text:
    In re RABA-KISTNER ANDERSON CONSULTANTS, INC., d/b/a/ Raba-Kistner Consultants (SW), Inc., and Raba-Kistner Consultants Inc., Relator.
    No. 08-05-00298-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 17, 2005.
    Rehearing Overruled Dec. 14, 2005.
    Michael D. McQueen, Kemp, Smith, El Paso, Mario A. Barrera, Bracewell & Giuliani LLP, San Antonio, for relator.
    Luis Aguilar, San Antonio, respondent pro se.
    Joe A. Spencer, Jr., El Paso, for real party in interest.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

RICHARD BARAJAS, Chief Justice.

Relator, Raba-Kistner Anderson Consultants, Inc., d/b/a/ Raba-Kistner Consultants (SW), Inc., and Raba-Kistner Consultants Inc., asks this Court to issue a writ of mandamus against the Honorable Luis Aguilar, Judge of the 120th District Court of El Paso County. Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding). Moreover, there must be no other adequate remedy at law. Id.

As the party seeking relief, Relator has the burden of providing the Court with a sufficient record to establish its right to mandamus relief. Walker, 827 S.W.2d at 837; see Tex.R.App. P. 52.7(a)(2) (requiring a properly authenticated transcript or a statement that no testimony was adduced in connection -with the matter complained). Based on the record presented, we conclude that Relator has not shown that it is entitled to mandamus relief, and therefore, we deny mandamus relief. See Tex.R.App. P. 52.8(a).


source: Caselaw Access Project

author: SUE WALKER, Justice.

license: Public Domain

text:
    In the Matter of H.V.
    No. 2-04-029-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 17, 2005.

      Tim Curry, Crim. D.A., Charles M. Mal-lín, Asst. Crim. D.A. and Chief of the Appellate Division, Anne E. Swenson, David M. Curl, Jim Hudson, Asst. Crim. D.As., Fort Worth, for Appellant (State).
    Landrith & Kulesz, L.L.P., M. Shawn Matlock, Arlington, for Appellee.
    PANEL B: HOLMAN, WALKER, and MeCOY, JJ.
   OPINION ON REHEARING

SUE WALKER, Justice.

Following the issuance of our original opinion, the State filed a motion for rehearing arguing that we erred in our analysis of the State’s second issue by drawing a distinction between a custodial statement made voluntarily in the accidental absence of Miranda warnings (an accidentally unwarned statement) and a custodial statement made after a suspect had invoked his right to counsel and questioning nonetheless continued (a post failure-to-honor-a-request-for-counsel statement). Because we hold that, in determining the applicability of the fruit-of-the-poisonous-tree doctrine, a distinction does exist between these two types of statements, we deny the State’s motion for rehearing. We nonetheless withdraw our prior opinion and judgment and substitute this one to address the issues raised in the State’s motion, to clarify the standard of review we applied in addressing the State’s first issue, and to clarify certain facts.

I. Introduction

This is an interlocutory appeal by the State from the juvenile court’s order granting a motion to suppress a confession and a gun obtained as a result of that confession. In three points, the State contends that (1) Appellee H.V.’s second written statement should not have been suppressed because H.V. did not make an unequivocal request for counsel, (2) there was no justification for suppression of the firearm as alleged “fruit” of H.V.’s second written statement, and (3) section 52.02 of the Texas Family Code did not provide a basis to suppress either H.V.’s second written statement or the fruit of that statement. We will affirm.

II. Factual and Procedural Background

On September 10, 2003, police began investigating the death of Daniel Olt-manns, a North Crowley High School student, whose body was found at a construction site. Daniel’s wounds revealed that he had been shot in the head with a small caliber gun.

The next day, police and school administrators began interviewing students at North Crowley High School about the incident. A student at another high school notified the police that H.V. had purchased a gun a few days before the victim was shot. On September 12, 2003, an officer questioned H.V. at the high school, and H.V. stated that he thought that Daniel might have owed somebody money for drugs and that this debt may have caused his death.

Detective Cheryl Johnson said that she wanted to take H.V. from school to the Youth Division and question him, and he agreed to go. Upon arrival, Municipal Judge Alicia Johnson read H.Y. the Miranda warnings. Judge Johnson completed a “Warning to Child Offender” form which listed the Miranda warnings, and she and H.V. both signed it.- H.V.’s only concern was that his parents did not know where he was, so Detective Johnson made an effort to contact H.V.’s parents.- Detective Johnson then interrogated H.V. regarding the gun. H.V. executed a written statement — his first written statement, which was not suppressed — admitting that he had purchased a gun but stating that he had returned it to the seller before Daniel’s body was found. Detective Johnson did not believe H.V. and suspected that the gun was at H.V.’s house. After H.V. and Judge Johnson signed H.V.’s completed statement, Detective. Johnson took H.V. back to North Crowley High School and then drove to H.V.’s house, where she had requested that Officer Petrovic meet her.

By the time the police arrived at H.V.’s house, H.V. was home from school, and H.V.’s father was home also. Police asked for consent to search the home. Officer Petrovic translated for Detective Johnson as she introduced herself to H.V.’s father, explained that she was investigating the murder of Daniel Oltmanns, stated that officers had spoken with H.V. that morning and that he had admitted to having bought a gun, and said that she would like to search the house for the gun. H.V.’s father initially gave his consent but then spoke to his wife by phone and withdrew his permission to search the house. The police secured the residence while Detective Johnson went to obtain a search warrant.

The officers securing the house told H.V. and his father that they could not reenter the house. Despite this instruction, H.V. and his father tried a couple of times to gain access to the house but then left in a pickup truck. Later, an off-duty officer, who lived near H.V., spotted H.V. jumping over H.V.’s backyard fence.' H.V. was carrying a rolled-up piece of carpet, ahd the off-duty officer told H.V. to drop the carpet and return to the front yard. H.V. complied. The officers securing the house noticed that the carpet appeared to have blood on it. They arrested H.V. for tampering with evidence, handcuffed him, and placed him in the back of a patrol unit. H.V. spent approximately ninety minutes in the patrol car before he arrived at the juvenile processing office downtown. Before being transported to the juvenile processing office, H.V. made a spontaneous statement: “I didn’t kill anyone. He shot himself with my gun.”

After H.V. arrived at the juvenile processing office, he was interviewed by Municipal Judge Bendslev at around 7:30 p.m. and was given Miranda warnings. Judge Bendslev completed the “Warning to Child Offender” form setting forth the Miranda warnings in connection with H.V.’s second written statement. That form, unlike the warning form provided by Judge Johnson in connection with H.V.’s first written statement, is not signed by H.V.

Judge Bendslev appeared as a witness at the hearing on H.V.’s motion to suppress. She testified as follows:

Q. Okay, and at this point, you read him his rights: He had the right to remain silent, right to an attorney, okay?
A. (Nods affirmatively).
Q. And it’s at this point when he said he didn’t know; he would have to call his mom?
A. He said, I want to call my mother.
Q. Okay.
A. I want her to ask for an attorney.
Q. Okay, and you said that he could not call his mother?
A. I said at that point I was in the process of giving him his magistrate warnings, and that calling his mother was not an option at that time.
Q. Okay, and you again advised him that he could ask for an attorney, make a statement, or not make a statement?
A. That’s correct.
Q. And it’s at this point that he said, but I’m only 16?
A. That’s correct.
Q. As in, I’m only 16; I don’t know how to contact an attorney?
A. No, I think he — I’m not sure what he meant when he said that. I mean, my impression was that he thought because of his age that he wasn’t allowed to ask for an attorney, and I indicated to him that that was not a problem, that he was 16 and he could ask for an attorney if he wanted to ask for an attorney.
Q. And is it possible that he simply did not know the manner in which one goes about contacting an attorney?

A. It’s possible. [Emphasis added.] Judge Bendslev testified that, after H.V. said he wanted to talk to his mother, he wanted her to ask for an attorney,

I told him, we also had a brief conversation, he asked, well, I explained to him that if he chose not to make a statement at that time, that was fine, that he was currently being held in custody for tampering with physical evidence, and that he was ... under investigation for murder, and that if he wanted to speak to his mother, that he would be taken back down to the Juvenile facility at that time. I said, I don’t know what time-frame would be involved as far as your being able to see your mother.

Thereafter, H.V. agreed to make a statement, and Detective Carroll sat down to talk with H.V. about Daniel’s death. H.V. inquired about the “worst-case scenario” of what could happen to him, and Detective Carroll said that was for the court to decide. H.V. then gave his version of the events surrounding Daniel’s death, stating that it was an accident and that Daniel had shot himself. H.V. drew a diagram of where he had disposed of the gun, and police subsequently located it. After H.V. signed his statement, along with the judge, police secured a warrant to arrest him for murder.

Based on the above testimony, the trial court made the following findings of fact and conclusions of law:

FINDINGS OF FACT
1. On September 12, 2003, Fort Worth Police officers attempted to secure a search warrant for the Respondent’s residence. During that time, the Respondent and his father were advised not to re-enter the residence pending the search. Respondent was arrested after exiting his residence with a rug.
2. Respondent was placed in the back of a patrol car for approximately one hour. He was later taken out to remove, his handcuffs.- The Respondent was then placed back into the patrol car for approximately another thirty minutes before being transported to the Fort Worth Police Department to be interviewed by Detective Carroll. At no point while Respondent was in the patrol car was any attempt made by Fort Worth Police to contact Respondent’s parents as required by Texas Family Code Section 52.02.
3. Upon arrival, Fort Worth Magistrate Judge Gabrielle Bendslev interviewed the Respondent, and advised him of the warning required by Texas Family Code Section 51.095.
4. In response to questioning by Judge Bendslev regarding an attorney, the Respondent advised that he was only sixteen, that he did not know how to obtain an attorney, and that he wanted to contact his mother because he “wanted his mother to ask for an attorney.”
5. Judge Bendslev advised the Respondent that he was not entitled to contact his mother at that time.
6. Following this, Respondent indicated that he would speak with police.
7. Respondent made a written statement, Exhibit 4, that among other things, indicated the location of the firearm involved in the death of Daniel Olt-manns. The police were able to locate the weapon.
CONCLUSIONS OF LAW
3. The Respondent’s request to speak to his mother was an unambiguous request for counsel.
4. Because of the foregoing conclusions of law, and considering the totality of the circumstances, the statement made by Respondent, Exhibit I, following his arrest was obtained improperly and is inadmissible in trial.
5. The firearm recovered by the Fort Worth Police Department was only obtained as a result of improper questioning of Respondent, and therefore, is a “fruit of the poisonous tree” and is likewise inadmissible. [Emphasis added.]

III. Invocation of Right to Counsel

In its first point, the State contends that the trial court erred by concluding that H.Y.’s comments to Judge Bendslev constituted an unequivocal invocation of counsel. Specifically, the State argues that the trial court misapplied the law to the facts when it suppressed H.V.’s second written statement because its conclusion — that H.V. unambiguously invoked his right to counsel— is incorrect as a matter of law. H.V. responds that the trial court properly concluded that he made an unambiguous request for counsel, which should have ended the interview, when H.V. requested to speak to his mother so that she could ask for an attorney.

A. Standard of Review for Motion to Suppress

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court’s decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Best v. State, 118 S.W.3d 857, 861 (Tex.App.-Fort Worth 2003, no pet.). At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Ross v. State, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). Therefore, we give almost total deference to the trial court’s rulings on (1) questions of historical fact and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002); Best, 118 S.W.3d at 861-62. However, we review de novo a trial court’s rulings on mixed questions of law and fact if they do not turn on the credibility and demeanor of witnesses. Johnson, 68 S.W.3d at 652-53.

B. Law Regarding Unambiguous Request for Counsel

Prior to a custodial interrogation, a suspect must be advised that he has a right to consult with an attorney. Miranda, 384 U.S. at 467-68, 86 S.Ct. at 1624-25. Interrogation must cease immediately if the suspect states that he wants an attorney. Id. at 474, 86 S.Ct. at 1628; see also Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981); McCarthy v. State, 65 S.W.3d 47, 51 (Tex.Crim.App.2001), cert. denied, 536 U.S. 972, 122 S.Ct. 2693, 153 L.Ed.2d 862 (2002); Dinkins v. State, 894 S.W.2d 330, 350 (Tex.Crim.App.), cert. denied, 516 U.S.

832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995). A suspect’s invocation of his right to counsel must be “scrupulously honored.” See Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). A request for counsel must be unambiguous, meaning the suspect must “articulate 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.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). This standard, applied to adult suspects, also applies to juvenile suspects. Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979). A custodial statement made voluntarily after a suspect has invoked his right to counsel and questioning nonetheless continues renders the statement inadmissible in the State’s case-in-chief, but the statement may be admissible for impeachment purposes. See Harris, 401 U.S. at 224-26, 91 S.Ct. at 644-46 (holding failure to warn suspect of his right to counsel rendered voluntary statement inadmissible in State’s case-in-chief but statement was admissible for impeachment purposes); Oregon v. Hass, 420 U.S. 714, 722-24, 95 S.Ct. 1215, 1220-21, 43 L.Ed.2d 570 (1975) (holding post failure-to-honor-request-for-counsel statement admissible for impeachment purposes); Moran v. State, 171 S.W.3d 382, 392-94 (Tex.App.-Austin 2005, no pet.) (Puryear, J. dissenting.) (same); In re G.E., 879 A.2d 672, 676-80 (D.C.App.2005) (regarding juvenile's statement).

When reviewing alleged invocations of the right to counsel, we typically look at the totality of the circumstances surrounding the interrogation, as well as the alleged invocation, in order to determine whether a suspect’s statement can be construed as an actual invocation of his right to counsel. Dinkins, 894 S.W.2d at 351; Lucas v. State, 791 S.W.2d 35, 45-46 (Tex.Crim.App.1989). The United States Supreme Court explained that the totality-of-the-circumstances approach allows the court the flexibility necessary to determine whether a juvenile has invoked his rights:

There is no reason to assume that, such courts — especially juvenile courts, with their special expertise in this area — will be unable to apply the totality-of-the-circumstanees analysis so as to take into account those special concerns that are present when young persons, often with limited experience and education and with immature judgment, are involved. Where the age and experience of a juvenile indicate that his request for his probation officer or his■ parents is, in fact, an invocation of his right to remain silent, the totality approach will allow the court the necessary flexibility to take this into account in making a waiver determination. At the same time, that approach refrains from imposing rigid restraints on police and courts in dealing with an experienced older juvenile with an extensive prior record who knowingly and intelligently waives his' Fifth Amendment rights and voluntarily consents to interrogation.

Fare, 442 U.S. at 725-26, 99 S.Ct. at 2572 (emphasis added). This totality-of-the-circumstances test includes an evaluation of the juvenile’s age, experience, education, background, and intelligence. Id. at. 725, 99 S.Ct. at 2572; In re R.D., 627 S.W.2d 803, 806-07 (Tex.App.-Tyler 1982, no’writ).

C. Review of Trial Court’s Totality-of-the-Circumstances Determination

Here, the trial court heard live testimony from seven witnesses, and H.V. was present throughout the hearing, allowing the trial court to view his demeanor. The trial court found that before police transported H.V. to the police department where he made his second statement, he was detained for approximately one hour and thirty minutes in the back of a patrol car and was handcuffed for the majority, of that time. H.V. was arrested and placed in the patrol car at approximately 4:30 p.m. At approximately 7:30 p.m., Judge Bendslev arrived to provide warnings to H.V., and she spent approximately ten minutes with him before she turned him over to police for interrogation. During H.V.’s ten minutes with Judge Bendslev, he stated that he wanted to talk to his mother; he wanted her to ask for' an attorney; he was only sixteen. Judge Bendslev did not inform police that H.V. had asked to speak with his mother. She told police that “she did advise [H.V.] of his rights at that point, he had no questions, and he was agreeing to talk with [officers] at that point.”

Thereafter, police began questioning H.V. Police spoke to H.V. “for probably over an hour, 45 minutes to an hour, before the statement was actually taken.” Detective Carroll testified, “We talked about things such as soccer [and] the number of languages he spoke.” At approximately 9:50 p.m., Detective Carroll began typing H.V.’s statement, and he finished at 10:35 p.m. Judge Bendslev reviewed the statement with H.V. at approximately 11:00 p.m.

The totality of the circumstances surrounding the interrogation reflects that H.V. was a sixteen-year-old junior in high school. H.V. is from Bosnia; he had lived in the United States fewer than six years when he was arrested. There is no evidence that H.V. had been in trouble before or had any prior juvenile record that would have familiarized him with the criminal justice system. H.V. was in custody for more than five hours before he made the statement, was handcuffed for one hour, and had no prior juvenile record. During the ten minutes that he received warnings from Judge Bendslev, he specifically asked to talk with his mother and said he wanted her to ask for an attorney. Judge Bend-slev told him that he could not talk to his mother; if he did not want to talk to police, he would be returned to the juvenile facility, and she did not know what the timeframe was for H.V. to be able to speak to his mother. When Judge Bendslev tried to explain to H.V. that he himself could ask for an attorney, he said, “But I am only sixteen,” clearly indicating that he did not understand how a sixteen-year-old person could ask for and go about contacting an attorney. Judge Bendslev did not testify that H.V. affirmatively indicated that he did not want an attorney. Nor did she indicate that H.V. affirmatively stated that he wanted to talk to police despite his right to an attorney. Cf. Dewberry v. State, 4 S.W.3d 735, 747 (Tex.Crim.App.1999) (holding trial court properly denied motion to suppress confession when defendant was advised of right to counsel and responded by stating he had not “done anything wrong. I don’t need a lawyer.”), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). H.V. did not sign the “Warning to Child Offender” form, setting forth the Miranda warnings and signed by Judge Bendslev, in connection with his second written statement, and police chatted with H.V. for forty-five minutes to an hour before moving to the issue of the disappearance of Daniel Oltmanns.

The record demonstrates that H.V. articulated his desire to have counsel present sufficiently clearly that a reasonable magistrate judge in the circumstances would understand H.V.’s request to call his mother to be an unambiguous request for an attorney when such request was followed by his statement that he wanted his mother to ask for an attorney and his exclamation that he was only sixteen in response to Judge Bendslev’s comment that he could ask for an attorney. See Davis, 512 U.S. at 459, 114 S.Ct. at 2355. This is not a situation in which the juvenile requested only to speak with his mother. Compare R.D., 627 S.W.2d at 806-07 (applying totality-of-circumstances test to hold that in light of defendant’s juvenile record and experience on probation, psychologist’s report indicating defendant was functioning in average cognitive range, and lack of evidence juvenile was worn down by improper interrogation tactics or lengthy questions, juvenile’s statement that “he wanted to talk to his mother” standing alone was not invocation of right to counsel). The undisputed evidence establishes that H.V. said, “I want to call my mother. I want her to ask for an attorney.” When H.V. was told that he could ask for an attorney, he said, “But I am only sixteen.” Consequently, this is more than a situation in which the defendant, with regard to hiring an attorney, equivocally says, “I want to talk to my mother about whether to hire an attorney”; this is a situation in which H.V. unequivocally indicated that he wanted an attorney — he wanted to call his mother; he wanted her to ask for an attorney. Accord Loredo v. State, 130 S.W.3d 275, 284 (Tex.App.-Houston [14th Disk] 2004, pet. ref'd) (holding appellant’s question of whether he could ask for a lawyer, followed by a police officer’s comment that he could and that if he did the interrogation would cease, did not constitute an unambiguous invocation of the right to counsel when appellant thereafter continued to speak with the officer).

Moreover, the totality of the circumstances surrounding the interrogation supports the trial court’s determination that H.V. invoked his right to counsel. See Mayes v. State, 8 S.W.3d 354, 361 (Tex.App.-Amarillo 1999, no pet.) (holding under totality of circumstances statement that “I have to get one for both of us” was unambiguous invocation of right to counsel). The facts at bar are the type of facts contemplated by the United States Supreme Court in Fare, 442 U.S. at 724-25, 99 S.Ct. at 2571-72. Here, H.V.’s age and lack of experience indicate that his request to call his mother, coupled with his statement that he wanted her to ask for an attorney and his exclamation that he was only sixteen, was in fact an invocation of his right to counsel, and the totality-of-the-circumstances approach allows the juvenile court the necessary flexibility to take this into account in determining whether a juvenile has invoked his Fifth Amendment rights. See id.

The cases relied upon by the State are distinguishable. The State cites State v. Hyatt, 355 N.C. 642, 566 S.E.2d 61 (2002), cert. denied, 537 U.S. 1133, 123 S.Ct. 916, 154 L.Ed.2d 823 (2003). But in Hyatt, evidence at the suppression hearing conclusively established that the defendant “whispered” to his father that he wanted his father to get an attorney for him. Id. at 70-71. In Hyatt, both officers testified that they did not hear the defendant ask his father to obtain an attorney, and the trial court made a specific finding of fact that “neither Agent Shook nor Detective Benjamin heard defendant’s alleged invocation of his right to counsel.” Id. Here, there is no question that Judge Bendslev heard H.V. state that he wanted to call his mother, he wanted her to ask for a lawyer, he was only sixteen.

The State also relies upon Fare, 442 U.S. at 719-20, 99 S.Ct. at 2569. But in Fare, the juvenile did not state that he wanted to call his mother because he wanted her to ask for a lawyer; the juvenile said he wanted to call his probation officer. Id. The United States Supreme Court held that the rule in Miranda is based on the critical position lawyers occupy in our legal system because of a lawyer’s unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Id. Because of a lawyer’s special ability to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege.” Id. (quoting Miranda, 384 U.S. at 469, 86 S.Ct. at 1625). Here, H.V. specifically indicated that he wanted to talk to his mother; he wanted her to ask for a lawyer. Through this request, H.V. sought a lawyer’s unique ability and assistance, not simply the assistance of his mother or a probation officer.

The State also cites Flamer v. Delaware, 68 F.3d 710, 725 (3d Cir.1995), cert. denied, 516 U.S. 1088, 116 S.Ct. 807, 133 L.Ed.2d 754 (1996). Flamer involved a twenty-five-year-old adult suspect. Id. at 719. At his arraignment hearing, Flamer asked permission to call his mother “to inquire about bail and possible representation by counsel.” Id. at 725. The Third Circuit held that “a request for an attorney at arraignment is, in itself, insufficient to invoke the Fifth Amendment right to counsel at subsequent custodial interrogation.” Id. at 726. Here, H.V. did not request an attorney at arraignment; he indicated that he wanted his mother to ask for an attorney prior to custodial interrogation.

Because the trial court is the sole judge of the credibility of the witnesses and the weight of their testimony, we hold that the trial court’s findings and conclusions are supported by the record. Ross, 32 S.W.3d at 855. Viewing the totality of the circumstances, we hold that the trial court did not abuse its discretion in suppressing H.V.’s second written statement when it properly determined that H.V.’s request to talk to his mother because he wanted her to hire an attorney was a request for counsel. Compare R.D., 627 S.W.2d at 805-07 (applying totality of the circumstances and holding that bare request to talk to mother, without more, was not request for counsel). We overrule the State’s first point.

IV. Suppression of Weapon

In his second statement, which the trial court suppressed, H.V. explained that he “threw the gun in the gutter close to [his] house.” At the suppression hearing, Detective Carroll indicated that, as a result of H.V.’s second statement, police located the gun. During Detective Carroll’s questioning, he said that H.V. told him that he took the gun and placed it in a sewer near his house, that H.V. drew a diagram of the gun’s location, and that police found the gun.

In its second point, the State argues that even if H.V.’s second written statement is suppressed, the trial court erred by suppressing the gun as the alleged “fruit” of H.V.’s second written statement. H.V. responds that the violation of his Fifth Amendment right to counsel mandates the suppression of not only his second statement but also the derivative evidence obtained from that statement.

Once an accused in custody has requested the assistance of an attorney, officers must terminate all interrogation until counsel is made available or the accused voluntarily reinitiates communication. See Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990); Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1885; Cross v. State, 144 S.W.3d 521, 526 (Tex.Crim.App.2004). An accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease. Edwards, 451 U.S. at 485, 101 S.Ct. at 1885; Fare, 442 U.S. at 719, 99 S.Ct. at 2569; Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980). The presence of counsel insures the process of police interrogation conforms to the dictates of the Fifth Amendment privilege by insuring that an accused’s statements made in a government-established atmosphere are not the product of compulsion. Miranda, 384 U.S. at 466, 86 S.Ct. at 1623; see also Fare, 442 U.S. at 719, 99 S.Ct. at 2569. Any statement taken after a person invokes his Fifth Amendment privilege “cannot be other than the product of compulsion, subtle or otherwise.” Fare, 442 U.S. at 717, 99 S.Ct. at 2568 (quoting Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28).

Here, the trial court found that H.V. invoked his right to counsel. Deferring, as we must, to the historical facts found by the trial court and not challenged by the State, we have held that the trial court did not abuse its discretion by concluding that H.V. invoked his Fifth Amendment right to counsel. Consequently, all intérrogation should have ceased. Edwards, 451 U.S. at 485, 101 S.Ct. at 1885; Fare, 442 U.S. at 719, 99 S.Ct. at 2569; Innis, 446 U.S. at 298, 100 S.Ct. at 1688. H.V.’s subsequent statement, “cannot be other than the product of compulsion, subtle or otherwise.” Fare, 442 U.S. at 717, 99 S.Ct. at 2568 (quoting Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627-28). The magistrate’s failure to honor H.V.’s invocation of his right to counsel, placing him instead directly into a custodial interrogation without counsel, operated to overcome H.V.’s free choice in producing a statement. See Miranda, 384 U.S. at 474, 86 S.Ct. 1628. The remaining question is whether our holding — that H.V.’s statement disclosing the location of the gun was taken in violation of his invoked right to the presence of counsel during custodial interrogation— mandates suppression of the gun as determined by the trial court.

The State points out, and we agree, that the “fruit of the poisonous tree” doctrine articulated in Wong Sun does not apply to a mere failure to provide Miranda warnings to a suspect prior to custodial interrogation when the suspect makes a voluntary statement: while the statement must be suppressed, other evidence subsequently obtained as a result of that accidentally unwarned statement, that is the “fruit” of the statement, need not be suppressed. United States v. Patane, 542 U.S. 630, 639, 124 S.Ct. 2620, 2628, 159 L.Ed.2d 667 (2004) (holding accidental failure to give suspect Miranda warnings did not require suppression of physical fruits of suspect’s unwarned but voluntary statement); Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 1292, 84 L.Ed.2d 222 (1985) (holding accidentally unwarned statements may be used to impeach defendant’s testimony at trial); see also Michigan v. Tucker, 417 U.S. 433, 452, 94 S.Ct. 2357, 2368, 41 L.Ed.2d 182 (1974); Baker v. State, 956 S.W.2d 19, 22 (Tex.Crim.App.1997); accord Marsh v. State, 115 S.W.3d 709, 715 (Tex.App.-Austin 2003, no pet.) (involving allegation of post-arrest interrogation before receiving Miranda warnings); Montemayor v. State, 55 S.W.3d 78, 90 (Tex.App.-Austin 2001, pet. ref'd) (same). Here, however, H.V.’s second statement was not simply an unwarned statement; H.V. invoked his right to counsel before he made his second statement.

The State argues in its motion for rehearing that no distinction exists between fruit from an accidentally unwarned statement, like in Patane, and fruit from a post failure-to-honor-a-request-for-counsel statement, like H.V.’s here. Stated another way, the State contends that the disregard of a suspect’s invocation of his right to counsel should not trigger the application of the fruit-of-the-poisonous-tree doctrine because under Patane the accidental failure to provide Miranda warnings does not. The Supreme Court of the United States has not explicitly addressed the issue of whether fruits derivative of a voluntary, post failure-to-hon- or-a-request-for-counsel statement are admissible in the State’s case-in-chief, but numerous state and federal courts have, and they are split on the issue. See Patterson v. United States, 485 U.S. 922, 922, 108 S.Ct. 1093, 1094, 99 L.Ed.2d 255 (1988) (White and Brennan, JJ., dissenting from denial of certiorari) (recognizing that the United States Supreme Court had “expressly left open the question of the admissibility of physical evidence obtained as a result of an interrogation conducted contrary to the rules set forth in Miranda ” and recognizing the split among the lower courts). Because, as discussed below, in Elstad the Supreme Court recognized a distinction between the admissibility of fruit from a custodial statement voluntarily made in the accidental absence of Miranda warnings — which does not involve a constitutional violation — and fruit from a violation of an accused’s constitutional rights, and because the Supreme Court in Dickerson v. United States and in Missouri v. Seibert affirmed that Miranda set forth a constitutionally based rule, we hold that such a distinction does exist and that fruits derivative of a voluntary, post failure-to-honor-a-request-for-counsel statement are inadmissible in the State’s case-in-chief. See also Harris, 544 N.W.2d at 553 (holding “there is a critical difference between a mere defect in the administration of Miranda warnings “without more’ and police-initiated interrogation conducted after a suspect unambiguously invokes the right to have counsel present during questioning”); Mark S. Bransdorfer, Note, Miranda Rightr-to-Counsel Violation's and the Fruit of the Poisonous Tree Doctrine, 62 Ind. L.J. 1061, 1061, 1097 (1987) (explaining why Wong Sun’s fruit-of-the-poisonous-tree doctrine should apply to “second generation derivative evidence after an Edwards violation”).

We begin by examining the fruit-of-the-poisonous-tree doctrine. Only evidence uncovered as a result of police infringement of a constitutional right is “fruit of the poisonous tree” because the constitutional infringement creates a “poisonous tree,” and the evidence discovered as a result of the constitutional violation is the “fruit” of that violation. Wong Sun, 371 U.S. at 485-86, 83 S.Ct. at 416 (recognizing policy underlying exclusionary rule is to bar “any use of evidence unconstitutionally obtained”); see also Nix v. Williams, 467 U.S. 431, 442-43, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984) (purpose of fruit of poisonous tree doctrine is to “deter police from violations of constitutional and statutory protections”). There is no constitutional right, however, to receive Miranda warnings; that is, there is no constitutional right to be warned of your constitutional rights. New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 2630, 81 L.Ed.2d 550 (1984) (quoting Tucker, 417 U.S. at 444, 94 S.Ct. at 2364) (recognizing that “[t]he prophylactic Miranda warnings therefore are “not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected’ ”). Thus, because the accidental failure to give Miranda warnings does not infringe upon an accused’s constitutional rights, an accidental failure to warn does not create a “poisonous tree.” See, e.g., Patane, 542 U.S. at 637, 124 S.Ct. at 2626 (holding “mere failures to warn” do not violate the Constitution); Elstad, 470 U.S. at 304, 105 S.Ct. at 1290 (holding accidental failure to warn does not require suppression of second warned statement); Tucker, 417 U.S. 433, 452, 94 S.Ct. 2357, 2368, 41 L.Ed.2d 182 (same). In the absence of a “poisonous tree,” physical “fruit” from a voluntary, accidentally unwarned statement need not be suppressed. See Patane, 542 U.S. at 636-37, 124 S.Ct. at 2626; Elstad, 470 U.S. at 304, 105 S.Ct. at 1290.

The Supreme Court, in Elstad, expressly recognized this distinction. In Elstad, two officers visited eighteen-year-old El-stad’s home to arrest him in connection with a robbery at a neighbor’s home. Elstad, 470 U.S. at 300-02, 304, 105 S.Ct. at 1288-90. When one of the officers asked Elstad if he knew a person by the neighbor’s name, Elstad responded that he did and said that he had heard that there had been a robbery at the neighbor’s home. Id. at 301, 105 S.Ct. at 1288-89. The officer stated his belief that Elstad was involved, and Elstad responded, “Yes, I was there.” Id. Elstad was taken to police headquarters where he was Miran- dized, waived his rights, and gave a confession. Elstad argued that his initial statement, ‘Tes, I was there” had to be suppressed because he was not given his Miranda warnings before he made this statement. He also argued that his second statement was the “fruit” of the first, un Mirandized statement, so it also should be suppressed. The Oregon Court of Appeals agreed and suppressed the second, Mirandized statement. The United States Supreme Court reversed, explaining,

The Oregon court assumed and respondent here contends that a failure to administer Miranda warnings necessarily breeds the same consequences as police infringement of a constitutional right, so that evidence uncovered following an unwarned statement must be suppressed as “fruit of the poisonous tree.

Id. at 303-04, 105 S.Ct. at 1290 (emphasis added). Thus, in Elstad, the Supreme Court recognized a distinction in the admissibility of evidence uncovered following police infringement of a constitutional right and the admissibility of evidence uncovered following an accidentally unwarned statement.

We consequently come to the question of whether a suspect’s in-custody invocation of the right to counsel — that he has just been advised he possesses — constitutes the invocation of a constitutional right. If a suspect’s invocation of his right to counsel constitutes the invocation of a constitutional right, the fruit-of-the-poisonous-tree doctrine is applicable. Accord id. at 470 U.S. at 304,105 S.Ct. at 1290. If a suspect has no constitutional right to counsel during custodial interrogation, then the fruit-of-the-poisonous-tree doctrine is inapplicable, and the State’s position is correct. Accord Patane, 542 U.S. at 636, 124 S.Ct. at 2625-26. Support for the proposition that the right to counsel during custodial interrogation is a Fifth Amendment constitutional right is found in numerous Supreme Court cases dealing with the right to counsel in the Fifth Amendment context.

As discussed in connection with the State’s first point, the Supreme Court has repeatedly emphasized the importance of the right to counsel during custodial interrogation:

The rule in Miranda ... was based on this Court’s perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, the Court found that ‘the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system’ established by the Court.

Fare, 442 U.S. at 719, 99 S.Ct. at 2568-69 (emphasis added); see also Edwards, 451 U.S. at 484, 101 S.Ct. at 1884-85 (citing North Carolina v. Butler, 441 U.S. 369, 372-76, 99 S.Ct. 1755, 1757-59, 60 L.Ed.2d 286 (1979)) (safeguarding invoked right to counsel by imposing restrictions on subsequent waiver of that right).

Additional support for the constitutional nature of the right to counsel during custodial interrogation is found in Dickerson, 530 U.S. at 440, 120 S.Ct. at 2334. In Dickerson, the United States Supreme Court affirmed that the Miranda “system established by the Court,” presumably including the right to counsel during custodial interrogation, is founded upon the Fifth Amendment. Id. at 440, 120 S.Ct. at 2334 nn. 5, 6 (holding Miranda is “constitutionally based” and string citing multiple Supreme Court opinions). Because the Miranda rules are constitutionally based, the Dickerson Court declared unconstitutional a statute that required courts to gauge a confession’s admissibility based solely on its voluntariness, without regard to compliance with Miranda. Id. at 440, 120 S.Ct. at 2334. The Dickerson Court held, “In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively.” Id. at 444, 120 S.Ct. at 2336. We have no doubt that Dickerson prohibits a legislature from not only a wholesale abandonment of Miranda’s constitutional rule but also from a piecemeal abandonment of Miranda’s constitutional rule, such as a legislative elimination of a suspect’s right to counsel during custodial interrogation. Accord Edwards, 451 U.S. at 482, 101 S.Ct. at 1883 (stating that “an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation”). Accordingly, because pur--suant to Dickerson it would appear that a legislature is without authority to eliminate an accused’s right to counsel during custodial interrogation, that right appears to be part and parcel of Miranda’s Fifth Amendment constitutional rule.

Finally, still more support for the proposition that the right to counsel during custodial interrogation is a Fifth Amendment constitutional right is found in the Supreme Court’s recent decision in Missouri v. Seibert. In Seibert, the Supreme Court addressed the admissibility of a statement when the Miranda warnings that were given were rendered totally ineffective. 542 U.S. at 604, 124 S.Ct. at 2605. Officers in Rolla, Missouri were trained to interrogate suspects in successive unwarned and warned phases. Id. at 609, 124 S.Ct. at 2608. Officers intentionally withheld Miranda warnings in the first, unwarned phase of the interrogation until a confession was obtained. Id. Officers then provided Miranda warnings and then covered the same ground again, thereby eliciting a post-warning, purportedly admissible statement. Id. at 609-10, 124 S.Ct. at 2608-09. Consequently, by the time the accused received Miranda warnings, he had already confessed and had no real choice concerning the invocation of his constitutional guarantees. Id. at 611-12, 124 S.Ct. at 2609-10. The Supreme Court held that, under these circumstances, the second, warned statement must also be suppressed because, the warnings could not “function effectively as Miranda requires.” Id. at 611-12, 124 S.Ct. at 2610.

Likewise, the “indispensable” right to counsel during custodial interrogation cannot function effectively as Miranda requires if the police are free to ignore an accused’s invocation of his right to counsel in hopes of obtaining physical evidence that will be admissible against the accused. Counsel cannot exercise his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation if the custodial interrogation is completed in his absence. As explained by the Supreme Court of Wisconsin,

The rule argued for by' the State' [no suppression of fruits derivative of post failure-to-honor-a-request-for-counsel statement] would minimize the seriousness of the police misconduct producing the evidentiary fruits, breed contempt for the law, and encourage the type of conduct that Miranda was designed to prevent.
Regarding minimizing the seriousness of police misconduct and breeding contempt for the law, Professor Yale Kami-sar has written:
Consider, for example, a situation where the suspect has invoked his right to counsel, but the police continue to question him in order to retrieve the murder weapon or some other nontestimonial evidence. In this set of circumstances[,] the police have nothing to lose by rejecting the request for counsel (they will lose any statement the suspect might make, but they would have lost any statement anyway if they had honored the suspect’s request for counsel and immediately ceased all questioning) and something to gain (the use of physical evidence that the inadmissible statement might turn up).

Knapp, 700 N.W.2d at 918-19 (quoting Yale Kamisar, Postscript: Another Look at Patane and Seibert, the 2004- Miranda “Poisoned Fruit” Cases, 2 Ohio St. J.CRiM. L. 97,105 (2004)).

Seibert instructs that strategists cannot drain the substance out of Miranda by providing ineffective warnings that cannot serve their intended purposes. 542 U.S. at 617, 124 S.Ct. at 2613. The whole purpose of Miranda was to “give concrete constitutional guidelines for law enforcement agencies and courts to follow.” Dickerson, 530 U.S. at 439, 120 S.Ct. at 2334 (quoting Miranda, 384 U.S. at 441-42, 86 S.Ct. at 1602). The concrete constitutional guidelines require that interrogation cease when an accused unambiguously invokes his right to counsel. See, e.g., Minnick, 498 U.S. at 153, 111 S.Ct. at 491; Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1885; Cross, 144 S.W.3d at 526. To nonetheless hold that, if interrogation does not cease, fruits from the post invocation-of-the-right-to-counsel statement are admissible would impermissibly erode Miranda’s concrete constitutional guidelines and drain all substance from the purported right to counsel during custodial interrogation. For these reasons, we hold that the right to counsel during custodial interrogation is a constitutional, Fifth Amendment right.

As we previously discussed, H.V. was detained for approximately three hours — from 4:30 p.m. to 7:30 p.m. — before he was given Miranda warnings. As we have held, and the trial court found, H.V. invoked his right to counsel when he was informed of that right by Judge Bendslev. Nonetheless, Judge Bendslev turned H.V. over to police for interrogation and, from shortly after 7:30 p.m. until 10:35 p.m., police interrogated H.V. in the absence of counsel. After more than two hours of custodial interrogation, Detective Carroll began typing H.V.’s statement. The custodial interrogation of H.V. despite H.V.’s invocation of his right to counsel infringed upon H.V.’s constitutional Fifth Amendment right to counsel. See Edwards, 451 U.S. at 481-82, 101 S.Ct. at 1883-84 (recognizing that Fifth Amendment right to counsel attaches during custodial interrogation). After H.V. incriminated himself in his second statement and therein disclosed the location of the gun, police concluded their interrogation and H.V.’s Fifth Amendment right to have counsel present during that completed interrogation was forever lost. This constitutional violation of H.V.’s Fifth Amendment right to counsel created a “poisonous tree.” The evidence discovered as a result of this constitutional violation — the gun — is the “fruit” of that violation and must be suppressed, at least in the State’s case-in-chief. See Hass, 420 U.S. at 722-24, 95 S.Ct. at 1220-21; Wong Sun, 371 U.S. at 485-86, 83 S.Ct. at 416.

We realize that we are to maintain the “closest possible fit ... between the Self-Incrimination Clause and any judge-made rule designed to protect it.” Patane, 542 U.S. at 643, 124 S.Ct. at 2629-30. Here, the “fit” between H.V.’s invocation of his Fifth Amendment right to counsel and the trial court’s suppression of the gun — the judge-made ruling — is a proper, close “fit.” The Fifth Amendment right to counsel is protected only by an exclusionary rule that requires suppression of the physical fruits located as a result of information provided in a post failure-to-honor-a-request-for-counsel statement; otherwise, the Fifth Amendment right to counsel would truly exist only when interrogators decided to honor a suspect’s request for counsel. For these reasons, we hold that the trial court did not abuse its discretion by granting H.V.’s motion to suppress the gun located by police as a result of his second statement. Accord Tex. Fam.Code Ann. § 54.03(e) (Vernon Supp.2005) (stating that evidence illegally seized or obtained is inadmissible in an adjudication hearing).

Nor was evidence introduced at the suppression hearing that the gun would have been, or was, discovered by means sufficiently distinguishable to be purged of the violation of H.V.’s Fifth Amendment privilege. Compare Thornton v. State, 145 S.W.3d 228, 233-34 (Tex.Crim.App.2004) (holding sufficient attenuating factors existed dissipating taint of illegal arrest from derivative evidence obtained as a result of arrest). We overrule the State’s second point.

V. Conclusion

Having overruled all of the State’s points, we affirm' the trial court’s order suppressing H.V.’s second written statement and the gun obtained as a result of that statement.

      . H.V. also requested that the trial court suppress his first written statement given on the morning of September 12, 2003, all evidence listed in the search warrant return (i.e., swabs, carpet, couch sample, carpet tack, shower curtain and rod, door handle, spray bottle, rag, t-shirt, towels, lint from dryer, shorts, briefs, plastic cover, cell phone, carpet sample from 1999 Honda Accord, seat sample from 1999 Honda Accord, camera from 1999 Honda Accord, 2 HP computers, blue trash bin, and brown trash bin), any evidence seized from his computer pursuant to the search warrant, and his spontaneous statements made while under arrest the afternoon of September 12, 2003. The trial court denied H.V.’s motion to suppress his first written statement, the evidence seized pursuant to the search warrants, the spontaneous statements H.V. made at the patrol car, and any statement H.V. made without being warned of his rights under the Vienna Convention. These rulings are not at issue here.

      . During the week following the initial investigation, the police spoke to witnesses who saw H.V. purchase the gun.

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

      . Detective Johnson requested Officer Petro-vic’s presence because she knew that H.V. had moved to the United States from Bosnia when he was in the fifth grade and suspected that she might need a translator when speaking with H.V.’s parents.

      . H.V. made a phone call after Detective Johnson returned him to the school, and then he left campus.

      . Officers did not see H.V. enter the house; the off-duty officer spotted him as he was leaving the residence.

      . The trial court did not suppress this statement.

      . Although the defendant carries the burden of unequivocally asserting his right to counsel, see Davis, 512 U.S. at 461-62, 114 S.Ct. at 2356-57, the State has the burden of establishing by a preponderance of the evidence that the defendant subsequently voluntarily waived his right to counsel. Moran v. Bur-bine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986) (holding State is required to establish alleged waiver "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it"). The State challenges only the trial court’s finding that H.V. unambiguously invoked his right to counsel; it does not claim that, after invoking the right to counsel, H.V. subsequently waived that right.

      . In this opinion, we use the term “voluntary” or "voluntarily” to describe statements made as the result of custodial interrogation when the defendant makes no claim that his statement was actually coerced or involuntary. See, e.g., Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971) (noting that "[p]etitioner makes no claim that the statements made to the police were coerced or involuntary”).

      . The State points to H.V.'s initial contact with the magistrate judge on the morning of September 12, 2003 to show that he was familiar with the magistrate warning process. The trial court as sole trier of the facts and judge of the credibility of the witnesses, however, was free to determine the weight to be accorded this fact in light of the totality of the circumstances. See Ross, 32 S.W.3d at 855.

      . The trial court heard the witnesses, including Judge Bendslev, testify and the trial court interpreted H.V.’s statement that he was only sixteen as meaning “that he did not know how to ask for an attorney.” See Finding of Fact Number 4.

      . The State does not challenge on appeal the trial court's ruling that H.V.'s second written statement is inadmissible "at trial,” or argue that H.V.’s statement, although inadmissible during the State’s case-in-chief, may become admissible for impeachment purposes. Consequently, we do not address this issue.

      . In H.V.'s first statement, which was not suppressed, he admitted purchasing a gun from a friend and identified the individuals present when he purchased it as well as the individuals to whom he subsequently showed the gun. In this first statement, H.V. claimed that he returned the gun to the seller because he decided he did not want it.

      .The Sixth Amendment right to counsel does not attach until a prosecution is commenced, that is, "at or after the initiation of adversary judicial proceedings against the defendant.” Green v. State, 934 S.W.2d 92, 97 (Tex.Crim.App.1996) (quoting United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984)), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997). In this case, no charges had been brought against H.V. prior to the custodial interrogation at issue. Accordingly, we analyze the issue under the Fifth Amendment.

      . Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

      . Patane, 542 U.S. at 636, 124 S.Ct. at 2625-26.

      . The State relies heavily on Oregon v. Hass for this proposition. 420 U.S. at 722-24, 95 S.Ct. at 1220-21. But in Hass, the defendant's post failure-to-honor-a-request-for-counsel statement was suppressed and, likewise, the fruit of that statement — the defendant's pointing out the location of the stolen bicycle, was also suppressed. Id. The issue was whether the statement and its fruit were admissible as impeachment evidence. Id. Thus, we do not read Hass as supporting the State’s argument that the gun in this case should not be suppressed in the State’s casein-chief.

      . See, e.g., Boles v. Foltz, 816 F.2d 1132, 1135 (6th Cir.) (holding derivative evidence obtained through custodial interrogation following invocation of right to counsel inadmissible), cert. denied, 484 U.S. 857, 108 S.Ct. 167, 98 L.Ed.2d 121 (1987); United States v. Downing, 665 F.2d 404, 407-10 (1st Cir.1981) (same); United States ex rel. Hudson v. Cannon, 529 F.2d 890, 892-93 (7th Cir.1976) (same); United States v. Massey, 437 F.Supp. 843, 855-61 (M.D.Fla.1977) (same); Commonwealth v. White, 374 Mass. 132, 371 N.E.2d 777, 780-81 (1977), aff'd by an equally divided court, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978) (same); State v. Harris, 199 Wis.2d 227, 544 N.W.2d 545, 553 (1996) (same); see also State v. Gravel, 135 N.H. 172, 601 A.2d 678, 682-86 (1991) (imposing bright-line state constitutional rule excluding all fruits from all statements taken in violation of Miranda); State v. Knapp, 700 N.W.2d 899, 921 (Wis.2005) (holding fruit derived from voluntary post failure-to-honor-a-request-for-counsel statement inadmissible under state constitution). Accord Calif. Attys for Criminal Justice v. Butts, 195 F.3d 1039, 1045-47 (9th Cir.) (op. on reh’g) (recognizing constitutional dimension of Fifth Amendment right to counsel), cert. denied, 530 U.S. 1261, 120 S.Ct. 2717, 147 L.Ed.2d 983 (2000). But see Taylor v. State, 274 Ga. 269, 553 S.E.2d 598, 604-05 (2001) (holding derivative evidence from voluntary, post failure-to-honor-invocation-of-right-to-counsel statement admissible in State’s case-in-chief); State v. Goodman, 165 N.C.App. 865, 600 S.E.2d 28, 30 (2004) (same); United States ex rel. Winsett v. Washington, 860 F.Supp. 479, 483-85 (N.D.Ill.1994) (same).

      . 470 U.S. at 307, 105 S.Ct. at 1292.

      . 530 U.S. 428, 437, 120 S.Ct. 2326, 2333, 147 L.Ed.2d 405 (2000).

        . 542 U.S. 600, 124 S.Ct 2601, 159 L.Ed.2d 643 (2004).

      . The Supreme Court expressly recognized that Elstad had "suffered no identifiable constitutional harm.” Id. at 307, 105 S.Ct. at 1292.

      . In Knapp, police obtained a blood-stained sweatshirt as the "fruit” of Knapp's post invocation-of-the-right-to-counsel statement. In Knapp, as here, no allegations existed that Knapp’s statement was involuntary under the traditional voluntariness standards. 700 N.W.2d at 899-902.

      . We recognize that in 1997, before the United States Supreme Court wrote in Dickerson and Seibert that Miranda is a constitutional rule, the Texas Court of Criminal Appeals in Baker held that neither a suspect’s consent to search given after the police failed to honor his request for counsel nor the items found in the search need be suppressed as fruits of the poisonous tree. Baker, 956 S.W.2d at 23 (citing Elstad and Tucker, which Patterson declared had left the issue undecided). We are, however, bound by the United States Supreme Court’s more recent decisions in Dickerson and Seibert.

      . We note that this is not a case like People v. Bradford, 14 Cal.4th 1005, 60 Cal.Rptr.2d 225, 929 P.2d 544, 565, cert. denied, 522 U.S. 953, 118 S.Ct. 377, 139 L.Ed.2d 293 (1997), cited by the State, where, after invoking his right to counsel, the defendant himself later initiated subsequent questioning. H.V.’s custodial interrogation followed immediately on the heels of his invocation of his right to counsel.

      . In a supplemental letter brief, the State argues that Swain v. State, No. AP-74854, 181 S.W.3d 359, 364-67, 2005 WL 2861584, at *3-6 (Tex.Crim.App. Nov.2, 2005) holds that the gun in this case need not be suppressed. We cannot agree. Swain simply held that the appellant failed to preserve any alleged violation of his Fifth Amendment right to counsel as a ground for suppression. Id. at 367, *6.

      . Texas does not recognize the inevitable discovery doctrine. State v. Daugherty, 931 S.W.2d 268, 269 (Tex.Crim.App.1996); see also Roquemore v. State, 60 S.W.3d 862, 870 n. 12 (Tex.Crim.App.2001) (same).

      . In its third point, the State contends that the violation of Texas Family Code section 52.02 found by the trial court does not provide a basis for suppressing H.V.’s statement or the fruit of that statement. Because we have upheld the trial court’s suppression rulings as set forth above, we need not address this argument. See Tex.R.App. P. 47.1.


author: BRIAN QUINN, Chief Justice.

text:
    AGRIUM U.S., INC., Appellant, v. Verna CLARK, Appellee.
    No. 07-04-0222-CV.
    Court of Appeals of Texas, Amarillo.
    Nov. 18, 2005.
    Rehearing Overruled Jan. 12, 2006.

      S. Tom Morris, Underwood, Wilson, Berry, Stein & Johnson, P.C., Amarillo, for Appellant.
    Jim Hart, Byron Buchanan, Williams-Bailey Law Firm L.L.P., Richard N. Coun-tiss, Countiss Law Firm, Houston, for Ap-pellee.
    Before QUINN, C.J., and CAMPBELL, JJ.

      . Ex-chief Justice Philip Johnson did not participate in rendering this opinion though he sat on the panel at oral submission.

   Opinion

BRIAN QUINN, Chief Justice.

Agrium U.S., Inc. (Agrium) appeals from a judgment awarding exemplary damages to appellee Verna Clark (Verna), the widow of Melvin Clark (Clark). Clark, an employee of Agrium, died during the course of performing his duties. At the time, he was attempting to replace a discharge valve located in a highly pressurized line. The line had not been completely depressurized, however. And, as Clark removed a cover plate to access the valve, the pressure in the fine blew the plate from its seat and against Clark. He subsequently died from the injuries he sustained.

Verna and Clark’s surviving children sued Agrium, alleging that the gross negligence of the company caused Clark’s death. Upon trial, the jury found that the company had indeed acted with gross negligence and awarded Verna $2,000,000. No exemplary damages were awarded the children, however. Judgment awarding Verna $1,576,000 subsequently was entered by the trial court, and Agrium appealed.

Though three issues are before us, we need only address the first. It is disposi-tive. Through it, Agrium asserts that the jury’s finding of gross negligence lacks the support of clear and convincing evidence. We sustain the issue and reverse the judgment.

Applicable Law

It is settled that one’s gross negligence must be established by clear and convincing evidence. Diamond Shamrock Refining Co. v. Hall, 168 S.W.3d 164, 170 (Tex.2005); Tex. Civ. PRAC. & Rem.Code Ann. § 41.003(b) (Vernon Supp.2005). Whether this burden has been met depends upon whether the quantum of evidence offered at trial is enough to permit a reasonable jury to form a firm conviction or belief that its finding is true. Id., quoting In re J.F.C., 96 S.W.3d 256 (Tex.2002). Furthermore, when applying the test, the reviewing court must interpret all the evidence of record in a light most favorable to the verdict. Id. So too must it 1) assume that the factfinder resolved disputed facts in favor of its finding if a reasonable fact-finder could do so and 2) disregard all evidence that a reasonable factfinder could have disbelieved or found incredible. Id. Yet, undisputed facts contradicting the verdict need not be disregarded for that “ ‘could skew the analysis....’” Id. And, only if upon considering all the evidence in the manner described, the reviewing court decides that no reasonable jury could form the requisite belief or conviction may it then hold the evidence legally insufficient. Id.

Next, gross negligence consists of objective and subjective elements. It is the latter which we address here. According to our Supreme Court and statute, the actor must have a subjective awareness of the risk involved and proceed with conscious indifference to the rights, safety, or welfare of others. Id.; accord, Tex. Civ. Prac. & Rem.Code Ann. § 41.001(11) (Vernon Supp.2005) (defining gross neglect as an act or omission which, when viewed objectively from the standpoint of the actor at the time of its occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and of which risk the actor had actual subjective awareness but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others). This standard is not met through proof of negligence. Tex. Civ. Prac. & Rem.Code Ann. § 41.003(b) (Vernon Supp. 2005); Lee Lewis Constr. Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex.2001). Indeed, what separates ordinary negligence from gross' negligence is the actor’s state of mind. Diamond Shamrock Refining Co. v. Hall, 168 S.W.3d at 173, quoting Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245 (Tex.1999). That is, not only must thé actor have actually known of the peril but also his acts dr omissions must demonstrate subjectively “ ‘that he did not care’ ” about it. Id.; Lee Lewis Constr. Inc. v. Harrison, 70 S.W.3d at 785; General Motors Corp. v. Sanchez, 997 S.W.2d 584, 596 (Tex.1999). We must caution, however, that an actor’s failure to pursue the safest course available or provide the best warnings imaginable does not necessarily equate to a want of caring. General Motors Corp. v. Sanchez, 997 S.W.2d at 597-98. Nor does the violation of a law or regulation inescapably evince conscious indifference. See Williams v. Steves Indus., Inc., 699 S.W.2d 570, 574 (Tex.1985) (finding that the driver’s lack of a commercial driver’s license did not establish gross negligence without proof that the driver had any prior speeding tickets, had caused or been involved in prior accidents, lacked experience driving big trucks, or was an incompetent or reckless driver or proof that his employer actually knew the driver operated the truck in a dangerous way).

And, while the existence or nonexistence of safety or corporate policies touching upon the work being done may provide some basis for a gross negligence finding, Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d at 247-48, that is not always true. Indeed, the absence of written policies 1) describing how to “lock-out or tag-out” electrical equipment or 2) warning others of potential safety risks did not support such a finding in Louisiana-Pacific Corp. This was so because those involved had thought that the particular equipment had been locked-out. Id. at 248.

Nor does the lack of redundant safety measures ipso facto establish gross negligence. The Supreme Court said as much in Diamond Shamrock. Diamond Shamrock Refining Co. v. Hall, 168 S.W.3d at 172 (stating that Diamond Shamrock’s failure to implement redundant safety systems is not evidence of conscious indifference to the risk of explosion since the valve it utilized “appeared to have protected against the risk for fifteen years”).

Simply put, the circumstances of each case must stand on their own. That particular acts or omissions may evince gross negligence in some situations does not mean that they do in all situations. Rather, all the circumstances are pivotal, and unless they permit a reasonable jury to develop a firm conviction or belief that the defendant “did not care” about the risk, there can be no gross negligence.

Application of Law

Verna attempted to establish gross negligence at bar through a plethora of evidence. That latter consisted of testimony and documentation regarding the manner in which employees were to safely change the defective valve or other mechanisms in pressurized lines. Moreover, that evidence involved instances of Agrium’s 1) non-compliance with regulations issued by the Occupational Safety and Health Administration addressing the subject, 2) failure to install additional or inspect existing redundant safety systems, 3) lack of pertinent policies assuring that pressure values were opened and locked-out to prevent their closure while repairs were undertaken, 4) de minimis formal training on how to repair the discharge valve or remove the cover plate, and 5) failure to affix warning labels on the compressor as recommended by its manufacturer.

. Yet, it is undisputed that Agrium had a general policy regarding the way its employees were to repair defective mechanisms within pressurized lines. Furthermore, the policy mandated that “all energy [be] released/de-pressured.” This procedure was both used in the past and shown to be effective when fully implemented. Indeed, even Verna’s own expert conceded that Clark would not have been injured in the way he was had the pressure in the line been released before Clark attempted to remove the cover plate.

The company also had a policy obligating its workers to obtain a “safety work permit” before undertaking repairs like those attempted by Clark. An aspect of that permitting system required that “[a]ll energy sources [be] isolated (locked and tagged)” and that “[a]ll energy [be] released/de-pressured.” And, while evidence indicated that employees sometimes undertook repairs without first obtaining the requisite permit, Verna does not argue that Agrium knew of or condoned the practice. Nor does she argue that the practice related to the repair of the valve which Clark sought to fix.

Other undisputed evidence illustrates that 1) Clark and his co-workers met to discuss the manner in which to complete the necessary repairs, 2) the vent valves necessary to release pressure from the line were opened, 3) one of the vents, however, was not fully opened, 4) it was believed that all the pressure had been released from the line, 5) at least one gauge was present in the control room to illustrate whether pressure remained in the line, 6) the gauge was operable at the time, 7) Clark attempted to remove the cover plate without first obtaining the requisite safety work permit, and 8) when asked by his colleague whether they should obtain the permit before continuing, Clark uttered an expletive indicating that he did not wish to wait.

It is beyond doubt that other measures could have been taken by all involved to prevent the incident or reduce the risk involved. But what cannot be ignored is the fact that Agrium had in place procedures which obviated the danger inherent in working on pressurized lines. And, we find no evidence of record suggesting that had those procedures been completely followed, the incident would have nonetheless occurred. Nor did we find evidence that like incidents had occurred in the past despite full compliance with the procedures.

The circumstances before us are quite akin to those in Diamond Shamrock. Though other actions could have been taken to prevent the incident in Diamond Shamrock, the check valve that had been installed protected against the risk there involved for some 15 years. Diamond Shamrock Refining Co. v. Hall, 168 S.W.Sd at 172. Since the valve existed and was historically effective, Diamond Shamrock’s failure to install redundant safety measures fell short of illustrating that the company intentionally did nothing to protect Hall from the risk of explosion, according to the Supreme Court. Id. The same is no less true at bar.

Agrium mandated a procedure for avoiding the risk of injury when working on pressurized lines. That procedure had been effective over the years. And, had it been followed and the line been fully depressurized, Clark would have not been injured by an exploding cover plate, according to experts. Again, the release of “all energy” (or pressure) before work began was what Agrium’s procedure required. (Emphasis added). Moreover, an operating gauge was present to determine if all pressure had been released. So too did those attempting to release the pressure subjectively believe that they had performed the task. See Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d at 248 (holding that the lack of corporate policies touching upon the lock-out of a crane did not establish gross negligence since the employees subjectively believed that the crane had been locked-out). Given this evidence and Supreme Court precedent, we cannot but conclude that the record before us falls short of allowing a reasonable jury to form a firm conviction or belief that Agrium did not care about the risk of injury posed to Clark. Thus, the finding of gross negligence at bar lacks the support of legally sufficient evidence.

Having sustained Agrium’s first issue, we reverse the judgment of the trial court and render judgment denying Verna recovery against Agrium.

      . Indeed, after the cover plate blew off its seat, an Agrium employee looked at the pressure gauge and saw indication that the line remained pressurized but was rapidly losing pressure.

      . That safety measures were available but not utilized due to the conscious decisions of those in charge differentiates from the situations in Lee Lewis Constr. Inc. v. Harrison, 70 S.W.3d 778, 786 (Tex.2001) and Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 925 (Tex.1998) from that here.


author: PER CURIAM.

text:
    Janet JOHNSON, Appellant, v. DALLAS HOUSING AUTHORITY, Appellee.
    No. 05-05-00831-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 1, 2005.
    Janet Johnson, Dallas, pro se.
    Michele Tapia, Dallas, for appellee..
    Before Chief Justice THOMAS and Justices LANG-MIERS and MAZZANT.
   OPINION

PER CURIAM.

A review of this appeal shows that appellant filed her brief on July 14, 2005. By letter dated July 22, 2005, this Court notified appellant that her brief was deficient in that it did not comply with Texas Rule of Appellate Procedure 38.1, subsections (a)-(j). The letter instructed appellant to file an original and seven copies of an amended brief correcting the deficiencies within ten days.

By letter dated September 1, 2005, we notified appellant that we had not received the amended brief. The Court instructed appellant to file an amended brief by September 12, 2005 and warned that her failure to do so could result in dismissal of the appeal.

As of this date, appellant has not filed an amended brief nor has she provided the Court with any explanation for her failure to do so. Therefore, on the Court’s own motion, we STRIKE as deficient appellant’s July 14, 2005 brief. As there is no appellant’s brief in this appeal, we DISMISS the appeal. See Tex.R.App. P. 38.8, 38.9 & 42.3.


author: JANE BLAND, Justice.

text:
    Charles Edward JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00651-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 8, 2005.

      Nicole DeBorde, Houston, for Appellant.
    Kevin P. Keating, Assistant District Attorney, Charles A. Rosenthal, Jr., District Attorney-Harris County, Houston, TX, for Appellee.
    Panel consists of Justices TAFT, JENNINGS, and BLAND.
   OPINION ON FURTHER REHEARING

JANE BLAND, Justice.

Appellant, Charles Edward Jones, filed motions for rehearing and for en banc consideration. We granted the motion for rehearing to consider our decision in light of the standard of review established in the Texas Court of Criminal Appeals’s opinions in Sanchez v. State, 165 S.W.3d 707 (Tex.Crim.App.2005) and Rich v. State, 160 S.W.3d 575 (Tex.Crim.App.2005). We issued a new opinion on rehearing on July 28, 2005. On August 25, 2005, we ordered that opinion withdrawn pursuant to Texas Rule of Appellate Procedure 50 in order to consider additional authority and to conform our decision with the decision in Wappler v. State, No. 01-01-00389-CR, — S.W.3d-, 2005 WL 3315039 (Tex.App.-Houston [1st Dist.] Dec. 8, 2005, no pet. h.), also issued by our court today. We thus withdraw our opinion dated July 28, 2005, and issue this opinion in its stead. The disposition in the judgment remains unchanged.

A jury found Jones guilty of possession of between one and four grams of cocaine, found two prior felony enhancement paragraphs true, and assessed punishment at 35 years’ confinement. On appeal, Jones contends the trial court erred in (1) denying him the opportunity to ask the jury venire a proper question about parole, requiring a new punishment hearing because such error is of constitutional magnitude; and (2) denying his motion to suppress evidence. We affirm.

I. Background

Lieutenant Stephen Casko of the Houston Police Department stopped a car because the driver had not maintained a single lane of traffic. Jones was a passenger in the car, and Jones’s brother was the driver. Casko identified the car’s occupants and checked their names for outstanding warrants. Because he did not receive a report indicating any outstanding warrants, Casko ended the stop and allowed the driver to continue driving.

Casko’s computer system had been having problems that night. About an hour after he released Jones and his brother, Casko received a delayed notification that Jones had an outstanding warrant for his arrest. Casko went to Jones’s house, found Jones in the front yard, and placed him under arrest. Casko searched Jones. During the search, Casko found a crack pipe in Jones’s left pocket and a pill bottle containing 24 rocks of crack cocaine in his right pocket.

II. Questioning of the Venire about Parole

Jones first contends the trial court erred in refusing to allow his counsel to question the venire about parole. Specifically, defense counsel asked the venire, in a group setting, the following question:

If I’m correct on the law, you may receive a jury instruction from the court that you are not to discuss nor consider the matter of parole in any kind of sentence you assess. I would like to ask, is there a juror here who would be unable to follow that instruction.

The State objected to the question, the trial court sustained the objection, and defense counsel noted its exception to the ruling. A trial court abuses its discretion if it denies defense counsel the right to ask prospective jurors a proper question because such a denial prevents the defendant from intelligently exercising his peremptory strikes. Barajas v. State, 93 S.W.3d 36, 38-39 (Tex.Crim.App.2002); Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App.1985). In its brief, the State does not dispute that preventing counsel’s question about parole was error in that it did not permit counsel to thoroughly interview the venire. See Barajas, 93 S.W.3d at 38-39. The issue in dispute is whether this error was harmful, and which standard of review we are to employ in making such a determination.

A. Constitutional or Non-Constitutional Error

We deal with the fine point of harm analysis with respect to voir dire error in criminal cases. In Gonzales v. State, the Texas Court of Criminal Appeals recognized that an impermissible exclusion of a proper question during jury voir dire is subject to harmless error review. Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App.1999) (remanding cause for harm analysis based on trial court’s impermissible exclusion of proper question about necessity defense during voir dire). If a trial court abuses its discretion in refusing to allow a defendant to ask a proper question during voir dire, then we conduct a harm analysis under Texas Rule of Appellate Procedure 44.2. Id. In so holding, the Gonzales court rejected the argument that voir dire error is structural constitutional error and categorically immune from harm analysis. Id. (citing Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997)).

Under Rule 44.2, however, two forms of harmless error review exist. First, if the appellate record reveals constitutional error, then a court of appeals must reverse unless it determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. Tex.R.App. P. 44.2(a). Otherwise, the court of appeals must disregard the error unless it affects the defendant’s substantial rights. Tex. R.App. P. 44.2(b). In Gonzales, the Court of Criminal Appeals remanded the cause for a harm analysis but did not state which form of Rule 44.2 analysis — constitutional or non-constitutional — reviewing courts should employ. 994 S.W.2d at 170. It is this question that the parties present in this case. In answering the question, we discuss the Texas Court of Criminal Appeals’s jurisprudence before and since Gonzales.

Even before Gonzales, in Jones v. State, the court held that an improper removal of a juror for cause amounts to constitutional error “[o]nly in very limited circumstances.” 982 S.W.2d 386, 390-92 (Tex. Crim.App.1998). The court identified the following examples as errors of constitutional magnitude: (1) “when a juror is erroneously excused because of general opposition to the death penalty” and (2) when a juror is excluded for an “impermissible” reason “such as race, sex, or ethnicity.” Id. (citing United States v. Prati, 861 F.2d 82, 87 (5th Cir.1988)).

Thus, in Jones, as long as the jury that actually serves is impartial, the defendant’s constitutional jury right has not been infringed. Id. This holding protects a defendant’s core rights, while allowing flexibility and room for human error on the periphery of this right. The examples provided in Jones demonstrate the type of error that impedes jury impartiality and thereby violates a defendant’s constitutional right to an impartial jury. 982 S.W.2d at 391.

More recently, in Sanchez v. State, 165 S.W.3d 707 (Tex.Crim.App.2005), the Texas Court of Criminal Appeals determined that a trial court’s error in allowing the State to improperly commit jurors to a set of facts is also non-constitutional error, subject to a Rule 44.2(b) analysis. The court observed that:

reviewing courts should assess the potential harm of the State’s improper commitment questioning by focusing upon whether a biased juror — one who had explicitly or implicitly promised to prejudge some aspect of the case because of the State’s improper questioning- — actually sat on the jury. The ultimate harm question is: was the defendant tried by an impartial jury, or, conversely, was the jury or any specific juror ‘poisoned’ by the State’s improper commitment questions on a legal issue or fact that was important to the determination of the verdict or sentence?

Id. at 713. Thus, the court applied Rule 44.2(b) to the issue of whether a biased juror actually sat on the jury. See id. More to the point here, in a footnote, the court seemed to recognize that a Rule 44.2(b) analysis should apply “when voir dire is conducted in a group setting and [the] defendant is prohibited from asking a proper question of the panel.” Id. at 713 n. 16 (citing Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App.2005)).

Our reading of these cases led us to conclude, in our initial opinion on rehearing, that the appropriate harm analysis to employ in this case is Rule 44.2(b). Yet, as our sister panel’s opinion in Wappler v. State, No. 01-01-00389-CR, — S.W.3d -(Tex.App.-Houston [1st Dist.] Dec. 8, 2005, no pet. h.), released today, discusses, such a conclusion on our part may be premature. First, although Sanchez applies a Rule 44.2(b) analysis, that case dealt with improper commitment questions presented to the panel, not with the exclusion of a proper voir dire question. See Sanchez, 165 S.W.3d at 709.

Second, the Texas Court of Criminal Appeals has found the prohibition of proper questions to an individual juror, in the context of a motion for mistrial made after a juror had failed to reveal a significant relationship with the victim, to be error of a constitutional dimension. See Franklin v. State, 138 S.W.3d 351, 354 (Tex.Crim.App.2004).

Finally, although Rich involved the very issue presented here — the exclusion of a proper voir dire question — in that case, the Texas Court of Criminal Appeals applied a Rule 44.2(b) analysis in part because the defendant did not contend that the error was of constitutional magnitude. See Rich, 160 S.W.3d at 577. Nonetheless, in its opinion, the court provided specific guidance for evaluating the harm stemming from the exclusion of a proper voir dire question in a group setting:

In the case of the erroneous admission of evidence, we have said that the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, the jury instructions, the State’s theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. We believe these same general factors are relevant considerations in determining the harm from being denied a proper question to the venire.

Id. at 577-78- (footnote omitted) (emphasis added).

All of this is to say that recent law is unsettled as to whether to apply Rule 44.2(a) or 44.2(b) in the present circumstances. We therefore first determine whether the heightened 44.2(a) standard requires a remand of this cause, assuming it applies. Specifically, using the guidelines set forth in Rich, we decide whether, beyond a reasonable doubt, the error did not contribute to the .conviction or punishment in this case. For the reasons we discuss, we conclude that it did not. This case therefore does not hinge on which branch of the Rule 44.2 harm analysis should apply, because we find the error to be harmless under the more stringent constitutional standard.

B. Harmless Error Analysis

In Rich, the Court of Criminal Appeals set forth guidelines for evaluating the harm resulting from the failure to allow a proper voir dire question: whether, upon review of the entire record, anything evidences harm, including (1) any testimony or physical evidence admitted for the jury’s consideration; (2) the nature of the evidence supporting the verdict; and (3) the character of the alleged error and how it might be considered in connection with other evidence in the case, the jury instructions, the State’s theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. 160 S.W.3d at 577-78. Using the heightened Rule 44.2(a) standard, of review, we consider these factors.

1. Evidence admitted for the jury’s consideration.

The jury did not hear evidence regarding the availability of parole during the guilt/innocence phase of the trial nor during the punishment phase. Including the evidence presented during both phases of trial, the jury considered the testimony of four witnesses, physical evidence of the confiscated drugs and drug paraphernalia, the warrant for Jones’s arrest, and two penitentiary , packets. Vernon Jones, Jones’s younger brother, testified about the traffic stop but was not present at, and ■thus did not comment about, Jones’s arrest for drug possession. Lieutenant Casko testified regarding the events leading up to Jones’s arrest, the circumstances of the arrest, the discovery of the crack cocaine, and the process followed to ensure the integrity of the physical evidence. Connie Dieringer, the chemist at the Houston Police Department crime lab who analyzed the evidence Lieutenant Casko seized from Jones, testified about the process she used to determine that the substance was crack cocaine. All of this evidence tends to show that Jones possessed approximately three grams of crack cocaine at the time of his arrest.

Jones contested the indictment’s two enhancement paragraphs. During the punishment phase of the trial, the State introduced two penitentiary packets to the jury through Harris County Sherriffs Depart; ment Deputy Joe Noguera’s testimony. He identified Jones as the person described in the packets.

The evidence admitted for the jury’s consideration did not involve parole. Thus, we conclude beyond a reasonable doubt that nothing in the evidence admitted for the jury’s consideration favors a finding that the error contributed to Jones’s conviction or punishment.

2. The nature of the evidence supporting the jury’s verdict.

Jones does not contest the legal or factual sufficiency of the evidence supporting his conviction and punishment. The testimony of Deputy Noguera combined with the penitentiary packets that describe the time Jones spent in jail provide sufficient grounds for the jury to have concluded that the two enhancement paragraphs were true. The trial court’s instructions directed the jury to consider a punishment between 25 and 99 years. The jury assessed 35 years as punishment, toward the minimum of the statutory range. The jury did not hear evidence about parole in general, nor any evidence about how parole might affect Jones’s conviction or punishment. We conclude beyond a reasonable doubt that nothing in the nature of the evidence favors a finding that the error contributed to Jones’s conviction or punishment.

3. The character of the error when considered in connection with other evidence in the case, the jury instructions, the State’s theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error.

The trial court’s charge contained the following jury instruction regarding parole:

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

See Tex.Code Ckim. PROC. Ann. art. 37.07 § 4(a) (Vernon Supp.2004-2005).

No party discussed parole after voir dire. Because a jury is presumed to follow the trial court’s instructions, it is presumed that the jury did not consider parole. See Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App.1998). Yet, the very question Jones wanted to inquire about was whether the venire could follow the court’s instruction about parole. However, when viewed in the context of the evidence presented and the parties’ theories of the case, both during voir dire and throughout the presentation of the evidence, parole was never an issue in the case. Jones had an opportunity to question the venire members regarding the issues actually litigated and did not object to the venire’s responses to those issues. At voir dire, the court entertained and granted nine challenges for cause from the defendant; Jones exercised all ten of his peremptory challenges. Nothing in the record suggests that the jury empaneled was less than impartial.

The State contends that the trial court’s instruction ameliorated any harm that arose from the improper exclusion of the defendant’s question about parole. In response, Jones asks this court to follow Loredo v. State, in which the Corpus Christi Court of Appeals held that the trial court’s error in precluding the defendant from questioning the venire about its ability to follow the parole law was reversible error. 59 S.W.3d 289, 291-93 (Tex.App.Corpus Christi 2001, no pet.). In Loredo, the trial court instructed the jury on the pertinent parole law, using the same charge as the trial court used in this case. Id. at 292 (citing Tex.Code Crim. Proc. Ann. art. 37.07 § 4 (Vernon Supp.2004-2005)). The Loredo court held that the right to ask questions of panel members is included in the right to counsel and is of constitutional magnitude. See id. at 292-93 (declining to decide whether failure to allow questions concerning parole is structural error). We disagree with the Loredo court’s view that erroneous exclusion of a voir dire inquiry about parole is tantamount to a deprivation of the constitutional right to an impartial jury, in a case in which the parties present no evidence about parole and the jurors are not asked to make any factual findings with regard to parole.

Rather, we presume the jury follows the trial court’s instructions in the manner presented. Colburn, 966 S.W.2d at 520 (presuming jury followed trial court’s supplemental jury instruction not to consider parole in reaching verdict after jury sent note to trial court asking about possibility of parole for life sentence in capital murder trial). The presumption is rebuttable, but Jones does not rebut the presumption by pointing to any evidence that the jury failed to follow the trial court’s instructions regarding parole. See id. For example, he did not file a motion for new trial alleging juror misconduct, nor obtain a hearing to adduce facts not in the record. See id.

Even if the presumption alone does not negate the potential harm from error of a constitutional magnitude in the context of voir dire, here, the trial court instructed the jury about parole only to remind it not to consider parole in reaching its decision about the evidence presented. In this sense, counsel’s question about parole is a more specific commitment that the jury will consider only the evidence presented. The instruction did not involve the jurors’ application of the law to the facts of the case as presented to the jury. As such, it presents less potential for a “partial” jury than one in which the venire has been improperly committed “to prejudge some aspect of the case” based upon certain facts that will be introduced before the jury. See Sanchez, 165 S.W.3d at 712-13.

We hold that, beyond a reasonable doubt, the trial court’s error in refusing to allow the proper question about parole did not contribute to Jones’s conviction or punishment because parole in this case was not an issue that was actually litigated— the jury heard no evidence about parole, nor was it required to make any finding about it, nor did any party even mention parole. We therefore conclude that the trial court’s error in prohibiting defense counsel from asking the venire his proposed question regarding parole was harmless, given the facts of this case.

III. The Motion to Suppress

Jones further contends that the trial court erred in overruling his motion to suppress the cocaine. He argues that the discovery of Jones’s identity resulted from Casko’s illegal detention during the initial traffic stop.

Courts do not consider the identity of a defendant to be a fruit of the arrest subject to suppression. Pichon v. State, 683 S.W.2d 422, 426 (Tex.Crim.App.1984) (applying United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980)); Blondett v. State, 921 S.W.2d 469, 473 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). The police did not obtain any evidence from the traffic stop other than Jones’s identity; thus, there were no fruits of the detention in this case. See Blondett, 921 S.W.2d at 473.

Moreover, upon identifying Jones and later detaining him in his front yard, Casko arrested Jones on a valid outstanding parole violation warrant. If an officer discovers a valid warrant for an individual’s arrest and the officer arrests the individual under the authority of that warrant, any evidence found during a subsequent search incident to the arrest is admissible even if any illegality occurs in the initial detention. Johnson v. State, 496 S.W.2d 72, 74 (Tex.Crim.App.1973); Sims v. State, 84 S.W.3d 805, 810 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The police obtained the cocaine subsequent to and pursuant to a lawful arrest. See Sims, 84 S.W.3d at 810. Accordingly, the trial court did not err in overruling the motion to suppress the cocaine.

IV. Conclusion

We hold that (1) regardless of whether the trial court’s voir dire error is subject to constitutional or non-constitutional harm analysis, the error in these circumstances was harmless; and (2) the trial court did not err in denying Jones’s motion to suppress evidence, as the police found the cocaine at issue during a lawful search incident to an arrest. We therefore affirm the judgment of the trial court. As we have withdrawn our opinion and issued a new opinion on rehearing, we deny the motion for en banc consideration as moot.

      . Structural errors are those identified by the United States Supreme Court as "defect[s] affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Mendez v. State, 138 S.W.3d 334, 340 (Tex.Crim.App.2004) (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991)). Constitutional errors likely interfere with a defendant’s constitutional right, but a harm analysis is nonetheless appropriate. Id. (citing Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997)).

      . Prati relied upon Ross v. Oklahoma, in which the Supreme Court held that a trial court's error in not granting a challenge for cause, that forced the defendant to use a peremptory challenge to correct the court's mistake, is not constitutional error. United States v. Prati, 861 F.2d 82, 87 (5th Cir.1988) (citing Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988)).

      . In Rios v. State, we held that Rule.44.2(a) should apply to errors of this type after Gonzales, but we decided Rios before the Court of Criminal Appeals’s decisions in Sanchez and Rich. See Rios v. State, 4 S.W.3d 400, 403 (Tex.App.-Houston [1st Dist.] 1999), pet. dism’d, improvidently granted, 122 S.W.3d 194 (Tex.Crim.App.2003).

      . Moreover, we distinguish this court’s opinion in Stringfellow v. State, upon which the Loredo court relied. See Loredo v. State, 59 S.W.3d 289, 292 (Tex.App.-Coipus Christi 2001, no pet.) (relying on Stringfellow v. State, 859 S.W.2d 451, 453 (Tex.App.-Houston [1st Dist.] 1993, pet. ref’d)). In Stringfellow, we held that the trial court’s error in precluding the defendant from questioning the venire members about their ability to follow the court’s instructions on parole was reversible. Stringfellow, 859 S.W.2d at 453-54 (“The failure of the trial court to permit a proper question on an issue prevents the intelligent exercise of one’s peremptory challenges and is an abuse of discretion, not subject to a harm analysis under TexR.App. P. 81(b)(2).”). We decided Stringfellow before the Court of Criminal Appeals issued its opinion in Gonzales, which held that a trial court’s impermissible exclusion of a proper question during voir dire is subject to a harmless error analysis. See Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App.1999).

      . See Nathan v. State, 788 S.W.2d 942, 944 (Tex.App.-Fort Worth 1990, no pet.) (holding that trial court’s instruction cured any error from venire member’s improper comment about parole, absent showing that jury acted upon it); McGee v. State, 35 S.W.3d 294, 300 (Tex.App.-Texarkana 2001, pet. ref’d) (applying a Rule 44.2(a) standard, concluding that denial of voir dire about the voluntariness of the defendant's statement was not harmful because "there was no evidence offered that the voluntariness of the statement would have been a factor or was a factor in the trial,” but finding harm under Rule 44.2(a) where counsel was not allowed to voir dire the venire about prior convictions).

      . See Retzlaff v. Tex. Dep’t of Criminal Justice, 135 S.W.3d 731, 734 n. 1 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Hartrick v. Great Am. Lloyds Ins. Co., 62 S.W.3d 270, 272 (Tex. App.-Houston [1st Dist.] 2001, no pet.).


author: Opinion by Justice O’NEILL.

text:
    NEW YOU WEIGHT MANAGEMENT CENTER, Appellant v. Cynthia P. JONES, Appellee.
    No. 05-05-00039-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 15, 2005.
    Geoffrey S. Harper, Fish & Richardson P.C., Dallas, for Appellant.
    Nicholas Alban O’Kelly, Plano, for Ap-pellee.
    Before Justices MOSELEY, BRIDGES, and O’NEILL.
   OPINION

Opinion by Justice O’NEILL.

On December 5, 2005, appellant filed a motion to dismiss this appeal. We GRANT appellant’s motion and DISMISS this appeal. See Tex.R.App. P. 42.1(a)(1).