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
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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
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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
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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
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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
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