AFFIRM; and Opinion Filed March 5, 2024 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-23-00033-CR THE STATE OF TE XAS, Appellant V. ANTHONY SIBRIAN, Appellee On Appeal from the Criminal District Court No. 6 Dallas County, Texas Trial Court Cause No. F21-75068-X MEMORANDUM OPINION Before Justices Molberg, Reichek, and Smith Opinion by Justice Smith The State of Texas appeals the trial court’s order granting appellee Anthony Sibrian’s pretrial motion to suppress st atements he made during a custodial interrogation. In two issues, the State conte nds that the trial cour t erred in granting the motion because appellee (1) did not unambiguously invoke his right to interrogation counsel and (2) voluntarily waived his constitutional and statutory rights prior to making the statements. We affirm the trial court’s order. Background–2– On January 14, 2021, a ppellee was taken into custody for questioning regarding the shooting death of his fath er. Dallas Police Detective Brian Tabor conducted a video-taped interview. Duri ng the interview, Detective Tabor read appellee his Miranda 1 warnings from a card and c onfirmed that appellee understood the warnings. Detective Tabor also c onfirmed that appellee understood what termination meant and that appellee coul d stop talking. De tective Tabor asked appellee if he was willing to continue talking. Appe llee responded, “Could I get a lawyer first,” and Detective Tabor said, among other things, th at it was appellee’s right to do so. Appellee asked whether his family members had been contacted, Detective Tabor responded “yea, I’ve talk ed to your family,” and again asked appellee if he wanted to ta lk. Appellee answered, “just about my family members – who’s coming and who’s been contacted.” Detective Tabor advised that he had spoken with appellee’s aunt and thereafter continued the interview, asking questions about appellee, his family, and his father’s death. Appellee responded to Detective Tabor’s questions. Thereafter, appellee was charged by indict ment for his father’s murder. In a pretrial hearing, appellee made an oral motion to suppress his statements to Detective Tabor after he a dvised appellee who in a ppellees’ family had been contacted. The trial court held a heari ng on the motion, and Detective Tabor was

1 Miranda v. Arizona , 384 U.S. 436 (1966).–3– the sole witness. After hearing the tes timony and the arguments of counsel, the trial court granted the motion and subsequently si gned a written order, consistent with its ruling, and made findings of fact and conclu sions of law. This appeal followed. Motion to Suppress In its first issue, the State contends that the trial court erred in granting appellee’s motion to suppress because ap pellee did not unambiguously invoke his right to interrogation counsel. In a sec ond issue, the State asserts that appellee voluntarily waived his constitutional and statutory rights prior to answering Detective Tabor’s questions. Appellee re sponds that he unambiguously invoked his right to counsel when he asked to “talk to a lawyer first” and never waived that right, but Detective Tabor ignored the invocation and “lured him into further discussion.”
1. Standard of Review We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review, where fact findings are reviewed for abuse of discretion and applications of law ar e reviewed de novo. State v. Ruiz , 581 S.W.3d 782, 785 (Tex. Crim. App. 2019). We give near total deference to the trial court’s determinations of historical fact and to mixed questions of law and fact that turn on witness credibility when supported by the record. See State v. Martinez , 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). We uphold the tria l court’s ruling if it is correct on any applicable theory and is reason ably supported by the record. Ruiz , 581 S.W.3d at
785.–4– 2. Invocation of the Right to Counsel The Fifth Amendment precludes the gove rnment from compelling a criminal suspect to bear witness against himself. U.S. C ONST . amend. V; Pecina v. State , 361 S.W.3d 68, 74–75 (Tex. Cr im. App. 2012). In Miranda , 384 U.S. at 441, the Supreme Court created safeguards to protect the privilege against self-incrimination.
Pecina , 361 S.W.3d at 75. Before questioning a suspect, police must advise, among other things, that the suspect has the right to have counsel present during a custodial interrogation. Miranda , 384 U.S. at 444; see also Edwards v. Arizona , 451 U.S. 477, 481–82 (1981); State v. Gobert , 275 S.W.3d 888, 892 (Tex . Crim. App. 2009); T EX

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. A NN . art. 38.22, §§ 2, 3. A susp ect’s statement may be introduced into evidence against him at trial only if he voluntarily and intelligently waived his Miranda rights, including the right to interrogation counsel. Pecina , 361 S.W.3d at 75; Jones v. State , 119 S.W.3d 766, 772 (Tex. Crim. App. 2003). A suspect’s invocation of his right to counsel insulates him from any further police-initiated questioning, and the pr otection remains until the suspect both initiates further communications with police a nd validly waives his right to counsel.
Cross v. State , 144 S.W.3d 521, 524, 527 (Tex. Crim. App. 2004) (citing Edwards , 451 U.S. at 485); Gobert , 275 S.W.3d at 892. This rule “protects the suspect—who has made the decision not to speak to la w-enforcement officers without his lawyer and clearly communicated that decision to the police—from further police badgering.” Pecina , 361 S.W.3d at 75; Cross , 144 S.W.3d at 528.–5– Not every mention of a lawyer is suffi cient to invoke the right to counsel during questioning. Gobert , 275 S.W.3d at 892; Bernard v. State , No. 01-18-00876- CR, 2019 WL 6869328, at *4 (Tex. App.—Housto n [1st Dist.] Dec. 17, 2019, pet. ref’d) (mem. op., not designated for publicati on) (“The use of the word ‘attorney’ or ‘lawyer’ does not, in and of itself, invoke the right to counsel.”). Instead, a suspect’s request for counsel must be clear and unambiguous in or der to trigger the police’s duty to terminate the interrogation. Davis v. State , 313 S.W.3d 317, 339 (Tex. Crim. App. 2010). An ambiguous or equivocal statement about counsel does not require law enforcement officers to halt their interrogation or ev en seek clarification. Gobert , 275 S.W.3d at 892. If a suspect makes a clear, but limited, invocation of the right to counsel, the police must honor the limits placed upon the interrogation, but may question the suspect outside the presen ce of counsel to the extent that his clearly-expressed limitations permit. Id. at 893. To determine whether a suspect’s stat ement constitutes an actual invocation of the right to counsel, courts look at the statement itself and the totality of the circumstances surrounding the statement. Davis , 313 S.W.3d at 339; Gobert , 275 S.W.3d at 892. The test is objective: “the suspect ‘must articulate his desire to have counsel present sufficiently clearly th at a reasonable poli ce officer in the circumstances would understand the statement to be a request for an attorney.’” Gobert , 275 S.W.3d at 892–93 (quoting Davis v. U.S. , 512 U.S. 452, 459 (1994)).–6– 3. Analysis Detective Tabor began a ppellee’s interview by asking general information questions for approximately eleven minutes. 2 Appellee stated th at he was seventeen years old and a high school sophomore. He described himself as a poor student and noted that he repeated fourth grade after undergoing treatment for leukemia. Detective Tabor explained that he had not found any record of appellee having a criminal history, and appell ee confirmed that he had no criminal history or prior

arrests. Detective Tabor then read appellee his Miranda warnings from a card. Detective Tabor handed the card to appe llee and asked if appellee understood the warnings; appellee indicated that he di d. Detective Tabor asked if appellee understood what “terminate” means, and a ppellee answered, “uh, end.” Detective Tabor then explained, “ . . . say we’re talking, sa y you want to hear me out for a little while, and you want to quit talking, say ‘I don’t wa nt to talk anymore.’ That’s termination, O.K.?” Appelle e did not respond. Detectiv e Tabor asked if appellee understood the rights that he read, and a ppellee responded affirmatively. Detective Tabor then asked, “. . . and are you willi ng to talk to me?” Appellee responded, “Could I get a lawyer first,” and Detective Tabor stated: That’s actually your right, I’m here ju st to hear your story. If you want an attorney that is your right, a nd that’s what’s on the card, O.K.? Again, you have that right, and the ri ght to terminate at any time. So,

2 This description of appellee’s interview is taken from the trial cour t’s findings of fact and is supported by the record.–7– if you want to talk a little bit, and if you start to feel uncomfortable about it, you can terminate at that poi nt. If you want to ask me questions about what’s going on, and I can explai n to you what’s going on as well. If you want an attorney, again, that’s your right. Um, so you can make up your mind on that. If you want to just sit here and talk, and figure out what’s going on, and I can expl ain that to you, you let me know what you want to do. Appellee then asked if any of his family members had been contacted. Detective Tabor responded, “yea, I’ve talked to your fa mily.” Appellee aske d, “like, tonight?,” and Detective Tabor responded by holdi ng out his hand with his palm facing appellee, asking “so do you want to talk a little bit right now?” Appellee answered, “just about my family members – who’s coming and who’s been contacted.” Detective Tabor stated that he talked to appellee’s “dad ’s sister, who was there at the house . . .”, and the interview proceeded with no further mention of appellee’s Miranda rights, getting an attorney, or terminating the interview. During the hearing on appellee’s motion to suppress, Detective Tabor testified that he read appellee the Miranda warnings and discussed the meaning of termination because he wanted to make sure appellee “was understanding his rights.” According to Detective Tabor, appellee i ndicated that he understood the warnings and asked if he “could have a lawyer.” De tective Tabor testifie d that he tried to explain that appellant could, that was his right, and to “let [Tabor] know what [he] want[ed] to do.” Detective Tabor then asked appellee if he wanted to talk, and appellee “mentioned something about hi s family and started talking.”–8– Detective Tabor further testified th at he understood that appellee was a seventeen-year-old who was ba rely passing the tenth grade, but he thought appellee appeared “extremely-street smart.” Dete ctive Tabor felt comfortable that appellee understood and believed that appellee made “an intellectua l waiver of his rights.” Specifically, appellee said he understood his ri ghts, he then said what he wanted to talk about, and they conti nued to talk “in the scope” of appellee’s family, which included appellee’s father. On cross- examination, however, Detective Tabor acknowledged that appellee had limited what he was willing to discuss to those family members with whom De tective Tabor had spoken. After observing the video of appellee’s custodial interview, hearing Detective Tabor’s testimony, and considering the arguments of counsel, the trial court concluded, among other things, that appell ee’s request, “Could I get a lawyer first” was an unambiguous request for a lawyer and, read in co mbination with his “clearly expressed limitation that he would talk solely ‘just a bout [his] family members – who’s been contacted, and who’s coming,’” appellee’s “intent was not ambiguous, and it was “unreasonable for [T abor] to have interpreted hi s statements as a desire to talk.” The trial cour t further concluded that a comparison of [appellee’s] pre- and post- Miranda warning conduct and statements unambiguously show an express invocation of his rights. Prior to the Miranda warnings being read, for eleven minutes [appellee] answered questions about his background and social history and interacted with Detective Tabor. Then, at 20:27 in the video-taped interrogation, [appellee] was given his Miranda warnings and [appellee] indicated he understood. Subsequently, when Detective–9– Tabor asked if [appellee] was willing to talk to him, [appellee] did not proceed as if he waived the Miranda warnings, but instead, gave in response, a statement requesting a lawyer before any discussion were to be had, and then clarifying he would only discuss matters ‘just about my family members – who’s been contacted, and who’s coming.’ Looking to the totality of the circ umstances, comparing the pre- and post- Miranda conduct of [appellee], it is clear that once his Miranda rights were explained, he intended to and was, in fact, invoking them. The State, however, contends that appe llee did not make a clear, unambiguous invocation of counsel by asking if he could get a lawyer first. According to the State, appellee’s use of the modifier “could” indi cated that he was seeking clarification about his rights and, specifically, whether it was possible for him to get counsel. Detective Tabor provided the clarificati on appellee requested and, thereafter, appellee “chose not to take any action, instead engaging in conversation with Detective Tabor.” Texas courts routinely have concluded that a generalized question seeking to clarify a suspect’s right to interrogation counsel is not a sufficiently unambiguous expression invoking the right to counsel. 3 Jones v. State , No. 05-18-00640-CR, 2020

3 See, e.g. , Dinkins v. State , 894 S.W.2d 330, 350, 352 (Tex. 1995) (suspect asked “what a lawyer would tell him to do?”); Robinson v. State , 851 S.W.2d 216, 223–24 (Tex. Crim. App. 1991) (“Do I need to talk to a lawyer before I sign?”); Lopez v. State , Nos. 07-23-0016-CR & 07-23-00107-CR, 2023 WL 7178023, at *2 (Tex. App.—Amarillo Oc t. 31, 2023, no pet.) (mem. op., no t designated for publication) (“I do got a lawyer. Can I call him?”); Thacker v. State , No. 08-18-00085-CR, 2020 WL 1303555, at *4 (Tex. App.—El Paso Mar. 19, 2020, pet. ref’d) (not designated for publication) (Is it possible to “get a lawyer in here right now”); State v. Munoz , No. 08-16-00023-CR, 2018 WL 1517006, at *10–11 (Tex. App.—El Paso Mar. 28, 2018, no pet.) (mem. op., not designated for publication) (“So why can’t my lawyer be present?”); See Martinez v. State , No. 07-11-00473-CR, 2012 WL 5342546, at *4 (Tex. App.—Amarillo Oct. 30, 2012, pet. ref’d) (mem. op., not designated for publi cation) (“Can I get a lawyer in here?”); Mbugua v. State , 312 S.W.3d 657, 665 (Tex. App.—Houston [1 st Dist.] 2009, pet. ref’d) (“Can I wait until my lawyer gets here[?]”); Reed v. State , 227 S.W.3d 111, 113, 116 (Tex. App.—Houston [1st Dist.] 2006, pet, ref’d) (“I can get a lawyer if I want one, right?”); Gutierrez v. State , 150 S.W.3d 827, 832 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (“Can I have [my attorney] present now?”); Loredo v. State , 130 S.W.3d 275,–10– WL 4381773, at *4 (Tex. App.—Dallas July 31, 2020, pet. re f’d) (mem. op, not designated for publication). In each of these cases, however, the courts were presented with different circumstances. Most notably, the suspects expressed a willingness to speak with police without the assistance of counsel . For example, in
Gutierrez , 150 S.W.3d at 829, the appellant sa id “Can I have him present now?” after he was informed of his right to counse l. An officer advised that the appellant could have counsel, but the questioning woul d end and he would be returned to his cell. Id. The officer then asked the appellant if he wanted counsel present, and the appellant responded, “No.” Id. Another officer assured th e appellant that he could have counsel present, but the appellant stat ed that he would like to continue without

one. Id. Looking at the totality of the circum stances, the court c oncluded that there was no violation of the appellant ’s Fifth Amendment rights. Id. at 832. In this case, appellee clarified his request for counsel after a detective provided further explanation. Even to th e extent a reasonable police officer could construe appellee’s statement “Could I get a lawyer first” as asking whether it was possible for him to get a lawyer, appellee did not, as the State suggests, simply engage in further conversa tion with Detective Tabor. He asked if any family member had been contacted and then, in response to Detective Tabor’s asking again if he wanted to “talk a little bit,” he cl early limited what he would discuss to his

284–85 (Tex. App.—Houston [14th Dist.] 2004, pe t. ref’d) (“Can I ask for a lawyer now?”); Flores v. State , 30 S.W.3d 29, 34 (Tex. App.—San Antonio 2000, pet. re f’d) (“Will you allow me to speak to my attorney before?”).–11– “family members – who’s coming and w ho’s been contacted.” Considering appellee’s statements to Detective Tabor and the totality of the circumstances in which he made the statements, we conclude, as the trial cour t did, that he clearly and unambiguously invoked his right to inte rrogation counsel, subject to an express limitation regarding “family members – who’s been contacted, and who’s coming.”
See Gobert , 275 S.W.3d at 892–93. The interroga tion, beyond that limited subject, should have ceased. See id. at 895. And, because appe llee did not reinitiate their further communications or validly waive hi s right to counsel for interrogation except as to “family members – who’s been c ontacted, and who’s coming,” we conclude the trial court did not abuse its discreti on in granting appellee’s motion to suppress the statements he made after invoking his right to counsel. Compare Cross , 144 S.W.3d at 529–30 (when a ppellant, after invoking right to counsel, reinitiated further conversation with detective, explicitly waiv ed his right to counsel, and made written statements, the trial court properly ad mitted the statements). We overrule appellant’s first issue. 4

4 Because we have concluded that appellee clearly and unambiguously invoked his right to interrogation counsel and he did not thereafter reinitia te communications with De tective Tabor or validly waive that right, we need not address the State’s second issue regarding whether appellee’s statements were made voluntarily. See T EX

. R. A PP . P. 47.1.–12– Conclusion We affirm the trial court’s order gran ting appellee’s motion to suppress.

Do Not Publish T EX

. R. A PP . P. 47.2(b) 230033F.U05 /Crai g Smith / CRAIG SMITH JUSTICE–13– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT THE STATE OF TEXAS, Appellant

No. 05-23-00033-CR V. ANTHONY SIBRIAN, Appellee On Appeal from the Criminal District Court No. 6, Dall as County, Texas Trial Court Cause No. F21-75068-X. Opinion delivered by Justice Smith. Justices Molberg and Reichek participating. Based on the Court’s opinion of this date, the trial court’s Order on Defendant’s Motion to Suppress is AFFIRMED

. Judgment entered this 5th day of March, 2024.