Pecina v. State

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 361 S.W.3d 68
• Docket Number: No. PD–1095–10.,PD–1095–10.
• Parties: Alfredo Leyva PECINA, Appellant, v. The STATE of Texas.
• Decision Date: 25 January 2012

361 S.W.3d 68

Alfredo Leyva PECINA, Appellant,
v.
The STATE of Texas.

No. PD–1095–10.

Court of Criminal Appeals of Texas.

Jan. 25, 2012.

[361 S.W.3d 70]

Richard A. Henderson, Fort Worth, for Appellant.

C. James Gibson, Asst. Crim. D.A., Fort Worth, Lisa C. McMinn, State's Attorney, Austin, for State.

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY and ALCALA, JJ., joined.

A Tarrant County jury convicted appellant of the murder of his wife. The trial

[361 S.W.3d 71]

judge denied appellant's motion to suppress his statements to police during custodial questioning at a hospital after a magistrate had given him his Article 15.17 rights.¹ The trial judge rejected appellant's claim that he had invoked both his Fifth and Sixth Amendment rights to counsel when he asked the magistrate for an appointed attorney but also said that he wanted to talk to the police who were standing outside the hospital room. On remand from this Court, the court of appeals, over a dissent, held that appellant had invoked his Fifth Amendment right to interrogation counsel during the magistration process.²

We granted the State's petition for discretionary review to clarify the distinction after Montejo between the Fifth Amendment right to interrogation counsel and the Sixth Amendment right to trial counsel.³ Under Montejo, the Fifth Amendment right to interrogation counsel is triggered by the Miranda warnings that police must give before beginning any custodial questioning. The Sixth Amendment right to trial counsel is triggered by judicial arraignment or Article 15.17 magistration. Both the Fifth and Sixth Amendment rights to counsel apply to post-magistration custodial interrogation, but each is invoked and waived in exactly the same manner—under the Fifth Amendment prophylactic Miranda rules. We hold that, because appellant never invoked his right to interrogation counsel after the police gave him Miranda warnings, the trial judge did not err in denying appellant's motion to suppress.

I. A. Factual Background.

Arlington paramedics responded to a 911 call and found appellant and his wife, Michelle, in their apartment, both bleeding from stab wounds. Michelle, who had been stabbed fifty-five times, died before the paramedics arrived. Appellant was taken to the hospital. A serrated kitchen knife with a seven-inch blade was found on the bathroom floor. Based on their initial investigation, detectives believed that appellant had killed Michelle and then stabbed himself. After several days, they obtained an arrest warrant. Then Detectives Nutt and Frias took Judge Maddock, a local magistrate, to appellant's hospital room.

Judge Maddock testified at the suppression hearing that she normally performs magistration hearings at the Arlington City Jail, but she went to the hospital for appellant's hearing, as she had done in some other cases, “due to the policy of the sheriff's office [that it will not] transfer ... a Defendant until he has been fully magistrated.” The two detectives drove Judge Maddock to the hospital and entered appellant's room with her. They all introduced themselves. Judge Maddock, who

[361 S.W.3d 72]

was fluent in Spanish, told appellant, while pointing to the detectives, “They are here. They would like to speak to you.” Appellant either said yes or nodded.

The detectives then left the room and stood outside while Judge Maddock arraigned appellant. She read appellant a Spanish version of the Article 15.17 “Adult Warning Form,” although she had only an English version for him to sign.⁴ After reading appellant his rights, Judge Maddock asked if he “want[ed] a court appointed attorney. And he stated he did.” She then asked appellant, “Do you still want to talk to [the detectives]?” He said that he did. Appellant signed the Article 15.17 form acknowledging that he understood his rights.

Judge Maddock stated that, in her opinion, appellant's decision to speak with the detectives was free and voluntary and there was “absolutely no coercion.” She believed that, when appellant asked for counsel, he was asking for trial counsel. She said that appellant never indicated that he wanted a lawyer to be present when detectives questioned him. Judge Maddock then went into the hall and told the detectives that appellant “had initially asked for a lawyer, but [that] she had been told by Mr. Pecina that he wanted to talk to them.” She gave the signed Article 15.17 form to the detectives, and she waited in the hallway.

Detectives Frias and Nutt then came back into appellant's room. Det. Frias spoke Spanish and explained to appellant who they were and that they wanted to question him about his wife's murder. Appellant said that he wanted to talk with them, so Det. Frias wrote, in Spanish, on the 15.17 form, “I asked for a lawyer, but also I wanted to speak with the Arlington police.” The officers told appellant that they would record the interview, and as they prepared their equipment, Det. Frias gave appellant the Miranda⁵ warnings orally in Spanish. The audio equipment malfunctioned at first, so Det. Frias orally warned Pecina again once the tape started. Appellant also signed a card that listed his Miranda rights in Spanish. At every point, appellant waived his Miranda rights. While taping the oral statement, Det. Frias wrote out a written version for appellant, and he signed it.⁶

[361 S.W.3d 73]

The detectives said that appellant never asked to stop the interview and never asked to speak with counsel. They denied making any promises, and they stated that they believed appellant's waiver was knowing, intelligent, and voluntary. After their interview, the detectives took Judge Maddock back to her office, and she began the process to appoint appellant's trial counsel.

Appellant testified that, if an attorney had advised him not to speak with police, he would not have talked with them. The rest of his testimony dealt with whether he was advised that he could contact the Mexican Consulate.

The trial judge denied the motion to suppress. He found that appellant was fully informed of his rights and “indicated that although he did want a lawyer, that he wished to also talk with detectives from Arlington, meaning that he basically was waiving his rights at that time.”

B. Appellate History.

On original submission, the Fort Worth Court of Appeals affirmed appellant's murder conviction, finding that, when appellant agreed to speak with police in response to the magistrate's question, he initiated contact with police. ⁷ Appellant's action waived both the Fifth Amendment right to interrogation counsel and the Sixth Amendment right to trial counsel, regardless of which he may have invoked.⁸ On discretionary review, we reversed, holding that, under Michigan v. Jackson,⁹ appellant “had invoked his [Sixth Amendment] rights to counsel when arraigned by the magistrate at the hospital,” and appellant's “yes” reply when the magistrate asked if he still wanted to talk with the police was insufficient to reinitiate contact and waive his previously invoked Sixth Amendment right.¹⁰ We remanded the case for the court of appeals to conduct a harm analysis.

While this case was pending in the court of appeals on remand, the United States Supreme Court overruled Michigan v. Jackson—the very case that we relied on in holding that appellant's invocation of his Sixth Amendment right to counsel at the magistration hearing rendered his subsequent waiver of the right to counsel for the police-initiated interview invalid—in Montejo v. Louisiana.¹¹ However, the court of appeals held that, even after Montejo, appellant's statements should have been suppressed because he invoked his Fifth Amendment right to an interrogation attorney by asking the magistrate for an appointed lawyer.¹² We granted review to discuss the distinct Fifth and Sixth Amendment rights to counsel after Montejo and to apply those differences to custodial interrogation.

[361 S.W.3d 74]

II.

Over the past four decades, the jurisprudence concerning the Fifth Amendment right to counsel during police interrogation and the Sixth Amendment right to counsel at all “critical” stages of criminal proceedings had become intertwined in complex and confusing ways. It was increasingly difficult for courts to determine which right can be invoked when and whether invocation of the right to counsel under one amendment invoked the right to counsel under the other amendment. Finally, in Montejo, the United States Supreme Court disentangled the two right-to-counsel constitutional provisions and clarified their separate purposes and applications by overruling Michigan v. Jackson and reaffirming the bright-line rule of Miranda and Edwards.¹³ As Justice Scalia noted in his Montejo conclusion,

This case is an exemplar of Justice Jackson's oft quoted warning that this Court “is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added. We today remove Michigan v. Jackson's fourth story of prophylaxis.¹⁴ ”

We examine how the lessons of Montejo apply in this case, one that is factually very similar to Montejo.¹⁵

A. The Fifth Amendment Right to Interrogation Counsel.¹⁶

The Fifth Amendment prohibits the government from compelling a criminal

[361 S.W.3d 75]

suspect to bear witness against himself.¹⁷ In Miranda v. Arizona,¹⁸ the Supreme Court crafted safeguards to protect this “privilege against self-incrimination” in the inherently coercive atmosphere of custodial interrogations.¹⁹ Before questioning a suspect who is in custody, police must give that person Miranda warnings. Only if the person voluntarily and intelligently waives his Miranda rights, including the right to have an attorney present during questioning, may his statement be introduced into evidence against him at trial.²⁰

Under Edwards v. Arizona,²¹ once a person invokes his right to have counsel present during custodial...