Opinion
No. 05-05-01042-CR
Opinion Filed June 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F04-00888-WK. Affirm.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Kenneth Bernard Tyler of burglary of a building and assessed punishment, enhanced by two prior felony convictions, at twenty years in prison. In a single issue, appellant complains the trial court erred in failing to suppress his written statement. We affirm. Paper Tubes and Sales Company was burglarized and several tools taken. The manager of a pawnshop identified appellant as one of two men who pawned the items in exchange for $250. Dallas police questioned appellant, who gave two statements. In the second statement, appellant admitted his participation in the burglary. In a hearing outside the presence of the jury, Detective Kenneth Penrod testified he read appellant his Miranda rights and ensured that he could read and write. Appellant indicated he understood his rights, did not invoke any of his rights, and gave an initial version of what happened. This version was reduced to writing in the first statement. Detective Penrod did not believe appellant was telling the truth, so he continued to question him. About three hours later, appellant gave a second statement. Detective Penrod acknowledged that, sometime during this three hours, appellant said, in question form, that "maybe he should run this by a lawyer." At that point, Detective Penrod told appellant he could not give him any advice and appellant would have to make a decision as to whether to talk to a lawyer. Detective Penrod said he asked appellant if he wanted to continue the interview, and appellant agreed. Appellant testified that prior to giving the second statement, he told the police "maybe I should run this by a lawyer." According to appellant, the police told him he did not need to run it by a lawyer "because if you are honest with us, we will tell the Judge and the D.A. and things of that nature." Appellant denied putting the statement as a question, but acknowledged that he never specifically said he wanted a lawyer and never said he wanted to terminate the interview. He said he continued to talk to the police because they told him "it would look better for me if I cooperated." Detective Penrod denied promising appellant that it would "go good" for him or that he would put in a good word for him with the judge or district attorney if he gave a statement In his sole issue, appellant contends that his second statement was taken in violation of his state and federal constitutional rights. Specifically, he contends he invoked his right to counsel by saying "maybe I should run this by a lawyer," but police failed to terminate the interview and continued to interrogate him. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). Under this standard, a trial court's fact findings are given "almost total deference," but we review the trial court's application of the law to these facts de novo. See Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000). The trial court's ruling will be upheld as long as it is within the "zone of reasonable disagreement." Weatherred, 15 S.W.3d at 542. Appellant has not made any argument under the Texas Constitution; therefore, we only address whether his federal constitutional rights were violated. See Dewberry v. State, 4 S.W.3d 735, 746 (Tex.Crim.App. 1999). Under the Fifth Amendment to the United States Constitution, to effectuate the right against self-incrimination, once a suspect has invoked the right to counsel, all interrogation by the police must cease until counsel is provided or until the suspect himself re-initiates conversation. Dinkins v. State, 894 S.W.2d 330, 350 (Tex.Crim.App. 1995). A request for counsel must be "unambiguous," meaning the suspect 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." Davis v. United States, 512 U.S. 452, 459 (1994). If the statement fails to meet the requisite level of clarity, the police are not required to stop questioning the suspect. See id. When reviewing the alleged invocation of the right to counsel, we typically look at the totality of the circumstances surrounding the interrogation, as well as the alleged invocation, to determine whether a suspect's statement can be construed as an actual invocation of his right to counsel. Dinkins, 894 S.W.2d at 351. In Davis, the Court concluded that the following statement by a defendant was an ambiguous articulation of a desire for counsel: "Maybe I should talk to a lawyer." Id. at 462. When asked for clarification, appellant stated, "No, I'm not asking for a lawyer. Id. at 455. Reviewing the totality of the circumstances in this case, we likewise conclude that appellant's statement — "maybe I should run this by a lawyer" — was not a clear and unambiguous request for counsel. Detective Penrod told appellant he would have to make the decision as to whether to talk to a lawyer. When he asked appellant if he wanted to continue the interview, appellant agreed. Although appellant claimed he continued to talk to the police because he was told it would be better for him if he cooperated, Detective Penrod denied any such claim was made. We resolve the sole issue against appellant. We affirm the trial court's judgment.