IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

════════&#= 9552;═══

No. 06-0005

════════λ= 2;═══

In the=20 Matter of H.V.

════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══════════ = 552;═

On Petition for Review from = the

Court of Appeals for the Second = District of=20 Texas

════════&#= 9552;═════════λ= 2;══════════&= #9552;═════════_= 52;══════════= ══

Argued April 12,=20 2007

=20 Justice = Brister=20 delivered the opinion of the Court, in which Justice O=92Neill, Justice Medina, = Justice=20 Johnson, and = Justice Willett joined.

=20 Chief Justice = Jefferson=20 filed an opinion concurring in part and dissenting in part, in which = Justice Wainwright and Justice Green joined, and in = which Justice Hecht joined as to = Parts I, III=20 and V.

=20 This is the first appeal under a 2003 statute allowing appellate = review=20 of certain orders suppressing evidence in juvenile justice cases.[1] Because the statute contains no = express=20 grant of jurisdiction to this Court, we may review such interlocutory = orders=20 only if they fall within our general jurisdictional statutes, which were = also=20 amended in 2003. Finding that we have such jurisdiction, we affirm the = court of=20 appeals=92 opinion in part and reverse in part.

I. Background

=20 Evidence presented at the suppression hearing here showed that=20 sixteen-year-old H.V. bought a gun on September 7, 2003. Two days later = he was=20 seen leaving North=20 Crowley High=20 School with Daniel Oltmanns. The next day, Oltmanns=92s=20 body was found at a construction site with wounds indicating he had been = shot in=20 the head.

=20 The following morning, a police detective met with H.V. at the = high=20 school and asked him to accompany her downtown for questioning. He = agreed and=20 was taken to a juvenile processing center. After receiving the required = warnings=20 from a magistrate,[2] H.V. waived his rights and gave = a=20 statement admitting he had bought a gun but claiming he had returned it = before=20 Oltmanns was shot. The statement was typed = up and H.V.=20 signed it, after which he was returned to school.

=20 That afternoon, police officers visited H.V. and his father at = their home=20 and asked them to leave the premises pending arrival of a search = warrant. They=20 did so, but shortly thereafter H.V. returned, and an=20 off-duty policeman saw him carrying a bloodstained carpet over the back = fence of=20 the home. H.V. was arrested on a charge of evidence tampering, and again = taken=20 to the juvenile processing facility where he was again given warnings by = a=20 magistrate.[3]

=20 When asked whether he wanted to waive his rights and speak to = police,=20 H.V. said he wanted to speak to his mother, but was told he could not. = H.V. then=20 responded that he =93wanted his mother to ask for an attorney.=94 When = the=20 magistrate responded that only he (not his mother) could ask for an = attorney,=20 H.V. replied, =93But, I=92m only sixteen.=94 The magistrate then = reiterated that only=20 he could ask for an attorney, after which H.V. eventually said he would = talk to=20 the police. In a second written statement, H.V. claimed Oltmanns accidentally shot himself with H.V.=92s gun, after which H.V. placed him in a = bathtub where=20 he bled to death. Based on a drawing by H.V., police recovered the gun = from a=20 storm sewer close to H.V.=92s home.

=20 Finding that H.V. had invoked his right to counsel during = custodial=20 interrogation, the trial court suppressed both H.V.=92s=20 second written statement and the gun, and the court of appeals = affirmed.[4] The State brings this appeal = from a=20 juvenile court order suppressing evidence in a case involving a violent=20 offender.[5] As this question does not turn = on an=20 evaluation of demeanor or credibility (as discussed below), we review = the=20 question de novo.[6]

II. Jurisdiction of Pretrial Suppression = Orders

=20 The parties both assume we have jurisdiction, but that of course = does not=20 dispose of the matter.[7] In a single paragraph, the = State alleges=20 jurisdiction based on an error of law that requires correction.[8] But that jurisdiction does not = include=20 most interlocutory appeals,[9] which this pretrial suppression = order=20 surely is.[10] Our sister court, the Court of = Criminal=20 Appeals, routinely reviews pretrial suppression orders in criminal cases = involving adults.[11] But the jurisdictional statute = for that=20 Court appears to be broader than ours,[12] and in any event does not = expressly=20 limit interlocutory appeals =97 as ours does.

=20 We have not addressed this question before because this appeal is = the=20 first of its kind. Although government appeals of suppression orders are = common=20 in criminal cases,[13] similar appeals in juvenile = justice=20 cases became available in Texas only in 2003, when the Family = Code was=20 amended to allow them in cases involving violent or habitual = offenders:

(b) The=20 state is entitled to appeal an order of a court in a juvenile case in = which the=20 grand jury has approved of the petition under Section 53.045 [concerning = violent=20 or habitual offenders] if the order . . . grants a motion to suppress = evidence,=20 a confession, or an admission and if:

(A)=20 jeopardy has not attached in the case;

(B)=20 the prosecuting attorney certifies to the = trial court=20 that the appeal is not taken for the purpose of delay; and

(C)=20 the evidence, confession, or admission is of=20 substantial importance in the case.[14]

The new=20 statute contemplates review in this Court,[15] but there is no grant of = jurisdiction=20 other than as in civil cases generally:

An appeal=20 from an order of a juvenile court is to a court of appeals and the case = may be=20 carried to the Texas Supreme Court by writ of error or upon certificate, = as in=20 civil cases generally.[16]

In = the absence=20 of a specific statutory grant, or of a dissent in the court of = appeals,[17] we thus have jurisdiction of = this=20 interlocutory appeal only if (as in civil cases generally) the court of = appeals=20 opinion =93holds differently from a prior decision of another court of = appeals or=20 of the supreme court.=94 [18]

=20 This presents two interesting questions here. First, because this = is the=20 first appeal of a suppression order in a juvenile justice case, there = can be no=20 conflicts if the scope of comparison is limited to just those appeals. = But our=20 conflicts jurisdiction is no longer limited to rulings that are =93so = far upon the=20 same state of facts that the decision of one case is necessarily = conclusive of=20 the decision in the other.=94 [19] For cases filed after 2003 (as = this one=20 was),[20] a conflict is sufficient for=20 jurisdiction =93when there is inconsistency in the[]=20 respective decisions that should be clarified to remove unnecessary = uncertainty=20 in the law and unfairness to litigants.=94 [21]

=20 Second, our conflicts jurisdiction is generally limited to cases = that=20 conflict with =93a prior decision of another court of appeals or of the = supreme=20 court.=94 [22] Juvenile cases, though = classified as=20 civil proceedings, are quasi-criminal in nature and frequently concern=20 constitutional rights and procedures normally found only in criminal = law.[23] This Court rarely addresses = issues like=20 the one here concerning the warnings required by Miranda v. = Arizona;[24] indeed, our citation to that = case in=20 this sentence is only the second in the Court=92s history,[25] compared to almost 2,000 cases = citing it=20 by other Texas=20 state courts. Instead, the law governing such issues is generally found = in=20 opinions from the United States Supreme Court and the Court of Criminal = Appeals=20 =97 two courts that are not listed in our jurisdictional statute. = While=20 this is perhaps a matter for legislative attention, it is not one we can = disregard.[26]

=20 Accordingly, we have jurisdiction in this case if the court of = appeals=20 has held differently from a prior decision of another court of appeals = on an=20 issue that should be clarified to remove uncertainty or unfairness. We = believe=20 there is such a conflict. In suppressing the alleged murder weapon for a = Miranda violation, the court of appeals held differently from = other=20 courts of appeals that have followed Baker v. State, an opinion = by the=20 Court of Criminal Appeals.[27] While these other cases did = not involve=20 juveniles, the conflict requires clarification for several reasons.

=20 First, rules governing hundreds of out-of-court investigations = must=20 provide guidance that is clear and easy for law enforcement personnel to = apply;[28] variations between the rules = for=20 juveniles and adults, or between the rules in one part of the state and = another,=20 may confuse those investigations and jeopardize many future cases. = Second, we do=20 not have the luxury of waiting for a final appeal to address these = issues; if=20 evidence is improperly suppressed, double jeopardy prevents the state = from=20 appealing after a juvenile is acquitted or the case dismissed for lack = of=20 admissible evidence.[29] Finally, we are especially = cognizant of=20 rendering fairness to the litigants in a case like this involving the = most=20 serious of crimes, an alleged murder.

=20 Despite the expansion of our conflicts jurisdiction, we remain = reticent=20 to address unsettled questions that may be clarified by developments = during=20 trial and thoughtful consideration by several intermediate courts. But = the=20 unique circumstances of juvenile proceedings =97 =93an unlikely and = sometimes=20 perplexing hybrid of civil and criminal law=94 [30] =97 convince us that the = conflicts=20 involved here must be clarified =93to remove unnecessary uncertainty in = the law=20 and unfairness to litigants.=94 [31] Accordingly, we have = jurisdiction to=20 consider the State=92s appeal.

III. Did H.V. Invoke His Right to Counsel?

=20 Miranda v. Arizona requires that suspects in custody be = informed=20 before questioning begins of their right to consult with an attorney.[32] If a suspect invokes that = right, there=20 can be no further interrogation unless the accused initiates it.[33] If Miranda warnings are = not given=20 or a request for counsel is ignored, any subsequent statements by the = suspect=20 cannot be introduced at trial during the prosecution=92s = case-in-chief.[34]

=20 These rights apply to juveniles just as they do to adults.[35] Thus, the State concedes in = this case=20 that if H.V. properly invoked his right to counsel, the second statement = he made=20 thereafter should be suppressed. The only dispute is whether he invoked = that=20 right.

=20 In Davis v. United States, the United = States=20 Supreme Court established a =93bright line=94 between suspects who = might be=20 asking for a lawyer and those who actually do ask for one, = holding that=20 only the latter have invoked their right to counsel:

To avoid=20 difficulties of proof and to provide guidance to officers conducting=20 interrogations, this is an objective inquiry. Invocation of the = Miranda=20 right to counsel requires, at a minimum, some statement that can = reasonably=20 be construed to be an expression of a desire for the assistance of an = attorney.=20 But if a suspect makes a reference to an attorney that is ambiguous or = equivocal=20 in that a reasonable officer in light of the circumstances would have = understood=20 only that the suspect might be invoking the right to counsel, our = precedents do not require the cessation of questioning. Rather, the = suspect must=20 unambiguously request counsel. As we have observed, a statement either = is such=20 an assertion of the right to counsel or it is not. Although a suspect = need not=20 speak with the discrimination of an Oxford don, he must articulate his = desire to=20 have counsel present sufficiently clearly that a reasonable police = officer in=20 the circumstances would understand the statement to be a request for an=20 attorney.[36]

=20 Applying this standard, courts have held that it is not enough = for a=20 suspect to say:

$ =20 =93Maybe I = should=20 talk to a lawyer=94;[37]

$ =20 =93I might = want to=20 talk to an attorney=94;[38]

$ =20 =93I think = I need a=20 lawyer=94;[39]

$ =20 =93Do you = think I=20 need an attorney here?=94;[40] or

$ =20 =93I = can=92t afford a=20 lawyer but is there anyway I can get one?=94 [41]

Nor is it enough for a suspect to ask to see someone other = than a=20 lawyer, such as a probation officer,[42] or a parent.[43]

=20 At the same time, a suspect does not have to use the precise = words =93I=20 want a lawyer.=94 [44] Courts have held the right to = counsel=20 was invoked when a suspect said:

$ =20 he did not =93want to make a statement at this time = without a=20 lawyer=94;[45]

$ =20 =93Uh, = yeah.=20 I=92d like to do that=94 in response to a question whether he understood = his right=20 to counsel;[46]

$ =20 =93Maybe I = should=20 talk to an attorney by the name of William Evans=94 and proffering that = attorney=92s=20 business card;[47]

$ =20 =93Can I = get an=20 attorney right now, man?=94;[48] or

$ =20 =93I=92d = just as soon=20 have an attorney =91cause, you know =97 = ya=92ll say there=92s=20 been a shooting.=94 [49]

While police=20 often carry printed cards to ensure precise Miranda warnings,[50] the public is not required to = carry=20 similar cards so they can give similarly precise responses.

=20 The parties here disagree whether Davis requires us to = consider=20 H.V.=92s circumstances =97 his youth, = Bosnian extraction,=20 and lack of previous experience with police. On this issue, the = Court=92s opinion=20 in Davis gives somewhat = mixed=20 signals. On the one hand, the Court said a statement must be = =93sufficiently clear[] that a reasonable police officer in the=20 circumstances would understand the statement to be a request for an=20 attorney.=94 [51] But the Court also said = invocation=20 should not turn on the suspect=92s personal characteristics:

We=20 recognize that requiring a clear assertion of the right to counsel might = disadvantage some suspects who =97 because of fear, intimidation, lack = of=20 linguistic skills, or a variety of other reasons =97 will not clearly = articulate=20 their right to counsel although they actually want to have a lawyer = present.[52]

=20 There appear to be no cases answering whether a juvenile=92s age = is among=20 the =93variety of other reasons=94 courts cannot consider when deciding = whether an=20 accused has requested counsel. Long before Davis, the Supreme Court held = that =93a=20 juvenile=92s age, experience, education, background, and intelligence, = and . . .=20 capacity to understand the warnings=94 must be considered when deciding = whether a=20 juvenile waived Miranda rights.[53] As the question here is not = whether H.V.=20 waived his right to counsel but whether he invoked it, it = is not=20 entirely clear which rule applies.

=20 But we need not decide in this case whether the court of appeals = erred in=20 considering H.V.=92s age, as we agree with = its ultimate=20 conclusion. It is hard to construe H.V.=92s = statement=20 that he =93wanted his mother to ask for an attorney=94 as anything other = than =93an=20 expression of a desire for the assistance of an attorney.=94[54] This is not a case in which = H.V. simply=20 wanted to see his mother; the only reason he said he wanted her was for = the=20 purpose of getting him an attorney. If he wanted private counsel, his = request=20 would have been technically correct, as his age at least hindered if it = did not=20 prevent him from doing so himself.[55]

=20 This case is a close one because, when the magistrate followed up = by=20 instructing H.V. that only he could ask for an appointed attorney, H.V. = never=20 did. But while ambiguous requests for counsel may be clarified by = further=20 questioning,[56] unambiguous ones cannot:

class=3DSection2> =

No=20 authority, and no logic, permits the interrogator to proceed . . . on = his own=20 terms and as if the defendant had requested nothing, in the hope that = the=20 defendant might be induced to say something casting retrospective doubt = on his=20 initial statement that he wished to speak through an attorney or not at = all.[57]

class=3DSection3> =

As = the=20 objective circumstances surrounding H.V.=92s = statement=20 rendered it an unambiguous request for an attorney, further = =93clarification=94=20 could not change it.

=20 Accordingly, we agree with the courts below that H.V.=92s second statement to the police was = properly=20 suppressed.

IV. Should the Gun Have Been Suppressed?

=20 The court of appeals held that suppression of H.V.=92s statement also required suppression of = the gun as=20 =93fruits of the poisonous tree,=94 a legal doctrine first recognized in = the context=20 of the Fourth Amendment.[58] But both the United States = Supreme Court=20 and the Court of Criminal Appeals have rejected this doctrine in the = Fifth=20 Amendment context of physical evidence obtained after failing to give = Miranda=20 warnings.[59]

=20 The court of appeals held otherwise, distinguishing cases in = which=20 Miranda rights were not read from cases like this one in which an = invocation of those rights was ignored.[60] That distinction was expressly = rejected=20 by the Court of Criminal Appeals in Baker v. State:

Both Tucker[[61]] and Elstad[[62]]involved the failure to give = the=20 required warnings rather than the failure to scrupulously honor warnings = given.=20 Neither the Supreme Court nor this Court has addressed whether the=20 Tucker/Elstad rule applies to = the fruits=20 of statements made in the latter context. But the principle is the same: = mere=20 noncompliance with Miranda does not result in a carryover taint = beyond=20 the statement itself . . . . We hold that the Tucker/Elstad rule applies to the failure to = scrupulously=20 honor the invocation of Miranda rights. In the absence of actual=20 coercion, the fruits of a statement taken in violation of Miranda = need=20 not be suppressed under the =93fruits=94 doctrine . . . .[63]

=20 The court of appeals pointed out that Elstad made a distinction between unread = rights and=20 ignored rights in a footnote.[64] But Elstad was not based on that = distinction, but=20 on reasoning that Miranda does not involve a constitutional = violation.[65] The court of appeals also = pointed out=20 that in 2000 the Supreme Court abandoned its characterization of = Miranda=20 as a prophylactic rather than a constitutional rule.[66] But the Court held four years = later that=20 this did not change the rule that physical evidence was admissible even = if=20 gained from questioning that violated Miranda.[67]

=20 More relevant to the question here is a different principle = stated by the=20 Supreme Court in Elstad and = since: the=20 Self-Incrimination Clause concerns compelled testimony, not physical = evidence.[68] The Fifth Amendment provides = that =93[n]o=20 person . . . shall be compelled in any criminal case to be a witness = against=20 himself=94;[69] thus, there can be no Fifth = Amendment=20 violation when a person=92s testimony is excluded.[70] Physical evidence that does = not compel a=20 defendant to testify against himself cannot be a violation of the Fifth=20 Amendment rights that Miranda protects, which is precisely what = the=20 Supreme Court held in 2004.[71]

=20 The court of appeals expressed concern that suppressing = testimonial=20 statements but not physical evidence might encourage police to reject a = request=20 for counsel deliberately in the hope of getting something they could = use.[72] But evidence obtained through = deliberate=20 violations of constitutional rights is usually inadmissible on that = basis=20 alone.[73]

=20 In this case, H.V.=92s counsel does = not argue=20 that his disclosure of the gun=92s location was involuntary or coerced = for any=20 reason other than violation of his Miranda request for counsel. = The=20 warnings and invocation of counsel here all occurred in court before a=20 magistrate without police involvement, so there could have been no = police=20 coercion.[74] Because violations of = Miranda do=20 not justify exclusion of physical evidence resulting therefrom, we hold the courts below erred in = excluding the=20 gun that brought about Daniel Oltmanns=92s = death.

*=20 * *

=20 Accordingly, we affirm the judgments below to the extent they = exclude=20 H.V.=92s second statement to police, reverse = the=20 judgments to the extent they exclude the gun found as a result, and = remand this=20 case to the trial court for further proceedings consistent with this=20 opinion.

=20 _______________________________

=20 Scott Brister

=20 Justice

OPINION DELIVERED: = April 11,=20 2008

^[1]=20 See Tex. Fam. Code = =A7=20 56.03(b)(5).

^[2]=20 See id. =A7 51.095(a)(1) (providing that children be warned of = their rights=20 by a magistrate); see also In re R.J.H., 79 S.W.3d 1, 4 (Tex. = 2002) (=93The=20 Texas Family Code provides that a juvenile can waive his rights once he = is in=20 custody only if joined by his attorney or if done in the presence of a=20 magistrate.=94).

^[3]=20 The State concedes that if H.V.=92s = statements to the=20 magistrate constitute an invocation of his right to counsel, it is = immaterial=20 that it was not also made to police.

^[4] 179 S.W.3d = 746. The=20 trial court denied suppression on =93[a]ll = other=20 grounds.=94

^[5]=20 See Tex. Fam. Code = =A7=A7=20 56.03(b)(5), 53.045.

^[6] = See In re=20 R.J.H., 79 S.W.3d at 6.

^[7] = See Univ.=20 of Tex. Sw. Med. Ctr. v. Loutzenhiser, = 140 S.W.3d=20 351, 358 (2004) (=93[A] court is obliged to ascertain that subject = matter=20 jurisdiction exists regardless of whether the parties have questioned=20 it.=94).

^[8] = See=20 Tex. Gov=92t Code = =A7=20 22.001(a)(6).

^[9] = Id. at=20 =A7 22.225(b)(3) (providing that generally =93a judgment of a court of = appeals is=20 conclusive on the law and facts, and a petition for review is not = allowed to the=20 supreme court . . . from other interlocutory appeals that are allowed by = law=94).

^[10] = See=20 United States v. = Loud=20 Hawk, 474 U.S. 302, 307 n.8 (1986) = (describing=20 similar appeal by federal prosecutor under 18 U.S.C. =A7 3731 as = interlocutory);=20 see also Black=92s Law=20 Dictionary 106 (8th ed. 2004) (=93interlocutory appeal. = An appeal that occurs before the trial court=92s final = ruling on the=20 entire case.=94).

^[11] = See,=20 e.g., State v. Stevens, 235 S.W.3d 736 (Tex. Crim. App. = 2007);=20 State v. Dixon, 206 S.W.3d 587 (Tex. Crim. App. 2006); State = v.=20 Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006); Kothe v. State, 152 S.W.3d 54 (Tex. = Crim. App.=20 2004); State v. Kurtz, 152 S.W.3d 72 (Tex. Crim. App. 2004); = State v.=20 Steelman, 93 S.W.3d 102 (Tex. Crim. App. = 2002);=20 Martinez v. State, 91 S.W.3d 331 (Tex. Crim. App. 2002); State = v.=20 Perez, 85 S.W.3d 817 (Tex. Crim. App. 2002); State v. Scheineman, 77 S.W.3d 810 (Tex. Crim. App.=20 2002).

^[12] = See=20 Tex. Code Crim.=20 Proc. art. = 4.04, =A7 2=20 (=93In addition, the Court of Criminal Appeals may, on its own motion, = with or=20 without a petition for such discretionary review being filed by one of = the=20 parties, review any decision of a court of appeals in a criminal = case.=94).=20

^[13] = See State=20 v. Medrano, 67 S.W.3d 892, 897=9699 (Tex. Crim. App. 2002) (=93All = fifty states,=20 as well as the District of Columbia, have provisions permitting the = government=20 to appeal adverse rulings of a question of law. Many of those states . . = .=20 permit the State to appeal any pretrial ruling suppressing evidence if = that=20 evidence is likely to be outcome determinative. Other states explicitly = grant=20 the prosecution a broad right to appeal any pretrial suppression, = evidentiary or=20 other legal ruling which is likely to determine the outcome of the = case.=94)=20 (citations omitted).

^[14] = Tex. Fam. Code =A7 56.03(b); = see=20 Act of June 2, 2003, 78th Leg., R.S., ch. 283, =A7=20 25, 2003 Tex. Gen. Laws 1221, 1228 (eff. Sept. 1, = 2003).

^[15] = Tex. Fam. Code =A7 = 56.03(i) (=93The Texas Rules of Appellate Procedure = apply to a=20 petition by the state to the supreme court for review of a decision of a = court=20 of appeals in a juvenile case.=94).

^[16] = Id. at = =A7=20 56.01(a).

^[17] = The State=20 reports that Justice Holman dissented in an original opinion in this = case, but=20 apparently withdrew that dissent on rehearing as the opinion before us = is=20 unanimous.

^[18] = Tex. Gov=92t = Code =A7 = 22.225(c).

^[19] = Henry=20 Schein, Inc. v. Stromboe, 102 S.W.3d = 675, 701=20 (Tex.=20 2003).

^[20] = Oltmanns died September 11, 2003, and all = proceedings herein=20 occurred thereafter. See Act of June 2, 2003, 78th Leg., R.S., = ch. 204, =A7 1.02, 2003 Tex. Gen. Laws 847, 848 = (expanding=20 conflicts jurisdiction for cases filed after September 1,=20 2003).

^[21] = Tex. Gov=92t = Code =A7 22.225(c),=20 (e).

^[22] = Id.

^[23] = See,=20 e.g., In re R.J.H., 79 S.W.3d 1 (Tex. 2002) (addressing whether juvenile=92s oral = confession=20 violated Miranda rights); In re D.A.S., 973 S.W.2d 296 = (Tex. 1998) = (addressing=20 whether Anders procedures applied to juvenile = appeals).

^[24] = 384=20 U.S. 436 = (1966).

^[25] = See also=20 In re R.J.H., 79 S.W.3d at 3 = n.3.

^[26] = See=20 Tex. Const. art. V, =A7 1 = (=93The Legislature=20 may establish such other courts as it may deem necessary and prescribe = the=20 jurisdiction and organization thereof . . . .=94). Because there are = conflicts=20 with Texas=20 courts of appeals=92 opinions, we do not reach the question whether = interlocutory=20 appeals are within our previous holdings that conflicts with opinions of = the=20 United States Supreme Court are sufficient for jurisdiction. Eichelberger v. Eichelberger, 582 S.W.2d 395, 400 (Tex. 1979); see also Mayhew v. Caprito, 794 S.W.2d 1, 2 (Tex. 1990); = U.S. Const. art. VI,=20 cl. 2; Tex. Const. art. I, =A7=20 1.

^[27] = 956 S.W.2d=20 19, 23 (Tex. Crim. App. 1997); see Garmon = v.=20 State, No. 07-05-0298-CR, 2007 WL 148836, at *1 n.2 (Tex. = App.=97Amarillo Jan.=20 22, 2007, pet. ref=92d) (noting conflict = between=20 H.V. and Baker); Rodriguez v. State, 191 S.W.3d = 428, 456=20 (Tex. App.=97Corpus Christi 2006, pet. ref=92d); Brown=20 v. State, No. 07-03-00347-CR, 2005 WL 1742984, at *5 (Tex. = App.=97Amarillo=20 July 25, 2005, no pet.); Marsh v. State, 115 S.W.3d 709, 715 = (Tex.=20 App.=97Austin 2003, pet. ref=92d). Of = these, only=20 those prior to the decision here establish conflicts jurisdiction. = See=20 Tex. Gov=92t Code = =A7 22.225(c)=20 (=93This section does not deprive the supreme court of jurisdiction of a = civil=20 case . . . in which one of the courts of appeals holds differently from = a=20 prior decision of another court of appeals or of the supreme = court . . .=20 .=94) (emphasis added); Collins v. Ison-Newsome, 73 S.W.3d 178, 180 (Tex.=20 2001).

^[28] = Davis v.=20 United States, = 512=20 U.S. 452, 461=20 (1994).

^[29] = Schall v. Martin, 467 = U.S. 253, 263 (1984); Breed v. = Jones, 421=20 U.S. 519, 531 = (1975); In=20 re J.R.R., 696 S.W.2d 382, 384 (Tex. 1985).

^[30] = State v.=20 C.J.F., 183 S.W.3d 841, 847 (Tex. App.=97Houston [1st Dist.] 2005, pet.=20 denied).

^[31] = Tex. Gov=92t = Code =A7 22.225(c),=20 (e).

^[32] = 384=20 U.S. 436, 469=9670 (1966) = (=93[T]he right=20 to have counsel present at the interrogation is indispensable to the = protection=20 of the Fifth Amendment privilege under the system we delineate today. . = . .=20 Thus, the need for counsel to protect the Fifth Amendment privilege = comprehends=20 not merely a right to consult with counsel prior to questioning, but = also to=20 have counsel present during any questioning if the defendant so = desires.=94);=20 see U.S. Const. amend. V (=93No = person . . .=20 shall be compelled in any criminal case to be a witness against himself = . . .=20 .=94).

^[33] = Edwards v.=20 Arizona, 451 U.S. = 477, 484=9685=20 (1981).

^[34] = Davis v.=20 United States, = 512=20 U.S. 452, 458 = (1994);=20 Edwards, 451 U.S. at=20 487; Miranda, 384 U.S. at = 479.

^[35] = In re=20 R.J.H., 79 S.W.3d 1, 4 (Tex. = 2002) (citing=20 In re Gault, 387 U.S. = 1, 41=20 (1967)).

^[36] = Davis,=20 512 U.S. at 458=9659 (internal = quotations=20 and citations omitted) (italics in original).

^[37] = Id.; = accord,=20 Dinkins v. State, 894 S.W.2d 330, 352 (Tex. Crim. App. 1995) = (=93Maybe I=20 should talk to someone=94).

^[38]=20 United = States v.=20 Zamora, 222=20 F.3d 756, 765=9666 (10th Cir. 2000).

^[39] = Burket v. Angelone,=20 208 F.3d 172, 198 (4th Cir. 2000).

^[40] = Mueller v.=20 Angelone, 181 F.3d 557, 573=9674 (4th = Cir. 1999);=20 accord, Soffar v. = Cockrell, 300=20 F.3d 588, 595 (5th Cir. 2002); Diaz v. Senkowski, 76 F.3d 61, 63=9665 (2d Cir.=20 1996).

^[41] = Lord v.=20 Duckworth, 29 F.3d 1216, 1219=9621 (7th Cir. 1994); accord, = Soffar, 300 F.3d at 595.

^[42] = Fare v.=20 Michael C., 442 U.S. 707, 724=20 (1979).

^[43] = Dewberry=20 v. State, 4 S.W.3d 735, 747 (Tex. Crim. App. 1999); Randall v. = State,=20 712 S.W.2d 631, 632 (Tex. App.=97Beaumont 1986, pet. ref=92d).

^[44] = Montoya v.=20 Collins, 955 F.2d 279, 283 (5th Cir. 1992) (=93This holding does not = require a=20 defendant to utter the magic words, =91I want a lawyer,=92 in order to = assert his=20 right to counsel.=94); Dewberry, 4 S.W.3d at 747 n.9 (=93There = are no magic=20 words required to invoke an accused=92s = right to=20 counsel.=94).

^[45]=20 United=20 States v. Johnson, 400 F.3d = 187, 195=20 (4th Cir. 2005).

^[46] = Smith v.=20 Illinois, 469 U.S. = 91, 93,=20 99=96100 (1984).

^[47] = Abela v. Martin, 380 F.3d 915, 919, = 926=9627=20 (6th Cir. 2004).

^[48] = Alvarez v.=20 Gomez, 185 F.3d 995, 998 (9th Cir. 1999).

^[49] = Kyger v. Carlton, 146 F.3d 374, 376, 379 = (6th Cir.=20 1998).

^[50] = See,=20 e.g., Oregon v. Elstad, 470=20 U.S. 298, 314=9615 & = n.4 (1985);=20 Arabzadegan v. State, 240 = S.W.3d 44, 46=20 (Tex. App.=97Austin 2007, pet. ref=92d); = Fineron v. State, 201 S.W.3d 361, = 364 (Tex.=20 App.=97El Paso 2006, no pet.).

^[51] = Davis v.=20 United States, = 512=20 U.S. 452, 459 (1994) = (emphasis=20 added).

^[52] = Id. at = 460.

^[53] = Fare v.=20 Michael C., 442 U.S. 707, 725 (1979); = see Delao v. State, 235 S.W.3d 235 (Tex. Crim. = App.=20 2007).

^[54] = Davis,=20 512 U.S. at = 459.

^[55] = See In re=20 D.A.S., 951 S.W.2d 528, 529 (Tex. App.=97Dallas 1997)(=93[A] minor = does not have=20 the legal capacity to employ an attorney . . . .=94), rev=92d on other grounds, 973 S.W.2d = 296 (Tex.=20 1998); accord, Lee v. Colorado City, Texas, No. 04-CV-00028, 2004 = WL=20 524923 *2 n.2 (N.D. Tex. Mar. 4, 2004); Francine v. Dallas Indep. Sch. Dist., No. 02-CV-1853, 2003 WL = 21501838, at=20 *2 (N.D. Tex. June 25, 2003); Byrd v. Woodruff, 891 S.W.2d 689, = 704 (Tex.=20 App.=97Dallas 1994, writ denied); In re Martel, No. = 12-06-00397-CV, 2007 WL=20 43616, at *3 (Tex. App.=97Tyler Jan. 8, 2007, orig. proceeding); Coleson v. Bethan,=20 931 S.W.2d 706, 712 (Tex. App.=97Fort Worth 1996, no writ); see also = Dairyland County Mut. = Ins. Co. of=20 Tex. v. Roman, 498 S.W.2d 154, 158 (Tex. 1973) (holding contract of a = minor, while=20 not void, is voidable at minor=92s election). The dissent cites a=20 nineteenth-century case for the rule that a minor can employ an attorney = as a=20 =93necessary=94 because =93it would be unreasonable to deny him the = power to secure=20 the means of defending himself.=94 Askey v. = Williams, 11=20 S.W. 1101, 1101 (Tex. 1889). We need not = decide today=20 whether that case survives the rule announced 78 years later that = juveniles have=20 a constitutional right to counsel, see In re Gault, 387 U.S. 1 (1967); we merely note that = it remains=20 the duty of a parent in the first instance to pay for such necessaries. = See=20 Tex. Fam. Code =A7 = 151.001(c)=20 (=93A parent who fails to discharge the duty of support is liable to a = person who=20 provides necessaries to those to whom support is = owed.=94).

^[56] = Davis,=20 512 U.S. at = 453.

^[57] = Smith v.=20 Illinois, 469 U.S. = 91, 98=9699=20 (1984).

^[58] = Wong Sun=20 v. United = States, 371=20 U.S. 471, 487 (1963); Kothe v. State, 152 S.W.3d 54, 60 = (Tex. Crim.=20 App. 2004); see = U.S. Const. amend. IV (=93The = right of=20 the people to be secure in their persons, houses, papers, and effects, = against=20 unreasonable searches and seizures, shall not be violated . . .=20 .=94).

^[59]=20 United = States v.=20 Patane, 542 U.S. = 630, 634=20 (2004) (plurality opinion); id. at 645 = (Kennedy,=20 J., concurring); Baker v. State, 956 S.W.2d 19, 23=9624 (Tex. = Crim. App.=20 1997).

^[60] 179 S.W.3d 746, 758.

^[61] = Michigan v. Tucker, 417 = U.S. = 433=20 (1974).

^[62] = Oregon v. Elstad,=20 470 U.S. 298 = (1985).

^[63] = Baker,=20 956 S.W.2d at 23=9624.

^[64] See Elstad, 470 U.S. at 312=9613 n.3 (stating that = as current=20 case involved mere failure to give Miranda warnings, =93[l]ikewise inapposite are the cases the dissent cites = concerning suspects whose invocation of their rights to remain silent = and to=20 have counsel present were flatly ignored while police subjected them to=20 continued interrogation=94). But see Oregon v. Hass, 420=20 U.S. 714, 723 (1975) = (refusing to=20 distinguish between unread rights and ignored rights when allowing = statements=20 that violate Miranda to be used for impeachment).

^[65] See Elstad, 470 U.S. at 306=9607 (=93[A] = procedural=20 Miranda violation differs in significant respects from violations = of the=20 Fourth Amendment . . . . The Miranda exclusionary rule, however, = serves=20 the Fifth Amendment and sweeps more broadly than the Fifth Amendment = itself . .=20 . Miranda=92s preventive medicine provides a remedy even to the = defendant=20 who has suffered no identifiable constitutional harm.=94).

^[66] See Dickerson v. = United States, 530 = U.S. = 428, 444=20 (2000) (=93In sum, we conclude that Miranda announced a = constitutional rule=20 that Congress may not supersede legislatively.=94).

^[67] See United=20 States v. Patane, = 542=20 U.S. 630, 643 (2004) = (plurality=20 opinion); id. at 645 (Kennedy, J.,=20 concurring).

^[68] Elstad,=20 470 U.S. at 304 (=93The Fifth = Amendment, of=20 course, is not concerned with nontestimonial = evidence.=94).

^[69] U.S. Const., amend. V = (emphasis=20 added).

^[70] Patane,=20 542 U.S. at 643 (plurality = opinion)=20 (=93Introduction of the nontestimonial fruit = of a=20 voluntary statement, such as respondent=92s Glock, does=20 not implicate the Self-Incrimination Clause. The admission of such fruit = presents no risk that a defendant=92s coerced statements (however = defined) will be=20 used against him at a criminal trial.=94); id. at 645 (Kennedy, = J.,=20 concurring) (=93Admission of nontestimonial = physical=20 fruits . . . does not run the risk of admitting into trial an accused=92s coerced incriminating statements = against=20 himself.=94).

^[71] Id. at 634.

^[72] 179 S.W.3d 746, 763; see also = Patane, 542 U.S. at 645 (Souter, J., = dissenting)=20 (=93The issue actually presented today is whether courts should apply = the fruit of=20 the poisonous tree doctrine lest we create an incentive for the police = to omit=20 Miranda warnings.=94).

^[73] Missouri v. Seibert, 542 = U.S. 600,=20 620=9621 (2004) (Kennedy, J., concurring); Patane, 542 U.S. at 639 (plurality opinion) = (stating=20 that fruits =93of actually compelled testimony=94 must be excluded); = Oregon v.=20 Hass, 420 U.S. 714, 723 (1975) (=93One might concede that when = proper=20 Miranda warnings have been given, and the officer then continues = his=20 interrogation after the suspect asks for an attorney, the officer may be = said to=20 have little to lose and perhaps something to gain by way of possibly = uncovering=20 impeachment material . . . . If, in a given case, the officer=92s = conduct amounts=20 to an abuse, that case, like those involving coercion or duress, may be = taken=20 care of when it arises measured by the traditional standards for = evaluating=20 voluntariness and trustworthiness.=94); cf. Fellers v. United = States, 540=20 U.S. 519, 524 (2004) (requiring suppression of information gained by = deliberate=20 violation of suspect=92s Sixth Amendment right to counsel). But see = Moran v.=20 Burbine, 475 U.S. 412, 423=9624 (1986) = (=93Granting=20 that the =91deliberate or reckless=92 withholding of information is = objectionable as=20 a matter of ethics, such conduct is only relevant to the constitutional = validity=20 of a waiver if it deprives a defendant of knowledge essential to his = ability to=20 understand the nature of his rights and the consequences of abandoning=20 them.=94).

^[74] See Tex. Fam. Code =A7 = 51.095(a)(1) (providing for admissibility of statements by = a child=20 when a magistrate =93has examined the child independent of any law = enforcement=20 officer or prosecuting attorney=94).