Texas Supreme Court tackles question of criminal constitutional law in juvenile case
In the Matter of HV, No. 06-0005 (Tex. Apr. 11, 2008)
(Majority Opinion by Justice Scott A. Brister)
Majority holds that interrogation of juvenile should have stopped when he requested to talk to his
mother to get a lawyer, but does not bar State from using physical evidence discovered as a result
of unconstitutional questioning of juvenile (fruit from the poised tree).
Also see ---> Separate Opinion by Chief Justice Jefferson
(juvenile law, Miranda warning, requirements for effective invocation of right to counsel)
IN THE MATTER OF H.V.; from Tarrant County; 2nd district (02-04-00029-CV, 179 S.W.3d 746, 11-17-05)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the
trial court.
Justice Brister delivered the opinion of the Court, in which Justice O'Neill, Justice Medina, Justice Johnson,
and Justice Willett joined.
Chief Justice Jefferson delivered an opinion concurring in part and dissenting in part, in which Justice
Wainwright and Justice Green joined, and in which Justice Hecht joined as to Parts I, III, and V.
Opinion below: Opinion not available on court's web site
http://www.2ndcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=17117
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Argued April 12, 2007
Justice Brister delivered the opinion of the Court, in which Justice O’Neill, Justice Medina, Justice Johnson, and
Justice Willett joined.
Chief Justice Jefferson filed an opinion concurring in part and dissenting in part, in which Justice Wainwright and
Justice Green joined, and in which Justice Hecht joined as to Parts I, III and V.
This is the first appeal under a 2003 statute allowing appellate review of certain orders suppressing evidence in
juvenile justice cases.[1] Because the statute contains no express grant of jurisdiction to this Court, we may
review such interlocutory orders only if they fall within our general jurisdictional statutes, which were also
amended in 2003. Finding that we have such jurisdiction, we affirm the court of appeals’ opinion in part and
reverse in part.
I. Background
Evidence presented at the suppression hearing here showed that sixteen-year-old H.V. bought a gun on
September 7, 2003. Two days later he was seen leaving North Crowley High School with Daniel Oltmanns. The
next day, Oltmanns’s body was found at a construction site with wounds indicating he had been shot in the head.
The following morning, a police detective met with H.V. at the high school and asked him to accompany her
downtown for questioning. He agreed and was taken to a juvenile processing center. After receiving the
required warnings from a magistrate,[2] H.V. waived his rights and gave a statement admitting he had bought a
gun but claiming he had returned it before Oltmanns was shot. The statement was typed up and H.V. signed it,
after which he was returned to school.
That afternoon, police officers visited H.V. and his father at their home and asked them to leave the premises
pending arrival of a search warrant. They did so, but shortly thereafter H.V. returned, and an off-duty policeman
saw him carrying a bloodstained carpet over the back fence of the home. H.V. was arrested on a charge of
evidence tampering, and again taken to the juvenile processing facility where he was again given warnings by a
magistrate.[3]
When asked whether he wanted to waive his rights and speak to police, H.V. said he wanted to speak to his
mother, but was told he could not. H.V. then responded that he “wanted his mother to ask for an attorney.”
When the magistrate responded that only he (not his mother) could ask for an attorney, H.V. replied, “But, I’m
only sixteen.” The magistrate then reiterated that only he could ask for an attorney, after which H.V. eventually
said he would talk to the police. In a second written statement, H.V. claimed Oltmanns accidentally shot himself
with H.V.’s gun, after which H.V. placed him in a bathtub where he bled to death. Based on a drawing by H.V.,
police recovered the gun from a storm sewer close to H.V.’s home.
Finding that H.V. had invoked his right to counsel during custodial interrogation, the trial court suppressed both
H.V.’s second written statement and the gun, and the court of appeals affirmed.[4] The State brings this appeal
from a juvenile court order suppressing evidence in a case involving a violent offender.[5] As this question does
not turn on an evaluation of demeanor or credibility (as discussed below), we review the question de novo.[6]
II. Jurisdiction of Pretrial Suppression Orders
The parties both assume we have jurisdiction, but that of course does not dispose of the matter.[7] In a single
paragraph, the State alleges jurisdiction based on an error of law that requires correction.[8] But that jurisdiction
does not include most interlocutory appeals,[9] which this pretrial suppression order surely is.[10] Our sister
court, the Court of Criminal Appeals, routinely reviews pretrial suppression orders in criminal cases involving
adults.[11] But the jurisdictional statute for that Court appears to be broader than ours,[12] and in any event
does not expressly limit interlocutory appeals — as ours does.
We have not addressed this question before because this appeal is the first of its kind. Although government
appeals of suppression orders are common in criminal cases,[13] similar appeals in juvenile justice cases
became available in Texas only in 2003, when the Family Code was amended to allow them in cases involving
violent or habitual offenders:
(b) The state is entitled to appeal an order of a court in a juvenile case in which the grand jury has approved of
the petition under Section 53.045 [concerning violent or habitual offenders] if the order . . . grants a motion to
suppress evidence, a confession, or an admission and if:
(A) jeopardy has not attached in the case;
(B) the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay; and
(C) the evidence, confession, or admission is of substantial importance in the case.[14]
The new statute contemplates review in this Court,[15] but there is no grant of jurisdiction other than as in civil
cases generally:
An appeal from an order of a juvenile court is to a court of appeals and the case may be carried to the Texas
Supreme Court by writ of error or upon certificate, as in civil cases generally.[16]
In the absence of a specific statutory grant, or of a dissent in the court of appeals,[17] we thus have jurisdiction
of this interlocutory appeal only if (as in civil cases generally) the court of appeals opinion “holds differently from
a prior decision of another court of appeals or of the supreme court.”[18]
This presents two interesting questions here. First, because this is the first appeal of a suppression order in a
juvenile justice case, there can be no conflicts if the scope of comparison is limited to just those appeals. But
our conflicts jurisdiction is no longer limited to rulings that are “so far upon the same state of facts that the
decision of one case is necessarily conclusive of the decision in the other.”[19] For cases filed after 2003 (as
this one was),[20] a conflict is sufficient for jurisdiction “when there is inconsistency in the[] respective decisions
that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants.”[21]
Second, our conflicts jurisdiction is generally limited to cases that conflict with “a prior decision of another court
of appeals or of the supreme court.”[22] Juvenile cases, though classified as civil proceedings, are quasi-
criminal in nature and frequently concern constitutional rights and procedures normally found only in criminal
law.[23] This Court rarely addresses issues like the one here concerning the warnings required by Miranda v.
Arizona;[24] indeed, our citation to that case in this sentence is only the second in the Court’s history,[25]
compared to almost 2,000 cases citing it by other Texas state courts. Instead, the law governing such issues is
generally found in opinions from the United States Supreme Court and the Court of Criminal Appeals — two
courts that are not listed in our jurisdictional statute. While this is perhaps a matter for legislative attention, it is
not one we can disregard.[26]
Accordingly, we have jurisdiction in this case if the court of appeals has held differently from a prior decision of
another court of appeals on an issue that should be clarified to remove uncertainty or unfairness. We believe
there is such a conflict. In suppressing the alleged murder weapon for a Miranda violation, the court of appeals
held differently from other courts of appeals that have followed Baker v. State, an opinion by the Court of
Criminal Appeals.[27] While these other cases did not involve juveniles, the conflict requires clarification for
several reasons.
First, rules governing hundreds of out-of-court investigations must provide guidance that is clear and easy for
law enforcement personnel to apply;[28] variations between the rules for juveniles and adults, or between the
rules in one part of the state and another, may confuse those investigations and jeopardize many future cases.
Second, we do not have the luxury of waiting for a final appeal to address these issues; if evidence is improperly
suppressed, double jeopardy prevents the state from appealing after a juvenile is acquitted or the case
dismissed for lack of admissible evidence.[29] Finally, we are especially cognizant of rendering fairness to the
litigants in a case like this involving the most serious of crimes, an alleged murder.
Despite the expansion of our conflicts jurisdiction, we remain reticent to address unsettled questions that may
be clarified by developments during trial and thoughtful consideration by several intermediate courts. But the
unique circumstances of juvenile proceedings — “an unlikely and sometimes perplexing hybrid of civil and
criminal law”[30] — convince us that the conflicts involved here must be clarified “to remove unnecessary
uncertainty in the law and unfairness to litigants.”[31] Accordingly, we have jurisdiction to consider the State’s
appeal.
III. Did H.V. Invoke His Right to Counsel?
Miranda v. Arizona requires that suspects in custody be informed before questioning begins of their right to
consult with an attorney.[32] If a suspect invokes that right, there can be no further interrogation unless the
accused initiates it.[33] If Miranda warnings are not given or a request for counsel is ignored, any subsequent
statements by the suspect cannot be introduced at trial during the prosecution’s case-in-chief.[34]
These rights apply to juveniles just as they do to adults.[35] Thus, the State concedes in this case that if H.V.
properly invoked his right to counsel, the second statement he made thereafter should be suppressed. The only
dispute is whether he invoked that right.
In Davis v. United States, the United States Supreme Court established a “bright line” between suspects who
might be asking for a lawyer and those who actually do ask for one, holding that only the latter have invoked
their right to counsel:
To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective
inquiry. Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably
be construed to be an expression of a desire for the assistance of an attorney. But 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, our precedents do not
require the cessation of questioning. Rather, the suspect must unambiguously request counsel. As we have
observed, a statement either is such an assertion of the right to counsel or it is not. Although a suspect need
not speak with the discrimination of an Oxford don, he must articulate 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.[36]
Applying this standard, courts have held that it is not enough for a suspect to say:
$ “Maybe I should talk to a lawyer”;[37]
$ “I might want to talk to an attorney”;[38]
$ “I think I need a lawyer”;[39]
$ “Do you think I need an attorney here?”;[40] or
$ “I can’t afford a lawyer but is there anyway I can get one?”[41]
Nor is it enough for a suspect to ask to see someone other than a lawyer, such as a probation officer,[42] or a
parent.[43]
At the same time, a suspect does not have to use the precise words “I want a lawyer.”[44] Courts have held the
right to counsel was invoked when a suspect said:
$ he did not “want to make a statement at this time without a lawyer”;[45]
$ “Uh, yeah. I’d like to do that” in response to a question whether he understood his right to counsel;
[46]
$ “Maybe I should talk to an attorney by the name of William Evans” and proffering that attorney’s
business card;[47]
$ “Can I get an attorney right now, man?”;[48] or
$ “I’d just as soon have an attorney ‘cause, you know — ya’ll say there’s been a shooting.”[49]
While police often carry printed cards to ensure precise Miranda warnings,[50] the public is not required to carry
similar cards so they can give similarly precise responses.
The parties here disagree whether Davis requires us to consider H.V.’s circumstances — his youth, Bosnian
extraction, and lack of previous experience with police. On this issue, the Court’s opinion in Davis gives
somewhat mixed signals. On the one hand, the Court said a statement must be “sufficiently clear[] that a
reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”
[51] But the Court also said invocation should not turn on the suspect’s personal characteristics:
We recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who —
because of fear, intimidation, lack of linguistic skills, or a variety of other reasons — will not clearly articulate
their right to counsel although they actually want to have a lawyer present.[52]
There appear to be no cases answering whether a juvenile’s age is among the “variety of other reasons” courts
cannot consider when deciding whether an accused has requested counsel. Long before Davis, the Supreme
Court held that “a juvenile’s age, experience, education, background, and intelligence, and . . . capacity to
understand the warnings” must be considered when deciding whether a juvenile waived Miranda rights.[53] As
the question here is not whether H.V. waived his right to counsel but whether he invoked it, it is not entirely clear
which rule applies.
But we need not decide in this case whether the court of appeals erred in considering H.V.’s age, as we agree
with its ultimate conclusion. It is hard to construe H.V.’s statement that he “wanted his mother to ask for an
attorney” as anything other than “an expression of a desire for the assistance of an attorney.”[54] This is not a
case in which H.V. simply wanted to see his mother; the only reason he said he wanted her was for the purpose
of getting him an attorney. If he wanted private counsel, his request would have been technically correct, as his
age at least hindered if it did not prevent him from doing so himself.[55]
This case is a close one because, when the magistrate followed up by instructing H.V. that only he could ask for
an appointed attorney, H.V. never did. But while ambiguous requests for counsel may be clarified by further
questioning,[56] unambiguous ones cannot:
No authority, and no logic, permits the interrogator to proceed . . . on his own terms and as if the defendant had
requested nothing, in the hope that the defendant might be induced to say something casting retrospective
doubt on his initial statement that he wished to speak through an attorney or not at all.[57]
As the objective circumstances surrounding H.V.’s statement rendered it an unambiguous request for an
attorney, further “clarification” could not change it.
Accordingly, we agree with the courts below that H.V.’s second statement to the police was properly suppressed.
IV. Should the Gun Have Been Suppressed?
The court of appeals held that suppression of H.V.’s statement also required suppression of the gun as “fruits of
the poisonous tree,” a legal doctrine first recognized in the context of the Fourth Amendment.[58] But both the
United States Supreme Court and the Court of Criminal Appeals have rejected this doctrine in the Fifth
Amendment context of physical evidence obtained after failing to give Miranda warnings.[59]
The court of appeals held otherwise, distinguishing cases in which Miranda rights were not read from cases like
this one in which an invocation of those rights was ignored.[60] That distinction was expressly rejected by the
Court of Criminal Appeals in Baker v. State:
Both Tucker[[61]] and Elstad[[62]]involved the failure to give the required warnings rather than the failure to
scrupulously honor warnings given. Neither the Supreme Court nor this Court has addressed whether the
Tucker/Elstad rule applies to the fruits of statements made in the latter context. But the principle is the same:
mere noncompliance with Miranda does not result in a carryover taint beyond the statement itself . . . . We hold
that the Tucker/Elstad rule applies to the failure to scrupulously honor the invocation of Miranda rights. In the
absence of actual coercion, the fruits of a statement taken in violation of Miranda need not be suppressed
under the “fruits” doctrine . . . .[63]
The court of appeals pointed out that Elstad made a distinction between unread rights and ignored rights in a
footnote.[64] But Elstad was not based on that distinction, but on reasoning that Miranda does not involve a
constitutional violation.[65] The court of appeals also pointed out that in 2000 the Supreme Court abandoned its
characterization of Miranda as a prophylactic rather than a constitutional rule.[66] But the Court held four years
later that this did not change the rule that physical evidence was admissible even if gained from questioning that
violated Miranda.[67]
More relevant to the question here is a different principle stated by the Supreme Court in Elstad and since: the
Self-Incrimination Clause concerns compelled testimony, not physical evidence.[68] The Fifth Amendment
provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself”;[69] thus,
there can be no Fifth Amendment violation when a person’s testimony is excluded.[70] Physical evidence that
does not compel a defendant to testify against himself cannot be a violation of the Fifth Amendment rights that
Miranda protects, which is precisely what the Supreme Court held in 2004.[71]
The court of appeals expressed concern that suppressing testimonial statements but not physical evidence
might encourage police to reject a request for counsel deliberately in the hope of getting something they could
use.[72] But evidence obtained through deliberate violations of constitutional rights is usually inadmissible on
that basis alone.[73]
In this case, H.V.’s counsel does not argue that his disclosure of the gun’s location was involuntary or coerced
for any reason other than violation of his Miranda request for counsel. The warnings and invocation of counsel
here all occurred in court before a magistrate without police involvement, so there could have been no police
coercion.[74] Because violations of Miranda do not justify exclusion of physical evidence resulting therefrom, we
hold the courts below erred in excluding the gun that brought about Daniel Oltmanns’s death.
* * *
Accordingly, we affirm the judgments below to the extent they exclude H.V.’s second statement to police, reverse
the judgments to the extent they exclude the gun found as a result, and remand this case to the trial court for
further proceedings consistent with this opinion.
_______________________________
Scott Brister
Justice
OPINION DELIVERED: April 11, 2008
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[1] See Tex. Fam. Code § 56.03(b)(5).
[2] See id. § 51.095(a)(1) (providing that children be warned of their rights by a magistrate); see also In re R.J.
H., 79 S.W.3d 1, 4 (Tex. 2002) (“The Texas Family Code provides that a juvenile can waive his rights once he is
in custody only if joined by his attorney or if done in the presence of a magistrate.”).
[3] The State concedes that if H.V.’s statements to the magistrate constitute an invocation of his right to counsel,
it is immaterial that it was not also made to police.
[4] 179 S.W.3d 746. The trial court denied suppression on “[a]ll other grounds.”
[5] See Tex. Fam. Code §§ 56.03(b)(5), 53.045.
[6] See In re R.J.H., 79 S.W.3d at 6.
[7] See Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358 (2004) (“[A] court is obliged to
ascertain that subject matter jurisdiction exists regardless of whether the parties have questioned it.”).
[8] See Tex. Gov’t Code § 22.001(a)(6).
[9] Id. at § 22.225(b)(3) (providing that generally “a judgment of a court of appeals is conclusive on the law and
facts, and a petition for review is not allowed to the supreme court . . . from other interlocutory appeals that are
allowed by law”).
[10] See United States v. Loud Hawk, 474 U.S. 302, 307 n.8 (1986) (describing similar appeal by federal
prosecutor under 18 U.S.C. § 3731 as interlocutory); see also Black’s Law Dictionary 106 (8th ed. 2004)
(“interlocutory appeal. An appeal that occurs before the trial court’s final ruling on the entire case.”).
[11] See, e.g., State v. Stevens, 235 S.W.3d 736 (Tex. Crim. App. 2007); State v. Dixon, 206 S.W.3d 587 (Tex.
Crim. App. 2006); State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006); Kothe v. State, 152 S.W.3d 54 (Tex.
Crim. App. 2004); State v. Kurtz, 152 S.W.3d 72 (Tex. Crim. App. 2004); State v. Steelman, 93 S.W.3d 102 (Tex.
Crim. App. 2002); Martinez v. State, 91 S.W.3d 331 (Tex. Crim. App. 2002); State v. Perez, 85 S.W.3d 817 (Tex.
Crim. App. 2002); State v. Scheineman, 77 S.W.3d 810 (Tex. Crim. App. 2002).
[12] See Tex. Code Crim. Proc. art. 4.04, § 2 (“In addition, the Court of Criminal Appeals may, on its own motion,
with or without a petition for such discretionary review being filed by one of the parties, review any decision of a
court of appeals in a criminal case.”).
[13] See State v. Medrano, 67 S.W.3d 892, 897–99 (Tex. Crim. App. 2002) (“All fifty states, as well as the
District of Columbia, have provisions permitting the government to appeal adverse rulings of a question of law.
Many of those states . . . permit the State to appeal any pretrial ruling suppressing evidence if that evidence is
likely to be outcome determinative. Other states explicitly grant the prosecution a broad right to appeal any
pretrial suppression, evidentiary or other legal ruling which is likely to determine the outcome of the case.”)
(citations omitted).
[14] Tex. Fam. Code § 56.03(b); see Act of June 2, 2003, 78th Leg., R.S., ch. 283, § 25, 2003 Tex. Gen. Laws
1221, 1228 (eff. Sept. 1, 2003).
[15] Tex. Fam. Code § 56.03(i) (“The Texas Rules of Appellate Procedure apply to a petition by the state to the
supreme court for review of a decision of a court of appeals in a juvenile case.”).
[16] Id. at § 56.01(a).
[17] The State reports that Justice Holman dissented in an original opinion in this case, but apparently withdrew
that dissent on rehearing as the opinion before us is unanimous.
[18] Tex. Gov’t Code § 22.225(c).
[19] Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 701 (Tex. 2003).
[20] Oltmanns died September 11, 2003, and all proceedings herein occurred thereafter. See Act of June 2,
2003, 78th Leg., R.S., ch. 204, § 1.02, 2003 Tex. Gen. Laws 847, 848 (expanding conflicts jurisdiction for cases
filed after September 1, 2003).
[21] Tex. Gov’t Code § 22.225(c), (e).
[22] Id.
[23] See, e.g., In re R.J.H., 79 S.W.3d 1 (Tex. 2002) (addressing whether juvenile’s oral confession violated
Miranda rights); In re D.A.S., 973 S.W.2d 296 (Tex. 1998) (addressing whether Anders procedures applied to
juvenile appeals).
[24] 384 U.S. 436 (1966).
[25] See also In re R.J.H., 79 S.W.3d at 3 n.3.
[26] See Tex. Const. art. V, § 1 (“The Legislature may establish such other courts as it may deem necessary
and prescribe the jurisdiction and organization thereof . . . .”). Because there are conflicts with Texas courts of
appeals’ opinions, we do not reach the question whether interlocutory appeals are within our previous holdings
that conflicts with opinions of the United States Supreme Court are sufficient for jurisdiction. Eichelberger v.
Eichelberger, 582 S.W.2d 395, 400 (Tex. 1979); see also Mayhew v. Caprito, 794 S.W.2d 1, 2 (Tex. 1990); U.S.
Const. art. VI, cl. 2; Tex. Const. art. I, § 1.
[27] 956 S.W.2d 19, 23 (Tex. Crim. App. 1997); see Garmon v. State, No. 07-05-0298-CR, 2007 WL 148836, at
*1 n.2 (Tex. App.—Amarillo Jan. 22, 2007, pet. ref’d) (noting conflict between H.V. and Baker); Rodriguez v.
State, 191 S.W.3d 428, 456 (Tex. App.—Corpus Christi 2006, pet. ref’d); Brown v. State, No. 07-03-00347-CR,
2005 WL 1742984, at *5 (Tex. App.—Amarillo July 25, 2005, no pet.); Marsh v. State, 115 S.W.3d 709, 715
(Tex. App.—Austin 2003, pet. ref’d). Of these, only those prior to the decision here establish conflicts
jurisdiction. See Tex. Gov’t Code § 22.225(c) (“This section does not deprive the supreme court of jurisdiction of
a civil case . . . in which one of the courts of appeals holds differently from a prior decision of another court of
appeals or of the supreme court . . . .”) (emphasis added); Collins v. Ison-Newsome, 73 S.W.3d 178, 180 (Tex.
2001).
[28] Davis v. United States, 512 U.S. 452, 461 (1994).
[29] Schall v. Martin, 467 U.S. 253, 263 (1984); Breed v. Jones, 421 U.S. 519, 531 (1975); In re J.R.R., 696 S.W.
2d 382, 384 (Tex. 1985).
[30] State v. C.J.F., 183 S.W.3d 841, 847 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
[31] Tex. Gov’t Code § 22.225(c), (e).
[32] 384 U.S. 436, 469–70 (1966) (“[T]he right to have counsel present at the interrogation is indispensable to
the protection of the Fifth Amendment privilege under the system we delineate today. . . . Thus, the need for
counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to
questioning, but also to have counsel present during any questioning if the defendant so desires.”); see U.S.
Const. amend. V (“No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”).
[33] Edwards v. Arizona, 451 U.S. 477, 484–85 (1981).
[34] Davis v. United States, 512 U.S. 452, 458 (1994); Edwards, 451 U.S. at 487; Miranda, 384 U.S. at 479.
[35] In re R.J.H., 79 S.W.3d 1, 4 (Tex. 2002) (citing In re Gault, 387 U.S. 1, 41 (1967)).
[36] Davis, 512 U.S. at 458–59 (internal quotations and citations omitted) (italics in original).
[37] Id.; accord, Dinkins v. State, 894 S.W.2d 330, 352 (Tex. Crim. App. 1995) (“Maybe I should talk to
someone”).
[38] United States v. Zamora, 222 F.3d 756, 765–66 (10th Cir. 2000).
[39] Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000).
[40] Mueller v. Angelone, 181 F.3d 557, 573–74 (4th Cir. 1999); accord, Soffar v. Cockrell, 300 F.3d 588, 595
(5th Cir. 2002); Diaz v. Senkowski, 76 F.3d 61, 63–65 (2d Cir. 1996).
[41] Lord v. Duckworth, 29 F.3d 1216, 1219–21 (7th Cir. 1994); accord, Soffar, 300 F.3d at 595.
[42] Fare v. Michael C., 442 U.S. 707, 724 (1979).
[43] Dewberry v. State, 4 S.W.3d 735, 747 (Tex. Crim. App. 1999); Randall v. State, 712 S.W.2d 631, 632 (Tex.
App.—Beaumont 1986, pet. ref’d).
[44] Montoya v. Collins, 955 F.2d 279, 283 (5th Cir. 1992) (“This holding does not require a defendant to utter
the magic words, ‘I want a lawyer,’ in order to assert his right to counsel.”); Dewberry, 4 S.W.3d at 747 n.9
(“There are no magic words required to invoke an accused’s right to counsel.”).
[45] United States v. Johnson, 400 F.3d 187, 195 (4th Cir. 2005).
[46] Smith v. Illinois, 469 U.S. 91, 93, 99–100 (1984).
[47] Abela v. Martin, 380 F.3d 915, 919, 926–27 (6th Cir. 2004).
[48] Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999).
[49] Kyger v. Carlton, 146 F.3d 374, 376, 379 (6th Cir. 1998).
[50] See, e.g., Oregon v. Elstad, 470 U.S. 298, 314–15 & n.4 (1985); Arabzadegan v. State, 240 S.W.3d 44, 46
(Tex. App.—Austin 2007, pet. ref’d); Fineron v. State, 201 S.W.3d 361, 364 (Tex. App.—El Paso 2006, no pet.).
[51] Davis v. United States, 512 U.S. 452, 459 (1994) (emphasis added).
[52] Id. at 460.
[53] Fare v. Michael C., 442 U.S. 707, 725 (1979); see Delao v. State, 235 S.W.3d 235 (Tex. Crim. App. 2007).
[54] Davis, 512 U.S. at 459.
[55] See In re D.A.S., 951 S.W.2d 528, 529 (Tex. App.—Dallas 1997)(“[A] minor does not have the legal
capacity to employ an attorney . . . .”), rev’d on other grounds, 973 S.W.2d 296 (Tex. 1998); accord, Lee v.
Colorado City, Texas, No. 04-CV-00028, 2004 WL 524923 *2 n.2 (N.D. Tex. Mar. 4, 2004); Francine v. Dallas
Indep. Sch. Dist., No. 02-CV-1853, 2003 WL 21501838, at *2 (N.D. Tex. June 25, 2003); Byrd v. Woodruff, 891
S.W.2d 689, 704 (Tex. App.—Dallas 1994, writ denied); In re Martel, No. 12-06-00397-CV, 2007 WL 43616, at
*3 (Tex. App.—Tyler Jan. 8, 2007, orig. proceeding); Coleson v. Bethan, 931 S.W.2d 706, 712 (Tex. App.—Fort
Worth 1996, no writ); see also Dairyland County Mut. Ins. Co. of Tex. v. Roman, 498 S.W.2d 154, 158 (Tex.
1973) (holding contract of a minor, while not void, is voidable at minor’s election). The dissent cites a nineteenth-
century case for the rule that a minor can employ an attorney as a “necessary” because “it would be
unreasonable to deny him the power to secure the means of defending himself.” Askey v. Williams, 11 S.W.
1101, 1101 (Tex. 1889). We need not decide today whether that case survives the rule announced 78 years
later that juveniles have a constitutional right to counsel, see In re Gault, 387 U.S. 1 (1967); we merely note that
it remains the duty of a parent in the first instance to pay for such necessaries. See Tex. Fam. Code § 151.001
(c) (“A parent who fails to discharge the duty of support is liable to a person who provides necessaries to those
to whom support is owed.”).
[56] Davis, 512 U.S. at 453.
[57] Smith v. Illinois, 469 U.S. 91, 98–99 (1984).
[58] Wong Sun v. United States, 371 U.S. 471, 487 (1963); Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App.
2004); see U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated . . . .”).
[59] United States v. Patane, 542 U.S. 630, 634 (2004) (plurality opinion); id. at 645 (Kennedy, J., concurring);
Baker v. State, 956 S.W.2d 19, 23–24 (Tex. Crim. App. 1997).
[60] 179 S.W.3d 746, 758.
[61] Michigan v. Tucker, 417 U.S. 433 (1974).
[62] Oregon v. Elstad, 470 U.S. 298 (1985).
[63] Baker, 956 S.W.2d at 23–24.
[64] See Elstad, 470 U.S. at 312–13 n.3 (stating that as current case involved mere failure to give Miranda
warnings, “[l]ikewise inapposite are the cases the dissent cites concerning suspects whose invocation of their
rights to remain silent and to have counsel present were flatly ignored while police subjected them to continued
interrogation”). But see Oregon v. Hass, 420 U.S. 714, 723 (1975) (refusing to distinguish between unread
rights and ignored rights when allowing statements that violate Miranda to be used for impeachment).
[65] See Elstad, 470 U.S. at 306–07 (“[A] procedural Miranda violation differs in significant respects from
violations of the Fourth Amendment . . . . The Miranda exclusionary rule, however, serves the Fifth Amendment
and sweeps more broadly than the Fifth Amendment itself . . . Miranda’s preventive medicine provides a remedy
even to the defendant who has suffered no identifiable constitutional harm.”).
[66] See Dickerson v. United States, 530 U.S. 428, 444 (2000) (“In sum, we conclude that Miranda announced a
constitutional rule that Congress may not supersede legislatively.”).
[67] See United States v. Patane, 542 U.S. 630, 643 (2004) (plurality opinion); id. at 645 (Kennedy, J.,
concurring).
[68] Elstad, 470 U.S. at 304 (“The Fifth Amendment, of course, is not concerned with nontestimonial evidence.”).
[69] U.S. Const., amend. V (emphasis added).
[70] Patane, 542 U.S. at 643 (plurality opinion) (“Introduction of the nontestimonial fruit of a voluntary statement,
such as respondent’s Glock, does not implicate the Self-Incrimination Clause. The admission of such fruit
presents no risk that a defendant’s coerced statements (however defined) will be used against him at a criminal
trial.”); id. at 645 (Kennedy, J., concurring) (“Admission of nontestimonial physical fruits . . . does not run the risk
of admitting into trial an accused’s coerced incriminating statements against himself.”).
[71] Id. at 634.
[72] 179 S.W.3d 746, 763; see also Patane, 542 U.S. at 645 (Souter, J., dissenting) (“The issue actually
presented today is whether courts should apply the fruit of the poisonous tree doctrine lest we create an
incentive for the police to omit Miranda warnings.”).
[73] Missouri v. Seibert, 542 U.S. 600, 620–21 (2004) (Kennedy, J., concurring); Patane, 542 U.S. at 639
(plurality opinion) (stating that fruits “of actually compelled testimony” must be excluded); Oregon v. Hass, 420 U.
S. 714, 723 (1975) (“One might concede that when proper Miranda warnings have been given, and the officer
then continues his interrogation after the suspect asks for an attorney, the officer may be said to have little to
lose and perhaps something to gain by way of possibly uncovering impeachment material . . . . If, in a given
case, the officer’s conduct amounts to an abuse, that case, like those involving coercion or duress, may be
taken care of when it arises measured by the traditional standards for evaluating voluntariness and
trustworthiness.”); cf. Fellers v. United States, 540 U.S. 519, 524 (2004) (requiring suppression of information
gained by deliberate violation of suspect’s Sixth Amendment right to counsel). But see Moran v. Burbine, 475 U.
S. 412, 423–24 (1986) (“Granting that the ‘deliberate or reckless’ withholding of information is objectionable as
a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a
defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of
abandoning them.”).
[74] See Tex. Fam. Code § 51.095(a)(1) (providing for admissibility of statements by a child when a magistrate
“has examined the child independent of any law enforcement officer or prosecuting attorney”).