Like "The Citizens Against Lawsuit Abuse" give a rats A$$ About "Harrassment" the belong with Scott Bristers, Debbie Riddle's,Sharon Keller and their "Pit of Hell" mentality~ is where they are going.......along with this stupid Judge!
Now where we know who side of the fence he is on.
I hope these Guy's file a lawsuit on this judge for infringing on their 1st amendment and read why Tort Reform was even passed.....TX Monthly 11/05 by Mimi Schwartz.
Some one is pulling this puppets strings.
Texas judge bans 'frivolous lawsuit' lawyer from further litigation
4/9/2008 11:00 AM
By Marilyn Tennissen
A federal judge in Central Texas recently ruled that a lawyer had such a long history of filing frivolous lawsuits that he banned the attorney from any further litigation in Texas federal courts.
On March 25, U.S. District Judge Walter S. Smith Jr. for the Waco Division of the Western District of Texas dismissed a suit filed by plaintiff Daniel Simon against officials from Williamson County. Simon was represented by disbarred attorney Charles Edward Lincoln.
Smith then went a step further and fined Simon and Lincoln $150,000 and banned Lincoln from filing any more federal lawsuits.
The court found that Simon and what Judge Smith called his "de facto" attorney have engaged in "harassment of public officials by filing numerous frivolous lawsuits and removals to federal courts."
Smith wrote that after reviewing pleadings in the case and other cases federal courts in Western and Southern Districts of Texas or state court in Williamson County, it became clear that "Charles Lincoln has spearheaded efforts to have the Texas Family Code declared unconstitutional."
"He has enlisted the assistance of numerous pro se litigants, including Daniel Simon, who continue to prosecute baseless claims against state officials," Smith wrote.
Smith went on to order sanctions against Simon and Lincoln in the amount of $150,000 "because of their pattern of harassing litigation." In addition, Smith ordered that any lawsuits either filed or removed to any federal court in the Western District of Texas were "hereby dismissed with prejudice," and that Simon and Lincoln were prohibited from filing any further suits or pleadings in any federal court in Texas until the sanctions had been paid or get special permission from a federal judge.
Smith's order was forwarded to the clerks for the Northern, Eastern and Southern Districts of Texas.
"We are pleased that the Court agreed with the county's argument that this case was just one more example of how Charles Lincoln consistently enlists the assistance of pro se litigants including Mr. Simon who continue to prosecute baseless claims against state officials," Williamson County Attorney Jana Duty said in a press release.
The ruling was also applauded by Citizens Against Lawsuit Abuse of Central Texas for Smith's "zero tolerance approach to what he considers abusive lawsuits designed to harass, not right a legitimate wrong."
"Unnecessary lawsuits clog our courts, delaying justice for true victims," Kirsten Voinis, spokesperson for CALA of Central Texas said in a press release.
Voinis also praised Smith for exercising an often overlooked judicial power.
"While judges have the power to issue fines against lawyers who abuse our court system and to throw out frivolous cases, this power is rarely used," she said.
Voinis said that abuse of the civil justice system is especially egregious when the defendant is an entity supported by taxpayer money.
"In this case, the plaintiffs abused Williamson County taxpayers as much as they did the civil justice system by forcing Williamson County officials to spend time and resources to defend the county against what the judge determined to be baseless claims."
According to the State Bar of Texas, on Aug. 22, 2001, the Supreme Court of Texas accepted the resignation, in lieu of discipline, of Charles Edward Lincoln [#00791116], 40, of New Orleans, La. The court found that on March 17, 2000, Lincoln entered into a plea agreement in Cause No. A-99-CR-275-WS, The United States of America v. Charles Edward Lincoln, wherein he pleaded guilty to falsely representing his social security number (42 USC §408(a)(7)(B)).
As a condition of the plea agreement, Lincoln agreed to resign from the practice of law in Texas in lieu of disciplinary proceedings by the State Bar of Texas.
Williamson County is located in Central Texas and is part of the Austin-Round Rock metropolitan area.
Monday, August 10, 2009
Thursday, October 2, 2008
Similarly, an accused charged with a misdemeanor who has not waived the right to counsel and is not represented by an attorney is not subject to impri
Dallas Criminal Defense Lawyer
State & Federal Cases
Constitutional and Statutory BasesDallas Criminal Defense Lawyer
State & Federal Cases
The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions an accused has the right to the assistance of counsel for his or her defense. Under the due process clause of the Fourteenth Amendment, this right has been extended to persons accused of crimes in state prosecutions.
These constitutional provisions have been interpreted as requiring the appointment of counsel for an accused who is indigent. This right applies to all defendants charged with an offense for which imprisonment is imposed, whether classified as petty, misdemeanor, or felony. However, if the offense is a misdemeanor, the constitutional right to counsel applies only if imprisonment is actually imposed. Thus, a defendant is not entitled to appointment of counsel in a misdemeanor prosecution when the state asserts that it will not seek a jail sentence and the court's punishment is by fine only. Similarly, an accused charged with a misdemeanor who has not waived the right to counsel and is not represented by an attorney is not subject to imprisonment. The punishment under such circumstances must be limited to a fine.
The constitutional right to counsel is complemented by statutory provisions acknowledging a defendant's right to counsel in any adversarial judicial proceeding. This right includes the right to consult in private with counsel sufficiently in advance of a proceeding to insure adequate preparation. An indigent defendant is entitled to the appointment of an attorney for any adversarial judicial proceeding that may result in punishment by confinement and in any other criminal proceeding when the court concludes that the interests of justice require representation. Thus, whenever a court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interests of justice otherwise require representation of an indigent defendant the court must appoint one or more attorneys to defend him or her as soon as possible. A defendant does not waive the right to counsel by simply failing to request appointed counsel An attorney so appointed must represent the defendant until the charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved by the court or replaced by other counsel.
Each county with at least four county courts and four district courts may appoint a public defender to represent indigents. Moreover, certain other counties and judicial districts are authorized to appoint a public defender for each court or for the county as a whole.
It is common practice in Texas for judges to appoint two attorneys, rather than one, to represent an indigent defendant charged with a capital crime or a major felony. If the trial court appoints a single attorney at the outset, a pretrial motion may be used to request additional counsel. The right to counsel, whether retained or appointed, applies to proceedings other than those simply related to a determination of guilt or innocence of a criminal offense. For example, the right extends to probation revocation proceeding and extradition proceedings. It also applies to appellate and post conviction habeas corpus matters.
Choice of Counsel
The right to counsel gives rise to a no indigent's right to select counsel of his or her choice. Therefore, an accused must be afforded a fair opportunity to select and retain an attorney of his or her choosing. However, an accused's right to counsel of choice is not absolute, and it may not be manipulated to obstruct orderly procedure in the courts or interfere with the fair administration of justice.
Some of the factors that the appellate court will weigh in deciding if the defendant was denied the right to counsel of his or her choice when forced to trial with unacceptable counsel are as follows:
- The length of the delay requested;
- Whether other continuances were requested and the court's rulings on them;
- The length of time that trial counsel had to prepare;
- Whether another competent attorney was prepared to try the case;
- The balance of convenience or inconvenience to the witnesses, opposing counsel, and trial court;
- Whether the delay was for legitimate or contrived reasons;
- Whether the case was complex or simple;
- Whether the denial of the motion resulted in some identifiable harm to the defendant; and
- The quality of the legal representation actually provided.
Retroactivity of Right
The right to counsel is given retroactive application. This right as it retroactively applies attaches to every stage of the prosecution where substantial rights of an accused may be affected, including the appeal. Therefore, an accused who is imprisoned may be entitled to postconviction relief, such as habeas corpus, if he or she was deprived of the assistance of counsel at a critical stage of a former prosecution even though the law regarding the right to counsel was complied with at the time of trial.
The retroactivity of the right to counsel may also be significant even if the accused is not presently in custody because a conviction obtained in a former criminal proceeding where there was a violation of the accused's right to counsel is not properly admissible in a subsequent criminal proceeding. For example, an accused may prevent the prosecution from introducing a prior conviction that could otherwise be used for impeachment. An accused may also prevent a prior conviction from being used to support guilt or to enhance the punishment for another offense.
However, in a subsequent criminal proceeding an accused will not be able to prevent the introduction of a prior conviction obtained without counsel unless he or she can prove indigency or the absence of a waiver of the right to counsel in the former proceeding . If a prior judgment of conviction recites that the defendant was represented by counsel, there is a presumption that the defendant was represented by counsel during the proceedings up to the conviction. In addition, there is a distinction between the later use of an uncounseled conviction and the use of an uncounseled sentence. For example, although the use of a conviction obtained while the accused was without counsel is unavailable for enhancement, the fact that there might have been no attorney present at the sentencing does not render the underlying counseled conviction invalid for enhancement purposes. This same rule applies to the use of a prior conviction for impeachment. The fact that the accused was without counsel when probation was revoked does not mean that the counseled conviction placing the accused on probation may not be used for impeachment.
Hybrid Representation
Article 1, Section 10 of the Texas Constitution states that an accused in a criminal proceeding has the right to be heard by himself or herself or counsel, or both. Although the language of this provision would appear to grant an accused the right to represent himself or herself along with counsel, it has been held that this provision of the constitution does not expand or alter the right to counsel or in any way give the accused a right to such hybrid representation. Rather, Article 1, Section 10 affords the accused the right to testify at his or her trial and to be represented by counsel. Thus, there is no constitutional right in Texas to representation partially pro se and partially by counsel As a result, the trial court is empowered to reject a request for hybrid representation. In this regard, it has been held that a request for self-representation that is not accompanied by a waiver of the right to counsel constitutes a request for hybrid representation.
If the trial court approves a request for hybrid representation, a defendant may act pro se as well as through retained or appointed counsel. A defendant who requests and accepts hybrid representation may not later assert any claim about waiver of counsel.
In the absence of approved hybrid representation, a defendant who is represented by counsel has no authority to make tactical decisions contrary to those of his or her attorney. For example, it is trial counsel's prerogative to decide which witnesses to call. Moreover, a defendant who is represented by counsel is not entitled to argue personally without taking the witness stand.
If an accused has waived the right to retained or appointed counsel, a trial court has the discretion to appoint counsel to act as amicus curiae to represent the court during the trial in an effort to make sure that all of the accused's rights are protected. Such counsel may be directed to remain with the accused throughout the trial in an advisory capacity. This does not infringe on the defendant's right of self-representation as long as the defendant maintains actual control of the litigation and the jury's perception that the defendant is representing himself or herself is not destroyed. In such cases, the attorney is referred to as ``standby counsel.'' The proper role of standby counsel is quite limited. The defendant retains actual control over the case presented to the jury. Standby counsel is not empowered to substantially interfere with any significant tactical decisions, control the questioning of a witness, or speak in place of the defendant on any matter of importance. For example, standby counsel might explain basic rules of courtroom protocol or assist the defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task that the defendant has chosen to undertake. If, however, the defendant agrees to or permits any substantial participation in the trial by standby counsel, subsequent participation by counsel is presumed to be with the defendant's acquiescence unless the defendant unambiguously requests that counsel be silenced.
When a defendant requests self-representation, the trial court should clearly admonish the defendant that there is no automatic right to standby counsel. However, the court should also inform the defendant whether the court intends to allow standby counsel. In fact, the court has the authority to appoint standby counsel over the defendant's objection. The only issue that might arise from such an appointment is whether counsel then interfered with the defendant's right of self-representation. Acceptance of the court's offer of standby counsel does not mean the defendant has waived a prior asserted right of self-representation.
Waiver of Counsel
Once an accused asserts the right to self-representation, it is incumbent on the court to ascertain if the defendant is making a voluntary, knowing, and intelligent relinquishment of the right to counsel. The court must advise the defendant about the dangers and disadvantages of self-representation. It has been suggested that the trial court should give the defendant a direct admonishment that he or she will be bound by the rules of evidence and procedure, and that no concessions will be made because of the defendant's lack of legal training. In addition, the court should specifically delineate some of the problems that the unschooled defendant may face by undertaking self-representation. These admonishments should include an advisement that there is no right to standby counsel.
The failure to make the defendant aware of the dangers of self-representation may invalidate a waiver of counsel. It is not sufficient to merely explain the trial procedures to the defendant and ask if he or she understands them.
After the trial court determines that a waiver of counsel is being voluntarily and intelligently made, the court ``shall provide the defendant with'' a written statement of waiver that the defendant may sign to waive the right to counsel. If the defendant signs the statement, it must be included in the record of the case. However, the Court of Criminal Appeals has held that a written waiver of the right to counsel is not required under the statute when the defendant affirmatively asserts the right to self-representation. The requirement of a written waiver of counsel in such cases would protect the right to counsel at the expense of the right to self-representation. Thus, the statute is directory rather than mandatory, so a court does not err in failing to secure a written waiver before permitting a defendant to proceed pro se.
The validity of any waiver of counsel is usually judged by determining if the record demonstrates that it was executed voluntarily, knowingly, and intelligently. This is most commonly done by analyzing the admonishments from the court and the defendant's responses to them. The overall record is considered in this regard; there is no specific type of information that is necessary to justify a court's finding of a waiver of counsel. Similarly, it is impermissible for the court to require a showing of any particular legal knowledge on the part of the defendant as a prerequisite for a knowing and intelligent waiver of counsel. The type of inquiry that must be made depends upon whether the defendant is merely seeking to waive counsel or wishes to waive counsel and concomitantly exercise the right of self-representation.
A waiver of counsel is a voluntary relinquishment of the right to counsel. Therefore, it is not proper to force a defendant to proceed without counsel because of external circumstances. However, actions by a defendant that are deemed to be disruptive may be considered as the functional equivalent of a waiver of counsel.
Moreover, after a defendant asserts the right of self-representation, the court may compel a defendant to make a choice resulting in the waiver of counsel. For example, when the court offers to let appointed counsel remain as standby counsel, but the defendant seeks to have a different person appointed as standby counsel, the court may refuse a new appointment and leave the defendant with the choice of proceeding to trial with unwanted counsel or proceeding pro se.
Thursday, July 17, 2008
When the record is silent regarding the motivation of counsel's tactical decisions, the defendant cannot overcome the strong presumption that counsel
 Send this document to a colleague | Close This Window | |
NUMBER 13-05-567-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG FRANCISCO PEREZ, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 105th District Court of Kleberg County, Texas. MEMORANDUM OPINION Before Justices Hinojosa, Yañez, and Garza Memorandum Opinion by Justice Garza Appellant, Francisco Perez, was convicted by a jury of attempted capital murder, sentenced to 60 years= imprisonment, and assessed a $10,000 fine. See Tex. Pen. Code Ann. '' 15.01 (a) (Vernon 2003), 19.03(a)(7)(A) (Vernon Supp. 2005). In a single issue, appellant argues that he was denied effective assistance of counsel. For the reasons that follow, we affirm the conviction. I. Standard of Review This Court uses the two‑pronged Strickland test to determine whether representation was so inadequate that it violated a defendant's Sixth Amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 684 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Alfano v. State, 780 S.W.2d 494, 495 (Tex. App.BCorpus Christi 1989, no pet.). To establish ineffective assistance of counsel, appellant must show (1) his attorney's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for his attorney's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Hernandez, 726 S.W.2d at 55. Whether this test has been met is to be judged on appeal by the totality of the representation, not by isolated acts or omissions. Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995). The burden is on appellant to prove ineffective assistance of counsel by a preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.BCorpus Christi 2000, no pet.). Our review of counsel's representation is highly deferential; appellant must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689; Munoz, 24 S.W.3d at 434. AIn the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions.@ Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). An allegation of ineffective assistance of counsel will only be sustained if it is firmly founded and the record affirmatively demonstrates counsel's alleged ineffectiveness. Guzman v. State, 923 S.W.2d 792, 797 (Tex. App.BCorpus Christi 1996, no pet.). II. Ineffective Assistance of Counsel In his sole issue, appellant argues he was provided ineffective assistance of counsel because his trial counsel (1) failed to file a verified motion to transfer venue, (2) failed to secure a ruling on the motion to transfer,[1] (3) failed to introduce appellant=s mental health records at the hearing on the motion to suppress and at the punishment phase of trial,[2] and (4) failed to hire a psychiatrist to assist him during the hearing on the motion to suppress appellant=s confession and during the punishment phase of trial.[3] Even assuming, arguendo, that trial counsel=s representation fell below an objective standard of reasonableness, appellant has not alleged or developed any argument as to how the outcome of his trial would have been different had his lawyer filed an adequate motion to transfer venue, introduced his mental health records, and hired an expert witness to assist in his defense. Appellant states only that Atrial counsel=s representation, taken in its totality, fell far below the standard of reasonable, legal representation,@ and Athe legal work that was not performed for the appellant, causes any reasonable person to have serious doubts regarding the fairness of the appellant=s trial@ and Aregarding the fairness of punishment.@ Appellant has not shown how trial counsel's failure, if any, to perform the complained-of legal work undermines confidence in the outcome of his trial. See Tex. R. App. P. 38.1(h), 44.2(a); see also Strickland, 466 U.S. at 693. Appellant=s issue is overruled. We affirm the trial court=s judgment. _______________________ DORI CONTRERAS GARZA, Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this the 18th day of May, 2006. [1] With respect to appellant=s first and second arguments on appeal, the record reflects that appellant=s trial counsel filed a motion to transfer venue, but failed to include the affidavit as required by article 31.03 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 31.03 (Vernon 1989). However, the record also reflects that appellant=s trial counsel abandoned the motion to transfer venue. The record further reflects that the State urged its own motion to transfer venue. When the record is silent regarding the motivation of counsel's tactical decisions, the defendant cannot overcome the strong presumption that counsel acted reasonably. See Mallett v. State, 65 S.W.3d 59, 62‑63 (Tex. Crim. App. 2001); see also Ortiz v. State, 93 S.W.3d 79, 88‑89 (Tex. Crim. App. 2002) (en banc) ("If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal."). [2] With respect to appellant=s third argument on appeal, the record reflects that the substance of the records appellant complains should have been introduced (that appellant had an eighth grade education, had been a patient at the center for Mental Health and Mental Retardation in the past and had been prescribed medication by the doctors at the center) was admitted via appellant=s own testimony and the testimony of his mother at the hearing on the motion to suppress, at the guilt-innocence phase, at the punishment phase of trial, and at the hearing on appellant=s motion for new trial. [3] In particular, appellant argues that his trial counsel should have offered expert testimony to assist the jury in determining the voluntariness of his confession and to assist during the punishment phase of trial. Generally, trial counsel's failure to call witnesses is irrelevant unless appellant shows that such witnesses were available and would have provided beneficial testimony. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Parmer v. State, 38 S.W.3d 661, 668 (Tex. App.BAustin 2000, pet. ref'd). When an appellant complains of trial counsel's failure to call an expert witness, he must show that the expert would have testified in a manner beneficial to him. See Cate v. State, 124 S.W.3d 922, 928 (Tex. App.BAmarillo 2004, pet. ref'd); McCain v. State, 995 S.W.2d 229, 246 (Tex. App.BHouston [1st Dist.] 1999, no pet.). Nothing in this record shows that any expert would have been willing to testify as appellant desired. Although we can assume, given appellant=s treatment at the MHMR center, that such testimony may exist, it is mere speculation whether or not such a mitigation expert existed or whether there was testimony that would have benefitted appellant. We will not engage in such speculation. The record does not substantiate appellant's claim that he received ineffective assistance of counsel with regard to the issue of the expert. | ||
Tuesday, June 10, 2008
one court concluded that “Can I ask for a lawyer now?” was not an unambiguous request for counsel, while another held that “Can I call my attorney?” w
Send this document to a colleague Close This Window
IN THE SUPREME COURT OF TEXAS
════════════
No. 06-0005
════════════
In the Matter of H.V.
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Second District of Texas
════════════════════════════════════════════════════
Argued April 12, 2007
Chief Justice Jefferson, joined by Justice Wainwright and Justice Green, and joined by Justice Hecht as to parts I, III, and V, concurring and dissenting.
We cannot construe H.V.’s statement that he “wanted his mother to ask for an attorney” without first addressing the considerable body of precedent on this subject. If we were writing on a clean slate, I would agree that the statement invokes his right to counsel. But the Supreme Court has held that anything short of an unambiguous request will not suffice. Davis v. United States, 512 U.S. 452, 459 (1994)(“[A] statement either is such an assertion of the right to counsel or it is not.”). “Maybe I should talk to a lawyer” is not an unambiguous invocation of right to counsel. Davis, 512 U.S. at 462. Nor does one invoke the right by saying “I think I need a lawyer,” or “I can’t afford a lawyer but is there anyway I can get one?” ___ S.W.3d ___, ___ (citing Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000); Lord v. Duckworth, 29 F.3d 1216, 1219-21 (7th Cir. 1994)). In light of these precedents, H.V.’s statement was ambiguous, and the magistrate properly attempted to clarify H.V.’s wishes. Once she did so, it became clear that H.V. declined counsel. Because the Court concludes otherwise, I respectfully dissent from part III of its opinion.
I
In Flamer v. Delaware, 68 F.3d 710, 725 (3d Cir. 1995), the Third Circuit concluded that an adult defendant’s “request to call his mother ‘to inquire about . . . possible representation’ . . . was insufficient to trigger Edwards under the Supreme Court’s decision in Davis.” Then-Judge Alito, writing for the court, concluded:
[T]he [Davis] Court held that Edwards applies only if a defendant ‘unambiguously’ requests counsel. ‘If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel,’ Edwards does not come into play. Here, Flamer’s request to telephone about possible representation ‘failed to meet the requisite level of clarity’ that Davis demands.
Id. (citations omitted). Although Flamer involved a request made at an arraignment, rather than prior to custodial interrogation, the court’s analysis of Davis and Edwards would be equally applicable in either context.
The precedent in this area is muddled,[1] but the Supreme Court’s directive seems relatively clear, and lower courts have followed suit. It is hard to see a distinction between Flamer’s request to call his mother “to inquire about . . . possible representation” and H.V.’s statement that he “wanted his mother to ask for an attorney.” Id.; see also Davis, 512 U.S. at 459; State v. Hyatt, 566 S.E.2d 61, 71 (N.C. 2002) (defendant’s request to speak to his father and statement that his father wanted him to have an attorney present “[did] not, as a matter of law, constitute an unambiguous request for counsel”). The Court has enumerated examples of statements that courts have held are insufficient to invoke the right to counsel as well as examples of those that sufficed. The statement here is more like the former examples[2] than the latter. As Davis held, interrogations need not cease in the face of an ambiguous or equivocal reference to an attorney that “might” invoke the right to counsel. Davis, 512 U.S. at 459; see also Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995) (“An invocation must be clear and unambiguous; the mere mention of the word ‘attorney’ or ‘lawyer’ without more, does not automatically invoke the right to counsel.”). Unless a suspect actually requests an attorney, questioning may continue. Davis, 512 U.S. at 462.
The magistrate appropriately attempted to clarify H.V.’s ambiguous statement. Davis, 512 U.S. at 461 (holding that, “when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney” but declining to adopt a rule requiring clarifying questions). She testified that, before administering the warnings, she asked the investigating officers to leave the room, and her conversation with H.V. was private. She advised him of his rights and “made sure that he understood” them and that he “understood the English language and spoke it and read it. I made sure he understood what he was there for.” H.V. said he understood his rights. He then asked to talk to his mother. The magistrate testified:
Magistrate: I explained to him that at that time that we were here in the, we were here down at the facility and that Detective Carroll was asking for him to make a statement and that he had essentially three options at that time: That he could ask for an attorney, that he could make a statement to Detective Carroll, or he could choose not to make any statement.
Ass’t D.A.: Did you inform him he had the right to hire an attorney if he chose to do so?
Magistrate: I did.
Ass’t D.A.: Did you inform him he had the right to have counsel appointed for him if he couldn’t afford one?
Magistrate: I did.
Ass’t D.A.: What was his response to this information?
Magistrate: He said he wanted to talk to his mother and wanted her to ask about an attorney.
Ass’t D.A.: And what was your response as a magistrate to that question?
Magistrate: I told him that at this time his mother was not present, that we needed to finish up what we were doing there, and that meant that he needed to make a decision about asking for an attorney or making a statement or not making a statement; that those were the three things at that point that we could take care of at that point.
. . .
Ass’t D.A.: Knowing that, what did you do after the Respondent asked about talking to his mother about an attorney?
Magistrate: I told him, we also had a brief conversation, he asked, well, I explained to him that if he chose not to make a statement at that time, that was fine, that he was currently being held in custody for tampering with physical evidence, and that he was being under investigation for murder, and that if he wanted to speak to his mother, that he would be taken back down to the Juvenile facility at that time. I said, I don’t know what timeframe would be involved as far as your being able to see your mother.
Ass’t D.A.: Once you briefed him on those rights, what was his response?
Magistrate: That he wanted to make a statement to Detective Carroll.
Ass’t D.A.: Did he mention anything about his age?
Magistrate: He did say I’m only 16, and I said, I understand that, H., but I think you’re very well-educated and articulate, and you understand everything, and if you want to ask for an attorney, I think you can do that. I mean, you have the right to do that for yourself.
. . .
Ass’t D.A.: And what was his response?
Magistrate: That he would talk to Detective Carroll.
Ass’t D.A.: And were you fully convinced that that was his intention at that time?
Magistrate: If I hadn’t been fully convinced that that was what he wanted, I wouldn’t have let him do it.
Her notes reflected the following:
[H.] was very articulate and appeared well-educated. He was very aware of his circumstances and the charges. After reading the first mag warning, I explained that he could ask for an attorney, choose not to make a statement, or choose to speak to Detective Carroll. He stated he wanted to call his mother. I told him that at this time that was not an option. He said he wanted his mother to ask for an attorney. I explained to him that he would have to be the one to ask for an attorney. He stated, but I’m only 16. I said yes, but if he wanted an attorney, he would have to ask for one. I again told him he had three options: Ask for an attorney, make a statement to Detective Carroll, or not to make a statement. At that time, he said he would speak to Detective Carroll.
Thus, by the end of the exchange, H.V. made it clear that he wanted to speak to law enforcement officers and thereafter gave a statement. He again met privately with the magistrate, who read his statement and listened as H.V. subsequently read it aloud. He made a single correction—adding the word “shoes” where it had been omitted—and signed the statement. At no time during this process did he unambiguously invoke his right to counsel.
II
H.V. admits that he knew of his rights, having been advised of them earlier in the day, but contends that he did not know how to invoke them. He urges the Court to examine the “totality of the circumstances,” including his age, when deciding whether his requesting his mother to seek counsel should be construed as his own request. The Court, however, sidesteps the issue, noting only that because it agrees with the court of appeals’ ultimate conclusion, it “need not decide in this case whether the court of appeals erred in considering H.V.’s age.” By failing to decide whether H.V.’s age may be considered, however, the Court does a disservice both to H.V. and to future litigants: the Court does not explain why taking H.V.’s age into account would apparently not affect the outcome here,[3] nor does the Court provide any guidance to courts grappling with this issue in future cases.
While I agree that it is “not entirely clear which rule applies,” ___ S.W.3d at ___, I would hold that a juvenile’s age may be taken into account when deciding whether he invoked his right to counsel. In Fare v. Michael C., 442 U.S. 707, 725 (1979), the Supreme Court held that courts evaluating a juvenile’s waiver of his Miranda rights must examine the totality of the circumstances, including a “juvenile's age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.”
Davis, decided after Fare, established an objective test for invoking those rights. Davis, 512 U.S. at 459. One of the driving forces behind Davis’s objective test, however, was the desire to provide a clear rule for police officers during interrogations. The Supreme Court balanced the Edwards test with an adult suspect’s invocation of his rights and concluded:
In considering how a suspect must invoke the right to counsel, we must consider the other side of the Miranda equation: the need for effective law enforcement. Although the courts ensure compliance with the Miranda requirements through the exclusionary rule, it is police officers who must actually decide whether or not they can question a suspect. The Edwards rule — questioning must cease if the suspect asks for a lawyer — provides a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. But if we were to require questioning to cease if a suspect makes a statement that might be a request for an attorney, this clarity and ease of application would be lost. Police officers would be forced to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he has not said so, with the threat of suppression if they guess wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.
Id. at 461. But under Texas law, magistrates, not law enforcement officers, give Miranda warnings to juveniles.[4] Tex. Fam. Code § 51.095. To be admissible in evidence, statements given by juveniles must be signed in the presence of the magistrate, generally without any law enforcement officers or prosecuting attorneys present.[5] Id. § 51.095(a)(1)(B)(i). In contrast to warnings administered by police officers during the heat of interrogation, then, juvenile warnings administered before police questioning ever begins, by an experienced magistrate who is obviously aware of the juvenile’s age, do not raise the same concerns cited by the Davis court. In this context, a magistrate’s consideration of a suspect’s age would not “unduly hamper[] the gathering of information.” Davis, 512 U.S. at 461.
Moreover, Yarborough v. Alvarado, 541 U.S. 652, 666 (2004), in which the Supreme Court held that a suspect’s age or experience need not be considered in determining whether he is in custody, does not necessarily foreclose consideration of a juvenile’s age when determining whether he invoked his right to counsel. Yarborough did not overrule Fare, and at least one Justice who joined Yarborough noted that age could be considered as part of the objective custody inquiry.[6] See Yarborough, 541 U.S. at 669 (O’Connor, J., concurring) (noting that, despite objective nature of inquiry, “[t]here may be cases in which a suspect’s age will be relevant to the ‘custody’ inquiry under Miranda”); see also People v. Roquemore, 31 Cal. Rptr. 3d 214, 223 (Cal. Ct. App. 2005) (applying Fare factors but nonetheless concluding that eighteen-year-old’s statement “Can I call a lawyer or my mom to talk to you?” was not an unambiguous request for counsel); Dinkins, 894 S.W.2d at 351 (applying Davis but nonetheless concluding that “[w]hen reviewing alleged invocations of the right to counsel, we typically look at the totality of the circumstances”). While Davis, silent on whether Fare’s factors should come into play, gives somewhat mixed signals on this point, I would hold that age should be considered when evaluating a juvenile’s invocation of his right to counsel, particularly in light of the statutory warning procedure required for juveniles in Texas.
III
But even if age is a pertinent consideration, the circumstances of this case—H.V.’s youth, his Bosnian extraction, and his lack of prior experience with the police—do not compel a different result. The magistrate testified that H.V., then three months shy of his seventeenth birthday, was “very articulate and appeared well educated.” Cf. Yarborough, (O’Connor, J., concurring) (noting that “17 1/2-year-olds vary widely in their reactions to police questioning, and many can be expected to behave as adults”). She noted that he read and understood the English language and was a junior at a local high school. He had earlier that day been taken into custody for another interrogation, and, after having his rights explained to him at that time, chose to waive them. In this case, then, none of these factors weigh in favor of a conclusion that H.V. invoked his right to counsel.
One can imagine circumstances, however, in which a defendant’s youth would be significant. Here, H.V. was near majority. What if he had been six years old? See Barry C. Feld, Juveniles' Competence to Exercise Miranda Rights: An Empirical Study of Policy and Practice, 91 Minn. L. Rev. 26, 99 (2006) (noting that while juveniles aged sixteen and older exhibited an understanding of Miranda warnings on a par with adults, juveniles under fifteen frequently misunderstood warnings). Ignoring this fact would lead to the ironic result that the younger the accused, the less likely he would be to invoke his constitutional rights. Davis drew a “bright line” between suspects who might be asking for a lawyer and those who actually do, but that test leaves room for consideration of a juvenile’s age.
IV
Finally, both H.V.[7] and the Court erroneously conclude that H.V.’s age “at least hindered if it did not prevent him from [hiring private counsel] himself.” ___ S.W.3d at ___. We have long recognized (and never disavowed)[8] that minors may retain counsel in criminal proceedings, and such contracts are neither void nor voidable. Askey v. Williams, 11 S.W. 1101, 1101 (Tex. 1889) (“The contracts of an infant for necessaries are neither void nor voidable, and we are of opinion that the services of an attorney should be held necessary to an infant, where he is charged by an indictment with crime. His life or his liberty and reputation are at stake, and it would be unreasonable to deny him the power to secure the means of defending himself.”); see also Johnson v. Newberry, 267 S.W. 476, 478 (Tex. Comm’n App. 1924, judgm’t adopted) (noting that “‘reasonable attorney fees in defense of a criminal action brought against an infant are necessaries’” but if agreed-upon price is excessive, contract is enforceable only to the extent of “‘a just compensation for the necessaries received by him’”) (quoting Askey, 11 S.W. at 1101). In any event, it is not necessary to revisit our established caselaw, because the particular warning given here advised H.V. (as mandated by the Family Code) that he had a right to appointed counsel if he was “unable to employ an attorney.” Tex. Fam. Code § 51.095. Thus, even if H.V. believed that his age prevented him from hiring private counsel himself, he was told that he could speak with a court-appointed attorney.
V
I agree that we have jurisdiction over this case and join parts I and II of the Court’s opinion. I would not reach the suppression issue decided by the Court in part IV. Because H.V. did not unambiguously invoke his right to counsel, I would reverse the court of appeals’ judgment suppressing the statement and the gun and therefore dissent from that part of the Court’s judgment that holds otherwise.
______________________________
Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: April 11, 2008
[1] For example, one court concluded that “Can I ask for a lawyer now?” was not an unambiguous request for counsel, while another held that “Can I call my attorney?” was. Compare Loredo v. State, 130 S.W.3d 275, 284-85 (Tex. App.—Hous. [14 Dist.] 2004, pet. ref’d) (deciding that party’s “question about a lawyer was not an unambiguous invocation of his right to counsel”), certificate of appealability denied, Loredo v. Quarterman, No. H-06-2138, 2007 U.S. Dist. LEXIS 63208, 49-51 (S.D. Tex. Aug. 23, 2007) (concluding, on habeas review, that Texas state court’s decision did not violate “established Supreme Court precedent or constitute[] an unreasonable determination of the facts in light of the evidence presented in state court”) with United States v. De la Jara, 973 F.2d 746, 752 (9th Cir. 1992) (holding that question “clearly invoked the right to counsel”).
[2] To those, I would add: Clark v. Murphy, 331 F.3d 1062, 1066 (9th Cir. 2003) (holding that “I think I would like to talk to a lawyer” was ambiguous; thus, on habeas review, Arizona court’s determination neither violated Supreme Court precedent nor was objectively unreasonable); Diaz v. Senkowski, 76 F.3d 61, 63 (2d Cir. 1996) (concluding that “I think I want a lawyer” and “[d]o you think I need a lawyer” were ambiguous within the meaning of Davis); United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994) (noting that defendant's question, “Do I need a lawyer” or “Do you think I need a lawyer” did not “rise to the level of even an equivocal request for an attorney”).
[3] The Court’s conclusion that H.V.’s age “at least hindered if it did not prevent him” from retaining private counsel suggests that, in fact, the Court does take his age into account to conclude that he invoked his right to counsel. ___ S.W.3d at ___.
[4] Thus, the standard must be one of a “reasonable magistrate,” not a “reasonable police officer.” That is, the Davis test for juveniles in Texas must be whether the statement is “sufficiently clear[] that a reasonable [magistrate] in the circumstances would understand the statement to be a request for an attorney.” Davis, 512 U.S. at 459.
[5] A magistrate may require the presence of a bailiff or a law enforcement officer if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate or other court personnel, provided that the bailiff or law enforcement officer does not carry a weapon in the presence of the child. Tex. Fam. Code § 51.095(a)(1)(B)(i).
[6] The Fare court explained at length why, contrary to the California Supreme Court’s conclusion, a request to speak to his probation officer did not invoke a juvenile’s right to counsel; if the juvenile’s age had been irrelevant to the inquiry, certainly the Supreme Court would have said so. Fare, 442 U.S. at 723-24 (“[S]ince a probation officer does not fulfill the important role in protecting the rights of the accused juvenile that an attorney plays, we decline to find that the request for the probation officer is tantamount to the request for an attorney.”) (emphasis added).
[7] H.V. asserts that his statement to the magistrate was “an effort to explain . . . that, while he desire[d] counsel, he [was] incapable of obtaining an attorney being merely a sixteen year old.”
[8] It is curious that the Court, citing only court of appeals and federal district court opinions, questions whether Askey is still good law. Not only is Askey precedent from our Court, but we reaffirmed the rule thirty-five years later in Johnson v. Newberry, and leading commentators cite Askey as accurately stating the Texas rule. See William V. Dorsaneo III, et al., 14 Texas Litigation Guide § 210A.04 (2007); 1 Barry P. Helft & John M. Schmolesky, Texas Criminal Practice Guide § 1.101 (2008); John D. Montgomery, et al., 3 Texas Family Law: Practice & Procedure U2.03 (2d ed. 2007). And the venerable policy the rule promotes is as forceful today as it was in 1889. Thus, it is unclear why a minor’s constitutional right to counsel, recognized by the Supreme Court in 1967, would weaken, rather than strengthen this rule. Nor is this tenet affected by a parent’s duty to pay for such necessaries. See Joseph M. Perillo, 7 Corbin on Contracts § 27.8 (rev. ed. 2002) (noting that “[a]n infant is liable in quasi contract for necessaries furnished the infant” and “[t]he basis of this liability is thus considerably different from the liability of parents for necessaries furnished their children”).
IN THE SUPREME COURT OF TEXAS
════════════
No. 06-0005
════════════
In the Matter of H.V.
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Second District of Texas
════════════════════════════════════════════════════
Argued April 12, 2007
Chief Justice Jefferson, joined by Justice Wainwright and Justice Green, and joined by Justice Hecht as to parts I, III, and V, concurring and dissenting.
We cannot construe H.V.’s statement that he “wanted his mother to ask for an attorney” without first addressing the considerable body of precedent on this subject. If we were writing on a clean slate, I would agree that the statement invokes his right to counsel. But the Supreme Court has held that anything short of an unambiguous request will not suffice. Davis v. United States, 512 U.S. 452, 459 (1994)(“[A] statement either is such an assertion of the right to counsel or it is not.”). “Maybe I should talk to a lawyer” is not an unambiguous invocation of right to counsel. Davis, 512 U.S. at 462. Nor does one invoke the right by saying “I think I need a lawyer,” or “I can’t afford a lawyer but is there anyway I can get one?” ___ S.W.3d ___, ___ (citing Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000); Lord v. Duckworth, 29 F.3d 1216, 1219-21 (7th Cir. 1994)). In light of these precedents, H.V.’s statement was ambiguous, and the magistrate properly attempted to clarify H.V.’s wishes. Once she did so, it became clear that H.V. declined counsel. Because the Court concludes otherwise, I respectfully dissent from part III of its opinion.
I
In Flamer v. Delaware, 68 F.3d 710, 725 (3d Cir. 1995), the Third Circuit concluded that an adult defendant’s “request to call his mother ‘to inquire about . . . possible representation’ . . . was insufficient to trigger Edwards under the Supreme Court’s decision in Davis.” Then-Judge Alito, writing for the court, concluded:
[T]he [Davis] Court held that Edwards applies only if a defendant ‘unambiguously’ requests counsel. ‘If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel,’ Edwards does not come into play. Here, Flamer’s request to telephone about possible representation ‘failed to meet the requisite level of clarity’ that Davis demands.
Id. (citations omitted). Although Flamer involved a request made at an arraignment, rather than prior to custodial interrogation, the court’s analysis of Davis and Edwards would be equally applicable in either context.
The precedent in this area is muddled,[1] but the Supreme Court’s directive seems relatively clear, and lower courts have followed suit. It is hard to see a distinction between Flamer’s request to call his mother “to inquire about . . . possible representation” and H.V.’s statement that he “wanted his mother to ask for an attorney.” Id.; see also Davis, 512 U.S. at 459; State v. Hyatt, 566 S.E.2d 61, 71 (N.C. 2002) (defendant’s request to speak to his father and statement that his father wanted him to have an attorney present “[did] not, as a matter of law, constitute an unambiguous request for counsel”). The Court has enumerated examples of statements that courts have held are insufficient to invoke the right to counsel as well as examples of those that sufficed. The statement here is more like the former examples[2] than the latter. As Davis held, interrogations need not cease in the face of an ambiguous or equivocal reference to an attorney that “might” invoke the right to counsel. Davis, 512 U.S. at 459; see also Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995) (“An invocation must be clear and unambiguous; the mere mention of the word ‘attorney’ or ‘lawyer’ without more, does not automatically invoke the right to counsel.”). Unless a suspect actually requests an attorney, questioning may continue. Davis, 512 U.S. at 462.
The magistrate appropriately attempted to clarify H.V.’s ambiguous statement. Davis, 512 U.S. at 461 (holding that, “when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney” but declining to adopt a rule requiring clarifying questions). She testified that, before administering the warnings, she asked the investigating officers to leave the room, and her conversation with H.V. was private. She advised him of his rights and “made sure that he understood” them and that he “understood the English language and spoke it and read it. I made sure he understood what he was there for.” H.V. said he understood his rights. He then asked to talk to his mother. The magistrate testified:
Magistrate: I explained to him that at that time that we were here in the, we were here down at the facility and that Detective Carroll was asking for him to make a statement and that he had essentially three options at that time: That he could ask for an attorney, that he could make a statement to Detective Carroll, or he could choose not to make any statement.
Ass’t D.A.: Did you inform him he had the right to hire an attorney if he chose to do so?
Magistrate: I did.
Ass’t D.A.: Did you inform him he had the right to have counsel appointed for him if he couldn’t afford one?
Magistrate: I did.
Ass’t D.A.: What was his response to this information?
Magistrate: He said he wanted to talk to his mother and wanted her to ask about an attorney.
Ass’t D.A.: And what was your response as a magistrate to that question?
Magistrate: I told him that at this time his mother was not present, that we needed to finish up what we were doing there, and that meant that he needed to make a decision about asking for an attorney or making a statement or not making a statement; that those were the three things at that point that we could take care of at that point.
. . .
Ass’t D.A.: Knowing that, what did you do after the Respondent asked about talking to his mother about an attorney?
Magistrate: I told him, we also had a brief conversation, he asked, well, I explained to him that if he chose not to make a statement at that time, that was fine, that he was currently being held in custody for tampering with physical evidence, and that he was being under investigation for murder, and that if he wanted to speak to his mother, that he would be taken back down to the Juvenile facility at that time. I said, I don’t know what timeframe would be involved as far as your being able to see your mother.
Ass’t D.A.: Once you briefed him on those rights, what was his response?
Magistrate: That he wanted to make a statement to Detective Carroll.
Ass’t D.A.: Did he mention anything about his age?
Magistrate: He did say I’m only 16, and I said, I understand that, H., but I think you’re very well-educated and articulate, and you understand everything, and if you want to ask for an attorney, I think you can do that. I mean, you have the right to do that for yourself.
. . .
Ass’t D.A.: And what was his response?
Magistrate: That he would talk to Detective Carroll.
Ass’t D.A.: And were you fully convinced that that was his intention at that time?
Magistrate: If I hadn’t been fully convinced that that was what he wanted, I wouldn’t have let him do it.
Her notes reflected the following:
[H.] was very articulate and appeared well-educated. He was very aware of his circumstances and the charges. After reading the first mag warning, I explained that he could ask for an attorney, choose not to make a statement, or choose to speak to Detective Carroll. He stated he wanted to call his mother. I told him that at this time that was not an option. He said he wanted his mother to ask for an attorney. I explained to him that he would have to be the one to ask for an attorney. He stated, but I’m only 16. I said yes, but if he wanted an attorney, he would have to ask for one. I again told him he had three options: Ask for an attorney, make a statement to Detective Carroll, or not to make a statement. At that time, he said he would speak to Detective Carroll.
Thus, by the end of the exchange, H.V. made it clear that he wanted to speak to law enforcement officers and thereafter gave a statement. He again met privately with the magistrate, who read his statement and listened as H.V. subsequently read it aloud. He made a single correction—adding the word “shoes” where it had been omitted—and signed the statement. At no time during this process did he unambiguously invoke his right to counsel.
II
H.V. admits that he knew of his rights, having been advised of them earlier in the day, but contends that he did not know how to invoke them. He urges the Court to examine the “totality of the circumstances,” including his age, when deciding whether his requesting his mother to seek counsel should be construed as his own request. The Court, however, sidesteps the issue, noting only that because it agrees with the court of appeals’ ultimate conclusion, it “need not decide in this case whether the court of appeals erred in considering H.V.’s age.” By failing to decide whether H.V.’s age may be considered, however, the Court does a disservice both to H.V. and to future litigants: the Court does not explain why taking H.V.’s age into account would apparently not affect the outcome here,[3] nor does the Court provide any guidance to courts grappling with this issue in future cases.
While I agree that it is “not entirely clear which rule applies,” ___ S.W.3d at ___, I would hold that a juvenile’s age may be taken into account when deciding whether he invoked his right to counsel. In Fare v. Michael C., 442 U.S. 707, 725 (1979), the Supreme Court held that courts evaluating a juvenile’s waiver of his Miranda rights must examine the totality of the circumstances, including a “juvenile's age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.”
Davis, decided after Fare, established an objective test for invoking those rights. Davis, 512 U.S. at 459. One of the driving forces behind Davis’s objective test, however, was the desire to provide a clear rule for police officers during interrogations. The Supreme Court balanced the Edwards test with an adult suspect’s invocation of his rights and concluded:
In considering how a suspect must invoke the right to counsel, we must consider the other side of the Miranda equation: the need for effective law enforcement. Although the courts ensure compliance with the Miranda requirements through the exclusionary rule, it is police officers who must actually decide whether or not they can question a suspect. The Edwards rule — questioning must cease if the suspect asks for a lawyer — provides a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. But if we were to require questioning to cease if a suspect makes a statement that might be a request for an attorney, this clarity and ease of application would be lost. Police officers would be forced to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he has not said so, with the threat of suppression if they guess wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.
Id. at 461. But under Texas law, magistrates, not law enforcement officers, give Miranda warnings to juveniles.[4] Tex. Fam. Code § 51.095. To be admissible in evidence, statements given by juveniles must be signed in the presence of the magistrate, generally without any law enforcement officers or prosecuting attorneys present.[5] Id. § 51.095(a)(1)(B)(i). In contrast to warnings administered by police officers during the heat of interrogation, then, juvenile warnings administered before police questioning ever begins, by an experienced magistrate who is obviously aware of the juvenile’s age, do not raise the same concerns cited by the Davis court. In this context, a magistrate’s consideration of a suspect’s age would not “unduly hamper[] the gathering of information.” Davis, 512 U.S. at 461.
Moreover, Yarborough v. Alvarado, 541 U.S. 652, 666 (2004), in which the Supreme Court held that a suspect’s age or experience need not be considered in determining whether he is in custody, does not necessarily foreclose consideration of a juvenile’s age when determining whether he invoked his right to counsel. Yarborough did not overrule Fare, and at least one Justice who joined Yarborough noted that age could be considered as part of the objective custody inquiry.[6] See Yarborough, 541 U.S. at 669 (O’Connor, J., concurring) (noting that, despite objective nature of inquiry, “[t]here may be cases in which a suspect’s age will be relevant to the ‘custody’ inquiry under Miranda”); see also People v. Roquemore, 31 Cal. Rptr. 3d 214, 223 (Cal. Ct. App. 2005) (applying Fare factors but nonetheless concluding that eighteen-year-old’s statement “Can I call a lawyer or my mom to talk to you?” was not an unambiguous request for counsel); Dinkins, 894 S.W.2d at 351 (applying Davis but nonetheless concluding that “[w]hen reviewing alleged invocations of the right to counsel, we typically look at the totality of the circumstances”). While Davis, silent on whether Fare’s factors should come into play, gives somewhat mixed signals on this point, I would hold that age should be considered when evaluating a juvenile’s invocation of his right to counsel, particularly in light of the statutory warning procedure required for juveniles in Texas.
III
But even if age is a pertinent consideration, the circumstances of this case—H.V.’s youth, his Bosnian extraction, and his lack of prior experience with the police—do not compel a different result. The magistrate testified that H.V., then three months shy of his seventeenth birthday, was “very articulate and appeared well educated.” Cf. Yarborough, (O’Connor, J., concurring) (noting that “17 1/2-year-olds vary widely in their reactions to police questioning, and many can be expected to behave as adults”). She noted that he read and understood the English language and was a junior at a local high school. He had earlier that day been taken into custody for another interrogation, and, after having his rights explained to him at that time, chose to waive them. In this case, then, none of these factors weigh in favor of a conclusion that H.V. invoked his right to counsel.
One can imagine circumstances, however, in which a defendant’s youth would be significant. Here, H.V. was near majority. What if he had been six years old? See Barry C. Feld, Juveniles' Competence to Exercise Miranda Rights: An Empirical Study of Policy and Practice, 91 Minn. L. Rev. 26, 99 (2006) (noting that while juveniles aged sixteen and older exhibited an understanding of Miranda warnings on a par with adults, juveniles under fifteen frequently misunderstood warnings). Ignoring this fact would lead to the ironic result that the younger the accused, the less likely he would be to invoke his constitutional rights. Davis drew a “bright line” between suspects who might be asking for a lawyer and those who actually do, but that test leaves room for consideration of a juvenile’s age.
IV
Finally, both H.V.[7] and the Court erroneously conclude that H.V.’s age “at least hindered if it did not prevent him from [hiring private counsel] himself.” ___ S.W.3d at ___. We have long recognized (and never disavowed)[8] that minors may retain counsel in criminal proceedings, and such contracts are neither void nor voidable. Askey v. Williams, 11 S.W. 1101, 1101 (Tex. 1889) (“The contracts of an infant for necessaries are neither void nor voidable, and we are of opinion that the services of an attorney should be held necessary to an infant, where he is charged by an indictment with crime. His life or his liberty and reputation are at stake, and it would be unreasonable to deny him the power to secure the means of defending himself.”); see also Johnson v. Newberry, 267 S.W. 476, 478 (Tex. Comm’n App. 1924, judgm’t adopted) (noting that “‘reasonable attorney fees in defense of a criminal action brought against an infant are necessaries’” but if agreed-upon price is excessive, contract is enforceable only to the extent of “‘a just compensation for the necessaries received by him’”) (quoting Askey, 11 S.W. at 1101). In any event, it is not necessary to revisit our established caselaw, because the particular warning given here advised H.V. (as mandated by the Family Code) that he had a right to appointed counsel if he was “unable to employ an attorney.” Tex. Fam. Code § 51.095. Thus, even if H.V. believed that his age prevented him from hiring private counsel himself, he was told that he could speak with a court-appointed attorney.
V
I agree that we have jurisdiction over this case and join parts I and II of the Court’s opinion. I would not reach the suppression issue decided by the Court in part IV. Because H.V. did not unambiguously invoke his right to counsel, I would reverse the court of appeals’ judgment suppressing the statement and the gun and therefore dissent from that part of the Court’s judgment that holds otherwise.
______________________________
Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: April 11, 2008
[1] For example, one court concluded that “Can I ask for a lawyer now?” was not an unambiguous request for counsel, while another held that “Can I call my attorney?” was. Compare Loredo v. State, 130 S.W.3d 275, 284-85 (Tex. App.—Hous. [14 Dist.] 2004, pet. ref’d) (deciding that party’s “question about a lawyer was not an unambiguous invocation of his right to counsel”), certificate of appealability denied, Loredo v. Quarterman, No. H-06-2138, 2007 U.S. Dist. LEXIS 63208, 49-51 (S.D. Tex. Aug. 23, 2007) (concluding, on habeas review, that Texas state court’s decision did not violate “established Supreme Court precedent or constitute[] an unreasonable determination of the facts in light of the evidence presented in state court”) with United States v. De la Jara, 973 F.2d 746, 752 (9th Cir. 1992) (holding that question “clearly invoked the right to counsel”).
[2] To those, I would add: Clark v. Murphy, 331 F.3d 1062, 1066 (9th Cir. 2003) (holding that “I think I would like to talk to a lawyer” was ambiguous; thus, on habeas review, Arizona court’s determination neither violated Supreme Court precedent nor was objectively unreasonable); Diaz v. Senkowski, 76 F.3d 61, 63 (2d Cir. 1996) (concluding that “I think I want a lawyer” and “[d]o you think I need a lawyer” were ambiguous within the meaning of Davis); United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994) (noting that defendant's question, “Do I need a lawyer” or “Do you think I need a lawyer” did not “rise to the level of even an equivocal request for an attorney”).
[3] The Court’s conclusion that H.V.’s age “at least hindered if it did not prevent him” from retaining private counsel suggests that, in fact, the Court does take his age into account to conclude that he invoked his right to counsel. ___ S.W.3d at ___.
[4] Thus, the standard must be one of a “reasonable magistrate,” not a “reasonable police officer.” That is, the Davis test for juveniles in Texas must be whether the statement is “sufficiently clear[] that a reasonable [magistrate] in the circumstances would understand the statement to be a request for an attorney.” Davis, 512 U.S. at 459.
[5] A magistrate may require the presence of a bailiff or a law enforcement officer if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate or other court personnel, provided that the bailiff or law enforcement officer does not carry a weapon in the presence of the child. Tex. Fam. Code § 51.095(a)(1)(B)(i).
[6] The Fare court explained at length why, contrary to the California Supreme Court’s conclusion, a request to speak to his probation officer did not invoke a juvenile’s right to counsel; if the juvenile’s age had been irrelevant to the inquiry, certainly the Supreme Court would have said so. Fare, 442 U.S. at 723-24 (“[S]ince a probation officer does not fulfill the important role in protecting the rights of the accused juvenile that an attorney plays, we decline to find that the request for the probation officer is tantamount to the request for an attorney.”) (emphasis added).
[7] H.V. asserts that his statement to the magistrate was “an effort to explain . . . that, while he desire[d] counsel, he [was] incapable of obtaining an attorney being merely a sixteen year old.”
[8] It is curious that the Court, citing only court of appeals and federal district court opinions, questions whether Askey is still good law. Not only is Askey precedent from our Court, but we reaffirmed the rule thirty-five years later in Johnson v. Newberry, and leading commentators cite Askey as accurately stating the Texas rule. See William V. Dorsaneo III, et al., 14 Texas Litigation Guide § 210A.04 (2007); 1 Barry P. Helft & John M. Schmolesky, Texas Criminal Practice Guide § 1.101 (2008); John D. Montgomery, et al., 3 Texas Family Law: Practice & Procedure U2.03 (2d ed. 2007). And the venerable policy the rule promotes is as forceful today as it was in 1889. Thus, it is unclear why a minor’s constitutional right to counsel, recognized by the Supreme Court in 1967, would weaken, rather than strengthen this rule. Nor is this tenet affected by a parent’s duty to pay for such necessaries. See Joseph M. Perillo, 7 Corbin on Contracts § 27.8 (rev. ed. 2002) (noting that “[a]n infant is liable in quasi contract for necessaries furnished the infant” and “[t]he basis of this liability is thus considerably different from the liability of parents for necessaries furnished their children”).
Subscribe to:
Posts (Atom)