Brief of respondent for Florida v. Powell, 08-1175 - Oyez

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the Fifth Circuit concluded that the decision of the
Texas Court of Criminal Appeals upholding the
warning was not “objectively unreasonable.” Id. at
860. The court indicated, however, that the outcome
would have been different on direct review. See id. at
860 n.6 (highlighting habeas context and noting that
a prior decision holding that “a suspect must be
explicitly warned that he has the right to counsel
during interrogation . . . remains binding precedent
for cases on direct appeal in this Circuit”).
Beyond its limited application to the habeas
context, Bridgers involved a warning that the Texas
court found materially different from the form read to
Powell. The Texas court determined that the warning
sufficiently conveyed the right to counsel during
interrogation primarily on the basis that the suspect
was told he had a right to the “presence” of counsel
before questioning. Id. at 857-58. The Texas court
distinguished that from warnings, similar to the ones
given Powell, that advise only of the right to “consult
or speak to an attorney before questioning, which
might have created the impression that the attorney
could not be present during interrogation.” Id.; accord
id. at 860 n.5.
Finally, as noted above, in considering a petition
for certiorari on direct appeal in Bridgers, Members
of this Court stated that the warnings “apparently
leave out an essential Miranda element.” Bridgers,
532 U.S. at 1034. The Bridgers case thus supports,
rather than contradicts, the decision below.