LUCKENBACH v. STATE (2026)

Petition for discretionary review refused.

CONCURRING OPINION

This is an unusual Miranda case.¹ Appellant filed a pretrial motion to suppress incriminating statements made to law enforcement. The trial court denied Appellant's motions to suppress. On appeal, the court of appeals reversed. Luckenbach v. State, 722 S.W.3d 250, 267 (Tex. App.—Austin 2025). The Court today refuses the State's petition for discretionary review. I join the Court's order refusing review and write separately to explain why.

I. Factual Background

Two people were reported deceased at a residence off Highway 71. Three days later, shortly after minidght, Deputy Brian Knowles of the Burnet County Sheriff's Office (BCSO) was informed by dispatchers that a person was in the lobby of the BCSO to turn himself in for the double homicide. That person was later identified as Appellant. In the BCSO parking lot, Knowles encountered a man who identified himself as Jeff Mallett. Mallett told Knowles that Appellant was there to turn himself in for “the double homicide [the BCSO] had in Horseshoe Bay.” Mallett also told Knowles that he had spent four hours that evening talking Appellant out of committing suicide. Mallett informed Knowles that Appellant “has got representation.” Knowles then went inside the lobby of the BCSO to speak to Appellant.

When Knowles walked into the BCSO lobby, he introduced himself to Appellant and said he understood Appellant was there to turn himself in. Appellant replied, “For questioning, yes sir.” Knowles asked to pat down Appellant and for Appellant to turn around. Appellant complied. Less than a minute later, Knowles detained Appellant in handcuffs and told him he was not under arrest but was being kept in handcuffs until another deputy arrived. Knowles specifically told Appellant that he was “just detained,” and Appellant stated “I know.” The following interaction then occurred:

Knowles: You wish to speak to the detectives, or you don't want to?

Appellant: I am here because I have an attorney representing me.

Knowles: Okay.

Appellant: [Mallett] has already contacted the attorney. In fact, he's probably on the phone with him now.

Knowles: Okay.

Appellant: He should be. And uh, as soon as my attorney gets here, we will go through what we have.

Knowles: Okay. Fair enough. I'm just gonna grab your ID.

Later, after Knowles radioed for a driver's license check:

Knowles: You said your attorney is en route?

Appellant: He's — [Mallet] is supposed to be calling my attorney. He said he'd be en route as soon as I turned myself in, so hopefully he's calling him.

Eight minutes later, Knowles removed Appellant's handcuffs. However, moments after removing Appellant's handcuffs, another deputy told Knowles that the BCSO Criminal Investigative Detention wanted Appellant in handcuffs and Mirandized. So, Knowles handcuffed Appellant again. The following interaction occurred:

Appellant: This is just for safety again, I'm assuming?

Knowles: Uh yeah, it's just kinda — I mean really it's just more of — yeah.

Knowles then used a preprinted card to read Appellant his Miranda rights, which Appellant confirmed he understood. Appellant asked Knowles if he was under arrest. Knowles stated he was not. Appellant then asked Knowles if he was “still detained,” to which Knowles replied yes. Appellant then asked to use the restroom. Knowles discussed with another deputy which restroom Appellant could use and then asked the other deputy to check whether Mallett had called Appellant's lawyer. Knowles specifically stated to the other deputy: “I would hate for him to get in there and start talking and then say, ‘I asked for my lawyer,’ you know what I mean?” Knowles also stated, “He's already said he's going to talk—he's going to talk to the investigator, but with his representation, so yeah.” Knowles then walked back to Appellant and told Appellant: “He's checking on your lawyer.” Knowles and Appellant then waited in the BCSO lobby for approximately twenty minutes until Ranger Cody Mitchell arrived.

Before entering the BCSO lobby, Mitchell spoke to Mallett outside in the parking lot. Mallett described to Mitchell his efforts to stop Appellant from committing suicide, telling Mitchell that Appellant was “absolutely” suicidal. The following interaction then took place:

Mallett: He's gonna request an attorney, ‘cause that's the only way I could get him over here is he — I promised him I'd get him an attorney. And I told him, you know, I told him a lot of shit to get him over here.

Mitchell: Well then, you've been in the business before so I'm —

Mallett: I lied to him up the ass —

Mitchell: — not going to bullshit you or anything like that, I'm going to go in there and I'm going to read him his Miranda. If he wants an attorney, he's gonna have to ask me for it —

Mallett: No problem at all, no problem at all —

Mitchell: — but you know, if he wants one, you know, he gets one. Is it your opinion that he wants to tell us what happened —

Mallett: No.

Mitchell: — or are we going to have to get it all from you?

Mallett: You're going to have to get it all from me.

Mitchell: So he's over here to be arrested for something he's not confessing to?

Mallett: Correct.

Mitchell: Okay.

Mallett: That's — that's the shtick. Okay? ‘Cause he was gonna — he said, “I'm gonna do one of three things tonight, [Mallett]. I'm gonna kill myself, I'm gonna haul ass to Mexico, or I'm gonna turn myself in.”

Mitchell: Um-hm.

Mallett: And that's — and that's exactly where we're at.

Mitchell: [Mallett], did he tell you why he killed ‘em?

Mallett: Yes.

Mitchell: Which was —

Mallett: He told me everything.

Mitchell then entered the BCSO lobby. At this point, Appellant was still handcuffed. Mitchell introduced himself to Appellant and told Appellant that he needed to go get something from his truck but would come right back. Appellant then spoke to Knowles:

Appellant: Have they confirmed whether the — my attorney is coming yet?

Knowles: I will make sure that the Ranger is tracking that. I asked my buddy to have — to make sure your boss did in fact, uh — like I said, I'll inform the Ranger, but you can also let him know, hey I'm waiting for my representation.

Appellant: I should make sure he's actually coming.

When Mitchell returned, he and Knowles escorted Appellant, who was still handcuffed, to a secured interview room. The room was located behind a secured and restricted-access door in the BCSO. Appellant had been detained in handcuffs for approximately thirty-six minutes by that point.

Before Appellant's first interview, Knowles spoke with BCSO Detective Joe Saldivar. Knowles told Saldivar, “He's waiting on his boss to call his attorney. So, he's pretty adamant that he's waiting for his attorney.” Saldivar asked Knowles whether Appellant had asked for an attorney before being Mirandized, and Knowles stated, “The first things out of his mouth was, he said he wanted to talk, but with his — but with representation, so I guess maybe he is asking for a lawyer with that statement.” Knowles also relayed this to Mitchell, who replied, “I don't give a shit if he has a lawyer or not, he has to ask me for one, but he did not say, ‘I want a lawyer.’ ” Knowles confirmed to Mitchell that Appellant “said he had a lawyer is all he said.” Knowles then met Ranger Nick Hill in the BCSO parking lot. Hill told Knowles that he knew of Mallett's “ruse” and also stated, “It's up to [Appellant] to invoke. So, he may think a lawyer's coming but ‘til he actually asks for one —.”

Before the first interview with Mitchell began, Appellant asked Mitchell, “Was somebody able to confirm that my repre — my attorney was on the way?” Mitchell replied, “Uh, the guy that drove you over here, um, said that he is — I guess from San Antone or something like that?” Mitchell then told Appellant that he was going to Mirandize Appellant so that Appellant understood “the totality of what it means if you do decide that you want an attorney, to be represented, um, and how we'll have to proceed, uh, based on that.” Hill then entered the interview room.

Mitchell told Appellant he had heard Appellant wanted to confess and that Appellant was a person of interest along with about fifteen or sixteen other people. Mitchell also told Appellant that Appellant was “being detained for investigative purposes” and was “not technically under arrest,” but that could change, depending on how things “play[ed] out.” Mitchell then read Appellant his Miranda rights, and Appellant indicated that he understood them. The following exchange then took place:

Mitchell: Okay, uh, understanding those rights, do you want to give your side of the story?

Appellant: Have, has anybody confirmed that my attorney is on the way?

Mitchell: The guy that brought you over here, um [Mallett], I think uh is his name? ․ [Mallett] ․ I just talked to him very briefly, he said that he called your attorney and your attorney is en route.

Appellant: Okay.

Mitchell: Okay.

Appellant: I'm going to say that I would like to wait for my attorney because I've already heard the statement that I'm here to confess and that's not what I'm here to do.

Appellant further indicated to Mitchell that he was at the BCSO because other people were being asked questions that pertained to him and the only way he “could get an attorney of the quality that is coming” was to do what he did that night (i.e., turn himself in to the BCSO that night).

Hill then removed Appellant's handcuffs. At that point, Appellant had been handcuffed for sixty-six minutes. Mitchell told Appellant, “[Y]ou were being detained for investigative purposes but, um, I mean if you didn't do it, you're not under arrest.” Mitchell also told Appellant that the Rangers would not force Appellant to talk to them and that they would walk Appellant to the exit of the BCSO if he wanted to leave. The Rangers also offered to make an appointment for Appellant to come back the next day. Appellant apologized for wasting the Rangers’ time and stated, “I expected my attorney to be here already so we could have a conversation.”

Mitchell then walked Appellant back to the parking lot but separated him from Mallett so that Mitchell could speak to Mallett. While Knowles escorted Appellant to the restroom (Appellant had renewed his previous request), Mallett told Mitchell details about the crime that Appellant had confessed to Mallett. When Appellant returned to the BCSO lobby from the restroom, Hill asked Appellant, “Is there anything that you would like to talk about right now?” Appellant stated, “No.” Hill then told Appellant that he was “no longer free to go” and that he was—once more—“detained.” Six minutes after making it to the parking lot, Appellant was again handcuffed, placed in leg shackles, and escorted to a “soft-interview room.”

At 9:21 a.m., approximately five-and-a-half hours after Appellant was handcuffed and shackled, Appellant's second interview with Mitchell began.² Mitchell re-read Appellant his Miranda rights and told Appellant he was under arrest. Appellant asked if his attorney was there and said he needed to know whether he had the attorney that he was told he would have. The following exchange then occurred:

Mitchell: Obviously, situation's changed since the last time that we talked. You are officially under arrest, not free to go․ Uh, obviously we know a little bit more now than we knew before. Enough to charge you with an offense․ The one thing that we don't know is the thought process and any mitigating circumstances that for lack of better words could possibly better your situation. I don't know if you have anything that could better your situation, but it's up there and I don't know it. Um, so I am gonna ask you if you would like to speak to me without an attorney present or if you want to invoke your right to have an attorney present before you speak to me.

Appellant: Do we know if Rocky's here?

Mitchell: No attorney has come over here, um, asking for you. No attorney's come here period. And I don't know who Rocky is. Uh, I understand he's an attorney, but I haven't been in contact with anybody that is an attorney representing you.

Appellant: I need to know if I have an attorney that I was told I was gonna have or not.

Mitchell: Okay, um —

Appellant: But I don't have his phone number, and I'd have to get with [Mallett] to get it.

Mitchell: Now all of that being said, you're gonna have the opportunity to make a phone call and you know um, uh try to get an attorney or find out what's going on with this attorney that — that you had spoken to or whatever. The thing is, that's gonna happen after this conversation, but the length of this conversation, the content of this conversation is dependent on whether or not you are willing to speak to me with or without an attorney present.

Mitchell also emphasized how “mitigating circumstances” might improve Appellant's position:

Right now, you're under arrest for a capital murder. That's about as bad as it gets. There's no way to make this situation worse. There may, depending on the mitigating circumstances, the information that only you know in your head that might make it better. I don't know if that's the case, but I have to evaluate that information based on what it is. If you think there is no way to make it better, then, you know, maybe — maybe you shouldn't talk. If you think there's information that I need to know, that might change the outlook of this and possibly change it to a different charge, you know, that's what you need to evaluate whether or not you want to talk about. I don't know if that's the case because obviously I don't — I don't know what's in your head․ [I]f you did evil and you know you did evil, then maybe your best bet is not to talk to me. If you did not do evil, I need to understand how it was something other than the way it looks right now.

* * *

I'm not gonna be mad at you either way. These are your rights, and I respect them. But I have to have an answer from you before I can start asking you questions and before you can tell me information that may or may not make your situation better․ I don't know if there's any mitigating circumstances. That is basically what I'm asking you. Is there something that I need to know, that needs to be considered, that me, a judge, a jury, anybody needs to know?

Appellant then asked Mitchell several questions, including about the punishment ranges for different felony offenses. Mitchell emphasized that it could not get worse than capital murder and that the only possibility was trying to lessen the charge. Appellant replied, “I guess all that we can do is start asking questions and move forward.” Appellant then confessed to the offenses. Appellant was then taken to jail by investigators. While in the patrol car, Appellant volunteered, “I did it.”

Appellant was indicted for capital murder. He filed a pre-trial motion to suppress incriminating statements he made to police, claiming they were made in violation of his right to remain silent and right to counsel, and that they were not made voluntarily. The trial court denied the motion to suppress, and Appellant pleaded guilty and timely appealed. On appeal, the court of appeals reversed. Luckenbach, 722 S.W.3d at 267.

II. Discussion

The State's petition for discretionary review presents two grounds for review. First, the State argues that the court of appeals “erred when it held that the trial court abused its discretion and that Appellant was in custody during his first interview with law enforcement.” The court of appeals concluded that the “circumstances surrounding [Appellant]’s interrogation, considered in their totality and objectively, establish that a reasonable person in this situation would have believed that his freedom of movement was restricted to the degree associated with a formal arrest as opposed to an investigative detention, and would not have felt free to leave.” Id. at 265 (first citing Wexler v. State, 625 S.W.3d 162, 167–68 (Tex. Crim. App. 2021); then citing Dowthitt v. State, 931 S.W.2d 244, 254–55 (Tex. Crim. App. 1996)).

In its second ground for review, the State argues that the court of appeals “erred when it held that the trial court abused its discretion and that Appellant unambiguously invoked his right to counsel before his second interview with law enforcement.” The court of appeals held that “the circumstances surrounding [Appellant]’s statement, considered in their totality and objectively, establish that [Appellant] articulated his desrire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand that the statement to be a request for an attorney.” Id. at 266 (first citing Davis v. United States, 512 U.S. 452, 458–59, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); then citing Davis v. State, 313 S.W.3d 317, 339 (Tex. Crim. App. 2010); and finally citing State v. Gobert, 275 S.W.3d 888, 892–93 (Tex. Crim. App. 2009)).

a. Custody

The State first generally argues that this was not a typical officer-initiated interrogation but rather an interrogation that was initiated by Appellant when Appellant turned himself into the BCSO. As the State puts it, a “reasonable, innocent person who went to a sheriff's office to speak with law enforcement ․ would expect to be taken into the office for questioning rather than sitting out in the lobby, and would not be surprised to find that the sheriff's office was a secure facility.” That same person would also “know that law enforcement agents are generally armed.” The State also argues that Appellant was told several times that he was being detained and was not under arrest.

But the State's contention ignores several key facts in the record. First, Appellant was handcuffed on two separate occasions before Mitchell arrived. In fact, by the time Mitchell arrived, Appellant had been handcuffed for the preceding thirty-five minutes. Second, Appellant's first interview with Hill and Mitchell was done in a closed interview room in the secured part of the BCSO. And, importantly, Appellant was handcuffed for nearly all of the interview. Third, even after Appellant was told he was free to leave at the conclusion of the first interview and unhandcuffed, Mitchell had Knowles escort Appellant to the lobby and keep him there as Mitchell went outside to speak to Mallett. Fourth and finally, Mallett told Mitchell about Appellant's confession to him and about Appellant's involvement in the capital murder. After speaking to Mallett, Mitchell returned to the BCSO lobby and told Appellant he was no longer free to leave.

This last fact is key. In Turner v. State, the defendant voluntarily accompanied law enforcement to the police station to look at some photos in connection with a murder investigation. 685 S.W.2d 38, 40 (Tex. Crim. App. 1985). During a conversation, the defendant admitted that he had previously been stationed in Korea and “had also bought a pair of nice boots in Korea which had a brand name Tong, but that he could not remember the second part of the name.” Id. at 41. The officers immediately became suspicious because they remembered boots found in the garbage can that carried the brand name “Tong Young.” Id. The defendant was then Mirandized and eventually confessed. Id. On appeal, the defendant tried to suppress statements he made to law enforcement prior to being Mirandized. Id. This Court disagreed and held that the defendant was not in “custody” until the police “realized the likelihood of his involvement with the murder.” Id. at 43.

The same is equally true here. Mitchell and Knowles were aware that Appellant wanted to speak to law enforcement and that he was a person of interest in the capital murder. Mitchell further knew—from Mallett—that Appellant had confessed to Mallett about his involvement in the capital murder. Under the principles in Turner, Appellant certainly was in “custody” at all times while he was at the BCSO.

As we explained in Wexler, “[t]he ultimate inquiry is whether, under the circumstances, a reasonable person would have believed that her freedom of movement was restricted to the degree associated with a formal arrest.” 625 S.W.3d at 167 (citing Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)). Based on this record, I cannot say that the court of appeals erred to conclude that Appellant was in “custody” prior to Mitchell telling Appellant that he was no longer free to leave.

b. Invocation of the Right to Counsel

In its second ground for review, the State argues that Appellant's statement “I'm going to say that I would like to wait for my attorney because I've already heard the statement that I'm here to confess and that is not what I'm here to do,” was ambiguous. Whether the mention of a lawyer constitutes a clear invocation of the right to counsel depends upon the statement itself and the totality of the surrounding circumstances. Gobert, 275 S.W.3d at 892 (citing Davis, 512 U.S. at 459, 114 S.Ct. 2350).

The State's contention wholly ignores that by the point Appellant made this statement, he believed he already had representation that was on the way to the BCSO. While the State is correct to argue that “[t]here are no magic words required to invoke an accused's right to counsel,” Dewberry v. State, 4 S.W.3d 735, 747 n.9 (Tex. Crim. App. 1999), the context in which Appellant made the statement to Mitchell made clear that Appellant did not intend to take part of the interview until his attorney was present. Appellant told Mitchell that the only way he could get representation of suitable quality was to “do what he did” (agree to go to the BCSO to submit himself for questioning). Appellant repeatedly asked Knowles, Mitchell, and Hill where his attorney was and whether his attorney was on his way. And then Appellant told Mitchell, “I'm going to say that I would like to wait for my attorney․”³ Based on the totality of the circumstances and Appellant's statement itself, Appellant unambiguously asserted his right to representation. As Appellant unambiguously asserted his right to counsel, interrogation must have ceased until Appellant's attorney was present. Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (quoting Miranda, 384 U.S. at 474, 86 S.Ct. 1602). The court of appeals reached the correct result on the State's second ground for review.

III. Conclusion

With these thoughts, I join the Court's order to refuse review.

FOOTNOTES

1.   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2.   In toto, this was approximately nine to ten hours after Appellant had first been handcuffed.

3.   This statement on its own is arguably sufficient to have unambiguously invoked the right to counsel even without the added context. See, e.g., Gobert, 275 S.W.3d at 895 (“I don't want to give up any right though, if I don't got no lawyer.”).Appellant's statement lacks the ambiguous modifiers that have been noted in other cases. See, e.g., Davis, 512 U.S. at 455, 462, 114 S.Ct. 2350 (“Maybe I should talk to a lawyer.”); State v. Goodwin, 278 Neb. 945, 774 N.W.2d 733, 744–45 (2009) (“I probably should have an attorney.”); In re H.V., 252 S.W.3d 319 (Tex. 2008) and Burket v. Angelone, 208 F.3d 172, 197–98 (4th Cir. 2000) (“I think I need a lawyer.”); United States v. Younger, 398 F.3d 1179, 1187–88 (9th Cir. 2005) (“[B]ut, excuse me, if I am right, I can have a lawyer present through all this, right?”); Midkiff v. Commonwealth, 250 Va. 262, 462 S.E.2d 112, 114–15 (1995) (“I'll be honest with you, I'm scared to say anything without talking to a lawyer.”).