Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-12-00819-CR

Rafael Reyes SMITH,

Appellant

v.

The State of 

The STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2011CR7442

Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice

Rebeca C. Martinez, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: January 15, 2014

AFFIRMED

Appellant, Rafael Reyes Smith, pled no contest to murder. On appeal, appellant contends 

the trial court erred when it denied his motion to suppress his statements to police in violation of 

the United States Constitution, Texas Constitution, and Article 15.17 of the Texas Code of 

Criminal Procedure. Because appellant did not unambiguously and unequivocally invoke his right 

to counsel, we affirm the trial court’s denial of his motion to suppress.
04-12-00819-CR

STANDARD OF REVIEW

An appellate court must view the evidence in the light most favorable to the trial court’s 

ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We review a trial 

court’s denial of a motion to suppress under a bifurcated standard of review. Martinez v. State, 

348 S.W.3d 919, 922 (Tex. Crim. App. 2011) (citing Guzman v. State, 955 S.W.2d 85, 87 (Tex. 

Crim. App. 1997)). We review the trial court’s factual findings for an abuse of discretion and the 

application of those facts to the law de novo. Id. The trial court’s ruling will be upheld unless it 

was so arbitrary as to be outside the zone of reasonable disagreement. Id.

ANALYSIS

Appellant argues the trial court erred by denying his motion to suppress because his 

statements to police occurred after invoking his right to counsel. Liberally construing appellant’s 

brief, he appears to be asserting two arguments: (1) he invoked his right to counsel during his 

Article 15.17 hearing which also invoked his right to counsel for his subsequent interrogation, and 

(2) he unambiguously invoked his right to counsel during his interrogation.

1. Request During Article 15.17 Hearing

Appellant requested and was appointed an attorney at his Article 15.17 hearing. However, 

the Court of Criminal Appeals recently determined that a request for court-appointed counsel 

during an Article 15.17 hearing does not invoke the right to counsel for a subsequent police 

interrogation in Pecina v. State. There, the Court discussed the difference between the Fifth and 

Sixth Amendment rights to counsel after the United States Supreme Court’s decision in Montejo 

v. Louisiana. Pecina v. State, 361 S.W.3d 68, 73 (Tex. Crim. App. 2012). While in the hospital, 

Pecina was arrested for killing his wife. Id. at 71. After police obtained an arrest warrant, a 

magistrate was taken to his hospital room where Pecina was arraigned pursuant to Article 15.17. 

Id. at 72. During the Article 15.17 hearing, Pecina requested a court-appointed attorney. Id. The 

- 2 -
04-12-00819-CR

magistrate then asked if Pecina wished to speak with police officers waiting outside, and Pecina 

responded that he did. Id. Prior to speaking with the detectives, the officers advised Pecina of his 

Miranda rights, and Pecina waived them. Id. 

Pecina later sought to have the trial court suppress the statements he gave to the officers. 

The Court determined Pecina waived his Fifth and Sixth Amendment rights to counsel—after 

asking for a court-appointed attorney at an Article 15.17 hearing—because he “never invoked his 

right to interrogation counsel after police gave him Miranda warnings.” Id. at 71. The Pecina 

court analyzed Montejo and summarized its application by stating:

Distilled to its essence, Montejo means that a defendant’s invocation of his right to 

counsel at his Article 15.17 hearing says nothing about his possible invocation of 

his right to counsel during later police-initiated custodial interrogation. The 

[Article 15.17] magistration hearing is not an interrogation event. An uncharged 

suspect may invoke his Fifth Amendment right to counsel (and a defendant who 

has been arraigned may invoke his Sixth Amendment right to counsel) for purposes 

of custodial interrogation when the police or other law-enforcement agents 

approach him and give him his Miranda warnings. That is the time and place to 

either invoke or waive the right to counsel for purposes of police questioning.

Id. at 78. In accordance with Montejo and Pecina, we conclude appellant’s invocation of his right 

to counsel at his Article 15.17 hearing did not invoke his right to counsel for his subsequent 

interrogation.

2. Request During Interrogation

Appellant also argues he unambiguously invoked his right to counsel during his 

interrogation. Appellant does not challenge the voluntariness of his statements. He argues only 

that his statements were obtained after he invoked his right to counsel.

Once a suspect invokes his right to counsel, all interrogation must stop until an attorney is 

provided, or until the suspect reinitiates conversation. Edwards v. Arizona, 451 U.S 477, 484–85 

(1981); Miranda v. Arizona, 384 U.S. 436, 474 (1966). However, a suspect must unambiguously 

and unequivocally invoke his right to counsel “sufficiently clearly that a reasonable officer in the 

- 3 -
04-12-00819-CR

circumstances would understand the statement to be a request for an attorney.” Davis v. United 

States, 512 U.S. 452, 459 (1994) (requiring no cessation of questioning if suspect “might be 

invoking the right to counsel”); Dinkins v. State, 894 S.W.2d 330, 351–52 (Tex. Crim. App. 1995). 

In deciding whether an accused “actually invoked his right to counsel,” we use an objective 

standard “[t]o avoid difficulties of proof and to provide guidance to officers conducting 

interrogations . . . .” Davis, 512 U.S. at 458–59; Pecina, 361 S.W.3d at 79. We review the totality 

of the circumstances from the viewpoint of an objectively reasonable police officer conducting the 

interrogation. Pecina, 361 S.W.3d at 79. “[T]he mere mention of the word ‘attorney’ or ‘lawyer’ 

without more, does not automatically invoke the right to counsel.” Dinkins, 894 S.W.2d at 351.

During the motion to suppress hearing, the State introduced a video recording of 

appellant’s interrogation. The video recording shows appellant was read his Miranda rights prior 

to police initiating questioning. The interrogating officers asked appellant if he understood his 

rights, and appellant responded, “No, because you don’t have my lawyer here.” The officers 

acknowledged appellant’s statement, then further inquired whether appellant understood what was 

just read to him. Appellant responded that he understood what was read to him, but asked, “Why 

is my lawyer not here?” The officers advised appellant that if he wanted to have his lawyer present, 

that was his choice.

Over the next several minutes, appellant asks the officers why it took such a long time to 

interrogate him and can be heard expressing concerns over his personal safety due to fear of 

retaliation from the victim’s family or friends because they “don’t even know the real story.” The 

officers then asked appellant to tell his side of the story. Appellant responded that he was scared 

to speak with the officers because his lawyer told him that he should be present if appellant spoke 

to the police. The officers told appellant they were trying to uncover the facts, and in their 

experience, appellant’s lawyer would tell him not to answer any questions. The officers then stated 

- 4 -
04-12-00819-CR

they wanted to make it clear that if appellant wanted his attorney present, the officers could not 

speak with him.

Appellant did not affirmatively respond to the officers. Instead, he began reciting his 

version of events. At this point, the officers interrupted appellant and the following exchange 

occurred:

Q (officer): We need to be sure that we have an understanding. You’re willing to talk to 

us without your attorney here? (Pause) That needs to be perfectly clear bro.

A (appellant): I’m willing to tell you, on my behalf . . .

Q: Your side of the story. I got you.

A: About me not killing anybody.

Q: Okay look. Yes or no? Are you willing to talk to us without your attorney here? Plain 

and simple man.

A: I will, without him here, I will tell you that I didn’t kill anybody.

Q: What happened? Start from the beginning. How did everything happen that day?

Appellant then explained the shooting occurred due to a “drug deal gone bad.” After speaking 

with the officers for approximately thirty minutes, appellant terminated the interview.

Here, appellant did not unequivocally request to have his attorney present. See, e.g., Davis, 

512 U.S. at 462 (“Maybe I should talk to a lawyer.”); Davis v. State, 313 S.W.3d 317, 341 (Tex. 

Crim. App. 2010) (“I should have an attorney.”); Mbugua v. State, 312 S.W.3d 657, 665 (Tex. 

App.—Houston [1st Dist.] 2009, pet. ref’d) (“Can I wait until my lawyer gets here?”); Saldana v. 

State, 59 S.W.3d 703, 710–11 (Tex. App.—Austin 2001, no pet.) (“If I wanted a lawyer, where 

would a lawyer come from . . . I ain’t got no money for a damn lawyer. I mean I got a lawyer, 

but—it’s too expensive.”); Flores v. State, 30 S.W.3d 29, 33–34 (Tex. App.—San Antonio 2000, 

pet. ref’d) (“Should I be answering these questions without my lawyer?”); Cooper v. State, 961 

S.W.2d 222, 226 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (“Where is my layer? Where 

- 5 -
04-12-00819-CR

is he?”). The officers also asked appellant several clarifying questions in an attempt to ascertain 

whether appellant desired his attorney be present. See Davis, 512 U.S. at 461–62 (“If the suspect’s 

statement is not an unambiguous or unequivocal request for counsel, the officers have no 

obligation to stop questioning him.”). Considering the totality of the circumstances from the 

viewpoint of an objectively reasonable officer, we conclude appellant did not sufficiently articulate 

his desire to have counsel present so that a reasonable police officer would understand the 

statement to be a request for an attorney.

CONCLUSION

We conclude the trial court did not err in denying appellant’s motion to suppress, and we 

affirm the trial court’s order denying appellant’s motion to suppress.

Sandee Bryan Marion, Justice

Do not publish

- 6 -