COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
THE STATE OF TEXAS, § No. 08-22-00174-CR
Appellant, § Appeal from the
v. § 210th Judicial District Court
CLEVY MUCHETTE NELSON, § of El Paso County, Texas
Appellee. § (TC# 20210D02380)
DISSENTING OPINION
I write separately because I disagree with the second part of the Court’s analysis whereby
it reverses the trial court’s suppression ruling. After reviewing the transcript of the suppression
hearing, and viewing as well, the digital recording 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 herself. U.S. CONST. amend. V (“No person
. . . shall be compelled in any criminal case to be a witness against [herself]. . . .”). In Pecina v.
State, the Texas Court of Criminal Appeals described the procedural safeguards protecting such
right against self-incrimination. 361 S.W.3d 68, 75 (Tex. Crim. App. 2012). First, the Court
described that the 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. Arizona, 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 [her] 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 [her] rights again.” Id. (citing Edwards 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 exception applies).
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B. Nelson’s invocation of her right to counsel
The majority initially decides the record established that law enforcement officers created
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 custody when she was questioned by law
enforcement. On that preliminary point, I fully agree. It follows, then, that police were obligated
to give Miranda warnings including the right to counsel during questioning. No party disputes that
Miranda warnings were 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). To 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 cast doubt retrospectively on the clarity of [her] 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 warned Nelson that before he could
ask her any questions, he needed 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 waiver
of rights he had just read. Nelson responds saying, “I’d like to speak to my attorney.” Garcia
replies: “You want to speak to your attorney?” Nelson seemingly mumbles or nods her head.
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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 who come here?”
She clarifies, “My attorney.” He responds: “I don’t know who your attorney is.” Nelson replies:
“It’s the military, Chief of Justice.” 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 -- we don’t deal with
them. Okay. Like I said our whole purpose here was to find out what happened this morning ‘cause
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 change your mind, and you will talk to us.
So, you do understand your rights and you hereby knowingly, intelligently, and voluntarily waive
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 this exchange, neither Detective Garcia
nor his partner ever moved from their 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 that Nelson immediately
invoked her right to counsel by stating she wanted to talk to her attorney before confirming whether
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she intended to waive 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 asked 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, statements made after an unequivocal 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 unambiguous and unequivocal. She repeated
it at least twice, before asking a third time whether her attorney could “just come here.” However,
Detective Garcia continued 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 her
plainly stated request for counsel during questioning, Detective Garcia mentioned that “if” she
requested an attorney “the interview will be terminated.” Characterizing his own conduct at the
suppression hearing, Garcia testified that he immediately 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 conclude
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the record supports the trial court’s determination that Nelson’s exercise of her right to counsel
was not honored by an immediate termination of her interrogation by police.
C. No bursting of the Edwards bubble by Nelson
Even assuming Detective Garcia terminated 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 police.” 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
invocation 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
holds that once a suspect invokes her right to counsel, only interrogation-type questions must
cease. It 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 that 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.
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The 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, the majority concludes the record shows Nelson
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, repeated that he did not know anything about how counsel could be obtained, and told
her he was simply trying to understand what had occurred earlier that morning.
The Court of Criminal Appeals has described that when a defendant invokes a right to
counsel, that invocation creates 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, however, Edwards disappears, and the police are free to
reinitiate any future 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 reinitiated 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 that 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 placed him in a holding cell. Id. Minutes later, however, he flagged a detective down, stated
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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, there 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 worked. Only then did Nelson ask the number of
questions he wanted her to answer. The State argues that “Detective Garcia 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 manner.” In my view, however, neither the record nor the trial
court’s implied finding supports that 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 the record here supports the trial court’s
implied finding that neither Miranda nor Edwards were satisfied. Thus, I would affirm the trial
court’s judgment.
GINA M. PALAFOX, Justice
June 28, 2023
Before Rodriguez, C.J., Palafox and Soto, JJ.
(Do Not Publish)
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