State v. Gobert, PD-0202-08.

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtPrice, J.
Citation275 S.W.3d 888
PartiesThe STATE of Texas v. Milton Dwayne GOBERT, Appellee.
Docket NumberNo. PD-0202-08.,PD-0202-08.
Decision Date28 January 2009
275 S.W.3d 888
The STATE of Texas
Milton Dwayne GOBERT, Appellee.
No. PD-0202-08.
Court of Criminal Appeals of Texas.
January 28, 2009.

[275 S.W.3d 889]

Carl Bryan Case, Jr., Assistant District Atty., Austin, for Appellant.

Karyl Anderson Drug, Jeffrey L. Van Horn, State's Atty., Austin, for Appellee.


PRICE, J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

During a custodial interrogation, right after his Miranda rights were read to him,1 the appellee made a statement that referenced his right to a "lawyer." The police detectives continued the interrogation without providing counsel. We granted the appellee's petition for discretionary review in order to determine whether the continued interrogation, resulting in a confession, violated the appellee's Fifth Amendment right to the presence of counsel during custodial interrogation. We hold that it did.


The Austin Court of Appeals recited the facts as follows:

The relevant facts are not in dispute. Gobert, who was suspected of committing the murder for which he now stands indicted, was arrested for a parole violation and for the assault of a woman named Christine or Christina. Following his arrest, Gobert was questioned by Austin detectives Burgh and Scanlon. Burgh began the interview by advising Gobert of his constitutional and statutory rights. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d, 694 (1966); Tex Code Crim. Proc. Ann. Art. 38.22, §§ 2, 3 (West 2005). Asked if he understood his rights, Gobert replied that he did and then said, "I don't want to give up any right, though, if I

275 S.W.3d 890

don't got no lawyer." Scanlon immediately asked, "You don't want to talk?" The question was repeated by Burgh, "You don't want to talk to us?" Gobert answered, "I mean, I'll talk to y'all. I mean, I know, you know, what she had said about it, you know. I'll speak with y'all, but (inaudible), man. I mean, I'll speak with y'all, you know." Scanlon then said, "Okay, signing this—signing this is not giving up your right. Signing this is acknowledging that this was read to you." He then added, "Okay? Your choice to talk to us is different. This— all this is, is acknowledging that you were warned."

Burgh then began to question Gobert regarding his relationship with Christina. After a number of questions were asked and answered, Scanlon interrupted to ask, "I want to clear something up, though, because earlier you said you don't want to give up your right to a lawyer. I want you—I want you—I want to clear up the fact that you want to talk to us about this. Okay? You understand what I'm saying?" Gobert answered, "Yeah." Scanlon continued, "I want to clear it up. I mean, that's— that's what you want to do, right?" Gobert again answered, "Yeah." The interrogation continued for several hours and ultimately resulted in appellant confessing to the murder of Mei Kernena Cotton.2

The trial court ruled that the appellee's statement constituted an unequivocal invocation of his Fifth Amendment right to counsel during any ensuing interrogation, and therefore suppressed the appellee's confession. Upon the State's interlocutory appeal, the court of appeals at first affirmed the trial court's judgment after conducting a de novo review.3 The State filed a motion for rehearing, which the court of appeals denied. The State then filed a petition for discretionary review. Pursuant to Rule 50 of the Texas Rules of Appellate Procedure, the court of appeals withdrew its original opinion and substituted a modified one.4 This time the court of appeals held that the appellee's statement was not unequivocal, and that the detectives therefore did not violate his Fifth Amendment right to counsel by continuing to question him.5 We granted the appellee's subsequent petition for discretionary review in order to examine this revised holding.6


During the pre-trial suppression hearings, the State introduced three DVDs containing an audio/visual recording of the appellee's interrogation, plus a transcription it had prepared. The purported invocation of counsel was transcribed exactly as the court of appeals reported it, viz: "I don't want to give up any right, though, if I don't got no lawyer." The trial court watched the DVD recordings and reviewed the transcript. In ruling that the confession was inadmissible, the trial court observed: "I just don't find anything that is unequivocal about the statement `I'm not going to waive any rights if I don't got no lawyer.' I mean, I think that that's as unequivocal as I can imagine a statement being." Later, the trial court observed:

You know, there is a lot of things that [the appellee] says on the tape that I

275 S.W.3d 891

couldn't understand and that he talks so low and mumbles and that sort of thing. But one is very clear. When he gets particularly to this point, he says out loud and pretty loudly, he says, `I don't want to give up any right though, if I don't got no lawyer.' He tells—that is the loudest thing he says throughout the interview.

In its brief on direct appeal, it is this statement, taken from its own transcript of the interrogation, that the State argues was equivocal. The court of appeals originally found this fact to be undisputed—as, indeed, at that point, it was.

In its motion for rehearing following the court of appeals's initial opinion, however, the State took issue with the content of the appellee's statement for the first time. "Listening closely to the videotape," the State asserted, "reveals that parts of this comment are close to being inaudible."7 When the court of appeals denied the motion for rehearing, the State argued in its petition for discretionary review that the best transcription that can be made of the actual words spoken by the appellee at this critical juncture in the recording is: "I don't want to give up those rights, though, ____________ got no lawyer."8 The State also pointed to the fact that the defense had commented during the suppression proceedings that "some corrections" to the transcript might be warranted, and, for the first time, the State agreed.9 The State argued that the court of appeals had erred to rely solely on the written transcript in identifying the relevant facts, especially in view of the fact that the DVD recordings were also in evidence which, in the State's estimation, demonstrate "that the [appellee's] statement was mumbled, unintelligible, and ambiguous."10 In issuing its Rule 50 opinion, however, the court of appeals persisted in describing the facts as "undisputed."11

The State also argued its new interpretation of the facts during oral argument before this Court. We decline, however, to adopt it. First, up until the time the State filed its motion for rehearing in the court of appeals, both parties assumed that the appellant's statement had been as the court of appeals has described it. The State challenged the accuracy of its own transcript only after it lost the argument based on that version of the appellant's statement on original submission. The court of appeals is not required to entertain a new argument from an appellant (here, the State) for the first time on rehearing, and when it refuses to exercise its discretion to do so, it renders no decision on that new argument that is available for discretionary review.12 Second, the trial

275 S.W.3d 892

judge viewed the DVD with the State's transcript in hand, and he found that the appellee did in fact actually declare, "I don't want to give up any right though, if I don't got no lawyer." The record supports that conclusion, even as it might also support a different conclusion. Therefore, we will not second-guess the trial court's determination of the facts,13 especially at this stage of the proceedings.


Unlike the Sixth Amendment right to counsel, which is offense-specific, the Fifth Amendment right to have an attorney present during police interrogation applies to any offense about which the police might wish to question a suspect.14 Among the rights about which the police must advise a suspect whom they have arrested is the right to have counsel present during any police-initiated interrogation.15 Once the suspect has invoked his Fifth Amendment right to counsel, police interrogation must cease until counsel has been provided or the suspect himself reinitiates a dialogue.16

Not every mention of a lawyer will suffice, of course, to invoke the Fifth Amendment right to the presence of counsel during questioning.17 An ambiguous or equivocal statement with respect to counsel does not even require officers to seek clarification, much less halt their interrogation.18 Whether the mention of a lawyer constitutes a clear invocation of the right to counsel will depend upon the statement itself and the totality of the surrounding circumstances.19 The test is an objective

275 S.W.3d 893

one, viz: the suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances...

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    ...otherwise, police officers are not even required to seek clarification, much less halt their interrogation. See State v. Gobert, 275 S.W.3d 888, 891 (Tex.Crim.App.2009) (reasoning that a clear invocation of the right to counsel is an objective inquiry whereby a suspect must articulate his d......
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    ...565 (9th Cir.1992). 44 Id. 45 Id. 46 Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); State v. Gobert, 275 S.W.3d 888, 892 (Tex.Crim. 47 Davis v. United States, 512 U.S. 452, 461-62, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). 48 Gobert, 275 S.W.3d at 892. 49 Id.......
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    ...with law enforcement officers. Rhode Island v. Innis , 446 U.S. 291, 293, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) ; State v. Gobert , 275 S.W.3d 888, 892 (Tex. Crim. App. 2009) ; see also Edwards , 451 U.S. at 484–85, 101 S.Ct. 1880 ; Flores v. State , 299 S.W.3d 843, 852 (Tex. App.—El Paso 2......
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