JOHNSON, SEDRICK v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. PD-0665-23 & PD-0666-23

THE STATE OF TEXAS

v.

SEDRICK JOHNSON, Appellee

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY

KELLER, P.J., delivered the opinion of the Court in which HERVEY, YEARY,
KEEL, SLAUGHTER and MCCLURE, JJ., joined. RICHARDSON and NEWELL, JJ.,
concurred. WALKER, J., dissented.

After his arrest on outstanding warrants, but hours before custodial interrogation or Miranda

warnings, Appellee told the police, “I need to talk to a lawyer.” The police later gave him Miranda

warnings, obtained a waiver of rights, and questioned him about the current offense. The question

before us today is whether the request for counsel before Miranda warnings invoked Miranda

protections so as to bar police-initiated interrogation after Miranda warnings were later given.1 In

1
The State’s first issue asks:
JOHNSON — 2

line with precedent from the United States Supreme Court, we answer that question “no.” The right

to counsel under Miranda cannot be invoked anticipatorily. The police were allowed to seek to

question Appellee after giving him Miranda warnings for the first time.2

I. BACKGROUND

A. The Investigation

An eighteen-month-old boy (Junior) lived with Appellee and his girlfriend, who was the

child’s guardian.3 Junior was reported missing early one morning. Multiple divisions within the

Dallas Police Department, involving hundreds of people, began to search for him. Appellee went

to the police station to help. Detective Angela Hernandez was assigned to gather background

information about people close to Junior, and Appellee was one of those people. He was taken to

an interview room, and at 2:30 p.m. he was interviewed by Detective Carrington. Starting at 5:57

May a reviewing court rely exclusively on the “custodial interrogation environment”
rather than assess whether a defendant was subjected to interrogation regarding the
invocation of the right to interrogation counsel and, if so, may a defendant
prospectively invoke their right to interrogation counsel before being subjected to
questioning?
2
We also granted review of a question addressing whether the “I need a lawyer” statement
was an unambiguous request for counsel prior to interrogation. The State’s second issue asked:

May a reviewing court supplant the objective test reviewing the totality of the
circumstances surrounding a defendant's statement to determine whether it
unambiguously invoked the right to interrogation counsel with a subjective test based
on the testimony of a witness?

In light of our holding, we do not reach that question.
3
We view the facts in the light most favorable to the trial court’s ruling, giving almost total
deference to the trial court’s findings of fact. State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App.
2019). That deferential review includes a review of electronic recordings, but that deferential review
does not bind us to fact findings that an electronic recording shows are not supported by the record.
Tucker v. State, 369 S.W.3d 179, 184-85 (Tex. Crim. App. 2012).
JOHNSON — 3

p.m., Detective Hernandez conducted a second interview with Appellee. After the interview,

Detective Hernandez left the room to talk to other detectives and was gone for some time. At 7:18

p.m., Appellee left the room to inquire about his children.

At around 7:35 p.m., Appellee returned to the hallway outside the interview room. He asked

where his children were, and Sergeant Herrera responded that they were being questioned at the

Dallas Advocacy Center regarding a criminal offense. Appellee asked what the offense was, and the

officer responded that it was kidnapping. The officer explained that the children were witnesses to

the boy going missing, so police were questioning them. Appellee replied that the children had

nothing to do with it. The officer emphasized that the children were there and saw what happened.

Appellee then asked, “Who says they were there?” The officer responded, “They did.” At about the

same time, Appellee was placed in handcuffs. Appellee then said, “Okay. I need to talk to a lawyer.”

Sergeant Herrera responded, “Okay, but you still need to sit in that room.” After talking about the

children being at the advocacy center and whether his grandmother was there, Appellee said, “I don’t

mind talking to nobody as long as I know my kids are alright.” Appellee was told that he was being

arrested for out-of-county warrants. He asked to call his grandmother, but the officer did not permit

him to do so at that time.

No lawyer was ever called. Inside the interview room, Appellee again asked about the

whereabouts and condition of his children. Sergeant Herrera informed Appellee that his children

were safe at the Dallas Advocacy Center. Appellee remained in the interview room for six hours.

During that time, he called out to officers for some water and for help in getting up from the floor

and loosening his handcuffs. He also asked about his warrants, whether he was going to be

transported somewhere, and what was going on with his children and his girlfriend. Officers told
JOHNSON — 4

him that people were still being interviewed, they might need to interview him again, and they would

try to get an update for him.

At about 1:20 a.m. the next morning, Detective Rico Harris entered the interview room to

speak with Appellee. Detective Harris had not been told what Appellee had said about talking to a

lawyer. After introducing himself, Detective Harris provided Appellee with a Miranda warning

card and read the warnings required by Miranda and Article 38.22.4 Appellee signed and dated the

card and agreed to talk. He told Detective Harris that he was next to Junior playing a game when

Junior started throwing up. Appellee performed CPR on him and then wrapped him in a blanket and

started driving around. He was afraid to take Junior to a hospital because of what people would

think. Appellee eventually led the police to a dumpster where he had put Junior’s body, which was

later found in a landfill.

Appellee was charged with injury to a child by omission and capital murder of a child under

ten years of age. He moved to suppress his statements to law enforcement and all pictures or

diagrams of the victim’s body.

B. The Suppression Hearing

At the suppression hearing, Detectives Hernandez and Harris testified to their interactions

with Appellee. When asked what she thought Appellee meant by his statement that he needed a

lawyer, Detective Hernandez said she took it to mean “[t]hat he’s thinking he needs his children

represented.” When questioned by defense counsel, Detective Harris testified that he would have

asked for clarification if he had known that Appellee had told another officer, “I want to talk to a

lawyer.” When asked by the trial court if he would have continued to question Appellee if Appellee

4
See TEX. CODE CRIM. PROC. art. 38.22, § 2(a).
JOHNSON — 5

had told him that, Detective Harris responded, “No. If he had said it to me, I would have stopped

the interview.” When further asked if he would have stopped the interview if the suspect had said

to him, “I need to talk to a lawyer,” Detective Harris said he would have.

The trial court granted Appellee’s motion to suppress.

C. Appeal

The trial court denied the State’s motion for reconsideration, and the State timely filed an

appeal.5 The court of appeals affirmed the trial court’s order suppressing Appellee’s statements to

the police.6 The court of appeals concluded that Appellee was subjected to custodial interrogation,

that he invoked his Fifth Amendment right to counsel, and that police violated his right to counsel

by interrogating him after that invocation.7 The court of appeals conceded that the United States

Supreme Court has held that Miranda rights cannot be invoked anticipatorily, i.e., in a situation other

than custodial interrogation.8 But the court of appeals held that Appellee had been subjected to a

5
By order of the trial court, the proceedings below were stayed pending the final disposition
of this appeal. See TEX. CODE CRIM. PROC. art. 44.01(e) (providing State is entitled to a stay in the
proceedings pending the disposition of an appeal of a trial court’s order granting a motion to
suppress).
6
State v. Johnson, Nos. 05-22-00480-CR, 05-22-00481-CR, 2023 WL 4676869, *6 (Tex.
App.—Dallas July 21, 2023) (not designated for publication). As explained above, the trial court
appears to have ruled that the physical fruits of Appellee’s statement (photos and diagrams of the
body) should also be suppressed. The State has never complained specifically about the suppression
of that type of evidence, and the court of appeals did not address that issue. We observe, however
that the suppression of physical fruits of a statement is not a proper remedy for a Miranda violation.
Contreras v. State, 312 S.W.3d 566, 582 (Tex. Crim. App. 2010); Baker v. State, 956 S.W.2d 19,
22–23 (Tex. Crim. App. 1997) (discussing Michigan v. Tucker, 417 U.S. 433 (1974)). In any event,
our holding today that there was no Miranda violation necessarily overturns all of the trial court’s
rulings that exclude evidence on the basis of Miranda.
7
Johnson, 2023 WL 4676869 at *4-5.
8
Id. at *4 (citing McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991)).
JOHNSON — 6

custodial-interrogation environment because he had been interrogated before being placed into

custody and, after being placed in custody, he was sent back to the interview room with the plan to

interrogate him later.9 The court of appeals also found that Appellee’s statement, “I need to talk to

a lawyer,” was an unambiguous invocation of his Fifth Amendment right to counsel.10 In arriving

at this conclusion, the appellate court relied in part on the notion that the trial court was free to

discredit Detective Hernandez’s testimony that she interpreted Appellee’s request as one that

ultimately sought representation for his children.11 The court of appeals also noted Detective

Harris’s statement that, if he had known about Appellee’s statement about needing a lawyer, he

would have stopped the interview.12 Finally, the court of appeals rejected the State’s argument that

Appellee waived any invocation of his right to counsel when he said, “I don’t mind talking to nobody

as long as I know my kids are alright.”13 The court held that the State never satisfied the condition

for talking because it never allowed Appellee to talk to his children to personally ensure that they

were safe.14

II. ANALYSIS

The Fifth Amendment provides in relevant part that no person “shall be compelled in any

9
Id.
10
Id. at *5.
11
Id. at *6.
12
Id.
13
Id.
14
Id.
JOHNSON — 7

criminal case to be a witness against himself.”15 In Miranda v. Arizona, the Supreme Court held that,

to ensure that the right against compelled self-incrimination was honored, certain procedural

safeguards had to be met.16 One of these safeguards was to inform the suspect before custodial

interrogation that he had a right to “the presence of an attorney, either retained or appointed.”17 This

right included the right not only “to consult with counsel prior to questioning, but also to have

counsel present during any questioning if the defendant so desires.”18 And if, after being informed

of this right, the suspect requests counsel, “the interrogation must cease until an attorney is

present.”19 The Supreme Court has referred to the requirements of Miranda as a “prophylactic

rule,”20 though one that is based in the Constitution.21

In Edwards v. Arizona, the Supreme Court went a step further: when a suspect invokes his

right to counsel under Miranda, the police must not only cease any current interrogation, but they

may not seek to interrogate the suspect again—even after further Miranda warnings—unless the

suspect has been given counsel or the suspect himself initiates further communication with the

15
U.S. CONST. amend. V.
16
384 U.S. 436, 444 (1966).
17
Id. at 444, 466.
18
Id. at 470.
19
Id. at 473-74 (“Once warnings have been given, the subsequent procedure is clear. . . . If
the individual states that he wants an attorney, the interrogation must cease until an attorney is
present. At that time, the individual must have an opportunity to confer with the attorney and to have
him present during any subsequent questioning. If the individual cannot obtain an attorney and he
indicates that he wants one before speaking to police, they must respect his decision to remain
silent.”) (ellipses inserted).
20
Vega v. Tekoh, 597 U.S. 134, 151 (2022).
21
Dickerson v. United States, 530 U.S. 428, 437-38 (2000).
JOHNSON — 8

police.22 The Supreme Court has referred to the Edwards rule as “a second layer of prophylaxis” on

top of the Miranda rule.23

In Minnick v. Mississippi, the Supreme Court held that, once the Miranda-based right to

counsel has been invoked, the Edwards prohibition against further police-initiated questioning

remains, even after the suspect has consulted counsel, if counsel is not present during the

interrogation.24 The Supreme Court has referred to the Minnick construction of the Edwards rule as

a third layer of prophylaxis.25

In McNeil v. Wisconsin, the Supreme Court held that it would not add to these protections

by allowing a suspect to “anticipatorily” invoke Miranda rights.26 The Court said that it had “never

held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial

interrogation.’”27 In McNeil, the Supreme Court found that a defendant’s request for an attorney at

a bail hearing did not undermine subsequent Miranda waivers on offenses other that the one that was

the subject of the bail hearing.28 After holding that “the assertion of the Sixth Amendment right to

counsel [e.g., at a bail hearing] does not in fact imply an assertion of the Miranda ‘Fifth

Amendment’ right” to counsel, the Supreme Court addressed whether “we should declare it to be

22
451 U.S. 477, 484-87 (1981). See also McNeil v. Wisconsin, 501 U.S. 171, 176-77 (1991).
23
McNeil, 501 U.S. at 176.
24
498 U.S. 146, 151-56 (1990).
25
Montejo v. Louisiana, 556 U.S. 778, 794 (2009).
26
501 U.S. at 182 n.3.
27
Id.
28
Id. at 177-79.
JOHNSON — 9

such as a matter of sound policy.”29 In answering that question “no,” the Court observed, “If a

suspect does not wish to communicate with the police except through an attorney, he can simply tell

them that when they give him the Miranda warnings.”30

The Supreme Court found it significant that the interrogations in McNeil were about offenses

other than the one on which the bail hearing was held because the Sixth Amendment right to counsel

is offense specific while the Miranda right to counsel is not.31 Under Michigan v. Jackson,32 an

attempt to interrogate McNeil on the offense that was the subject of the bail hearing would have been

barred under the Sixth Amendment because of his prior invocation of counsel at the bail

proceeding.33

But Michigan v. Jackson was overruled in Montejo v. Louisiana.34 In overruling Jackson,

the Supreme Court said that the three layers of prophylactic protection imposed by Miranda,

Edwards, and Minnick were “sufficient.”35 In concluding that Jackson’s additional protection was

unnecessary, the Court reiterated the observation in McNeil that a defendant could simply invoke his

right to counsel at the time Miranda warnings are given:

Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a
defendant who does not want to speak to the police without counsel present need

29
Id. at 180 (emphasis in original, bracketed material inserted).
30
Id.
31
Id. at 175, 177, 180.
32
475 U.S. 625 (1986).
33
McNeil, 501 U.S. at 179-80.
34
556 U.S. at 797.
35
Id. at 794.
JOHNSON — 10

only say as much when he is first approached and given the Miranda warnings. At
that point, not only must the immediate contact end, but “badgering” by later requests
is prohibited. If that regime suffices to protect the integrity of “a suspect’s voluntary
choice not to speak outside his lawyer’s presence” before his arraignment, it is hard
to see why it would not also suffice to protect that same choice after arraignment,
when Sixth Amendment rights have attached. And if so, then Jackson is simply
superfluous.36

In our later opinion in Pecina v. State, we discussed the Supreme Court’s statement in McNeil

that the Supreme Court has never accepted the notion of an “anticipatory” invocation of Miranda

rights.37 We held that, under Montejo, “the Fifth Amendment right to interrogation counsel is

triggered by the Miranda warnings that police must give before beginning any custodial

questioning.”38 And echoing both Montejo and McNeil, we said that, “a defendant who does not

want to speak to the police without counsel present need only say as much when he is first

approached and given the Miranda warnings.”39

Under McNeil and Montejo, the Miranda right to counsel—with all of its prophylactic

protections—becomes ripe for invocation only after (1) Miranda warnings have been given while

the suspect is in custody or (2) if custodial Miranda warnings have not been given, when custodial

interrogation begins.40 The court of appeals erred by relying on a supposed “custodial interrogation

36
Id. (citation omitted).
37
361 S.W.3d 68, 76 (Tex. Crim. App. 2012).
38
Id. at 70.
39
Id. at 76 & n.30 (quoting Montejo, 556 U.S. at 794).
40
The second situation could occur if Miranda warnings are given prior to custody and a
custodial interrogation later commences. See Dowthitt v. State, 931 S.W.2d 244, 252-53, 256-57
(Tex. Crim. App. 1996) (Miranda warnings given at around 11:00 p.m. during non-custodial
interrogation that became custodial at around 1:00 a.m.). Or the second situation could occur if the
police begin a custodial interrogation without ever having given Miranda warnings. In that latter
JOHNSON — 11

environment” to establish a violation of Appellee’s right to counsel under Miranda. When Appellee

voluntarily participated in the first two interviews, he was not in custody. Later, when Appellee was

placed in custody, he was not given Miranda warnings, and no one attempted to interrogate him.

Later still, before interrogating him, Detective Harris gave Appellee Miranda warnings for the first

time. It was at that point—when the detective read the warnings—that Appellee had the choice

contemplated by Miranda: having been told for the first time while in custody that he had a right to

counsel before and during interrogation, Appellee could have invoked that right. He chose not to.

And the court of appeals erred to rely upon any supposed police “plan” to conduct a custodial

interrogation later. Assuming, without deciding, that the record would support a conclusion that the

police had such a plan, it does not matter. The only time a plan to interrogate matters is when a

police officer begins a custodial interrogation without giving Miranda warnings as part of a

“question-first, warn later” technique that is deliberately designed to circumvent Miranda.41 That did

not happen here. Appellee was given Miranda warnings before any custodial interrogation

commenced. As we have explained, once he received the Miranda warnings, he could have then

invoked his right to counsel. He did not. The police interrogation that followed complied with

Miranda.

We reverse the judgments of the courts below and remand the case to the trial court for

further proceedings consistent with this opinion.

instance of the second situation, however, the failure to give warnings will itself pose a problem for
the admissibility of the statement. See discussion of Miranda, supra.
41
See Carter v. State, 309 S.W.3d 31, 37-38 (Tex. Crim. App. 2010) (discussing Missouri
v. Seibert, 542 U.S. 600 (2004)) (“[T]he question is whether the evidence shows that Trooper
Henderson deliberately employed a two-step ‘question first, warn later’ interrogation technique to
circumvent appellant’s Miranda protections.”).
JOHNSON — 12

DELIVERED: November 13, 2024
PUBLISH