Thursday, July 11, 2013
Media Advisory: John Manuel Quintanilla scheduled for execution

VICTORIA – Pursuant to a court order by the 377th Judicial District Court in Victoria County, John Manuel Quintanilla is scheduled for execution after 6 p.m. on July 16, 2013. In 2004, a Victoria County jury found Quintanilla guilty of murdering Victor Billings in the course of committing or attempting to commit robbery.

FACTS OF THE CASE

The facts of the crime were not summarized by any court reviewing the case, which focused on the specific facts surrounding Quintanilla’s confessions. Quintanilla and another man walked into a game parlor in Victoria, Texas, in the evening hours of November 24, 2002. Victor Billings, a retired law enforcement officer, was playing games inside, as was his wife of forty years, Linda. Quintanilla and his partner wore pantyhose masks and carried long rifles. One robber went into the parlor office while Quintanilla ordered the clerk, standing next to Mrs. Billings, to give him the money in her apron. She complied. Quintanilla later stated he stole some two thousand dollars from the game parlor that day. Quintanilla was pointing his rifle at the employee and Mrs. Billings. Victor Billings walked up to his wife and Quintanilla shot him twice. Billings grabbed the muzzle of the gun and Quintanilla shot him a third time, knocking him flat to the ground. Billings died of these gunshot wounds to the torso. Two patrons ran out the front door and Quintanilla shot at them from the rear of the facility. The shots were head high and struck the front door area.

At punishment, the State additionally presented testimony of Dr. Richard Coons, a forensic psychiatrist, who opined on the basis of a hypothetical question greatly resembling the facts of this case that such an inmate would probably be a future danger, and would be a greater risk if sentenced to life than if he were sent to death row. After the State rested its punishment case, the court convened a hearing outside the presence of the jury. Trial counsel for Quintanilla indicated they would rest, in obedience to their client’s instructions. The trial court questioned Quintanilla regarding his awareness and understanding of his right to present evidence on punishment and the possible benefit of such evidence. Quintanilla confirmed that it was his considered wish not to present evidence in mitigation or regarding future dangerousness. Before the jury, defense counsel rested.

On the following day, before argument began and outside the jury’s presence, the court again addressed Quintanilla and emphasized the possible benefits of presenting evidence in mitigation. The court additionally pointed out that trial counsel had the expertise and experience to make determinations regarding useful evidence, and that without any punishment evidence from the defense, the jury’s decision would be based solely on the State’s presentation. Quintanilla repeatedly indicated that he had fully discussed this issue with his attorneys and that his decision was made freely, knowingly and voluntarily. Defense counsel indicated that they disagreed with Quintanilla’s decision but did not believe him to be incompetent in any way, and the court concurred. Counsel added that this had been an “ongoing situation” for the two years he had represented the defendant, and that both attorneys had counseled Quintanilla at great length for those two years without success in changing his position.

PROCEDURAL HISTORY

In 2003, a Victoria County grand jury indicted Quintanilla for murdering Victor Billings while committing or attempting to commit robbery on or about Nov. 24, 2002.

In 2004, a Victoria County jury found Quintanilla guilty of murdering Victor Billings. The jury recommended capital punishment, and on Dec. 14, 2004, the court sentenced Quintanilla to death by lethal injection.
On June 27, 2007, the Texas Court of Criminal Appeals affirmed Quintanilla’s conviction and sentence.
Quintanilla did not file a petition for a writ of certiorari with the U.S. Supreme Court.
On June 22, 2006, Quintanilla sought a state writ of habeas corpus with the state trial court.
In 2007, the trial court held an evidentiary hearing on the ineffective-assistance-of-counsel claim.
On June 4, 2008, the Texas Court of Criminal Appeals affirmed the denial of habeas relief.
On May 30, 2009, Quintanilla filed a federal petition for a writ of habeas corpus.
On Jan. 25, 2011, the federal district court denied Quintanilla’s petition for writ of habeas corpus.
On Oct. 17, 2011, the U.S. Court of Appeals for the Fifth Circuit denied COA.
On Jan. 6, 2012, Quintanilla filed a petition for writ of certiorari in the U.S. Supreme Court.
On March 19, 2012, the U.S. Supreme Court denied Quintanilla’s petition for writ of certiorari.
On July 9, 2013, Quintanilla filed a petition for a writ of habeas corpus in the U.S. District Court.
On July 11, 2013, the U.S. district court transferred petition to the U.S.Court of Appeals.
On July 11, 2013, Quintanilla filed a motion for stay of execution.
On July 13, 2013, the U.S. Court of Appeals denied the petition for a writ of habeas corpus and stay.
On July 15, 2013, Quantanilla filed a petition for writ of certiorari in the U.S. Supreme Court.
On July 16, 2013, the U.S. Supreme Court denied Quantanilla's petition for writ of certiorari and a motion for stay of execution.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment. At punishment, the State presented testimony that Quintanilla committed another five armed robberies or burglaries, and attempted to commit a sixth, beginning in September 2002 and continuing through January 2003. Further, Quintanilla stabbed and sliced guards with improvised weapons and razor blades while trying to escape from the county jail in January 2003. Penitentiary packets revealed that Quintanilla pled guilty to second-degree felony burglary of a habitation in 1995 and received a 10-year sentence. Quintanilla also pled no contest to five other burglaries in 1995.

Texas Execution Information Center by David Carson.

John Manuel Quintanilla Jr., 36, was executed by lethal injection on 16 July 2013 in Huntsville, Texas for the murder of a man during a robbery of a business.

On 24 November 2002 in Victoria, Quintanilla, then 25, and Jeffrey Bibb, 22, entered a game center through a partially opened back door, carrying rifles and wearing gloves and pantyhose masks. While his accomplice went to the game parlor, Quintanilla walked up to the clerk and ordered her to give him the money in her apron, which she did. Quintanilla was pointing his rifle at the clerk and at customer Linda Billings, who was standing next to her, when Billings' husband, Victor, 60, came up. Quintanilla shot Victor twice. Victor grabbed the muzzle of Quintanilla's gun, and he fired again. Quintanilla then shot at two customers as they ran out the front door. The head-high shots missed the customers and struck the door area. Victor Billings died from gunshot wounds to the torso. The robbers then fled with about $2,000.

According to Quintanilla's data sheet on the Texas Department of Criminal Justice's web site, Linda Billings sustained a non-fatal gunshot wound. Quintanilla was arrested in January 2003 on a warrant for an unrelated aggravated robbery. While in custody, he confessed to the murder at the game center. He then led authorities to a canal where divers recovered items used in the robbery.

Victoria County District Attorney Dexter Eaves stated in a news article that Victor Billings, a former sheriff's deputy, was killed while trying to protect his wife and the female clerk. Eaves said that in addition to Quintanilla's confession, his guilt was established by forensic and physical evidence and testimony from multiple eyewitnesses.

Public records show that between 1993 and 1995, Quintanilla pleaded guilty to three home burglaries. He was also charged with a felony weapons carrying violation and pleaded guilty to a misdemeanor charge. He was put on 10 years' probation for the first burglary and was sent to prison after the third. Information on his parole or discharge date from prison was not available for this report. According to the Texas attorney general's office, Quintanilla committed another five armed robberies or burglaries between September 2002 and January 2003. He also stabbed and sliced guards with improvised weapons and razor blades while trying to escape from the county jail in January 2003.

During the punishment phase of his trial, Quintanilla stated that he wanted to be put to death. He declined to allow his lawyers to present any mitigating evidence that might persuade the jury to vote against the death penalty. A jury convicted Quintanilla of capital murder in December 2004 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in June 2007. All of his subsequent appeals in state and federal court were denied. Most of his appeals focused on whether the confession he gave while in custody was coerced or whether he was adequately notified of his rights.

Jeffrey Alan Bibb was convicted of murder and received a 60-year prison sentence. He also faces an additional 50-year sentence for aggravated robbery. While in prison in 2008, he was convicted of possessing a prohibited substance and sentenced to 5 years. He remains in custody as of this writing.

Dallas Morning News

"Texas executes man for fatal shooting of retired deputy in 2002 robbery." (AP 16 July 2013 07:52 PM)

HUNTSVILLE — A Texas man convicted of fatally shooting a retired sheriff's deputy during the robbery of an amusement center more than a decade ago was put to death Tuesday evening. John Manuel Quintanilla died by lethal injection for gunning down 60-year-old Victor Billings at a game room in Victoria, about 125 miles southwest of Houston. The 2002 slaying came just a few months after Quintanilla had been released from prison after serving a sentence for several burglary convictions.

Asked to make a final statement before his execution, Quintanilla told his wife he loved her. "Thank you for all the years of happiness," he said. He never acknowledged his victim's friends or relatives, including two daughters, who watched through a window. As the lethal drug began taking effect, he snored about a half dozen times, then stopped breathing. Fifteen minutes after being given the drug, at 7:32 p.m. CDT, he was pronounced dead. Quintanilla's wife, a German national who married him by proxy while he was in prison, watched through an adjacent window and sobbed.

Quintanilla, 36, became the ninth Texas inmate to receive lethal injection this year and the 501st since the state resumed carrying out capital punishment in 1982. His was the first of two executions this week. The punishment was carried out after the U.S. Supreme Court refused two last-day appeals. Quintanilla's lawyers contended his confession was coerced by authorities threatening to also charge one of his sisters and that the statement improperly was allowed into evidence at his trial in 2004. They obtained affidavits from two jurors who said the confession was a key to their decision to convict him. "It is clear that Quintanilla would not have been convicted of capital murder if his confession had not been admitted — a fact confirmed by two of his jurors," appeals lawyer David Dow told the high court.

The appeal also argued Quintanilla had deficient legal help during his trial and in earlier stages of his appeals, and that his case would give justices the opportunity to define filing rules in light of recent death penalty rulings from the court. The Texas attorney general's office said the appeal was without merit and improperly filed, and that the juror affidavits also were improper. "There wasn't any coercion whatsoever," Dexter Eaves, the former Victoria County district attorney who was lead prosecutor at the trial, recalled last week. He also said that while the robbers, who fled with about $2,000, were masked, witnesses were able to "describe very clearly who the triggerman was."

Court records show Billings, a retired chief deputy from nearby Edna in adjacent Jackson County, was at the game center with his wife on the Sunday before Thanksgiving in 2002 when the gunmen came in through a back door. Billings approached one of them and grabbed the barrel of the gunman's rifle "so no one else was going to be hurt and paid for it dearly," Eaves said. He said Billings was shot three times, the last one fired while he was on his knees. "A very cold killing," Eaves said.

During questioning by detectives for an unrelated robbery some two months later, Quintanilla made references to the still unsolved Billings case, then led authorities to a canal where divers recovered items used in the holdup. "They had the mask, the guns and his statements saying who did what," Jim Beeler, Quintanilla's lead trial lawyer, said. "He told them everything." Beeler said the trial judge overruled his objections and ruled the statements proper and admissible into evidence. He also said Quintanilla signed affidavits ordering his defense team present no mitigating evidence during the punishment phase of his trial, where jurors deciding his sentence could have considered he had virtually no parental supervision while growing up. "You want to argue your case, completely and totally," Beeler said. "In that situation, we're not being allowed to present our case, based on our client. "It's extremely frustrating."

Prosecutors bolstered their case for Quintanilla's future dangerousness by presenting evidence he attacked a jailer with a homemade weapon while awaiting trial. "He did not do himself any favors," Eaves said. Quintanilla's accomplice, Jeffrey Bibb, 33, is serving 60 years for murder and 50 years for aggravated robbery.

Houston Chronicle

"Texas man executed for killing during 2002 holdup," by Michael Graczyk. (AP July 16, 2013 8:31pm)

HUNTSVILLE, Texas (AP) — A Texas man convicted of fatally shooting a retired sheriff's deputy during the robbery of an amusement center more than a decade ago was put to death Tuesday. John Manuel Quintanilla received lethal injection for gunning down 60-year-old Victor Billings at a game room in Victoria, about 125 miles southwest of Houston. The 2002 slaying came just a few months after Quintanilla had been released from prison after serving a sentence for several burglary convictions.

Asked to make a final statement before his execution, Quintanilla told his wife he loved her. "Thank you for all the years of happiness," he said. He never acknowledged his victim's friends or relatives, including two daughters, who watched through a window. As the lethal drug began taking effect, he snored about a half dozen times, then stopped breathing. At 7:32 p.m. CDT — 15 minutes after being given the drug — he was pronounced dead. Quintanilla's wife, a German national who married him by proxy while he was in prison, watched through an adjacent window and sobbed.

Quintanilla, 36, became the ninth Texas inmate to receive lethal injection this year and the 501st since the state resumed carrying out capital punishment in 1982. His was the first of two executions set for this week; the other is planned for Thursday. Quintanilla's punishment was carried out after the U.S. Supreme Court refused two last-day appeals. His lawyers contended his confession was coerced by authorities threatening to also charge one of his sisters and that the statement improperly was allowed into evidence at his trial in 2004. The lawyers obtained affidavits from two jurors who said the confession was a key to their decision to convict him. "It is clear that Quintanilla would not have been convicted of capital murder if his confession had not been admitted — a fact confirmed by two of his jurors," appeals lawyer David Dow told the high court. The appeal also argued Quintanilla had deficient legal help during his trial and in earlier stages of his appeals, and that his case would give justices the opportunity to define filing rules in light of recent death penalty rulings from the court.

The Texas attorney general's office said the appeal was without merit and improperly filed, and that the juror affidavits also were improper. "There wasn't any coercion whatsoever," Dexter Eaves, the former Victoria County district attorney who was lead prosecutor at the trial, recalled last week. He also said that while the robbers, who fled with about $2,000, were masked, witnesses were able to "describe very clearly who the triggerman was." Court records show Billings, a retired chief deputy from nearby Edna in adjacent Jackson County, was at the game center with his wife on the Sunday before Thanksgiving in 2002 when the gunmen came in through a back door. Billings approached one of them and grabbed the barrel of the gunman's rifle "so no one else was going to be hurt and paid for it dearly," Eaves said. He said Billings was shot three times, the last one fired while he was on his knees. "A very cold killing," Eaves said.

During questioning by detectives for an unrelated robbery some two months later, Quintanilla made references to the still unsolved Billings case, then led authorities to a canal where divers recovered items used in the holdup. "They had the mask, the guns and his statements saying who did what," Jim Beeler, Quintanilla's lead trial lawyer, said. "He told them everything." Beeler said the trial judge overruled his objections and ruled the statements proper and admissible into evidence. He also said Quintanilla signed affidavits ordering that his defense team present no mitigating evidence during the punishment phase of his trial, where jurors deciding his sentence could have considered he had virtually no parental supervision while growing up. "You want to argue your case, completely and totally," Beeler said. "In that situation, we're not being allowed to present our case, based on our client. "It's extremely frustrating."

Prosecutors bolstered their case for Quintanilla's future dangerousness by presenting evidence he attacked a jailer with a homemade weapon while awaiting trial. "He did not do himself any favors," Eaves said. Quintanilla's accomplice, Jeffrey Bibb, 33, is serving 60 years for murder and 50 years for aggravated robbery.

Huntsville Item

"Texas man executed for killing during holdup," by Cody Stark. (July 16, 2013) <>HUNTSVILLE — A South Texas man was put to death Tuesday night for the slaying of a retired sheriff’s deputy during a robbery more than 10 years ago. John Manuel Quintanilla Jr., 36, was executed by lethal injection for the 2002 murder of 60-year-old Victor Billings at an amusement center in Victoria. Earlier Tuesday, the United States Supreme Court refused two appeals to halt the execution.

Quintanilla did not have much to say when asked if he wanted to make a final statement Tuesday. He just wanted his wife to know he loved her. “I would like to tell my wife I love her and thank her for all the years of happiness,” Quintanilla said of his wife, a German national he married by proxy while he was on death row. Quintanilla then told the warden to proceed. He began to snore as the drug took effect and lost consciousness. Quintanilla was pronounced dead at 7:32 p.m., 15 minutes after the lethal dose began. He is the ninth inmate to be executed in Texas this year.

According to court documents, Quintanilla had recently been released from prison after serving time for several burglary convictions when he and another gunman entered a game room through the back door on Nov. 24, 2002 and demanded money. Billings, a retired chief deputy with the Jackson County Sheriff’s Department, was with his wife at the establishment and grabbed the barrel of Quintanilla’s rifle and tried to stop the robbery. Billings was fatally shot three times. Two months later, Quintanilla was being questioned by authorities for an unrelated robbery when he made reference to the Billings murder and later led detectives to a canal where divers discovered items used in the robbery.

In his appeals, Quintanilla’s lawyers contended his confession was coerced by authorities threatening to also charge one of his sisters and that the statement improperly was allowed into evidence at his trial in 2004. They obtained affidavits from two jurors who said the confession was a key to their decision to convict him. “It is clear that Quintanilla would not have been convicted of capital murder if his confession had not been admitted — a fact confirmed by two of his jurors,” appeals lawyer David Dow told the high court. The appeal also argued Quintanilla had deficient legal help during his trial and in earlier stages of his appeals, and that his case would give justices the opportunity to define filing rules in light of recent death penalty rulings from the court. The Texas attorney general’s office said the appeal was without merit and improperly filed, and that the juror affidavits also were improper.

Quintanilla’s accomplice, Jeffrey Bibb, 33, is serving 60 years for murder and 50 years for aggravated robbery.

ProDeathPenalty.Com

On November 24, 2002, in Victoria, 27-year-old John Manuel Quintanilla, Jr. and an accomplice entered an action amusement center through a partially opened back door, demanded cash from an employee and advised all other patrons to get down on the floor. Victor Billings, a former Jackson County, Texas sheriff's deputy, was with his wife at the center. He attempted to disarm Quintanilla in an effort to protect his wife and was fatally shot three times when he grabbed the barrel of the 9 mm carbine rifle. A 56-year-old woman was also shot in the foot.

Right after shooting Billings, Quintanilla noticed two other customers trying to leave through the front door. He aimed and fired at the doorway, head high. The robbery amount was $2000. Victoria police officers testified that when they received the report of shooting at the game room, they didn't know whether or not the shooters were still inside. Senior Patrol Officer Eddie Stevens was dispatched to the call shortly before 7 p.m. It took him 2 minutes to get across town. He was the 1st person on the scene, Stevens said. One of the customers who had run out of the business during the shooting came up to him, Stevens said. "He advised me he did not see anybody else run out," Stevens said. "We did not know if we still had an active shooter inside."

When Sgt. Ralph Buentello arrived a couple of minutes later, the scene was still chaotic, Buentello said. "The immediate situation was extremely unstable as we tried to determine if we still had people inside." Knowing that the department's Special Response Team would take about 40 minutes to mobilize and be at the business, Buentello decided to send three officers in through the front door. Standing behind a 4-foot-tall ballistic shield, the officers made their way in, thus allowing the dead man's wife, Linda Billings, and another woman to run out.

Bradley Hill, Victoria Fire Department emergency medical technician, testified that he and his partner had waited at a distance from the game room until police had assured its safety. He testified that Billings was lying face down in the floor and showed no respiration or pulse.

Quintanilla was linked to a series of other armed robberies in the area in the same time span. Quintanilla had a substantial criminal record. While in jail awaiting trial on this charge, he made two “shanks” (knives) and attacked a guard in an escape attempt. Quintanilla confessed to the murder of Billings, but the defense tried to plant doubt that he was really the robber, suggesting that he was taking the blame for the husband of a relative. At the penalty phase, Quintanilla refused to permit his lawyers to present any evidence. Following testimony in the sentencing phase of the trial, the jury found a probability that Quintanilla would commit future acts of criminal violence constituting a continuing threat to society. Accordingly, the trial court sentenced Quintanilla to death.

Quintanilla v. State, Not Reported in S.W.3d, 2007 WL 1839805 (Tex.Crim.App. 2007). (Direct Appeal)

Background: The defendant was convicted after a jury trial in the 377th District Court, Victoria County, of capital murder, and sentenced to death.

Holdings: On automatic appeal, the Court of Criminal Appeals, Womack, J., held that: (1) defendant's Fifth Amendment right to counsel during interrogation did not attach at time defendant requested that an attorney be appointed when he appeared before a magistrate after being arrested for aggravated robbery, and (2) defendant's request that counsel be appointed when he appeared before a magistrate did not render inadmissible defendant's videotaped statement made during murder investigation. Affirmed.

WOMACK, J., delivered the opinion for a unanimous Court.

A jury found the appellant guilty of the November 24, 2002 capital murder of Victor Billings. The trial court sentenced the appellant to death based on the jury's verdict on the issues of punishment.FN1 In the appeal to this court, which a statute requires,FN2 the appellant raises two points of error. We find them to be without merit, and we affirm the judgment. FN1. See Code Crim. Proc. art. 37.071, § 2(b), (e), (g). FN2. Id., § 2(h).

I. The Facts

The appellant was arrested on January 14, 2003 on a warrant from Calhoun County for an unrelated aggravated robbery. At that time, no charges had been brought nor had a warrant issued for the instant offense. At 2:30 p.m. on January 15, 2003, the appellant was taken before a magistrate for the warnings and other proceedings that Article 15.17 of the Code of Criminal Procedure required.FN3 The appellant requested that an attorney be appointed.

FN3. When the appellant was arrested, Article 15.17(a) of the Code of Criminal Procedure read, “In each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall without unnecessary delay ... take the person arrested or have him taken before some magistrate.... The magistrate shall inform in clear language the person arrested ... of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, and of his right to have an examining trial. The magistrate shall also inform the person arrested of the person's right to request the appointment of counsel if the person cannot afford counsel. The magistrate shall inform the person arrested of the procedures for requesting appointment of counsel.... The magistrate shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall, after determining whether the person is currently on bail for a separate criminal offense, admit the person arrested to bail if allowed by law.” Act of June 15, 2001, 77th Leg ., R.S., ch. 1281, § 1, 2001 Tex. Gen. Laws 3074, 3075; Act of June 14, 2001, 77th Leg., R.S., ch. 906, § 4, 2001 Tex. Gen. Laws 1800, 1801.

At approximately 4:00 p.m., Investigator Abel Arriazola of the Victoria County Sheriff's Office and Investigator Mike Kovorek of the Calhoun County Sheriff's Department began interrogating the appellant. They recorded the interview on a videotape, later labeled State's Exhibit 1a. Prior to questioning, Arriazola gave the appellant his Miranda warnings. The appellant indicated he understood his rights and wished to continue with the interview. The appellant made no statements regarding the capital murder, nor did he invoke his right to counsel, during this portion of the interview.

At approximately 7:55 p.m., the officers and the appellant took a short break, which marked the end of State's Exhibit 1a. A new videotape, which eventually would be labeled State's Exhibit 1b, was inserted in the videotape recorder. The appellant and Kovorek returned to the room at about 8:10 p.m. to continue the interrogation; then Kovorek left the room again. A short time after that, at about 8:35 p.m., Arriazola returned, now with Detectives Alfred Santiago and Tom Copeland of the Victoria Police Department. Arriazola told the appellant, “Nothing has changed from the time I've talked to you,” by which he meant, according to his testimony in the pre-trial hearing, “that [the appellant's] rights were still in full effect.” Santiago and Copeland testified that they were aware that Arriazola had already informed the appellant of his Miranda rights, and so they began their interrogation, which included questions regarding the capital murder, without re-administering the warnings. About fifteen minutes into the interview, however, the detectives reminded the appellant of his Miranda rights and that Arriazola had read him his rights; the appellant acknowledged that he remembered and understood those rights. Santiago later acknowledged in his pre-trial testimony that he inadvertently left out the warning that an attorney would be appointed if the appellant could not afford to hire one. At no time during the interview did the appellant invoke his right to counsel. During the interrogation by Santiago and Copeland, the appellant made inculpatory statements regarding the instant offense.

As a result of a pre-trial hearing, the trial court entered the following required findings of fact and conclusions of law FN4 concerning the admissibility of the appellant's statement contained in State's Exhibits 1a and 1b: — the appellant received the Article 15.17 magistrate's warning on, and requested an attorney for, the aggravated-robbery offense for which he had been arrested on the warrant from Calhoun County; — the appellant had not been arrested on the capital-murder offense in Victoria County at the time of the interview; — State's Exhibits 1a and 1b constituted one continuous interview, and therefore the Miranda warnings Arriazola gave at the beginning of videotape 1a applied to the entire interview; — the Miranda warnings given by Arriazola complied with Article 38.22; — the appellant freely, knowingly, and voluntarily waived his rights as to the capital murder at the beginning of videotape 1a, including the right to a court-appointed attorney; and — the appellant's statements regarding the Calhoun County aggravated robbery were taken in violation of the Sixth Amendment, but this did not prohibit the admission of statements as to other offenses.

Portions of State's Exhibits 1a and 1b were consolidated into State's Exhibit 29, a videotape that was then admitted into evidence at the guilt phase of the trial. State's Exhibit 29 contains only those portions of the interview that relate to the offense at hand, including Arriazola's initial warnings to the appellant, the introduction of Santiago and Copeland, the reminder of the appellant's Miranda warnings, and the appellant's statements regarding the instant offense. All references to the Calhoun County aggravated robbery and other extraneous offenses were omitted.

II. Admissibility of Appellant's Statement

In point of error one, the appellant claims that the trial court erred in admitting State's Exhibit 29 on two grounds: that the videotaped statement regarding the instant offense was obtained in violation of the Fifth Amendment “right to counsel,” and also in violation of Article 38.22 of the Texas Code of Criminal Procedure. We will address these grounds in turn.

Fifth Amendment Right to Counsel

The Fifth Amendment right to counsel provides “prophylactic rights designed to counteract the ‘inherently compelling pressures' of custodial interrogation.” FN5 The “right to counsel” under the Fifth Amendment may be waived, but its invocation prevents any further interrogation of a suspect unless counsel is present.FN6 The Fifth Amendment right to counsel is not offense-specific, and it thus precludes interrogation regarding any offense in the absence of counsel once the right has been invoked.FN7

FN5. McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). FN6. Id., at 176–77 (citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). FN7. Id., at 177 (citing Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988)).

The appellant admits that he was informed of, and waived, his Fifth Amendment rights at the beginning of the interview, as recorded on State's Exhibit 29. He argues that his request for counsel when he appeared before the magistrate after being arrested for aggravated robbery serves as a non-offense-specific Fifth Amendment invocation of counsel, thereby rendering inadmissible even his subsequent statements regarding the instant offense.

The appellant seems to imply that his Fifth Amendment right to counsel was triggered by, at least in part, the magistrate's act of reading the Article 15.17 warnings that comply with Miranda.FN8 However, the warnings themselves and the administration of those warnings do not confer the right. The right stems from its narrow association with the process of police custodial interrogation, and can be invoked only as a specific articulation of a desire for assistance of counsel with that process.FN9 FN8. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). FN9. McNeil, 501 U.S., at 178–79.

The appellant confuses the issue by interchanging Texas statutory provisions with U.S. constitutional law throughout his brief. His constitutional argument is based on language he extracts from Dowthitt v. StateFN10 and Articles 38.22 FN11 and 15.17.FN12 Also, by referring to the Article 15.17 magistration warnings as “ Miranda ” warnings, he implies that the Article 15 .17 proceeding has Fifth Amendment importance with regard to the right to counsel. It does not.

FN10. 931 S.W.2d 244 (Tex.Cr.App.1996). FN11. Code Crim. Proc. art. 38.22, §§ 2(a), 3(a)(2). FN12. Code Crim. Proc. art. 15.17(a).

The appellant cites Robinson v. StateFN13 to argue that this court supports his position. The issue in Robinson, however, turned on whether the appellant had effectively requested assistance of counsel at all.FN14 The appellant in that case was warned not only by two magistrates, but—more importantly to the analysis—twice by police as well.FN15 The Court there did not identify precisely when the Fifth Amendment right would have attached, but the statement the Court found to fail as a request for counsel under the Fifth Amendment was made to police during interrogation, not to the magistrates.FN16

FN13. 851 S.W.2d 216 (Tex.Cr.App.1991). FN14. Id., at 222. FN15. Id., at 222–23. FN16. Id., at 223–24.

The appellant here contends that our holding in Robinson implies that the Fifth Amendment right to counsel attaches at an Article 15.17 magistration, because, he asserts, we found the appellant in Robinson had not invoked his Fifth Amendment right when brought before the magistrates. Robinson, however, does not stand for this proposition. The appellant ignores the critical fact that the appellant in Robinson had also been warned by police prior to his interrogation, a fact that the Supreme Court has identified as the narrow situation in which the Fifth Amendment right to counsel is implicated. We find the appellant's Fifth Amendment argument unconvincing.

Article 38.22

The appellant also claims that State's Exhibit 29 was admitted in error because the statement contained therein was obtained in violation of Article 38.22 of the Code of Criminal Procedure. He raises several issues under this claim. First, the appellant claims that he invoked his Article 38.22 “right to counsel” at his magistration for aggravated robbery. Article 38.22 confers no such right. The statute governs the admissibility of an accused's statement and, among its provisions, outlines the procedures that must be followed in order to use that statement in a criminal proceeding.FN17 The right conferred can better be expressed as a right to receive warnings: the accused must be given the equivalent of Miranda warnings in order for his statement as a result of custodial interrogation to be admissible.FN18 The provision is satisfied merely by giving the warnings, without any obligation to ensure that the substance of the warnings is carried out. Section 3 of Article 38.22 applies to oral statements, and its provisions include the requirement of an electronic recording FN19 and the requirement that during the recording the suspect must receive Article 38.22 warnings and voluntarily waive his or her rights.FN20

FN17. See Code Crim. Proc. art. 38.22, §§ 2, 3. FN18. Id., at §§ 2(a), 3(a)(2). FN19. Id., at § 3(a)(1) (a videotape complies). FN20. Id., at § 3(a)(2).

The appellant here does not suggest a violation of these requirements took place, and in fact the record supports the conclusion that State's Exhibit 29 complied with these statutory requirements. Further, the appellant acknowledges this court's holding that the warnings provision in Section 2 of Article 38.22 applying to written statements—that warnings must be given by the person “to whom the statement is made”—does not apply to oral statements. FN21 Arriazola's warnings at the beginning of the appellant's interview were therefore effective for the purposes of Article 38.22, despite the fact that Santiago and Copeland were the officers present when the appellant made the statements at issue here. It is inconsequential that Santiago's later warnings failed to comply with Article 38.22.

FN21. See Dowthitt, 931 S.W.2d, at 258.

Instead, the appellant argues: “Art. 38.22, Section 2(a), Texas Code of Criminal Procedure, specifically provides that receiving from a magistrate the warning provided in Article 15.17 of the Code of Criminal Procedure is sufficient to comply with the warnings requirement of Art. 38.22.” FN22 This is essentially a rehashing of his Fifth Amendment argument: that since the appellant was warned by a magistrate during an Article 15.17 proceeding in a manner complying with Article 38.22, and invoked his right to counsel in that proceeding, his subsequent statement in the absence of counsel is inadmissible under Article 38.22. This argument simply ignores the fact that Section 2 of Article 38.22 applies to written, not oral, statements, and that a magistrate's Article 15.17 warnings are ineffective as to oral statements, whose warnings must be given and waived on the actual recording.FN23 Article 38.22, Section 3 requirements were met; the magistrate's warnings are irrelevant to this determination.

FN22. Appellant's brief, at 7. FN23. Code Crim. Proc. art. 38.22, § 3(a)(2).

The appellant also points to one particular warning given to him at his Article 15.17 proceeding for aggravated robbery: the “right to have an attorney present during any interview with peace officers .” FN24 The appellant seems to assert that “any interview” should be read literally to mean any subsequent interview with police officers regarding any offenses, including those unrelated to that charge for which the appellant was magistrated, and that this right was therefore violated when the appellant was interviewed regarding the instant offense.

FN24. Code Crim. Proc. art. 15.17(a). The Supreme Court in McNeil expressly rejected an identical argument on policy grounds: FN25 FN25. 501 U.S., at 180–81.

The proposed rule would ... seriously impede effective law enforcement.... [M]ost persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned. Since the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good, society would be the loser. Admissions of guilt resulting from valid Miranda waivers “are more than merely ‘desirable’; they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law.” FN26. Ibid. (emphasis in original) (quoting Moran v. Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)).

The Court further noted: If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. FN27. Id., at 182, n. 3. The same reasoning applies to the appellant's argument here. We reject the appellant's Article 38.22 argument.

Point of error one is overruled.

III. Admissibility of Penitentiary Packet

In point of error two, the appellant claims the trial court erred in admitting his “pen packet,” labeled State's Exhibit 133, at the punishment phase. He specifically objects to the omission of the required seal on the certification page, which is required by Article 42.09 Section 8(b). FN28 This section provides: The Texas Department of Criminal Justice shall not take a defendant into custody under this article until the designated officer receives the documents required by Subsections (a) and (c) of this section. The designated officer shall certify under the seal of the department the documents received under Subsections (a) and (c) of this section. A document certified under this subsection is self-authenticated for the purposes of Rules 901 and 902, Texas Rules of Criminal Evidence. FN29. Ibid.

The appellant's pen packet was certified by affidavit of the Chairman of Classification and Records for the Texas Department of Criminal Justice—Correctional Institutions Division, under the seal of the State of Texas, instead of the seal of the Department. The appellant contends that this seal was insufficient to meet the statutory requirement for certification. He argued at punishment that Article 42.09, Section 8, should be the controlling procedure. Because that procedure was not followed, he submits, State's Exhibit 133 is not self-authenticating under Rules 901 and 902 and therefore should not have been admitted. We need not address whether the seal on State's Exhibit 133 complies with the requirements of Article 42.09 because this procedure is not the exclusive means of admitting a pen packet. Rather, it is one of several possible ways of authenticating the document as a precondition to its admission into evidence.

At the punishment hearing, the trial court relied on Barker v. State FN30 in overruling the appellant's objection that the pen packet was not self-authenticated, referring to the Barker court's finding that Article 42.09 is not the sole method of authenticating this type of document. In Barker, the appellant had objected to the admission of his pen packets under Article 42.09, Section 8(b), claiming they were inadequately certified by the records clerk instead of by the director.FN31 The trial court overruled his objection and admitted the documents.FN32 The appeals court agreed with the state's position that the documents met the requirements of Rule 902(4) for self-authentication and were not admitted in error. FN33 In so holding, the Court reasoned:

FN30. 931 S.W.2d 344 (Tex.App.-Fort Worth 1996). FN31. Id., at 348 (At the time of the trial in Barker, Article 42.09 required the “director,” rather than a “designated officer” allowed under the current statute, to certify these documents). FN32. Id. FN33. Id., at 349.

We could interpret section 8(b) to require the actual director's signature for admission of this particular class of public documents, when every other similar class would only have to meet the broader and easier requirements of Rule 902(1) through (4). We cannot imagine that this was the intent of the legislature in enacting section 8(b). Rather, it is quite plausible that section 8(b)'s requirement is one automatic vehicle for admission that the legislature enacted to provide a sure-fire method of admission, but not an exclusive one. This seems the reasonable interpretation, while the interpretation of exclusivity seems the absurd one. FN34. Id., at 348–49.

We find the Barker reasoning persuasive, and therefore hold that Code of Criminal Procedure Article 42.09, Section 8(b), is not the exclusive means of authenticating a pen packet. In the instant case, the Chairman of Classification and Records at TDCJID, in his affidavit, certified that the pen packet contained “true and correct copies of the original records” that were on file in his office and maintained in the regular course of business. The affidavit bears the seal of the State of Texas. This certification provides sufficient evidence to support a finding that State's Exhibit 133 is what its proponent claims it to be, and thus the pen packet was properly authenticated under Rule 901. State's Exhibit 133 also satisfies the requirements for self-authentication under Rule 902(4) ( “Certified Copies of Public Records”). It is a copy of a public record, certified as correct by the custodian, by certificate complying with Rule 902(1) (“Domestic Public Documents Under Seal”).

Point of error two is overruled.

IV. Conclusion

We affirm the trial court's judgment.

Quintanilla v. Thaler, 443 Fed.Appx. 919 (5th Cir. 2011). (Federal Habeas)

Background: Following affirmance of his conviction in Texas state court for capital murder, and after denial of his state petition for postconviction relief, state prisoner filed petition for writ of habeas corpus. The United States District Court for the Southern District of Texas, No. 6:09–CV–39, denied the petition, and declined to issue a certificate of appealability (COA). Prisoner filed application for COA with Court of Appeals.

Holdings: The Court of Appeals held that: (1) prisoner's Fifth Amendment rights were not violated at police interrogation, and (2) prisoner waived Sixth Amendment argument. Application denied.

CURIAM:

John Manuel Quintanilla, Jr., was charged in Texas state court with the murder of Victor Billings. The jury found Quintanilla guilty of murder committed in the course of committing or attempting to commit a robbery—a capital offense—and the state court judge sentenced him to death based on the jury's verdict on the issues of punishment. Quintanilla petitioned unsuccessfully for post-conviction relief in state court. He filed a habeas petition in federal district court, which the district court denied in all respects and dismissed. The district court sua sponte declined to issue a certificate of appealability (“COA”). Quintanilla has filed an application for a COA to this court on two grounds: (1) whether his confession was obtained in violation of the Fifth Amendment and therefore improperly admitted at trial; and (2) whether his confession was obtained in violation of the Sixth Amendment and therefore improperly admitted at trial. We deny Quintanilla's application on both grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND

The details of the murder giving rise to this case and the factual circumstances surrounding Quintanilla's confession are memorialized in opinions by the Texas Court of Criminal Appeals, Quintanilla v. State, No. AP–75061, 2007 WL 1839805 (Tex.Crim.App. June 27, 2007) (unpublished) (slip op.), and the federal district court, Quintanilla v. Thaler, No. 09–CV–39, 2011 WL 284353 (S.D.Tex. Jan. 25, 2011) (slip op.). We do not repeat them here. In short, Quintanilla was arrested on January 14, 2003, on a warrant for an aggravated robbery unrelated to the instant offense. At 2:30 p.m. on January 15, 2003, Quintanilla was taken before a magistrate for Texas Code of Criminal Procedure Article 15.17 proceedings and warnings, which included informing Quintanilla that he had the right to request the appointment of counsel and the right not to make a statement and that all statements he made would be used against him. Quintanilla requested appointed counsel at the Article 15.17 hearing.

At approximately 4:00 p.m. on the same day, Quintanilla was interrogated without counsel regarding his charged robbery offense by Victoria County Sheriff's Office Investigator Abel Arriazola and Calhoun County Sheriff's Department Investigator Mike Kovorek. Prior to beginning the videotaped interview, the investigators gave Quintanilla his Miranda warnings, including notifying him of his right to counsel and right to remain silent, both of which Quintanilla waived. The investigators took a break at approximately 7:55 p.m., and Quintanilla and Kovorek returned at approximately 8:10 p.m. Kovorek then left, and at around 8:35 p.m., Arriazola returned with Victoria Police Department Detectives Alfred Santiago and Tom Copeland. Arriazola told Quintanilla that “Nothing has changed from the time I've talked to you,” apparently meaning that his rights were still in effect, and Santiago and Copeland were apparently aware that Quintanilla had been Mirandized at the beginning of his interview. Santiago and Copeland then interrogated Quintanilla, including asking questions about the capital murder with which Quintanilla was not yet charged. About fifteen minutes into the interrogation the detectives reminded Quintanilla of his Miranda rights, which Quintanilla again waived. Quintanilla subsequently made inculpatory statements regarding the capital murder.

After a pre-trial hearing, the state trial court judge determined that Quintanilla's statements made during his interrogation about the aggravated robbery offense had been obtained in violation of his Sixth Amendment right to counsel, which Quintanilla invoked when he requested counsel at the Article 15.17 hearing. The trial judge also ruled that Quintanilla had freely waived his Fifth Amendment rights to court-appointed counsel and to be silent at the custodial interrogation, and that the Sixth Amendment violation related to the aggravated robbery charge did not prohibit the admission of statements Quintanilla made regarding other then-uncharged offenses, including the instant capital murder offense. Quintanilla was convicted by a jury of capital murder and sentenced to death. He timely appealed his conviction and sentence in state court, and sought habeas relief in state court and in federal district court. This application for a COA timely followed.

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner can appeal a district court's dismissal of a habeas petition only if the district or appellate court issues a COA. 28 U.S.C. § 2253(c); see also Miller–El v. Cockrell, 537 U.S. 322, 335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Because the district court sua sponte declined to issue a COA, Quintanilla must seek a COA from this court to obtain further review of his claims. See 28 U.S.C. § 2253(c); see also Coleman v. Quarterman, 456 F.3d 537, 541 (5th Cir.2006). We will issue a COA if Quintanilla can make “a substantial showing of the denial of a constitutional right” by demonstrating that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). At this stage, our inquiry “is a threshold inquiry only, and does not require full consideration of the factual and legal bases of [Quintanilla's] claim.” Neville v. Dretke, 423 F.3d 474, 482 (5th Cir.2005). Because Quintanilla was sentenced to death, “we must resolve any doubts as to whether a COA should issue in his favor.” Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir.2005).

In determining whether reasonable jurists would debate the district court's assessment of Quintanilla's claims, we keep in mind that the district court's decision must be made pursuant to AEDPA's deferential standards. Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004); see also Leal v. Dretke, 428 F.3d 543, 548 (5th Cir.2005). AEDPA permits a federal district court to grant relief only if the state court decision (1) “ ‘was contrary to’ federal law then clearly established” by Supreme Court precedent, Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011) (quoting 28 U.S.C. § 2254(d)(1)), or (2) “ ‘involved an unreasonable application of’ such law,” id. (quoting 28 U.S.C. § 2254(d)(1)), or (3) “ ‘was based on an unreasonable determination of the facts' in light of the record before the state court,” id. (quoting 28 U.S.C. § 2254(d)(2)).

A decision is contrary to federal law if it is “opposite to that reached by [the Supreme] Court on a question of law” or if it resolves a case differently from the way the Supreme Court has “on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision unreasonably applies federal law when it “identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case.” Id. at 407, 120 S.Ct. 1495. A state court decision also unreasonably applies federal law if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. “The state court's findings of fact are entitled to a presumption of correctness and the petitioner may overcome that presumption only by clear and convincing evidence.” Leal v. Dretke, 428 F.3d 543, 548 (5th Cir.2005) (citing 28 U.S.C. § 2254(e)(1)).

III. ANALYSIS

Quintanilla argues in his application for a COA that the state court unreasonably applied federal law on two grounds: first, that his confession to capital murder was obtained in violation of his Fifth Amendment right to counsel and therefore improperly admitted at trial; and second, that his confession was obtained in violation of his Sixth Amendment right to counsel and therefore improperly admitted at trial. We address each issue in turn.

A. Fifth Amendment Right To Counsel

In his petition for a COA, Quintanilla argues that the Article 15.17 hearing before the magistrate—at which he was informed of and exercised his right to court-appointed counsel—invoked his Fifth Amendment rights in addition to his Sixth Amendment rights as found by the state trial court. Because the Fifth Amendment right to counsel is not offense-specific, Quintanilla argues that he was illegally interrogated about the instant offense without counsel notwithstanding his subsequent waiver of his Miranda rights during the interrogation itself. The Fifth Amendment, which applies to the states by virtue of the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court “declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation.” Edwards v. Arizona, 451 U.S. 477, 481, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). The Miranda Court adopted a set of prophylactic measures to protect a suspect's Fifth Amendment right from the “inherently compelling pressures” of custodial interrogation: specifically, that “police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney.” Maryland v. Shatzer, ––– U.S. ––––, 130 S.Ct. 1213, 1219, 175 L.Ed.2d 1045 (2010). The Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602.

Quintanilla undeniably was not subject to “custodial interrogation” at the time he appeared before the magistrate at the Article 15.17 hearing. Indeed, he concedes that the magistrate “was not going to interrogate him” and that he was not subject to questioning by law enforcement officers until approximately two hours after his appearance before the magistrate. Rather, Quintanilla argues that his request for counsel at the hearing invoked his Fifth Amendment right to be free from any future custodial interrogations without the presence of counsel. The Supreme Court has held, however, that an accused's request for counsel at an initial appearance on a charged offense does not constitute an invocation of the Fifth Amendment right to counsel. McNeil v. Wisconsin, 501 U.S. 171, 181–82, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).

Quintanilla's argument—that the Article 15.17 hearing is “basically to Mirandize the accused” and is “more than” a preliminary hearing such that his Fifth Amendment rights attached—is without merit and made without a shred of legal support. Indeed, the Supreme Court has specifically held that Texas's Article 15.17 hearing and initial appearance before a magistrate is a preliminary hearing that invokes the offense-specific Sixth Amendment right to counsel. See Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 198, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008).FN1 Simply put, the Fifth Amendment right to counsel did not attach at the Article 15.17 hearing because Quintanilla was not then subject to custodial interrogation. FN1. The Supreme Court has also explicitly rejected the argument that an accused can “combine” the Sixth and Fifth Amendment rights to counsel and that the prior invocation of the offense-specific Sixth Amendment right voids all subsequent Fifth Amendment waivers at the time of custodial interrogation on unrelated offenses. See McNeil, 501 U.S. at 177, 111 S.Ct. 2204.

It is undisputed that Quintanilla was given his Miranda warnings by law enforcement officers before they interrogated him, and that he waived his Fifth Amendment right to counsel at that time. Quintanilla has therefore neither made a substantial showing that his Fifth Amendment right to counsel was denied, nor has he demonstrated that reasonable jurists could disagree with the district court's determination that Quintanilla did not invoke the Fifth Amendment right to counsel during the Article 15.17 hearing.

B. Sixth Amendment Right To Counsel

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. “The Sixth Amendment right [to counsel] ... is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Texas v. Cobb, 532 U.S. 162, 167–68, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001) (quoting McNeil, 501 U.S. at 175, 111 S.Ct. 2204). Furthermore, “a defendant's statements regarding offenses for which he had not been charged [are] admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses.” Id. at 168, 121 S.Ct. 1335. FN2. “Even though the Sixth Amendment right to counsel has not attached to uncharged offenses, defendants retain the ability under Miranda to refuse any police questioning.” Cobb, 532 U.S. at 172 n. 2, 121 S.Ct. 1335.

The state court held, and Quintanilla does not seek to challenge, that (1) the Article 15.17 hearing constituted an initial presentment that triggered Quintanilla's Sixth Amendment right to counsel on the unrelated aggravated robbery offense, (2) he exercised his right to counsel for that offense when he requested an attorney during the hearing, and (3) the subsequent interrogation by law enforcement officials regarding the robbery without counsel present violated Quintanilla's Sixth Amendment right to counsel. In his application for a COA, Quintanilla argues that his request for counsel on the robbery charge extended to the then-uncharged offense of capital murder of which he was eventually charged and convicted. Specifically, Quintanilla argues that the charged and uncharged offenses were “so inextricably intertwined” or “extremely closely related” that the invocation of his Sixth Amendment right to counsel on the robbery charge also attached to the instant (then-uncharged) offense. See United States v. Cooper, 949 F.2d 737, 743 (5th Cir.1991).FN3

FN3. Cooper has been abrogated by Cobb. See Gore v. Sec'y for Dep't of Corr., 492 F.3d 1273, 1306 n. 73 (11th Cir.2007) (explaining that Cooper's language purporting to provide for an “inextricably intertwined”-uncharged-crimes exception to the rule that the Sixth Amendment is offense-specific is unavailing because the Court's decision in Cobb articulates a different standard: the Sixth Amendment does not attach to an uncharged crime unless it “has elements identical to those of the charged crime and would require proof of no additional facts”).

While Quintanilla states that he made this argument before the state trial court,FN4 he did not present this argument to the district court below. In his petition for habeas corpus to the district court, Quintanilla's fifth claim for relief argues that he would not have confessed to the capital murder if he had been timely appointed counsel as requested at the Article 15.17 hearing. His Sixth Amendment argument below was framed as one of causation: had his Sixth Amendment right as to the aggravated robbery charge not been violated and Quintanilla been appointed counsel before the interrogation began, his attorney “would have advised him to assert his Fifth Amendment right to silence, rather than give a detailed account of a crime spree or admit to capital murder.” This construction of Quintanilla's argument below is further supported by Quintanilla's citation in his habeas petition before the district court to United States v. Rivas, 157 F.3d 364 (5th Cir.1998), and its “fruit of the poisonous tree” discussion in the Fourth Amendment context. Id. at 368. FN4. Thaler disputes that Quintanilla raised this argument before the state trial court. Resolving this factual dispute is unnecessary for purposes of deciding Quintanilla's application for a COA.

Nowhere in his petition for habeas corpus does Quintanilla cite to Cooper or argue the robbery and the instant offense are “inextricably intertwined” or “extremely closely related.” Because this argument is not made in his application for habeas corpus, we lack jurisdiction to grant a COA on this argument and the argument is waived. See, e.g., Balentine v. Thaler, 626 F.3d 842, 848–49 (5th Cir.2010); Brewer v. Quarterman, 475 F.3d 253, 255 (5th Cir.2006) (explaining appellate jurisdiction over an application for a COA).

IV. CONCLUSION