Montelongo v. State

TEAGUE, Judge,

dissenting.

There are two main issues in this case regarding the admissibility of the written confession of Rose Marie Montelongo, appellant, namely: (1) Did appellant invoke her right to have the assistance of counsel prior to giving the written confession, and (2) did the State establish that she waived her right to counsel, after she invoked her right to counsel, if she did?

The majority holds: “[Ajbsent some reasonably clear indication from the accused of a wish to adopt such unsolicited advice or to seek further counsel rather than to continue interrogation, the protection against continued interrogation granted to the rule of Edwards does not extend to an accused who receives unsolicited advice at an unrequested meeting with an attorney.” I disagree.

Where an accused has been given the opportunity to consult with an attorney, and does so, in the face of non-rejection of the attorney, does this constitute an implicit invocation of the right to counsel? I believe it does.

In Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), the United States Supreme Court held in part that “an accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Also see Phifer v. State, 651 S.W.2d 774 (Tex.Cr.App.1983); Coleman v. State, 646 S.W.2d 937 (Tex.Cr.App.1983); Wilkerson v. State, 657 S.W.2d 784 (Tex.Cr.App.1983).

To hold that appellant did not in this instance invoke her right to counsel actually ignores what happened in this cause, and exhibits a total ignorance of the real world that exists beyond the summit where this Court’s members are stationed. See, however, the paper entitled “The Midnight Phone Call — What To Do Next?,” by Pol-land and Robertson, delivered at a criminal law institute sponsored by the State Bar which was held in Dallas in September, 1982, and the paper entitled “The crucial First Steps — Initial Contact, Immediate Action, Deciding whether To Take The Case,” by Forche, delivered at another State Bar *59 sponsored criminal law institute held in Harlingen in March, 1977.

The facts that relate to the taking of appellant’s confession reflect that on May 17, 1977, appellant and her husband, Vicente, see Montelongo v. State, 644 S.W.2d 710 (Tex.Cr.App.1983), were arrested and charged with committing the murder of Christine Montelongo, Vicente’s daughter. They were booked into the Corpus Christi police station jail.

The record reflects that Gilbert R. Lazo and U.B. Alvarado were Corpus Christi police officers assigned to work the case against appellant and her husband. After arrest, appellant gave Lazo an oral confession, who wrote the confession in long hand, and thereafter left appellant’s presence to take what he had written down to a police typist in order to have the oral confession converted into a typed confession, which occurred. However, notwithstanding that Lazo then had a typed confession, that only needed appellant’s signature on it to make it a valid confession, he never returned to where appellant was then situated in the jail. This, of course, does not make any sense until one considers what happened between the time Lazo left appellant’s presence to go to the police typist and before he could get back to appellant with the typed confession.

The transcription of a pretrial hearing reflects that on the same day, Clyde Jackson, a licensed attorney at law, went to the Corpus Christi police station to visit appellant and her husband. Jackson went there at the behest of Eugene Seaman, who appears by the record of appeal to have been a member of the same church that appellant and her husband had attended. At the police station, Jackson came into contact with both Lazo and Alvarado. For reasons not clearly reflected by the record, Jackson told them he was not then representing appellant.

Jackson met, consulted with, and counseled appellant, after which he told her “that I would have to get someone else to represent her ‘[because I had at that time a lot of other cases going, and I just didn’t feel that I could handle the case].’ But I told her that she should not sign any statement till the next day, so that I could get an attorney to represent her.” Jackson then left appellant’s presence after which he again came into contact with Lazo and Alvarado. Jackson testified that “Seems like I had asked them had she signed a statement and they said she hadn’t. I think after I got through with them, I told them that I didn’t think she ought to sign a statement that night or some words to that effect.” Jackson also testified that the reason he made these statements to Lazo and Alvarado was “to protect her rights until she could get the advice of an attorney that was [sic] representing her.”

Alvarado testified that Jackson’s statements meant nothing to him because “I would have gone up there and interviewed her anyway. I would wait for the Defendant to tell me himself or herself that she specifically did not want to have anything to do with me, or whatever. [If that occurred,] I would have terminated the interview.”

Notwithstanding Alvarado’s statement, and further notwithstanding the fact that by that time Lazo had had the oral confession reduced to writing, no efforts were made at that time, either by Lazo or Alvarado, to get appellant to sign the typed confession.

But all of this was to change the next morning. Alvarado testified that after he came to work the next morning he found appellant’s unsigned typed statement in the case file. He then took it to where appellant was situated in the jail. When Alvarado asked appellant if she wanted to sign the confession, she responded “that she wasn’t sure; that she wanted to do what was right.” Alvarado “then told her to go ahead and think about it, and I left her there for awhile.” In approximately one hour, Alvarado returned, after which appellant signed the confession.

*60 Did appellant invoke her right to have the assistance of counsel? The majority answers the question in the negative. I disagree.

First, I do not believe that anyone could deny that appellant and Jackson established the attorney-client relationship. See Vol. 7 Tex.Jur.3rd, Sec. 49, at page 391. The record clearly reflects that Jackson’s visit with appellant occurred solely and only because he was a licensed attorney at law. Although the record does not reflect just exactly how long Jackson visited appellant, it is safe to assume that he spent a reasonable period of time with her. I believe that the majority’s characterizing Jackson’s visit with appellant as amounting to nothing more than her receiving “unsolicited advice” exhibits a lack of understanding of the role that an attorney at law plays in our present day society when he is summoned to the jail house to consult with an accused person.

I believe that at a minimum, when an accused does not reject the services of a licensed attorney, and receives from him advice and consultation, the accused has implicitly invoked his right to the assistance of counsel. This is conduct which manifests itself with an intent to deal with the police only with the assistance of counsel. My research has yet to reveal where any court has ever held that an accused person’s invocation of the right to the assistance of counsel must be expressed, as the majority implies, rather than implied, as here.

Because it was established that appellant invoked her right to the assistance of counsel, it was then incumbent upon the prosecution to demonstrate and establish, if it could, that appellant affirmatively waived her right to the assistance of counsel. In this, the prosecution failed. See Wilkerson v. State, supra. Also see Griffin v. State, 665 S.W.2d 762 (Tex.Cr.App.1983).

To the majority’s holding that appellant never invoked her right to the assistance of counsel, I respectfully dissent.