# Dunn v. State

> Court of Criminal Appeals of Texas · June 26, 1985 · 696 S.W.2d 561

URL: https://www.frixlaw.com/law-library/cases/9767003

## Case

- **Full name:** Tommy Wayne DUNN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 26, 1985
- **Citations:** 696 S.W.2d 561; 1985 Tex. Crim. App. LEXIS 1399
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** Campbell, Clinton, Teague, Miller, Onion, Davis, White
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled implicitly by Goodwin v. State, 799 S.W.2d 719 (1990).
- Negative treatments: 3
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9767003

## How later opinions describe it (automated extraction)

- holding mere arrest and subsequent questioning not sufficient formalization of proceedings to trigger requirement of counsel under the Sixth Amendment

## Opinion text

CLINTON, Judge,
concurring.
In determining which way to go to resolve the question apparently of first impression in this Court, whether given the facts of the case appellant knowingly waived his Fifth Amendment rights, the Court should not reject any proposition because not required by the Supreme Court. The fact of the matter is that no rule is in any way “mandated by the Supreme Court in Miranda” — save and except the “safeguards” established therein.
The Supreme Court made clear it intended Miranda “safeguards” to be minimal, viz:
“Our decision in no way creates a constitutional straightjacket which will handicap sound efforts at reform, nor is it intended to have that effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right to silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed”.
Miranda, 384 U.S. at 467, 86 S.Ct. at 1624.
Therefore, while the Supreme Court disclaimed the notion that its safeguards meant “that each police station must have a ‘station house lawyer’ present at all times to advise prisoners,” the simple truth is that a State is free to provide one should it be thus advised. Accordingly, working sans “constitutional straight jacket,” this Court quite properly surveys rules and requirements laid down in other jurisdictions.
The majority purports to resort to a consideration of “the balance of interest between society’s needs for reasonable law enforcement as against the accused’s right to remain silent and to assert his privilege against self-incrimination,” 1 having gleaned that kind of balancing test from the Rhode Island court in State v. Burbine, 451 A.2d 22, at 29 (R.I.Supr.1982). However, what it actually does is to pick and choose from among other jurisdictions. Thus it declines “the invitation of appellant to adopt either the Weber rule or the New York rule.” I agree we are not ready for the latter. However, the Weber rule ought not be rejected out of hand. Unlike an unstructured examination the majority says the Court must make-a totality of circumstances test — when a lawyer is actually present at the police station, as here, a Weber rule has a desirable feature of predictability and for that reason may well prove to be more workable for participants in the criminal justice system.
Nevertheless, believing that the instant opinion will not be the last word on this matter of first impression in this Court and agreeing with the eventual finding of the Court that the confession at issue was secured in violation of rights of appellant under Article I, § 10 of the Constitution of the State of Texas, I join the judgment (but not the opinion) of the Court. 2
. All emphasis is mine unless otherwise indicated.
. Since the Supreme Court has yet to decide the question presented here, I would not presume to provide an answer under the Fifth Amendment. to the Constitution of the United States.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767003. Public record. Not legal advice.