Description: On June 9, 2015, Reising was arrested on a warrant for continuous sexual abuse of a child.
When brought before a magistrate, Reising declined to apply for a court appointed attorney. On
June 13, 2015, however, he completed paperwork requesting the appointment of an attorney.
At approximately 10:00 a.m. on June 23, 2015, Reising was transported from jail and
interrogated by Detective Craig Jones. Prior to the interrogation, Detective Jones informed Reising
of his Miranda rights, and Reising signed an acknowledgment waiving those rights. Reising told
Detective Jones that he had submitted a request for a court appointed attorney to “see about getting
[his] bond lowered.” Reising also told Detective Jones he did not believe an attorney had been
appointed to represent him. Detective Jones told Reising he would check on the status of the
appointment. The interview ended at approximately 1:00 p.m.
At the hearing on Reising’s motion to suppress, evidence established that an attorney was
appointed to represent Reising on June 23, 2015; however, the trial court found the time of the
appointment was “unknown.” The evidence established the jail and the appointed attorney were
notified of the appointment at approximately 3:00 p.m. on June 23, 2015. The trial court concluded
the State failed to satisfy its burden to prove Reising did not have an attorney at the time he made
his statements to Detective Jones on June 23, 2015. Accordingly, the trial court granted Reising’s
motion to suppress.
STANDARD OF REVIEW We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
review. State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017); Hernandez v. State, 387
S.W.3d 881, 884 (Tex. App.—San Antonio 2012, no pet.). We defer to the trial court’s
determination of historical facts, examining the record in the light most favorable to its ruling, and
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review de novo the trial court’s determination of the legal significance of those facts. Rodriguez,
521 S.W.3d at 8; Hernandez, 387 S.W.3d at 885. STATE’S BURDEN WITH REGARD TO SIXTH AMENDMENT RIGHT TO COUNSEL In its first issue, the State asserts the trial court erred in holding the State to an erroneous
legal burden by requiring the State to prove Reising did not have an attorney at the time of the
custodial interrogation. We agree.
Before the United States Supreme Court’s decision in Montejo v. Louisiana, 556 U.S. 778 (2009),1 a distinction was drawn between the waiver of a Fifth Amendment right to interrogation counsel and a Sixth Amendment right to trial counsel.2 See Pecina v. State, 361 S.W.3d 68, 70,
74-78 (Tex. Crim. App. 2012). Under the prior law, when an attorney-client relationship was
established after a defendant’s Sixth Amendment right to counsel attached, the police could initiate
interrogation only through notice to defense counsel. See Upton v. State, 853 S.W.2d 548, 557
(Tex. Crim. App. 1993); State v. Morris, 228 S.W.3d 246, 250 (Tex. App.—Austin 2007, no pet.);
Cloer v. State, 88 S.W.3d 285, 288 (Tex. App.—San Antonio 2002, no pet.). A defendant’s
unilateral waiver of his Sixth Amendment right to counsel during interrogation, without the
involvement of his attorney, was invalid even if the defendant received the required Miranda
warnings. Holloway v. State, 780 S.W.2d 787, 796 (Tex. Crim. App. 1989); Morris, 228 S.W.3d
at 250; Cloer, 88 S.W.3d at 288. After Montejo, however, both the Fifth and Sixth Amendment
right to counsel during custodial interrogation are “waived in exactly the same manner.” Pecina,
361 S.W.3d at 70. Therefore, when law enforcement officers approach a defendant and provide
1 In Montejo, the Court overruled its decision in Michigan v. Jackson, 475 U.S. 625 (1986). See Montejo, 556 U.S. at 797. 2 “The Sixth Amendment right to counsel attaches once the ‘adversary judicial process has been initiated,’ and it guarantees ‘a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings.’” Pecina, 361 S.W.3d at 77 (quoting Montejo, 556 U.S. at 786). The Texas Court of Criminal Appeals refers to “this Sixth Amendment right with the short-hand term ‘trial counsel.’” Id.
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him with Miranda warnings, the defendant must invoke his Sixth Amendment right to counsel at
that time. Id. at 78.
In this case, the trial court erred in applying the law as it existed before the United States
Supreme Court’s decision in Montejo. Applying the prior law, the trial court concluded the State
“had the burden to prove that the defendant did not have an attorney at the time of the
[interrogation].” Under existing law, however, the State’s burden was to show Reising knowingly,
intelligently, and voluntarily waived his right to counsel. See Hernandez, 387 S.W.3d at 885.
Therefore, we sustain the State’s first issue.
Although the trial court erred in applying the wrong burden, we must still uphold the trial
court’s ruling if it is correct under any theory of law applicable to the case. Id. In this case, if the
evidence established Reising invoked his right to counsel after being read his Miranda warnings,
then the trial court’s ruling would still be upheld because Reising’s statement would have been
taken in violation of his right to counsel. See Pecina, 361 S.W.3d at 78. Therefore, we must
examine whether Reising invoked his right to counsel after being read his Miranda warnings. DID REISING INVOKE HIS RIGHT TO COUNSEL? An accused has the right to have an attorney present during custodial interrogation.
Edwards v. Arizona, 451 U.S. 477, 482 (1981). Once an accused has invoked that right, police
interrogation must stop until counsel has been made available or the accused himself initiates a
dialogue with the police. Edwards, 451 U.S. at 484–85; State v. Gobert, 275 S.W.3d 888, 892
(Tex. Crim. App. 2009). However, not every mention of a lawyer will suffice to invoke the right
to the presence of counsel during questioning. Gobert, 275 S.W.3d at 892.
To trigger law enforcement’s duty to terminate the interrogation, a defendant’s request for
counsel must be clear, and the police are not required to attempt to clarify ambiguous remarks.
Davis v. United States, 512 U.S. 452, 461–62 (1994); Gobert, 275 S.W.3d at 892. Whether a
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statement referring to a lawyer constitutes a clear request for counsel depends on the statement
itself and the totality of the circumstances surrounding the statement. Gobert, 275 S.W.3d at 892.
The test is objective: whether the defendant articulated his desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would understand the
statement to be a request for an attorney. Davis, 512 U.S. at 458-59; Gobert, 275 S.W.3d at 892
93. An “ambiguous articulation of a desire for counsel” is insufficient. 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?”); see also 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.”); Flores v. State, 30
S.W.3d 29, 33–34 (Tex. App.—San Antonio 2000, pet. ref’d) (“Will you allow me to speak to my
attorney before?”); Cooper v. State, 961 S.W.2d 222, 226 (Tex. App.—Houston [1st Dist.] 1997,
pet. ref’d) (“Where is my lawyer? Where is he?”).
In this case, a videotape of the custodial interrogation was admitted into evidence. As
Detective Jones read the Miranda rights to Reising, Reising verbally acknowledged the rights and
initialed and signed the written form. Reising informed Detective Jones that he had a question and
stated that he had “put in a request for an attorney … at least [to] see about getting [his] bond
lowered.” He also asked Detective Jones about the timing and procedure for an appointment and
stated he did not think an attorney had been appointed. Detective Reising responded that he did
not know if an attorney had been appointed but he did not mind asking about it. The interrogation
We hold Reising’s reference to requesting the appointment of an attorney was not an
unequivocal request to have an attorney present during the interrogation or to terminate the
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interrogation until he spoke with an attorney.3 Because Reising did not invoke his right to counsel
after being read his Miranda warnings, the trial court’s order cannot be affirmed on this basis.
Outcome: The trial court’s order is reversed, and the cause is remanded to the trial court for further proceedings.