¶1concurring.
¶2I concur in the result the majority opinion reaches, “that appellant did not make an intelligent and knowing waiver of his right to consult an attorney and that his confession was obtained in violation of the Fifth Amendment to the United States Constitution and Art. I, Sec. 10 of the Texas Constitution,” but do so reluctantly because there is much mischief in what the *571majority opinion states, which is why I must write.
¶3It has been said:
No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, [his right of self-incrimination]. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. Justice Goldberg, Escobedo v. Illinois, 378 U.S. 478, 490, 84 S.Ct. 1758, 1764, 12 L.Ed.2d 977 (1964).
¶4And that is what this case is all about, whether our criminal justice system is so weak that we must fear that if an accused is permitted to consult with a lawyer he might become aware of, and exercise, his right of self-incrimination. If our system is that weak, then, as Justice Goldberg said over twenty years ago, see supra, there is something very wrong with our criminal justice system.
¶5The record of this cause reflects that while in his office at the station house, which housed one of the offices of the homicide division in which Tommy Wayne Dunn, appellant, was then being interrogated by C.W. Kent and W.T. Dunn, Lieutenant Norman J. Zoch, who was the supervising officer of Kent and Dunn, told Carl Theobold “Ted” Schultz, III, and Stanley Schneider, two attorneys who had been dispatched to the station house by appellant’s wife, “that we were in the process of conducting an investigation and that I would not allow them to see [appellant] at that time because [appellant] had not asked for a lawyer ... I would not allow them to interfere with the investigation at that point.” Zoch also testified that he “thought that perhaps, if [appellant] had an opportunity to consult with [counsel], that he might break off [giving them, the police,] a statement.”
¶6And, Zoch didn’t permit counsel to see or communicate with appellant until after a written confession had been obtained from him. The record reflects that immediately after the interrogation, but after Kent and Dunn had obtained appellant’s signature to his written confession, Kent then informed appellant that there were two attorneys who wanted to speak with him. Counsel and appellant then, for the first time, communicated with each other.
¶7Zoch’s fear, that “if [appellant] had an opportunity to consult with [counsel], then he, [appellant], might break off [giving them, the police,] a statement,” was well founded because over thirty-five years ago in the concurring opinion that he filed in Watts v. Indiana, 338 U.S. 49, 59, 69 S.Ct. 1347, 1357, 93 L.Ed. 1801 (1949), Justice Jackson of the United States Supreme Court made the following observation:
To bring in a lawyer means a real peril to solution of the crime because, under our adversary system, he deems that his sole duty is to protect his client — guilty or innocent — and that in such a capacity he owes no duty whatever to help society solve its crime problem. Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.
¶8The questions that are before this Court for resolution are highly important to the citizens of this State, namely, whether this Court will give counsel, who is then lawfully and physically present, the right to communicate with an accused person who is then being detained by the police, and is in police custody; does the accused’s right to counsel necessarily include the right of counsel to have access to the accused when he is being detained by and in the custody of the police; and will the actions of state agents, in preventing counsel to communicate with the accused, prevent a waiver by the accused of his right to the assistance of counsel from becoming effective.
¶9These are not simple questions, but, if all are answered by this Court in the affirmative, such will give meaning to the right of the accused to have the assistance of counsel when he is in custody and being detained by the police.
¶10*572Long ago, the Supreme Court of the United States, see Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), held that the right to use counsel at the formal trial would be a very hollow thing if, for all practical purposes, the conviction is already assured by pretrial interrogation, thus rejecting a rule of law that is found in such countries as the Soviet Union, see Feiger, Justice in Moscow (1964), 86, that the formal trial will be merely an appeal from the pretrial interrogation. Also see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
¶11In holding that “we should ‘consider the balance of interest between society’s need for reasonable law enforcement as against the accused’s right to remain silent and to assert his privilege against self-incrimination,’ ” the majority obviously overlooks the fact that our Federal and State constitutions, unlike others, such as the Soviet Union, strikes a balance in favor of the accused. See Escobedo v. Illinois, supra, in which the Supreme Court of the United States held: “[Wjhen the process shifts from the investigatory to accusatory— when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and ... the accused must be permitted to consult with his lawyer.”
¶12If the accused has the right to the assistance of counsel when he has been accused of committing a criminal wrong, and is then in the custody of the police, which right no one disputes, does this right to the assistance of counsel include the right of counsel to have access to the accused? That is the burning question in this cause. It should be answered in the affirmative, without any reservations, qualifications, or conditions. The majority, however, answers the question in the negative. In doing so, I believe it errs.
¶13A majority of our sister state courts, however, have answered the question in the affirmative. See Weber v. State, 457 A.2d 674 (Del.Supr.1983); People v. Smith, 93 Ill.2d 179, 66 Ill.Dec. 412, 442 N.E.2d 1325 (Ill.Supr.1982); State v. Matthews, 408 So.2d 1274 (La.Supr.1982); State v. Haynes, 288 Or. 59, 602 P.2d 272 (Ore. Supr.1979), cert. denied, 446 U.S. 945, 100 S.Ct. 1275, 64 L.Ed.2d 802 (1980); State v. Jones, 19 Wash.App. 850, 578 P.2d 71 (Wash.Ct.App.1978); Commonwealth v. McKenna, 355 Mass. 313, 244 N.E.2d 560 (Mass.Supr.1969); Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (Pa.Supr. 1977).
¶14The majority viewpoint was best expressed by Justice Moore, who authored the opinion for the Delaware Supreme Court in Weber v. State, supra: “[I]f prior to or during custodial interrogation, and unknown to the suspect, a specifically retained or properly designated lawyer is actually present at the police station seeking an opportunity to render legal advice or assistance to the suspect, and the police intentionally or negligently fail to inform the suspect of that fact, then any statement obtained after the police themselves know of the attorney’s efforts to assist the suspect, or any evidence derived from any such statement, is not admissible on any theory that the suspect intelligently and knowingly waived his right to remain silent and his right to counsel as established by Miranda ...” 457 A.2d, at 686. This rule, however, is not without qualification: “To effectively invoke this rule, the attorney must present himself at the police station or other site of interrogation and have a bona fide right within the ambit and limitations of the Code of Professional Responsibility to hold himself out as the suspect’s counsel (see DR 2-103 and 2-104).” (686). In this cause, and understandably so, the State does not take issue with the fact that both Schultz and Schneider had the lawful right to be at the station house and hold themselves out as counsel for appellant.
¶15The minority viewpoint, which the majority adopts, but which is presently under scrutiny by the Supreme Court of the United States, see State v. Burbine, 451 A.2d 22 (R.I.Supr.1982), aff’d sub.nom. Burbine v. Moran, 589 F.Supp. 1245 (1984), rev’d Burbine v. Moran, 753 F.2d 178 (1st Cir. *5731985), cert. granted, see Moran v. Burbine, — U.S. -, 105 S.Ct. 2319, 85 L.Ed.2d 838 (1985), to consider the question “Does the Fifth Amendment’s Self-Incrimination Clause require suppression of three confessions, each made after proper Miranda warnings and three valid waivers of rights, solely because an attorney requested by the defendant was given misleading information by a police officer over the telephone that there would be no further interrogation of defendant that night and defendant was not informed of the attorney’s telephone call?”, holds that the police do not have any duty to inform an accused, who is in their custody and who has received his Mirandawarning, that counsel is physically present and wants to assist the accused.
¶16The only other state courts which appear to subscribe to the minority viewpoint are those from Nebraska, North Carolina, and Ohio, see State v. Johns, 185 Neb. 590, 177 N.W.2d 580 (Neb.Supr.1970), State v. Smith, 294 N.C. 365, 241 S.E.2d 674 (N.C. Supr.1978), and Ohio v. Chase, 55 Ohio St.2d 237, 378 N.E.2d 1064 (Ohio Supr. 1978). Federal courts of this Nation, see the cases cited in State v. McConnell, 529 S.W.2d 185, 187 (Mo.Ct.App.K.C.1975), and Fuentes v. Moran, 572 F.Supp. 1461, 1469 (D.R.I.1983), aff’d, Fuentes v. Moran, 733 F.2d 176 (1st Cir.1984), appear to subscribe to the minority viewpoint.
¶17The minority viewpoint has best been expressed by Judge Selya, a federal district court judge, see Fuentes v. Moran, supra, as follows: “The sockdolager is simply this: Petitioner’s right against self-incrimination is personal; it cannot be invoked or waived by anyone other than the person to whom the right attaches.” 572 F.Supp., at 1469.
¶18The majority opinion in this cause relies heavily upon what Judge Selya stated. In doing so, however, the majority overlooks the fact that notwithstanding that Fuentes v. Moran, supra, was affirmed by the First Circuit, that court in Burbine v. Moran, supra, held: “[W]e join ranks with a number of other respected courts, indeed apparently all the other state supreme courts that have considered the issue. In all of those cases, like the one at bar, Miranda warnings were duly given, damaging admissions were made, and there was no hint of threats or phyiscal coercion. And in all of those cases the courts held that the failure to inform a suspect in custody that his attorney or an attorney retained for him was seeking to see him vitiated his waiver of his Fifth Amendment right to assistance of counsel at his questioning.” 753 F.2d, at 186. The First Circuit further pointed out in Burbine v. Moran, supra, that “Fuentes was a close case, narrowly favoring the state,” and also pointed out that the attorney in Fuentes, supra, only made a “half-hearted, feckless” effort to be of service to the accused, and lastly held that the police conduct in that cause did not sink to the level of trickery.
¶19Thus, in light of the above, it is difficult, if not impossible, to understand how the majority can state that the federal district court decision of Fuentes v. Moran, supra, is “persuasive.” Furthermore, it is also difficult, if not impossible, to understand the majority’s following holding, “We conclude from the rationale in State v. Burbine, supra, (the State court decision which has been reversed by a federal circuit court of appeals and is presently pending on cer-tiorari before the Supreme Court of the United States, see supra), Kelly v. State, 621 S.W.2d 176 (Tex.Cr.App.1981) (a panel opinion of this Court, which is not even factually in point to this cause), and Fuentes v. Moran, supra, (the federal district court opinion), is closely akin to that employed in State v. Burbine, supra.” As to the majority of this Court relying upon a federal district court opinion for authority, see and cf. what this Court stated in Pruett v. State, 463 S.W.2d 191, 194 (Tex.Cr.App. 1971).
¶20In this instance, appellant, who had been given his Mirandawarning, was unaware that Schultz and Schneider were standing nearby. However, the fact that he might have been indifferent to the abstract offer of counsel by the police, by not then de*574manding to have the assistance of counsel, does not also mean that he would have disdained the chance to consult with Schultz and Schneider before signing the confession, had. they been given the opportunity to consult with him. By preventing Schultz and Schneider from communicating with appellant, the actions of the State’s agents in this cause were equivalent to holding appellant incommunicado, which itself is sufficient to void a confession. See Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Ward v. Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663 (1942); Collins v. Beto, 348 F.2d 823 (5th Cir.1965).
¶21From the above, it should be obvious that but for the actions by the State’s agents in this cause, in preventing Schultz and Schneider from communicating with appellant, appellant would have had “[t]he guiding hand of counsel” when he was being interrogated by the police. See and cf. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
¶22I also observe that what the majority opinion states is in conflict with what this Court stated and held in Hamilton v. State, 68 Tex.Cr.R. 419, 153 S.W. 331, 336 (Tex.Cr.App.1913), in which this Court was confronted with a similar situation as at bar. In condemning similar conduct, this Court held that such conduct on the part of the State’s agent was “a clear and palpable violation of the Constitution and Bill of Rights.”
¶23Furthermore, but long ago, when it was a criminal offense in this State, see former Penal Code Art. 1176, for a custodian of a prisoner to wilfully deny the defendant’s attorney the right to see and consult with the defendant, the then Dallas Civil Court of Appeals, in Wilmans et al. v. Harston, 234 S.W. 233 (Tex.Civ.App. —Dallas 1921, no writ history), stated the matter this way: “The due and orderly administration of justice requires that the rights and privileges of attorneys who are officers of the courts be protected with zealous care against undue infractions of a nature which are calculated to deny prisoners whom they represent the advice and aid of counsel..."
¶24“[Although the state has a significant interest in investigating and prosecuting criminal conduct, that interest cannot override the fundamental right to an attorney guaranteed by the Constitution.” People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 22, 397 N.E.2d 709, 713 (Ct.App. New York 1979). Thus, in a reciprocal sense, the right of an attorney to see and consult with his client is the same as the right of the accused to have the assistance of counsel when he is in the custody of the police. “To allow the police to interrogate, and elicit a confession from, a suspect without informing the suspect of his counsel’s availability while effectively denying his counsel reasonable access (would not only) promote those ‘evils’ inherent in the interrogation process which Miranda condemned,” see State v. Burbine, supra, at 37 (Murray, J., dissenting opinion), but would also amount to “our system of justice permitting the district attorney, the lawyer representing the State, to extract a confession from the accused while his own lawyer, seeking to speak with him, was kept from him by the police.” People v. Donovan, 13 N.Y.2d 148, 193 N.E.2d 628, 629, 243 N.Y.S.2d 841, 842 (Ct.App.N.Y. 1963).
¶25Not only would I hold in this cause what the majority does, that the State has failed to sustain its heavy burden of proof that appellant knowingly and intelligently waived his right to the assistance of counsel during his custodial interrogation by Kent and Dunn, I would additionally adopt what the Delaware Supreme Court stated and held in Weber v. State, supra. To do less, I believe, is to denigrate the accused’s constitutional right to counsel.
¶26For all of the above and foregoing reasons, I concur in the result the majority reaches.