Geoffrey James Brown v. the State of Texas

Opinion filed November 15, 2024

In The

Eleventh Court of Appeals
__________

No. 11-23-00149-CR
__________

GEOFFREY JAMES BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 17851

MEMORANDUM OPINION
A jury convicted Appellant, Geoffrey James Brown, of one count of
continuous sexual abuse of a young child (Count One), a first-degree felony, see
TEX. PENAL CODE ANN. § 21.02(b) (West Supp. 2024), and five counts of indecency
with a child by contact (Counts Two through Six), each a second-degree felony,
see id. § 21.11 (West 2019), and assessed his punishment at life imprisonment on
Count One, and twenty years’ imprisonment on each of Counts Two through Six, all
ordered to run concurrently. See id. §§ 12.32, 12.33 (West 2019). In a single issue,
Brown argues that the trial court abused its discretion in overruling his motion to
suppress statements he made during a polygraph examination. We affirm.
Factual and Procedural History
In October 2021, Brown’s wife, A.B.,1 received a phone call from a family
member notifying her that her seventeen-year-old stepsister who had been living
with A.B. and Brown, had made an outcry involving Brown. Concerned by what
she had just learned about this allegation, A.B. spoke to her daughters, then-seven-
year-old E.B. and fifteen-year-old T.B. Both E.B. and T.B. outcried that they too
had been sexually abused by Brown. Following her daughters’ outcries, A.B.
contacted law enforcement. T.B. would ultimately testify at trial that Brown had
touched her breasts and genitals over her clothes on numerous occasions for several
years, beginning when she was around ten years old until she was fourteen. T.B.
detailed an incident from when she was twelve and Brown began touching her
breasts, claiming he “wanted to check on how [she] developed.” T.B. said Brown
commented on how her breasts were “two different sizes” and then slipped his hand
down her pants and noted she had been shaving her pubic area. T.B. thereafter
resorted to wearing sweatpants and sweatshirts around Brown in an effort to “feel
safe.” E.B., meanwhile, testified that Brown made her touch his genitals and had
touched her “[b]oobs and privates” with his hands over and underneath her clothes.
E.B. further described incidents of Brown performing acts of oral and digital
penetration, with the latter occurring “[m]ore than once.”

1
To protect the identity of the complainants, we refer to them by the pseudonym given in the
indictment and refer to family members with pseudonyms as well. See TEX. CONST. art. I, § 30(a)(1) (West
2022) (providing that a crime victim has “the right to be treated . . . with respect for the victim’s dignity
and privacy throughout the criminal justice process”); see generally TEX. R. APP. P. 9.8 cmt. (“The rule
does not limit an appellate court’s authority to disguise parties’ identities in appropriate circumstances in
other cases.”).
2
James Goodwin, an investigator with the Palo Pinto County Sheriff’s Office,
interviewed Brown on December 13, 2021, as part of his investigation into the girls’
allegations. While Brown admitted to the allegations involving A.B.’s stepsister, he
denied inappropriately touching either of his daughters and claimed any allegations
to the contrary were a result of “misunderstandings.” At the conclusion of the
interview, Investigator Goodwin escorted Brown to the lobby, and Brown freely
departed. Investigator Goodwin thereafter obtained and executed an arrest warrant
signed by Justice of the Peace Tisha Bien. Investigator Goodwin then transported
Brown to Judge Bien’s office for magistration proceedings, where Judge Bien
admonished Brown on his rights, including his right to appointment of counsel.
Brown was admonished again minutes later before undergoing a polygraph
examination.
In a motion to suppress filed in March 2022, Brown challenged the
admissibility of statements he made during his polygraph examination. Brown
argued he had explicitly requested the appointment of counsel during magistration
proceedings, and despite making his request known, he was not immediately
appointed counsel; instead, he was “taken, against his will, to a polygraph
examiner.”
Prior to Brown’s trial and ultimate convictions, the trial court held a hearing
on Brown’s motion to suppress. At the hearing, Investigator Goodwin testified that
Brown appeared to understand his rights as read to him by Judge Bien and then later
by Tony Galliton, a special agent with the Texas Department of Public Safety,
Criminal Investigation Division, who conducted Brown’s polygraph examination.
Investigator Goodwin stated that Brown was cordial, asked appropriate clarifying
questions, and appeared to understand everything that transpired in each instance.
Investigator Goodwin testified that although Brown became emotional while waiting
to undergo the polygraph examination, he voluntarily waived his right to an attorney,
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never asked to stop the polygraph examination, and at no point invoked his right to
counsel.
According to Agent Galliton, Brown was Mirandized 2 and explicitly advised
of his statutory rights. Agent Galliton testified that Brown verbally confirmed his
understanding of each individual right, voluntarily waived his rights orally,
signed waiver forms to this effect, and never invoked his right to counsel. During
cross-examination at the suppression hearing, Agent Galliton was asked about the
question posed to him by Brown prior to any questioning: “Do I need a lawyer for
this?” Agent Galliton explained that Brown had so asked in reference to signing the
polygraph examination waiver, and Agent Galliton told Brown it was “completely
[his] call.” Agent Galliton did not interpret Brown’s question as an invocation of
his right to counsel.
Brown also testified at the suppression hearing. He stated that he told
Investigator Goodwin during his noncustodial interview that he was not comfortable
submitting to a polygraph examination, and he “[p]anicked” when he was informed
that an individual was available to administer a polygraph examination following
the magistration proceedings. Brown testified it was then that he “started crying”
and said under his breath that he “d[id]n’t want to do this.” Brown acquiesced that
he was Mirandized by Agent Galliton before the polygraph examination began, he
was provided copies of the form that explained his rights and a consent form, and he
signed both forms.
Several exhibits were admitted at the suppression hearing, including Brown’s
signed “Magistrate Warnings” form and forms entitled “Waiver of Rights” and
“Polygraph Examination Consent.” In the signed “Magistrate Warnings” form,
which laid out the procedures for requesting a court appointed attorney, Brown

2
See Miranda v. Arizona, 384 U.S. 436, 441 (1966).
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circled the word “does” where prompted: “The accused does/does not want to
request a court appointed attorney.” Both the “Magistrate Warnings” form and
“Waiver of Rights” form advised Brown, among other things, of his rights to remain
silent, to have counsel appointed and present during questioning, and to stop any
interview with law enforcement “at any time.” Brown’s signature was located on
the “Waiver of Rights” form beneath the words: “I knowingly, intelligently, and
voluntarily waive those rights set forth in this document.” Brown additionally
signed a “Polygraph Examination Consent” form, wherein he averred he was
“voluntarily consent[ing] to this examination of [his] own free will.” The trial court
also admitted recordings of Brown’s noncustodial interview, magistration
proceeding, and polygraph examination.
At the conclusion of the suppression hearing, the trial court denied Brown’s
motion to suppress and ordered the State to prepare findings of fact and conclusions
of law. Brown filed a motion to reconsider, which was later denied, and on June 8,
2023, the trial court adopted and signed the State’s written Findings of Fact and
Conclusions of Law. The trial court found, in relevant part, that while Brown
indicated that he wanted “to request a court appointed attorney” on the “Magistrate
Warnings” form, Brown “never unequivocally said that he wanted an attorney prior
to any questions.” The trial court further found that (1) Agent Galliton properly
Mirandized Brown and read aloud the “Waiver of Rights” and “Polygraph
Examination Consent” forms, which Brown signed, before commencing the
polygraph examination; (2) Brown “never invoked his right to counsel”; and (3) the
recordings admitted do not show Brown “nodding in the affirmative asking for an
attorney.” The trial court concluded that Brown “never invoked his right to counsel,”
and “[t]here was no clear and unambiguous invocation.”

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Standard of Review
We review a trial court’s ruling on a motion to suppress evidence using a
bifurcated standard of review. Wexler v. State, 625 S.W.3d 162, 167 (Tex. Crim.
App. 2021), cert. denied, 142 S. Ct. 821 (2022); Pecina v. State, 361 S.W.3d 68, 78–
79 (Tex. Crim. App. 2012). “We afford almost total deference to the trial court’s
rulings on questions of historical fact and on application of law to fact questions that
turn upon credibility and demeanor.” Pecina, 361 S.W.3d at 79; Baiza v. State, 487
S.W.3d 338, 342 (Tex. App.—Eastland 2016, pet. ref’d). When, as here, a trial court
has made explicit findings of fact, we defer to a trial court’s findings that are
supported by the record.” State v. Espinosa, 666 S.W.3d 659, 667 (Tex. Crim. App.
2023); see Baiza, 487 S.W.3d at 344–45. “[L]egal questions and mixed questions
that do not turn on credibility and demeanor” are reviewed de novo. Espinosa, 666
S.W.3d at 667. We will affirm the trial court’s ruling on a motion to suppress if it is
supported by the record and correct under any applicable theory of law. Id.
Analysis
Brown asserts that his request for counsel was unequivocal; therefore, law
enforcement violated his right to remain silent and right to counsel by questioning
him without the presence of counsel following the magistration proceedings. See
U.S. CONST. amends. V, VI.
A. Applicable Law
“The Fifth Amendment prohibits the government from compelling a criminal
suspect to bear witness against himself.” Pecina, 361 S.W.3d at 74–75 (citing U.S.
CONST. amend. V). The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel
for his defence.” U.S. CONST. amend. VI. While the Fifth Amendment attaches
once a suspect has been Mirandized, Pecina, 361 S.W.3d at 78, “[t]he Sixth
Amendment right to counsel attaches when the prosecution has commenced.”
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Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim. App. 2020); see Rothgery v.
Gillespie Cnty., Tex., 554 U.S. 191, 212 (2008) (providing that magistration
proceedings in Texas “plainly signal[]” the initiation of prosecution for purposes of
Sixth Amendment applicability); see generally Miranda, 384 U.S. at 441.
Moreover, because “both the Fifth and Sixth Amendment rights to interrogation
counsel are fully encompassed by the Fifth Amendment Miranda doctrine,” both
rights “depend upon the same thing.” Pecina, 361 S.W.3d at 77, 78. That is, “[w]hat
matters . . . is what happens when the defendant is approached for interrogation, and
(if he consents) what happens during the interrogation—not what happened at any
preliminary hearing.” Id. at 78 (quoting Montejo v. Louisiana, 556 U.S. 778, 797
(2009)). In other words, if a defendant wishes to invoke his Fifth and Sixth
Amendment rights to counsel, he must do so post-magistration at the time of a
custodial interrogation after police have administered Miranda warnings. Id. at 71;
see also Perkins v. State, No. 11-13-00257-CR, 2015 WL 3918064, at *2 (Tex.
App.—Eastland June 25, 2015, no pet.) (mem. op., not designated for publication).
Any invocation of a defendant’s rights under the Fifth and Sixth Amendments
must be unambiguous and articulated with sufficient clarity so that “a reasonable
police officer in the circumstances would understand the statement to be a request
for an attorney.” Pecina, 361 S.W.3d at 79 (quoting Davis v. United States, 512 U.S.
452, 459 (1994)). Merely using the words “attorney” or “lawyer” is not sufficient,
and law enforcement are not required to clarify a defendant’s purported request. See
Davis v. State, 313 S.W.3d 317, 339–40 (Tex. Crim. App. 2010) (reviewing cases);
see also Hartwell v. State, 476 S.W.3d 523, 529–32 (Tex. App.—Corpus Christi–
Edinburg 2015, pet. ref’d) (defendant’s question, ‘“should I maybe call my attorney
friend and see what he thinks, was not an unequivocal and unambiguous request for
counsel”); Pratt v. State, No. 11-14-00329-CR, 2016 WL 2976111, at *2 (Tex.
App.—Eastland May 19, 2016, no pet.) (mem. op., not designated for publication)
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(concluding the same where appellant stated, “I think I need a lawyer, bro”).
“Whether a statement referring to a lawyer constitutes a clear request for counsel
depends on the statement itself and the totality of the circumstances surrounding the
statement.” Davis, 313 S.W.3d at 339.
B. Discussion
To be clear, Brown does not challenge on appeal the voluntariness of his
waiver of his right to counsel. Brown instead contends his request for counsel was
unequivocal as evidenced by his written request for appointment of counsel during
magistration proceedings.
We find Pecina to be instructive. See Pecina, 361 S.W.3d at 71. In Pecina,
the defendant sought to suppress statements made to police, asserting as Brown does
here, that police violated his Fifth Amendment and Sixth Amendment rights by
interrogating him immediately after he told a magistrate judge that he wanted a
lawyer. Id. at 79–80. The Court of Criminal Appeals noted that the defendant’s
Fifth and Sixth Amendment rights were triggered by his custody and subsequent
magistration proceedings, and significantly, “[h]e could invoke either or both in
precisely the same manner—by telling the officers, after they gave him the Miranda
warnings, that he wished to have an attorney before speaking to them.” Id. at 80.
The court held, however, that because the defendant failed to invoke his rights at the
appropriate time—i.e., after officers gave him his Miranda warnings— the trial court
did not abuse its discretion in denying the defendant’s motion to suppress. Id. at 71.
We reach the same conclusion here.
Irrespective of whether Brown signaled his interest in an appointment of
counsel during magistration proceedings, the impetus was on Brown, for purposes
of invoking his Fifth and Sixth Amendment rights, to unequivocally request counsel
after he was Mirandized and during any point of the police-initiated polygraph
examination that followed. See id. at 80 (“Judge Maddock’s magistration did not
8
trigger any Fifth Amendment right concerning custodial interrogation; that was done
by the detectives at the beginning of their interrogation.”); Knight v. State, 406
S.W.3d 578, 589 (Tex. App.—Eastland 2013, pet. ref’d) (“The magistration hearing
is not an interrogation event. An interrogation event provides the ‘time and place to
either invoke or waive the right to counsel for purposes of police questioning.’”
(quoting Pecina, 361 S.W.3d at 78)); see also Smith v. State, No. 04-12-00819-CR,
2014 WL 129632, at *2 (Tex. App.—San Antonio Jan. 15, 2014, no pet.) (mem. op.,
not designated for publication) (“In accordance with Montejo and Pecina, we
conclude Appellant’s invocation of his right to counsel at his [magistration] hearing
did not invoke his right to counsel for his subsequent interrogation.”).
Furthermore, Brown’s question to Agent Galliton, “Do I need a lawyer for
this,” does not constitute a clear invocation of his right to counsel.3 As we have said,
a defendant must do more than use the words “attorney” or “lawyer” to invoke his
right to counsel. See Davis, 313 S.W.3d at 339–40; see, e.g., State v. Norris, 541
S.W.3d 862, 865–67 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (concluding
statements such as “Well, give me a lawyer or something ‘cause I’m not sure I have”
and “I just want to make a phone call and call my sister and see if she could . . . go
get me a lawyer or something” were not unambiguous and unequivocal requests for
counsel); see also Hogue v. State, No. 11-11-00143-CR, 2013 WL 1748836, at *3
(Tex. App.—Eastland Apr. 18, 2013, no pet.) (mem. op., not designated for
publication) (concluding the same where appellant stated, “I feel like I need a
lawyer”). Brown’s single inquiry into whether he needed a lawyer did not amount
to an unequivocal request for counsel under the Fifth and Sixth Amendments where
after he was informed that it was “completely [his] call,” he made no further

3
Although Appellant does not raise this question on appeal, we nevertheless address it in our review
of the record and the trial court’s application of the law to the facts. See State v. Hardin, 664 S.W.3d 867,
872 (Tex. Crim. App. 2022) (reviewing court determines whether the evidence viewed in the light most
favorable to the trial court’s ruling supports its explicit fact findings).
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statements on the matter. See Davis, 313 S.W.3d at 341; Williams v. State, 402
S.W.3d 425, 434 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (concluding
“appellant’s query, ‘Do I need a lawyer present for this,’ is an equivocal request for
counsel”); see also Jernigan v. State, No. 06-10-00221-CR, 2011 WL 4954168, at
*2 (Tex. App.—Texarkana Oct. 19, 2011, pet. ref’d) (mem. op., not designated for
publication) (concluding appellant’s question, “Do I need to get a lawyer? I mean?”
was not an invocation of his right to counsel). Neither Brown’s pre-magistration
written request for court-appointed counsel nor his question, “Do I need a lawyer for
this?” were clear, unambiguous invocations of his right to counsel.
Because Brown never invoked his Fifth or Sixth Amendment right to counsel
after he was Mirandized and before the polygraph examination, we conclude that the
trial court properly denied his motion to suppress his statements made during the
examination. See Pecina, 361 S.W.3d at 78–79; Knight, 406 S.W.3d at 589. We
overrule Brown’s sole issue on appeal.
This Court’s Ruling
We affirm the judgments of the trial court.

W. BRUCE WILLIAMS
JUSTICE

November 15, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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