LEE v. STATE (2026)

Petition for discretionary review refused.

DISSENTING OPINION

Even though Appellant Edward Elton Lee told an officer that he needed a lawyer, he was questioned without a lawyer present. The court of appeals concluded that Appellant's statement, “I need a lawyer,” was not a clear invocation of his right to have a lawyer present; or, even if he did invoke his right to counsel, he waived the right when, during small talk, he told the officer to “continue.” Lee v. State, No. 05-23-00386-CR, 2025 WL 1195007, at *6 (Tex. App.—Dallas Apr. 24, 2025) (mem. op., not designated for publication).

“I need a lawyer” is a clear invocation of the right, and telling the officer to “continue” while they were having small talk is not a waiver. Appellant is right to seek this Court's review, and I would grant his petition. Because this Court does not, I respectfully dissent.

I — The Interrogation

Appellant was arrested, and he was transported to an interrogation room at the Mesquite jail. Detective Blake Stillwagoner followed Appellant into the room and began:

Detective: Edward, do you want to go just take a seat against the wall over there? I'm gonna scoot you just a little bit further to my [inaudible] read something off to you and get you to sign it. Alright, Edward, so like I said, I'm gonna sit down and talk to you about everything. This is gonna be for—it's an agg assault, which is displaying a firearm in a threatening manner. Alright? Now I'm gonna explain everything to you. But first, you know how it goes, just like in the movies, I have to read this off to you. It's gonna be your Miranda rights. As I read it aloud to you, I just need you to acknowledge that you understand each one. If you don't, I'll explain it to you and then—

Defendant: I'm being charged with what, man?

Detective: Agg assault with a deadly weapon.

Defendant: I need a lawyer, man.

Detective: Alright. You want me to read these off to you?

Defendant: It's not gonna matter. You're charging me anyway, right?

Detective: Yes, but you want a lawyer, right?

Defendant: It doesn't matter what I say at this moment in time. You're still arresting me?

Detective: Mmhmm.

Defendant: You're still arresting me?

Detective: Mmhmm.

Defendant: And there's nothing else to say, correct?

Detective: Well, I mean, that's up to you. I want your side of the story. That's the only reason I'm giving you the chance to talk, obviously. If I didn't want your side of the story, then I wouldn't even be down here bothering with you.

Defendant: Okay. Alright.

Detective: You want me to read these off to you first though? Well, I have to. I'm gonna be honest with you. I gotta read these off to you regardless.

Defendant: Mmhmm.

Detective: And then whether you waive them or you want to invoke a lawyer, that's perfectly fine, alright?

Defendant: Who is the person or what is the person that charged me with this?

Detective: This is gonna be Barbara Sweat.

Defendant: Okay.

Detective: Okay.

Defendant: And when did this offense date occur?

Detective: This is gonna be the 27th. The 27th.

Defendant: Yep.

Detective: I'm gonna read these off to you, out loud, okay? I just need you to let me know verbally that you understand each one as I read it off to you and then we can discuss further or we can terminate the interview if you'd like, okay?

Defendant: [examines and reads Miranda card] Okay.

Detective: This is a warning to be given before taking or giving any oral or written confession. You have the right to have a lawyer present to advise you either prior to any questioning or during any questioning. Do you understand that part?

Defendant: Yes sir, I do.

Detective: If you are unable to employ a lawyer, you have the right to have appointed counsel with you prior to or during any questioning. Do you understand that part?

Defendant: Yes.

Detective: You have the right to remain silent and not make any statement at all and that any statement you make may and probably will be used against you in evidence against you at your trial. Do you understand that part?

Defendant: Yes.

Detective: You have the right to terminate this interview at any time. Do you understand that part?

Defendant: Yes.

Detective: And any statement I make may be used as evidence against me in court. Do you understand that part?

Defendant: Yes.

Detective: So, signing here is just saying that you understand your rights. It's not saying that you're waiving them or agreeing to speak to me or anything like that. It's just saying I read them to you, you do understand them. If you don't, I can explain them to you and then once you sign that, we'll determine if you do want to talk to me or not, with or without a lawyer. It's completely up to you.

Defendant: [reaching for pen] So, y'all can bring me a court-appointed attorney right now?

Detective: Uh yeah, we can always provide you with an attorney.

Defendant: They'll sit in here while we're talking?

Detective: I'll be honest with you, [defendant starts signing Miranda card] if you want a lawyer, I'm probably just gonna terminate the interview.

Defendant: Right. That's what I'm saying. Obviously, I'm gonna have to get an attorney anyway, right?

Detective: Yeah, at some point. Yeah. Whenever.

Defendant: Stillwagoner? [hands back signed Miranda card].

Detective: Stillwagoner. Yes, sir.

Defendant: That's a cool name.

Detective: Eh, a little lengthy. You're the first person to actually think that. So, I gotta ask. Do you want to talk right now? It's completely up to you. I'm not forcing your hand.

Defendant: So how long you been working for the Mesquite Police Department?

Detective: Six and a half years.

Defendant: Six and a half years. Cool. Who's y'all’s big boss?

Detective: Big boss is gonna be Chief Cato.

Defendant: Not the lady?

Detective: Uh, which lady?

Defendant: There you go. Alright. That's cool. Alright. So, continue.

Detective: Yeah, so I'm gonna be honest with you. This is, uh—I understand that you and Sweat have been dating for about three months or so. I've heard there's been no issues prior to—I guess—Saturday. Y'all went to a concert and—I don't know if y'all took some pills or did anything else, but she said things got kind of spun out of control from there after the concert on Saturday night.

Lee, 2025 WL 1195007, at *1–3 (emphasis added).

Appellant filed a motion to suppress the statements he made in the following interrogation, arguing that the interrogation should have stopped at the moment he told Stillwagoner, “I need a lawyer.” The trial court denied the motion. The court of appeals upheld the ruling, concluding that it was unclear that Appellant wanted a lawyer when he said, “I need a lawyer.” Id. at *7. The court of appeals then opined that, even if Appellant invoked his right to counsel, he waived it when he told Stillwagoner, “So, continue.” Id. at *9.

Appellant now seeks this Court's review, asking:

When in custodial interrogation, a person asks for a lawyer to be present during questioning, and isn't stopped, isn't this [a] violation [the] Texas and U.S. Constitutions?

Although Appellant's question was answered long ago,¹ Appellant's pro se petition essentially claims that the court of appeals erred when it concluded that he did not ask for a lawyer and, even if he did ask for one, he then waived his right to have a lawyer present.

II — “I Need A Lawyer” Was Not Ambiguous or Unclear

As this Court explained in Davis v. State:

When a suspect asks for a lawyer, interrogation must cease until counsel has been provided or the suspect initiates further communication with the police. To trigger law enforcement's duty to terminate the interrogation, a suspect's request for counsel must be clear, and the police are not required to attempt to clarify ambiguous remarks. 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. The test is objective: whether the suspect “articulate[d] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” If the accused's invocation of the right to counsel is clear, his responses to further questioning may not be used to cast doubt retrospectively on the clarity of his initial request.

Davis v. State, 313 S.W.3d 317, 339 (Tex. Crim. App. 2010) (quoting Gobert, 275 S.W.3d at 892–93).

Accordingly, “[n]ot every mention of a lawyer will suffice[.]” Gobert, 275 S.W.3d at 892. For example, the United States Supreme Court held that, “Maybe I should talk to a lawyer,” was not a request for counsel. Davis v. United States, 512 U.S. 452, 462, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). In our Davis, we held that, “I should have an attorney,” was not a request, either. Davis, 313 S.W.3d at 341; see also, e.g., Dalton v. State, 248 S.W.3d 866, 873 (Tex. App.—Austin 2008, pet. ref'd) (“Well, should I get a lawyer first?”); Williams v. State, 402 S.W.3d 425, 434 (Tex. App.—Houston 14th Dist. 2013, pet. ref'd) (“Do I need a lawyer present for this”). And unsurprisingly, the results were similar when the words “lawyer” or “attorney” were not even used, though they were arguably implied. See, e.g., Dinkins v. State, 894 S.W.2d 330, 352 (Tex. Crim. App. 1995) (suspect said, “Maybe I should talk to someone,” and asked the detective what an attorney would tell him to do under the circumstances).

But a clear, unambiguous request need not be an explicit statement from the suspect that, “I hereby invoke my right against self-incrimination under the Fifth Amendment of the Constitution, and to protect that right I invoke my right to have an attorney present during questioning, under Miranda v. Arizona.” For example in Gobert, we held that the suspect's statement, “I don't want to give up any right, though, if I don't got no lawyer[,]” after he was read his Miranda rights, was sufficient. Gobert, 275 S.W.3d at 893. It was “absolutely crystal clear” that he did not want to talk to the police without a lawyer present. Id.

In this case, Appellant's statement “I need a lawyer” is not the same as “I think I need a lawyer.” Of course, what Appellant told Stillwagoner—“I need a lawyer”—is not as strong as “I want a lawyer.” But it nevertheless “articulated his desire to have counsel present.” Davis, 313 S.W.3d at 339.

The court of appeals emphasized Stillwagoner's testimony about what he interpreted Appellant's “I need a lawyer” to mean, “that he thought [Appellant] was in shock about his arrest and was venting.” Lee, 2025 WL 1195007, at *8. But Stillwagoner's own perception of “I need a lawyer” is the wrong test. We do not look to the officer's subjective belief about whether a person has or has not invoked his Fifth Amendment rights. “The test is objective[.]” Davis, 313 S.W.3d at 339; Davis, 512 U.S. at 458–59, 114 S.Ct. 2350 (“this is an objective inquiry”). The question is whether a reasonable officer would have understood it to be a request for an attorney. Davis, 313 S.W.3d at 339; Davis, 512 U.S. at 459, 114 S.Ct. 2350. The only reasonable way to take “I need a lawyer” is that Appellant wanted a lawyer.

The court of appeals also looked to statements made after Appellant said “I need a lawyer.” Lee, 2025 WL 1195007, at *8 (pointing to: (1) Appellant asking whether the police could bring him an appointed attorney “right now”; (2) asking whether the lawyer could sit with them while they were talking; and (3) saying he was “gonna have to get an attorney anyway”). But while:

We look to the totality of circumstances to determine whether any statement referencing counsel was really a clear invocation of the Fifth Amendment right; we do not look to the totality of the circumstances, however, to determine in retrospect whether the suspect really meant it when he unequivocally invoked his right to counsel.

Gobert, 275 S.W.3d at 893. “[A]n accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. Such subsequent statements are relevant only to the distinct question of waiver.” Smith v. Illinois, 469 U.S. 91, 100, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).

Appellant's initial statement, “I need a lawyer,” was clear. Whatever he said regarding a lawyer after that point does not make the initial statement any less clear. If anything, Appellant's responses after he had already told Stillwagoner “I need a lawyer” showed that the presence of counsel was on top of his mind, and he really did want a lawyer present. Right after Stillwagoner went through the Miranda card with Appellant, Stillwagoner said, “we'll determine if you do want to talk to me or not, with or without a lawyer. It's completely up to you.” And Appellant replied: “So, y'all can bring me a court-appointed attorney right now?” Appellant also immediately wanted to make sure that the court appointed attorney he asked to be brought “right now” would be present during the interrogation.

• I need a lawyer.

• Can you bring me a court-appointed attorney right now?

• Will the lawyer sit in here while we are talking?

These statements together—this totality of the circumstances—rather than showing Appellant was not asking for a lawyer, were precariously close to outright stating, “I want to have a lawyer present, right now, during questioning.” The court of appeals's conclusion flies in the face of what Appellant actually said.

And a reasonable interpretation of the last point the court of appeals looked at—when Appellant said he was “gonna have to get an attorney anyway”—is that Appellant was thinking about his need for counsel to represent him during the later criminal case, not the interrogation which he had already said he needed a lawyer for.

A reasonable police officer would understand that Appellant wanted a lawyer present. It is clear, and the court of appeals was wrong to conclude otherwise.

III — “So, Continue” Was Not A Clear Waiver

An accused, once having invoked the privilege against self-incrimination, may thereafter change his mind and knowingly and intelligently waive those rights. Mitchell v. State, 503 S.W.2d 562, 565 (Tex. Crim. App. 1974). “[O]nce a person invokes his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by merely showing that the suspect responded to police-initiated interrogation after being advised of the rights again.” Pecina v. State, 361 S.W.3d 68, 75 (Tex. Crim. App. 2012). Again, “[o]nce the suspect has invoked his Fifth Amendment right to counsel, police interrogation must cease until counsel has been provided or the suspect himself reinitiates a dialogue.” Gobert, 275 S.W.3d at 892; Edwards, 451 U.S. at 484–85, 101 S.Ct. 1880 (once an accused has expressed the desire to deal with police only through counsel, the accused may not be subjected to further interrogation until counsel has been made available, unless the accused initiates further communications with the police).

Or, as we colorfully illustrated in Cross v. State:

the critical inquiry is whether the suspect was further interrogated before he reinitiated conversation with law enforcement officials. If he was not, Edwards is not violated. A suspect's invocation of his right to counsel acts like a protective Edwards bubble, insulating him from any further police-initiated questioning. Only the suspect himself can burst that bubble by both initiating communications with police and expressly waiving his right to counsel. Once that bubble is burst, however, Edwards disappears, and the police are free to reinitiate any future communications and obtain any further statements as long as each statement is voluntarily made after the waiver of Miranda rights.

Cross v. State, 144 S.W.3d 521, 529 (Tex. Crim. App. 2004).

A “two-step procedure” is used “to determine whether a suspect has waived his previously invoked right to counsel.” Id. at 526–27. “The first step requires proof that the suspect himself initiates further communication with the authorities after invoking the right to counsel.” Id. at 527. “The second step requires proof that, after he reinitiates communication with the authorities, the suspect validly waives the right to counsel.” Id.

What initiates further communication?

There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally “initiate” a conversation in the sense in which that word was used in Edwards.

Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). Accordingly, to be considered a initiation of further communication, the suspect's inquiries or statements must “represent a desire ․ to open up a more generalized discussion relating directly or indirectly to the investigation.” Id.

Here, the court of appeals found that, even if Appellant did invoke his right to have a lawyer present during questioning, he impliedly waived his right to have a lawyer present when he told Stillwagoner to “continue.” Lee, 2025 WL 1195007, at *9. But it was hardly an implied waiver, if it was even a waiver at all.

When Appellant said, “So, continue,” neither Stillwagoner nor Appellant were discussing the arrest or the charges. Instead, they were talking about Stillwagoner's name, how long he had been working with the Mesquite Police Department, and who was the current police chief. This was idle chit chat. If anything, Appellant wanted to keep the small talk going when he told Stillwagoner, “So, continue.” There is no indication that Appellant wanted “to open up a more generalized discussion relating directly or indirectly to the investigation.” Bradshaw, 462 U.S. at 1045, 103 S.Ct. 2830. Telling Stillwagoner to “continue”—after “Big boss is gonna be Chief Cato.” “Not the lady?” “Uh, which lady?”—could hardly be described as a waiver of his right to have an attorney present.

IV — Conclusion

This case is a far cry from “Maybe I should talk to a lawyer” and “Maybe I should have an attorney.” If “I need a lawyer” does not “adequately communicate his desire to deal with his police interrogators only through, or at least in the presence of, counsel,” Gobert, 275 S.W.3d at 893, then I can hardly think of what can be. If the people must use pre-approved, specific language to protect their right to not be subjected to police interrogation without the aid and counsel of a lawyer, to protect their right against being compelled to incriminate themselves, then the people do not have these rights at all. Only the lawyers who diligently read Fifth Amendment Miranda cases—or the people who carry with them notes prepared by the Miranda lawyers—will know the magic words to protect their rights.

“There 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); Montoya v. Collins, 955 F.2d 279, 283 (5th Cir. 1992) (a defendant is not required “to utter the magic words, ‘I want a lawyer,’ in order to assert his right to counsel.”).

I would grant Appellant's petition. Because the Court does not, I respectfully dissent.

FOOTNOTES

1.   “[A]n accused, ․ having expressed his desire to deal with 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 communications, exchanges, or conversation with the police.” Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). “Once the suspect has invoked his Fifth Amendment right to counsel, police interrogation must cease until counsel has been provided or the suspect himself reinitiates a dialogue.” State v. Gobert, 275 S.W.3d 888, 892 (Tex. Crim. App. 2009) (citing Edwards).