OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
CAMPBELL, Judge.
This is an appeal from a conviction of murder. See V.T.C.A. Penal Code, See. 19.02(a)(1). The trial court assessed punishment at 99 years confinement in the Texas Department of Corrections, after a bench trial.
On direct appeal the Waco Court of Appeals in an unpublished opinion rejected appellant’s contentions that the trial court erred in admitting appellant’s written confession into evidence and that the State had failed to sustain its burden of showing that the confession was given knowingly and voluntarily. See Dunn v. State, No. 10-83-100-CR, delivered January 12, 1984.
We granted the appellant’s petition for discretionary review in order to determine what appear to be two closely interwoven issues: (a) whether the right of an accused pursuant to Miranda v. Arizona1 to have counsel present during custodial interroga-, tion may be invoked by a party other than [564]*564the accused; and (b) whether the failure of law enforcement officials to notify the accused that counsel, who has been retained by a third party or parties, and is close at hand, negates the knowing and voluntary nature of the waiver of the right to presence of counsel pursuant to Miranda and its progeny? We will reverse the court of appeals.
A brief recitation of the facts of the case is necessary. On the day following his father’s death, appellant was contacted by Detective Kent who requested that he come to the Houston Police Department after work. After closing his business, appellant appeared at police headquarters around 6:00 p.m. and was informed by Kent that he was a suspect in his father’s murder. He was then given an oral Miranda warning. The evidence shows appellant was in his mid-thirties, a high school graduate with some junior college credits, and a businessman. Kent testified he would not have allowed appellant to leave police headquarters until he participated in a lineup, which occurred around 6:30 p.m. The lineup was completed shortly before 7:00 p.m., and appellant returned to the homicide office with Kent, where he was given a second oral warning of rights under Miranda. Following three hours of questioning by Kent and Detective Dunn, Kent began to type appellant’s three-page confession at 10:35 p.m. on October 13, 1981. After appellant read, corrected and initialed the document, he read and initialed a third Miranda warning printed at the top of his confession and signed the confession at 12:17 a.m. on October 14th. At the time he signed his confession, appellant was unaware that police officers had prevented two lawyers from contacting him while he was being questioned.
The attorneys had not arrived at police headquarters on their own initiative. Appellant’s wife contacted attorney Schultz at 10:00 p.m. on October 13th and requested that he go to police headquarters to locate her husband and represent his interests. She became concerned after learning from one of appellant’s employees that he had gone to police headquarters after closing his business for the day. Schultz, who had previously represented appellant and his wife in a commercial matter, called attorney Schneider, a criminal law specialist, and asked Schneider to accompany him to the police department. According to Schneider, he immediately phoned Detective Dunn at police headquarters around 10:15 p.m. and told Dunn that he “didn’t want them to talk to [appellant] while I was not there and I would be there in a few minutes.” In his testimony, Detective Dunn did not recall the details of the phone conversation as recounted by Schneider.
The two attorneys arrived at the homicide office shortly before 11:00 p.m. and immediately talked to Detective Cook who issued them a jail “pass” to see appellant. Upon going to the jail area and presenting the pass, the attorneys were told that appellant was not in jail. Schultz phoned appellant’s wife to see if she had heard from appellant or determined his whereabouts, while Schneider returned to the homicide office where Lt. Zoch said that appellant was in an adjacent room being questioned. Schultz rejoined Schneider in the homicide office, and they demanded the right to see appellant. When this request was refused, the attorneys requested Zoch inform appellant they were outside if he desired their assistance. This request was also denied. The attorneys then proposed that appellant be given Schultz’s business card, which Zoch refused to do.
Zoch had phoned Assistant District Attorney Holleman to inquire whether the attorneys had a right to see appellant. Holleman advised Zoch that if appellant had waived his right to counsel the attorneys did not have the right to interrupt questioning and talk to appellant. Zoch informed Schneider and Schultz that he was denying their request after having “checked it out with the District Attorney’s office.” Schneider phoned Holleman and requested that he advise police officers to tell appellant they were there or give appellant the attorney’s business card, but Holleman refused. In a last-ditch effort to contact appellant, Schneider used a phone [565]*565to send telegrams to the police chief, Detective Dunn, Zoch and to appellant, but the telegrams were never delivered. Appellant signed his confession at 12:17 a.m. on October 14th, and the attorneys were allowed to see appellant at approximately 12:30 a.m.
Zoch testified he refused to allow the attorneys to contact appellant because appellant had not asked for legal counsel after being given his Miranda warnings, and “I would not allow [the attorneys] to interfere with the investigation at that point.” The following portion of Zoch’s cross-examination summarizes his reason for refusing the attorneys’ requests:
“Q. So, now, what do you mean by interfere in the investigation?
“A. Well, Detective Kent was conducting an interview with [appellant]. [Appellant] had been advised of his rights and was cooperating. And at that point we saw no reason to upset the boat, so to speak. Now, the gentleman was wanting — he was talking. He was talking freely and willingly, and I saw no point in stopping the investigation at that point.
“Q. You thought that perhaps, if he had an opportunity to consult with his lawyer, that he might break off the statement, is that correct?
“A. That is — yes, sir, that’s correct.”
Appellant tried unsuccessfully to suppress his confession at a pre-trial hearing.
The court of appeals found: “Miranda does not expressly or inferentially require police to inform an accused, who has been given the basic Miranda warning, that legal counsel is present at the police station and trying to contact him, before any waiver of his rights under the Fifth Amendment can be deemed knowingly and intelligently made.”
SIXTH AMENDMENT CLAIM
Appellant contends, inter alia, that his Sixth Amendment right to counsel was violated by the admission of his confession into evidence. In the instant case, at the time appellant signed his confession, judicial proceedings had not been initiated against him. The mere arrest and subsequent questioning of a person do not constitute a sufficient formalization of proceedings to trigger the requirement of counsel under the Sixth Amendment. The Sixth Amendment right to assistance of counsel does not come into play until “at or after the time adversary judicial proceedings have been initiated against (the accused), ‘whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” See Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977), quoting Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 1881-83, 32 L.Ed.2d 411, 417, 418 (1972); Tarpley v. Estelle, 703 F.2d 157 (5th Cir.1983). Thus, it is only when “the government has committed itself to prosecute” that the defendant is entitled to counsel, Tarpley v. Estelle, supra, at 162, under the Sixth Amendment. See also United States v. Dobbs, 711 F.2d 84, 85 (8th Cir.1983); United States v. Franklin, 704 F.2d 1183, 1189 (10th Cir.1983); United States v. Guido, 704 F.2d 675, 676 (2d Cir.1983); Logan v. Shealy, 660 F.2d 1007, 1012 (4th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982); United States v. Traficant, 558 F.Supp. 993, 996 (N.D.Ohio 1983).
In the instant case, no “judicial proceeding” of any kind had been instituted by the police against appellant, thus no viable Sixth Amendment claim has been demonstrated.
FIFTH AMENDMENT CLAIM
I. INVOCATION OF FIFTH AMENDMENT RIGHTS
Appellant additionally contends that the court below rendered a decision in conflict with other jurisdictions that have addressed the issue of whether a party other than a defendant may invoke the right to counsel under Miranda, viz: Weber v. [566]*566State, 457 A.2d 674 (Del.1983); State v. Matthews, 408 So.2d 1274 (La.1982); Commonwealth v. McKenna, 355 Mass. 313, 244 N.E.2d 560 (1969); People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 (1979); People v. Arthur, 22 N.Y.2d 325, 292 N.Y.S.2d 663, 239 N.E.2d 537 (1968); People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628 (1963); State v. Haynes, 288 Or. 59, 602 P.2d 272 (1979); Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977).
We are not persuaded by these cases relied upon by appellant because of the following persuasive language found in Fuentes v. Moran, 572 F.Supp. 1461 (D.R. 1.1983), aff’d 733 F.2d 176 (1st Cir.1984); viz: “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. This view is shared by other state jurisdictions, see e.g., State v. Johns, 185 Neb. 590, 177 N.W.2d 580 (1970); State v. Smith, 294 N.C. 365, 241 S.E.2d 674 (1978); Ohio v. Chase, 55 Ohio St.2d 237, 378 N.E.2d 1064 (1978); State v. Burbine, 451 A.2d 22 (R.I.1982).
Of particular significance is the reasoning employed by the Rhode Island Supreme Court in State v. Burbine, supra. In Bur-bine, the relevant facts developed thusly:
Police officers who were investigating a homicide received a telephone call from a public defender informing them that the defendant Burbine was represented by another attorney in the public defender’s office; these officers were informed that the public defender in question was not available; the officers were informed that the public defender then speaking to them would act as defendant’s legal counsel, in the event that the officers intended to place the defendant in a lineup or question him; the officers in question never informed the defendant of this telephone call from the public defender’s office; defendant Bur-bine then proceeded to give three confessions admitting his complicity in the homicide; and the defendant Burbine contended that all three confessions should have been suppressed on the ground that they were obtained in violation of his right to counsel and his privilege against self-incrimination. The Rhode Island Supreme Court, in finding defendant Burbine’s written and verbal waivers of his right to remain silent and his right to counsel knowing and intelligent, observed:
“Nothing in the Miranda opinion or in succeeding cases has indicated that the right to counsel may be asserted by any one other than the accused. The strength of Miranda lies in its simplicity. It was designed as a set of sharp-bright line directions which police officers could easily follow. It was not dependent on the fortuitous circumstance exhibited in Escobedo whose very limited application it transcends and supercedes. Even such a robust exponent of the rights of the accused as Professor Yale Kamisar points out the weak congruence between a defense lawyer’s entry into the proceedings and the suspect’s need for a lawyer’s help:
“ ‘Whatever its symbolic value, a rule that turns on how soon a defense lawyer appears at the police station or how quickly he “spring[s] to the telephone” hardly seems a rational way of reconciling the interest of the accused with those of society.’ [citation omitted].
“Consequently, we are of the opinion that the principals of Miranda place the assertion of the right to remain silent and the right to counsel upon the accused, and not upon benign third parties, whether or not they happen to be attorneys.” Burbine at pg. 28.
As appellant accurately points out, this case presents a case of first impression to this Court on this issue. However, though the factual situation is certainly distinguishable, the ultimate rationale applied in Kelly v. State, 621 S.W.2d 176 (Tex.Cr.App. 1981), is closely akin to that employed in State v. Burbine, supra.
In Kelly, supra, the defendant and his brother were arrested by Fort Worth police officers and questioned in reference to a [567]*567homicide. While in custody, and after being questioned at some length by police officers, the defendant was allowed to visit with his mother and brother for quite some period of time. The defendant’s mother made several unsuccessful attempts to contact an attorney in the presence of the defendant and in the presence of the questioning officers. One of the officers (Meyer) testified that he made no effort to assist the defendant’s mother in contacting an attorney. After some additional time had passed, the defendant gave a written, signed confession. One of the defendant’s contentions at the hearing on his motion to suppress his confession was, although the detective who questioned him was aware of the fact that defendant’s mother made at least two unsuccessful attempts to contact an attorney, the detective nevertheless proceeded to obtain a confession from the defendant. Presiding Judge Onion, writing for this Court and addressing this contention, observed:
“In applying these rules to the situation presented by Meyer’s testimony, we first observe that appellant neither personally advised Meyer of his desire to consult an attorney nor personally attempted to contact one. We decline to equate an attempt by a member of the family of an accused to contact a lawyer, which is overheard by police officers, with an indication by the accused that he desires consultation with counsel prior to any questioning. Appellant’s mother may have acted on her own despite the indifference or even opposition of her son. No violation of Miranda, supra, is shown.” [emphasis added] Kelly, 621 S.W.2d at pg. 180.
We conclude from the rationale employed in State v. Burbine, supra, Kelly, supra, and Fuentes v. Moran, supra, that an accused’s right against self-incrimination is personal, and cannot be invoked or waived by anyone other than the accused.
II. KNOWING AND VOLUNTARY WAIVER OF FIFTH AMENDMENT RIGHTS
Closely related, yet distinctly different, from the first Fifth Amendment issue on page 1 ante, is the analysis of the second Fifth Amendment issue presented, viz: whether the failure of law enforcement officials to notify the accused that counsel, who has been retained by a third party or parties and is close at hand, negates the knowing and voluntary nature of the waiver of the right to presence of counsel pursuant to Miranda, supra, and its progeny. The analysis of this issue must necessarily begin with the premise that this Court has in the past basically followed the mandates of the Supreme Court of the United States in cases involving custodial interrogation. See, e.g., Kelly, supra, including both the state and federal cases chronicled therein. If we decide to depart from the path laid down by the Supreme Court in a case where an accused has not exercised his right to remain silent or his right to counsel, 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.” State v. Burbine, at pg. 29.
The cases are legion throughout the various federal circuits to the effect that, notwithstanding the knowledge of law enforcement officials that a suspect is represented by counsel or is planning to engage counsel, questioning may proceed without the attendance or acquiescence of the attorney so long as a valid waiver has been secured, [emphasis added.] Hance v. Zant, 696 F.2d 940, 947 (11th Cir.1983); United States v. Brown, 569 F.2d 236, 238-39 (5th Cir.1978) (en banc); Moore v. Wolff, 495 F.2d 35, 37 (8th Cir.1974); United States v. Cobbs, 481 F.2d 196, 199-200 (3rd Cir.1973), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973); United States v. Zamora-Yescas, 460 F.2d 1272 (9th Cir.1972), cert. denied, 409 U.S. 881, 93 S.Ct. 210, 34 L.Ed.2d 136 (1972); United States v. Gordon, 493 F.Supp. 808, 812 (N.D.N.Y.1980), aff’d on other grounds, 655 F.2d 478 (2d Cir.1981); see United States v. Monti, 557 F.2d 899, 904 (1st Cir.1977).
It is axiomatic that the burden of establishing waiver “is on the government [568]*568and is a heavy one.” United States v. Montgomery, 714 F.2d 201, 203-204 (1st Cir.1983). “The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979).
In the instant case, the question of voluntariness of the waiver is pretty easily settled. The trial court found and the evidence is overwhelming that appellant was admonished of his right to remain silent and of his right to retained or appointed counsel on at least three occasions. There is no evidence that appellant was ignorant, confused, or intimidated. The appellant had not been traumatized by forcible arrest, but instead had come to the police station voluntarily and at his own convenience. Throughout his interview with police, the appellant was cooperative and was described as being “calm, cool and collected.” In the face of this evidence, we find that appellant’s confession was given voluntarily.
The difficult question, and apparently one of first impression presented to this Court, is whether, given the fact that attorneys hired by appellant’s wife were present seeking to counsel with appellant, the waiver was obtained knowingly?
In solving this query, it is necessary for us to examine that “quantum of information necessary for the accused to make an informed decision as to waiver.” State v. Burbine,2 at pg. 29.
In his brief, the appellant urges this Court to adopt the per se rule established by the Delaware Supreme Court that “if prior to or during custodial interrogation, and unknown to the suspect, a specifically retained or properly designated lawyer is actually present at a 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, supra.” Weber v. State, supra, at pg. 686.
This rule, coupled with the absolutist per se rule adopted in the State of New York in People v. Donovan, 13 N.Y.2d 148, 193 N.E.2d 628, 243 N.Y.S.2d 841 (1963), People v. Arthur, 22 N.Y.2d 325, 239 N.E.2d 537, 292 N.Y.S.2d 663 (1968), and People v. Hobson, 39 N.Y.2d 479, 348 N.E.2d 894, 384 N.Y.S.2d 419 (1976) is not in any way mandated by the Supreme Court in Miranda, supra, wherein the formulation of the now axiomatic Miranda “warnings” was followed by the statement “this does not mean, as some have suggested, that each police station must have a ‘station house lawyer’ present at all times to advise prisoners.” Miranda, supra, 384 U.S. at 474, 86 S.Ct. at 1628. We therefore specifically decline to accept the invitation of appellant to adopt either the Weber rule or the New York rule.
We believe the more rational approach in assaying the validity of the waiver relied upon by the State, is for this Court to examine all of the pertinent facts and circumstances of the case, including but not limited to the relationship of the suspect to the attorney, the extent of the knowledge possessed by the authorities, the conduct of the authorities, the nature of the lawyer’s request, and “the background, experience and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
[569]*569In the instant ease, if all the facts and circumstances are “sifted and weighed in determining whether or not a free and sentient waiver of the rights to remain silent and to the presence of an attorney has been effectuated,” Fuentes v. Moran, 572 F.Supp. at 1470, and specifically, whether appellant made a knowing waiver, the following conclusions emerge:
1) The appellant was in the custody of police officers at the time he gave his confession;
2) Attorney Schultz was retained to represent appellant by appellant’s wife at a time prior to the giving of the confession;
3) Attorney Schneider was engaged by attorney Schultz. Schneider contacted the homicide division of the Houston Police Department prior to the signing of the confession and advised officers that he had been retained to represent appellant, and instructed an officer that appellant should not be further questioned;
4) Attorneys Schultz and Schneider proceeded to the police station, arriving shortly before 11:00 P.M.
5) The attorneys were told that appellant was in jail; they procured a jail pass card, proceeded to the jail, discovering then that appellant was not in jail;
6) Attorney Schneider returned to the homicide division and was informed that appellant was being questioned in an adjacent room;
7) The attorneys informed Lt. Zoch that they were hired by appellant’s wife to represent appellant; they asked Zoch to inform appellant of their presence; Zoch declined; they requested that Zoch give appellant their business cards; Zoch again declined;
8) An assistant district attorney instructed homicide officers that attorneys for appellant would not be allowed access to appellant unless he (appellant) requested their assistance;
9) Attorney Schneider attempted, by telephone, to send telegrams to the police chief, all detectives connected with appellant’s case, and to appellant, but the telegrams were never delivered;
10) Appellant signed his confession at 12:17 A.M. the following morning. Attorneys Schneider and Schultz were permitted to see appellant at 12:30 A.M.
11) Lt. Zoch affirmatively testified that he would not allow the attorneys to see appellant because appellant was cooperating and “I saw no point in stopping the investigation at that point.” When Zoch was asked whether or not he thought a visit from the attorneys would cause appellant to “break off the statement” he replied “yes, sir, that’s correct.”
The facts and circumstances of the instant case are a far cry from the facts in all of the federal cases chronicled ante at pg. 567-568, and even the cases from the various state jurisdictions herein enumerated. The attorneys hired by appellant’s wife in the instant case did everything short of kicking in the interrogation room door to gain access to appellant — at a time when appellant, if given a knowing and intelligent choice, might certainly have opted to remain silent. This unusual chain of events leads us to conclude that:
“This combination of circumstances clearly vitiates any claim that a waiver of counsel was knowing and voluntary. Were this not so, the proper role of a defense counsel would be meanly diminished. If police officers with a more than warm suspect in their custody were permitted to engage in frustrating dissimulation with impunity, they would have to be more than human to resist the temptation to mislead the suspect and his counsel.” Burbine v. Moran, 753 F.2d at 187 (1st Cir.1985).
Although we have previously found that appellant gave his confession voluntarily, we find from the totality of the above facts and circumstances 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 [570]*570Constitution and Art. I, Sec. 10 of the Texas Constitution.
The judgment of the court of appeals is reversed and the cause is remanded for a new trial.
ONION, P.J., and W.C. DAVIS and WHITE, JJ., dissent.