A juvenile who told a magistrate that he “wanted his mother to ask for an attorney” invoked his right to counsel before police interrogated him about a murder, a divided Texas Supreme Court has held.

However, the court also held in In the Matter of H.V. that the gun police found � based on information they obtained when the then-16-year-old suspect made a statement to police � is admissible as evidence.

The high court remanded the case to the 323rd District Court in Fort Worth, the juvenile court where the murder charge is still pending.

The April 12 decision in H.V. marks the first time the state Supreme Court has reviewed a trial court’s suppression of evidence in a juvenile case since 2003, when the Legislature enacted Texas Family Code �56.03(b)(5). It entitles the state to appeal such orders in cases involving violent or habitual juvenile offenders.

As the state’s highest civil court, the Supreme Court has appellate jurisdiction in juvenile-justice cases, which “are classified as civil, but are quasi-criminal in nature” and often involve constitutional rights and procedures more typically found in criminal law, Justice Scott Brister noted in the majority opinion in H.V.

“This Court rarely addresses issues like the one here concerning the warnings required by Miranda v. Arizona; indeed, our citation to that case in this sentence is only the second in the Court’s history, compared to almost 2,000 cases citing it by other Texas state courts,” Brister wrote in the opinion. The U.S. Supreme Court’s 1966 decision in Miranda established the warnings police must give a suspect before a custodial interrogation.

The majority opinion in H.V. provides the following background on the case: H.V., a 16-year-old Bosnian native, bought a gun on Sept. 7, 2003, and was seen leaving North Crowley High School with Daniel Oltmanns two days later. Oltmanns’ body was found, with gunshot wounds to the head, at a construction site. A police detective met with H.V. at the high school the day after the discovery of Oltmanns’ body, and H.V. voluntarily accompanied the detective to a juvenile processing center. After receiving the required warnings from a magistrate, H.V. waived his rights and told police he bought a gun but had returned it before Oltmanns was shot. The police detective took H.V. back to school, but police officers visited his home later that same day. Although police told H.V. and his father to leave the premises, H.V. returned to the home, and a police officer saw him carrying a bloodstained carpet from the home. Police arrested H.V. for tampering with evidence and took him back to the juvenile center.

According to the majority opinion, when a magistrate asked H.V. whether he wanted to waive his rights and speak to police, H.V. said he wanted to speak to his mother. The magistrate told H.V. he could not speak to his mother, but H.V. said he wanted his mother to ask for an attorney. When the magistrate informed H.V. that he was the only one who could ask for an attorney, H.V. replied, “But I’m only sixteen.” After the magistrate reiterated that H.V. was the only one who could ask for an attorney, H.V. gave police a written statement in which he claimed that Oltmanns accidentally shot himself with H.V.’s gun. In the statement, H.V. said he placed Oltmanns in a bathtub where he bled to death. H.V. also provided a drawing that enabled police to recover the gun from a storm sewer.

Acting on a motion by H.V., 323rd District Judge Jean Hudson Boyd found that H.V. invoked his right to counsel during the interrogation and suppressed the teenager’s written statement and the gun. The state filed an interlocutory appeal, and Fort Worth’s 2nd Court of Appeals affirmed Boyd’s decision in November 2005, holding that H.V. invoked his right to counsel and that the gun, as the “fruit” of that violation, must be suppressed. Justice Sue Walker wrote the opinion, in which Justices Dixon Holman and Bob McCoy joined.

The Supreme Court affirmed the 2nd Court’s decision to exclude H.V.’s second statement to police but reversed the 2nd Court’s decision to exclude the gun found as a result of that statement as evidence.

Before the Supreme Court began its analysis in H.V., the court had to determine that it had jurisdiction over the case.

According to the majority opinion, �56.03 contemplates that the Supreme Court will review the state’s appeals of suppression orders in juvenile cases involving violent or habitual offenders, but the statute does not grant jurisdiction for such a review, other than the jurisdiction the Supreme Court has generally in civil cases. In the case of an interlocutory appeal, the Supreme Court has jurisdiction when there are conflicting opinions on an issue in the courts.

Brister noted in the opinion that the statute for conflicts jurisdiction contemplates that a court of appeals’ decision conflict with a state Supreme Court decision or with a prior decision of another court of appeals. But, as Brister pointed out in H.V., the issue of a suppression order in a juvenile case was a question of first impression. That’s because the state was not able to appeal suppression orders in juvenile cases before the passage of the 2003 statute. The 2nd Court’s opinion is the first opinion on suppression in a juvenile case, so there’s no other intermediate appellate opinion with which it conflicts.

The Supreme Court was able to find it had jurisdiction in H.V. by using the broader definition for conflicts jurisdiction under Texas Government Code �22.225(e), which the Legislature enacted in 2003 as part of the tort reform legislation. “For cases filed after 2003 (as this one was), 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,’ ” Brister wrote for the majority in H.V.

As noted in the Supreme Court’s majority opinion, the 2nd Court of Appeals’ decision in H.V. differs with decisions of other courts of appeals on the issue of suppressing the alleged murder weapon. The other courts of appeals followed the Texas Court of Criminal Appeals’ 1997 decision in Baker v. State that a Miranda violation does not require suppression of the murder weapon.

However, Brister made it clear in the majority opinion in H.V. that the Supreme Court would limit its reasoning regarding the expansion of its conflicts jurisdiction to juvenile-justice cases and generally allow conflicts to percolate through intermediate appellate courts before stepping in.

Ambiguous or Not?

The state Supreme Court majority determined in H.V. that the objective circumstances surrounding the 16-year-old’s statement to police rendered his comment � that he wanted to talk to his mother to have her ask for an attorney � an unambiguous request for an attorney, agreeing with the lower courts that H.V.’s statement to police was properly suppressed.

Brister wrote for the majority that the U.S. Supreme Court, in its 1994 decision in Davis v. United States, “established a “bright line’ between suspects who might be asking for a lawyer and those who actually do ask for one, holding only the latter have invoked their right to counsel.”

Under Davis, a suspect must “unambiguously” request an attorney. Brister provided examples of what did and did not constitute a valid request. The Court of Criminal Appeals held in 1995′s Dinkins v. State that that statement, “Maybe I should talk to a lawyer,” did not meet the Davis standard, Brister wrote. But Brister noted that courts have held that a suspect does not have to say, “I want a lawyer” to invoke the right to counsel. He wrote that the 9th U.S. Circuit Court of Appeals held in 1999′s Alvarez v. Gomez that a suspect invoked the right to counsel when he said, “Can I get an attorney right now, man?” The majority found that H.V.’s comment was an unambiguous request for an attorney.

However, Chief Justice Wallace Jefferson wrote in a concurring and dissenting opinion that H.V.’s statement to the magistrate that he wanted his mother to ask for an attorney was ambiguous and that the magistrate attempted to clarify H.V.’s wishes.

“Once she did so, it became clear that H.V. declined counsel,” Jefferson wrote, dissenting from the portion of the opinion in which the majority held that H.V. invoked his right to counsel.

“We thought the dissent had the better argument on that,” says David Curl, a Tarrant County assistant district attorney who represents the state in H.V. in the appellate process. Curl says prosecutors are still assessing whether to file a motion for rehearing with the Supreme Court.

Justices Dale Wainwright and Paul Green joined Jefferson in all of the concurring and dissenting opinion, and Justice Nathan Hecht joined in part of Jefferson’s concurring and dissenting opinion.

George Dix, a University of Texas School of Law professor who teaches criminal law, thinks the court reached the correct outcome but incorrectly applied precedent governing revocation of a waiver to a situation where it doesn’t apply. He says the state Supreme Court and the 2nd Court of Appeals may have erred in assuming that Davis controls in H.V.

“I think that Davis applies only where a suspect has already . . . effectively waived the right to counsel,” Dix says. “In these situations, the issue is whether the suspect has invalidated � or revoked in a sense � that waiver by requesting counsel despite the earlier waiver.” In other words, the request for counsel in H.V. came before the teenager made his statement; the initial interview was not a custodial interrogation.

The U.S. Supreme Court held in Davis that police may continue questioning a suspect who has made a knowing and voluntary waiver of his right to counsel under Miranda until and unless that suspect clearly requests an attorney. The suspect in Davis was a member of the U.S. Navy.

Then-Justice Sandra Day O’Connor, writing for the U.S. Supreme Court in Davis, noted that Robert L. Davis waived his right to counsel after Naval Investigative Service (NIS) agents advised him he was the suspect in a killing but before the agents began interrogating him. O’Connor wrote that, about an hour and a half into the questioning, Davis said that maybe he should talk to a lawyer but, when the agents inquired whether Davis was asking for a lawyer, he said he wasn’t. The agents continued the interview for another hour until Davis said, “I think I want a lawyer before I say anything else,” according to the opinion.

At Davis’ court martial, the military judge denied Davis’ motion to suppress the statements he made to the agents before he said he wanted a lawyer. The Supreme Court concluded in Davis that law enforcement officers may continue questioning a suspect unless the suspect actually requests an attorney.

In H.V., the teenager voluntarily went with police for questioning the morning of the day in question, Dix says. H.V. apparently “waived his rights” and made a statement and then returned to school, he says.

Police arrested H.V. that afternoon and again took him for interrogation. “It was at that point that the real issue rises,” Dix says.

Dix says that H.V. was not in custody at the time of the first waiver and probably had no right to counsel to waive. Even if H.V. made an effective waiver at the morning session, Dix says that authorities had to re-comply with Miranda before they began questioning H.V. in the afternoon, thereby requiring a new waiver.

“Davis did not come into play unless he [H.V.] waived his right and then said something that may have constituted a reassertion of that right,” Dix says.

In the state Supreme Court’s majority opinion, Brister described H.V. as a “close” case, because, when the magistrate told H.V. he was the only person who could ask for an attorney, H.V. did not do so.

“But while ambiguous requests for counsel may be clarified by further questioning, unambiguous ones cannot,” Brister wrote, citing the U.S. Supreme Court’s 1984 decision in Smith v. Illinois.

Under Smith, the interrogator cannot continue asking questions as if the defendant had not requested counsel, “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.”

Physical Evidence

But the Supreme Court majority in H.V. disagreed with the lower courts as to whether the gun should be excluded. The 2nd Court held that “fruits derivative of a voluntary, post failure-to-honor-a-request-for-counsel statement are inadmissible in the State’s case-in-chief.”

Writing for the state Supreme Court majority, Brister noted that the U.S. Supreme Court, in 2004′s United States v. Pantane, and the Texas Court of Criminal Appeals, in 1997′s Baker, have rejected the “fruits of the poisonous tree” doctrine in the Fifth Amendment context of physical evidence obtained after failing to give Miranda warnings.

According to the Texas Supreme Court’s majority opinion in H.V., the Fifth Amendment to the U.S. Constitution provides that no person can be compelled in a criminal case to be a witness against himself. “Physical evidence that does not compel a defendant to testify against himself cannot be a violation of the Fifth Amendment rights that Miranda protects,” Brister wrote.

Curl says if the state Supreme Court had affirmed the 2nd Court on the admissibility of the gun, the decision would have conflicted with Pantene. “We’re very happy that the gun is going to be admissible,” he says.

Fort Worth solo M. Shawn Matlock, H.V.’s attorney, says, “In the long run, if the gun comes in at trial, I don’t know that’s that big a deal for us. Clearly, the victim was shot.”

However, Matlock says he doesn’t think the decision in H.V. will have much impact on other cases. “I think this was probably a very case-specific, fact-specific opinion,” he says.

Matlock says he considers the decision “mostly a win,” although his client, now 21, faces the possibility that he will have to stand trial for murder as an adult.

Jim Hudson, a Tarrant County assistant district attorney who represents the state in H.V. at the trial level, says prosecutors are entitled to seek certification to try H.V. as an adult. “We haven’t yet officially decided on our game plan,” Hudson says.

But Hudson says that if the state seeks certification, it would be up to Boyd whether to certify H.V.