding events of the early morning. Ignoring he r plainly stated request for counsel during questioning , Detective Garcia mention ed that “if” she requested an attorney “the interview will be terminated.” Characterizing hi s own c on duct at the suppression hearing , Garcia testified that he immed iately terminated the interview . That is , as he viewed the totality of the circumstances , he believed Nelson understood he had terminated the interview. Because the trial court granted the motion to suppress, there is an implied finding that it disbelieved Detective Garcia and concluded otherwise. Unlike the majority, I would conclude6 the record supports the trial court’s determination that Nelson’s exercise of her right to counsel was not h onored by an immediate termination of her interrogation by police

. C. No bursting of the Edwards bubble by Nelson
Even assuming Detective Garcia terminate d the interview midstream , I further disagree with the majority’s conclusion that Nelson herself reinitiated conversation or communication about the case

. Law enforcement must wait for counsel to be available to a suspect, unless the suspect herself “ initiates further communication, exchanges, or conversations with the p olice.” Edwards , 451 U.S. at 484

– 85

. Under the two

- step analysis, we determine , first, whether there is proof that the suspect, and not law enforcement, reinitiates communication after invoking the right to counsel. Cross v. State , 144 S.W.3d 521, 527 (Tex. Crim. App. 2004)

. A suspect’s desire to reinitiate can be shown by “a willingness and a desire for a generalized discussion about the investigation[.]” Oregon v. Bradshaw , 462 U.S. 1039, 1045

– 46 (1983)

. Second, we determine whether there is proof that after the suspect reinitiates communication, the suspect validly waives the right to counsel. Cross , 144 S.W.3d at 527

. First, the majority concludes that Detective Garcia’s statements to Nelson after her
i nvocation of her right to counsel did not rise to a level of continuing his questioning or interrogation. Distinguishing between the right to counsel and the right to remain silent, the Court hold s that once a suspect invokes her right to counsel, only int errogat ion

- type questions must

cease
. I t views Detective Garcia’s statements as non

- interrogational because they were not reasonably likely to elicit an incriminating response. Again, I disagree

. As discussed above, the record supports an implied finding t hat Detective Garcia did not honor her invocation of her right to counsel because he never terminated the interview , but instead, he attempted to retrospectively cast doubt on her invocation

. See Gobert , 275 S.W.3d at 893

.7 T h e majority further concludes that after Nelson invoked her right to interrogation counsel, she “almost immediately reinitiated the interview after clearly being told it would terminate.” Without describing a basis for its reasoning, t he majority concludes the record shows Ne lson expressed a “willingness and a desire for a generalized discussion about the investigation.” I disagree

. From my view, the record does not support that Nelson expressed her willingness and desire to talk without her counsel’s presence by simply asking how many questions would be asked

. Nelson so inquired only after Detective Garcia ignored her clearly stated request for counsel , repeat ed that he did not know anything about how counsel could be obtained, and t old her he was simply tryin g to understand what had occurred earlier that morning

. The Court of Criminal Appeals has describe d that when a defendant invoke s a right to counsel, that invocation create s a protective Edwards bubble , “insulating [her] from any further police

- initiated questioning.” Cross , 144 S.W.3d at 529 . “Only the suspect [herself] can burst that bubble by both initiating communications with police and expressly waiving [her] right to counsel.” Id

. “Once that bubble is burst, howeve r, Edwards disappears, and the police are free to reinitiate any fu ture communications and obtain any further statements as long as each statement is voluntarily made after the waiver of Miranda rights.” Id

. Following that principle, this Court has held that a defendant reinitiate d further communication with detectives when he expressed a desire to tell his story. Engleton v. State , No. 08

- 13

- 00077

- CR, 2015 WL 1285202, at *4 (Tex. App.

— El Paso Mar. 20, 2015, no pet.) (not designated for publication)

. In t hat case, the defendant was placed under arrest and read his Miranda rights. Id. at *2 . The defendant stated he did not want to talk and wanted to get representation. Id. The detectives immediately terminated the interview, asked him nothing further, and p laced him in a holding cell. Id. Minutes later, however, he flagged a detective down , stated8 he wanted to speak to the detectives he had met with before , and expressed a desire to tell his side of the story. Id. Contrasted with Engleton , t here are no similar details in this case. There was no termination of the interview once Nelson invoked the protective Edwards bubble

. And it was Detective Garcia who continued expressing his own desire to speak with her without delay as he otherwise did not know what had happened that morning. He expressed ignorance in how she might be able to access an attorney , describing he did not know how that work ed

. Only then did Nelson ask the number of questions he wanted her to answer

. The State argues that “ Detective Ga rcia reasonably could have interpreted her question as relating generally to the investigation, and the fact that he reaffirmed that Nelson wanted to waive her rights before commencing with the interview shows that he interpreted her question in this manne r. ” In my view, however, n either the record nor the trial court’s implied finding supports th at supposed inference. The trial court’s ruling on a motion to suppress will be upheld if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Ramos v. State , 245 S.W.3d 410, 417

– 18 (Tex. Crim. App. 2008)

. Standing apart from the majority, I would conclude t he record here supports the trial court’s implied finding that neither Miranda nor Edwards w ere satisfied

. Thus, I would affirm the trial court’s judgment.

GINA M. PALAFOX , Justice
June 2 8 , 202 3 Before Rodriguez , C.J., Palafox and Soto , JJ. (Do Not Publish)