Opinion
No. 08-16-00023-CR
03-28-2018
THE STATE OF TEXAS, Appellant, v. ELIZABETH MUNOZ, Appellee.
Appeal from the 171st District Court of El Paso County, Texas (TC# 20140D02421) OPINION
The State charged Appellee Elizabeth Munoz with the murder of Raul Robles. In a pretrial motion, Munoz moved to suppress any written and oral confessions or statements made by her to law enforcement officers. Following a hearing, the trial court granted Munoz's motion and the State filed this interlocutory appeal. Finding error, we reverse.
FACTUAL BACKGROUND
At the suppression hearing, Detectives Ochoa and Pena of the El Paso Police Department testified regarding their investigation and contact with Munoz. On March 1, 2014, both detectives responded to Lomaland and North Loop in El Paso to investigate a suspected homicide. The next day, based on their preliminary investigation, the two detectives tried to contact Munoz as she had been identified as a subject of interest. After receiving information of her whereabouts, Ochoa and Pena went to meet with Munoz at a church where she was then attending a service with her father and brother. Detective Ochoa approached Munoz and advised her that they wished to speak to her about an incident involving Robles. Munoz replied that she knew "what happened," and that she wanted to tell him what "took place." Detective Ochoa told her it was important to have their conversation at "the office." He explained he had an unmarked vehicle and he told her he would give her a ride. Munoz then rode with him in the front passenger seat of his vehicle. During the ride, she was not handcuffed nor formally placed under arrest. At the hearing, Detective Ochoa described that Munoz did not appear to him to be intoxicated nor under the influence of any type of narcotic, that she appeared to be of sound mind, and that she was willing to go with him.
Beginning at 11:52 a.m., and ending at 2:13 p.m., Detective Ochoa interviewed Munoz for over two hours with Detective Pena also present in a room equipped with an audio and video recording system. Shortly after the interview began, Detective Ochoa administered Miranda warnings that he read aloud from a card and confirmed her willingness to continue talking. Detective Ochoa testified that Munoz made incriminating statements near the end of his questioning. Both officers then left the room to start their booking process and to talk to other detectives working on the case. During this process, Detective Pena went to download the interview recording onto a disk. As she walked into the equipment room she noticed the recording light was not blinking. She then determined that the equipment stopped recording prematurely at 1:29 p.m., and failed to capture more than thirty minutes of the end of the interview.
After conferring, the detectives returned to the room and in a second session recorded from 2:46 p.m. to 2:54 p.m., informed Munoz of the recording malfunction. Not realizing they had recorded her earlier session, Munoz objected to any further recording and then said she didn't understand and thought a lawyer needed to be present for a recording to be made. Detective Ochoa explained they were allowed to record her interview and reminded her that he had earlier described how he had told her they would go in and she would give a formal-type interview. Munoz replied she didn't understand he was describing a recorded interview. Detective Pena added that procedures had changed from typing out a statement to recording a conversation. Detective Ochoa then offered to type out her statement informing her it would be her option. In reply, Munoz said she didn't like being recorded. Detective Ochoa followed by asking her if she wanted it to be in a statement format. Munoz nodded her head in agreement.
As Detective Ochoa started to leave the room to set up for a written statement, Munoz asked whether there would be any difference between the recording and the written statement. Detective Pena explained they would type out what she said and then she would be allowed to review it before signing. Munoz asked, "so why can't my lawyer be present?" Ochoa replied, "he could if you want him to, that's not a problem; that's your option; that's why when I gave you your rights, that's what that was." Munoz replied, "I thought that was my rights for me to tell you like the incident that had happened." Detective Ochoa responded, "yes," as he turned to leave the room. Detective Pena responded, "yes, you have been; and so you want it typed out," and followed him out the door. Munoz did not respond further and sat quietly in her seat for a few minutes before the recording ended at 2:54 p.m. Shortly thereafter, Detective Ochoa began taking Munoz's statement at approximately 3:02 p.m., interviewing her at his desk, and transcribing her responses into a written statement that she reviewed and signed upon completion at approximately 4:24 p.m.
For purposes of the pretrial hearing, the State admitted the two recordings of Munoz's interview, as well as her written statement in draft and final form. Munoz herself did not testify.
The Incomplete Recorded Interview
As seen on the video recording, Detective Ochoa started his interview by asking Munoz if she knew where she was at and she responded, "yes, it's where you do investigations." She next provided her full name, date of birth, current address, and place of employment. Detective Ochoa then informed her that they were investigating the incident that occurred the day before at apartments located at 524 Lomaland. He advised her that she had been identified as a suspect, but also told her she was not under arrest. Next, he administered the following Miranda warnings that he read aloud from a card:
You have the right to remain silent and not make any statement at all, and any statement you make may be used against you at trial.
Any statement you make may be used against you in court.
You have the right to have a lawyer present to advise you prior to and during any questioning.
If you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning.
You have the right to terminate the interview at any time.
If you are not a United States citizen, you have the right to contact your consulate.
Following his reading of rights, Ochoa asked Munoz if she understood her rights, and if she wanted to "knowingly intelligently and voluntarily" waive her rights. In response, Munoz nodded her head yes, and responded verbally saying, "I understand." Detective Ochoa then asked Munoz if she wished to talk to him, and she again nodded her head yes and started answering his questions beginning with where she went to school.
Ochoa continued asking general questions and Munoz gave information about where she lived, her high school education, employment, and relationship with Robles. Munoz said Robles had been her boyfriend for several months, although they broke up briefly then got back together for the past three months. She also mentioned she was currently pregnant.
Detective Ochoa then turned his questions to the incident involving herself and Robles. Munoz described how she and Robles were visiting with his cousin who lived at an apartment on Lomaland. They were helping with babysitting and Robles was providing tattoos with tools he had brought with him. Munoz described that she had to go to work but didn't go because Robles accused her of getting ready to be with someone else. She called in to work to appease him. He started making accusations about her past and talking about text messages he found on her phone. Munoz claimed that Robles had been drinking and using cocaine and went without sleep for two days. Their argument escalated as he followed her outside. As their argument continued, he told her he didn't want her baby. Robles made a few phone calls then left a phone near her. Munoz called her friend telling her Robles would likely start hitting her. Robles returned and when he saw her on the phone he punched her in the face and hit her several times even though she told him to stop.
As Munoz began crying, she continued to describe to the detectives how her argument with Robles spilled out of the apartment to a nearby store and back again to the apartment area. Robles followed her and started arguing with her again and punched a trash can near the store. Although she ran, he grabbed her hair and dragged her on the floor. An onlooker told her he had called the police. She warned Robles that police had been called and she wanted him to stop hitting her. Robles said he didn't care as he didn't have any warrants. As Robles jumped over a wall, she started running back to her truck parked at the apartments. Munoz then described that Robles started coming towards her again and she saw a group of guys in a car happen upon the scene. They saw her bleeding lip from his earlier punch and began verbally arguing with him. Robles told them he was with "Tango Blast," which she said was a gang thing. Robles then went behind a wall with the guys following as she ran to her truck. When she saw the guys leaving, she went to find Robles and found him lying unconscious. She ran to her truck, tried calling the police, then felt as if she was having contractions. Soon her friend came and took her to the hospital. On the way, she called police and told them where to find Robles. After that point, she didn't know what happened to Robles.
For several minutes, Detective Ochoa asked Munoz follow up questions then asked her to remove her jacket to show him scratches that were visible on her hands and arms from being dragged the day before. She also had a bandage on her right upper arm that she described as being "morphine" given to her at the hospital due to her contractions. He then asked if she would allow them to take pictures and she agreed. She described walking with a limp due to Robles having slammed her days earlier with a door. After providing Munoz with a cup of water, the two detectives then took a break of nearly fifteen minutes leaving Munoz alone in the room where she sat quietly.
When the detectives returned, Detective Ochoa shifted his questioning and described to Munoz that he and other officers had talked to different people living at the apartments during their investigation. From these conversations, he said they believed they had identified one of the persons that exited the car she had earlier described. Detective Ochoa next explained that several people also described seeing Munoz and Robles at the apartments. Notably, several kids described Robles as being scary-looking because of his facial tattoos. Ochoa asked Munoz to think back to what took place and confronted her about not believing she had yet told him everything that had happened although witnesses confirmed some of what she described. He told Munoz that many onlookers observed her fighting with Robles as it attracted their attention. These witnesses also described Robles getting into a fight with the three guys she described. These witnesses also saw what happened to Robles and they said it wasn't done by the three guys as she had implied. Detective Ochoa said witnesses described seeing a woman staying at an apartment do something to Robles. He also said Robles' injuries were consistent with what witnesses described. He encouraged her to tell him the truth.
While Detectives Ochoa and Pena continued asking her to tell them what happened, Munoz stayed silent. Sometimes she shook her head no, then she gradually began to sob and cry. She momentarily broke her silence when Detective Pena asked her about choosing to go to church. After several minutes of unanswered prompting, Detective Ochoa asked if Robles continued to threaten her and Munoz shook her head yes. She said he had a gun that he gave to his cousin for safekeeping, and he threatened he would use it on her if she left him. He said he would go to her mother's and kill her and her baby. After several minutes of crying, she said Robles scared her, and she worried about losing her baby. As Detective Ochoa encouraged her to tell them what happened, the recording abruptly stopped.
The Written Statement
Before preparing her statement, Detective Ochoa testified he advised Munoz that he considered the interview to be a "continuation" of her first interview, and reminded Munoz that he had already provided her with her Miranda rights. Detective Ochoa had a form for a written statement on his computer, which contained the Miranda warnings, and he displayed the warnings to Munoz, advising her that they were the same rights he had read to her earlier. He did not re-itemize those rights, nor did he re-read them to her out loud.
He asked her to start from the beginning, from the driving over to the station and arriving at the office, to the statements she gave in the interview room, and including all parts that were not recorded due to the recording malfunction. Detective Ochoa typed up the information as Munoz responded to his questions. After he typed an initial draft, he printed it and handed it to her while asking her to read it over. He told her to go ahead and delete, add, or make whatever changes she wanted on the draft. She made several changes on the initial draft that Detective Ochoa included in the final version. Munoz then had the opportunity to read the final draft before she initialed each paragraph and signed in front of two witnesses at approximately 4:24 p.m.
The first paragraph in the written statement recited that Detective Ochoa had previously provided Munoz with her Miranda rights. The paragraph then listed the Miranda warnings, and concluded with a statement that Munoz understood her rights and that she was "knowingly, intelligently, and voluntarily waiv[ing] these rights." Munoz's initials appear at the start and end of that paragraph.
The written statement then chronicled Munoz's version of the events of that past two mornings, starting with the detectives approaching Munoz at her church and her voluntary decision to accompany them to the police station. In her statement, Munoz described how she had been a victim of family violence and that Robles had abused her for a long time. She described that on Saturday morning Robles had been "wired-up" and they started arguing. She described how Robles hit her in the face and grabbed her from her arms. His cousin then asked them to leave, and their argument continued outside the apartment.
Munoz provided details about how she called a friend and asked her to meet her at a convenience store. As she started to leave, Robles followed and became more physical and aggressive. She asked him to leave her alone and began walking back to her vehicle. At that point, she described seeing three guys in a red-colored vehicle who stopped and confronted Robles. She told Detective Ochoa that she ran away to get help but she did not find anyone. She lost sight of Robles and the three guys as they went behind the apartments. She then drove her truck toward the area they had been and found Robles laying on his back with blood on his shirt. She got scared and left him there and ran to meet her friend. When her friend arrived, she asked her to drive her to a hospital as she described how she was six weeks pregnant and having cramps and not feeling well. On the way, she called 911 and informed the dispatcher that her boyfriend needed help.
Her statement then described that after she told the detectives about the incident they told her several people had witnessed her and Robles and reported that something else happened. She became emotional and cried for a long time. She said she kept telling the detectives that she didn't do anything but they insisted that other people saw her doing something. Eventually, she told them she was afraid of Robles because of all his threats and how he had told her he planned to kill her. He said he would shoot her in the stomach so that her baby would not survive.
She next described her thoughts, "This led me to believe that something needed to happen as I knew that Raul was going to do something to me so I decided to stab Raul." She grabbed a tool from the floorboard of her truck that Robles used to make tattoos, and walked up to Robles and stabbed him two times. She described that she had not said anything before because she was scared and feared she would get in trouble. She believed that Robles was going to kill her and she needed to do something.
She further described that after she was told that the recording system failed to record all the information she provided, she told Detective Ochoa that she was not comfortable with them recording. Her statement described that after Detective Pena asked her if she would feel more comfortable with them taking her statement by preparing it on the computer, she told them yes. Once Munoz approved and signed her written statement, Detective Ochoa informed Munoz that she was under arrest, and would be charged with murder. At the hearing, Detective Ochoa testified the written statement closely matched what Munoz had told the detectives during her initial, unrecorded-portion of the interview.
The Motion to Suppress
Munoz filed a motion to suppress her oral and written confessions or statements, arguing, among other things, that she was not given adequate Miranda warnings prior to being interrogated and that she was deprived of her right to counsel during the interrogations. At the hearing, Munoz's attorney argued three issues that are relevant to the current appeal. First, counsel argued that Munoz unequivocally invoked her right to have counsel present when she said she thought detectives were not allowed to record without an attorney being present. Second, counsel also argued that Munoz effectively terminated the interview when she began crying and was silent during a portion of the interview. And third, counsel argued that the detectives were required to read Munoz her Miranda rights out loud a second time before she provided her written statement, but admittedly failed to do so.
At the hearing, Munoz's attorney also argued that her waiver on the recorded portion of her initial interview was insufficient, as she did not clearly express her understanding of her rights and did not make a knowing and intelligent waiver of those rights. However, Munoz does not raise this issue on appeal.
The Trial Court's Decision
The trial court granted Munoz's motion, and at the State's request, subsequently issued Findings of Fact and Conclusions of Law. The trial court expressly found that Munoz was properly Mirandized at the start of the interview at 11:52 a.m., when the detectives orally advised her of her rights, and further found that Munoz knowingly, intelligently, and voluntarily waived her rights prior to providing her recorded statement. As well, the court expressly found that Munoz never invoked her right to counsel and never requested that the interrogation terminate, but did find that she refused to be recorded after the malfunction occurred, and that she instead consented to give a written statement. The trial court expressly concluded that Munoz's rights under the Constitution and the Texas Code of Criminal Procedure were not violated with respect to the recorded portion of the interview.
The trial court then addressed the admissibility of the written statement, finding that the statement contained a proper recitation of Munoz's Miranda rights, and that Munoz voluntarily signed a written statement acknowledging that she understood those rights after a final draft of the statement was prepared. However, the trial court found that the detectives failed to verbally read Munoz her Miranda rights a second time, neither before she commenced giving her written statement, nor prior to her executing the statement. Not addressing whether the failure violated the Code of Criminal Procedure, the trial court found that Detective Ochoa violated Munoz's constitutional rights because she was not orally Mirandized again by Detective Ochoa prior to the taking of her statement, nor prior to her executing said statement. The trial court therefore granted Munoz's motion to suppress her written statement. This appeal followed.
DISCUSSION
In three related issues for review, the State contends the trial court abused its discretion by granting Munoz's motion to suppress arguing that the totality of the circumstances reflect that Detective Ochoa complied with constitutional and statutory requirements. In its first two issues, the State argues that neither Miranda nor the Code of Criminal Procedure required Detective Ochoa to read the warnings out loud given the satisfactory administration of the written warnings. In its third issue, the State contends, arguendo, that even if the administration of written warnings on Munoz's written statement was not sufficient to satisfy the requirements of Miranda, then the two sessions in which Munoz first gave a video-recorded interview followed by her later, written statement, constituted a single interview for purposes of Miranda, and the initial warnings given at the beginning of her video-recorded interview remained effective during the second session that was transcribed into a written statement.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
TEX.CODE CRIM.PROC.ANN. art. 38.22 (West Supp. 2017).
Standard of Review
We review a trial court's ruling on a motion to suppress for an abuse of discretion and apply a bifurcated standard of review. See Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim. App. 2016); see also Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016); State v. Alderete, 314 S.W.3d 469, 472 (Tex. App.—El Paso 2010, pet. ref'd). Under this bifurcated standard, we afford almost total deference to the trial court's determination of historical facts, especially when those determinations are based on assessments of witness credibility and demeanor. Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016); Brodnex, 485 S.W.3d at 436. However, we conduct a de novo review of mixed questions of law and fact that do not hinge on credibility or demeanor, as well as the trial court's application of the law to the facts. Brodnex, 485 S.W.3d at 436. Additionally, we conduct a de novo review with regard to pure questions of law. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).
When, as here, a trial court makes express findings of fact, we view the evidence in the light most favorable to its ruling and uphold those factual findings as long as they are supported by the evidence. See State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017); see also State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). Regardless of whether the motion was granted or denied, the prevailing party is entitled to the "strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence." See State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We may uphold the trial court's ruling if it is supported by the record and correct under any legal theory of law applicable to the case. See Furr, 499 S.W.3d at 877; Weems, 493 S.W.3d at 577.
Under Miranda, an accused who is subject to custodial interrogation must be given the required warnings prior to questioning. Jones v. State, 119 S.W.3d 766, 772 (Tex. Crim. App. 2003). The failure to do so results in forfeiture of the use of any statement obtained during that interrogation by the prosecution during its case-in-chief. Id.; accord Carter v. State, 309 S.W.3d 31, 35-36 (Tex. Crim. App. 2010) ("Failure to provide the warnings and obtain a waiver prior to custodial questioning generally requires exclusion of statements obtained."). The State has the burden of proving by a preponderance of the evidence not only that the accused was advised of her Miranda rights, but that the accused knowingly, intelligently, and voluntarily waived these rights. See Miranda, 384 U.S. at 444, 475, 86 S.Ct. at 1612, 1628; Hill v. State, 429 S.W.2d 481, 486 (Tex. Crim. App. 1968); see also Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986); see generally Joseph v. State, 309 S.W.3d 20, 24-25 (Tex. Crim. App. 2010) (discussing requirements for establishing a valid waiver of Miranda rights).
In addition, Article 38.22, section 2 of the Texas Code of Criminal Procedure provides that:
No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:TEX.CODE CRIM.PROC.ANN. art. 38.22, § 2 (West Supp. 2017).
(a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that:
(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in court;
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time; and
(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.
Adequacy of Miranda Warnings
In reverse order, we begin with the State's third issue for review. The State argues, under the totality of the circumstances, that the two sessions in which Munoz gave her video-recorded and written statements constituted a single interview for purposes of Miranda. As such, the State contends the initial warnings given at the beginning of Munoz's video-recorded interview remained effective during the second typed-session which led to preparation of her written statement. On this basis, the State argues that constitutional requirements of Miranda were met. Regarding constitutional requirements, we agree with the State and find this issue to be dispositive.
The undisputed evidence established that Detective Ochoa read Munoz her rights out loud prior to her recorded interview. Further, the evidence established that Munoz acknowledged her understanding of those rights, and that she affirmatively waived those rights. In support of the admission of the written statement, the State contends that these warnings remained in effect when Munoz provided her written statement, arguing that the interrogation process was continuous in nature despite a break between the first session (recorded interview) and the second session (preparation of the written statement).
In Bible v. State, 162 S.W.3d 234, 241-42 (Tex. Crim. App. 2005), the Texas Court of Criminal Appeals recognized that, under certain circumstances, an interrogation may include more than one phase in an interrogation process; and, thus, when a suspect is warned about her Miranda rights prior to an interview, the warnings from the first interview session remain in effect for continuing sessions, if, in the totality of the circumstances, a second phase of an interview is essentially a continuation of the first. Id.; see also Jones v. State, 119 S.W.3d 766, 773 n.13, 795 (Tex. Crim. App. 2003) (Keller, P.J., concurring); Ex parte Bagley, 509 S.W.2d 332, 337-38 (Tex. Crim. App. 1974); Franks v. State, 712 S.W.2d 858, 860-61 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd); see also Dunn v. State, 721 S.W.2d 325, 338 (Tex. Crim. App. 1986) (holding that a "rewarning is not required where the interrogation is only a continuation about the same offense"). As this Court has previously recognized, in order to determine whether a subsequent interview may be considered a continuation of an earlier interview, despite a break in questioning, Texas courts utilize the following four-part test: "(1) the passage of time; (2) whether the interviews are conducted by different people; (3) whether the interviews relate to different offenses; and (4) whether the suspect is asked during the second interview if he received the warnings earlier, if he remembers the warnings, and if he wishes to invoke his rights." Cotten v. State, No. 08-13-00053-CR, 2013 WL 6466186, at *4 (Tex. App.—El Paso Dec. 4, 2013, pet. ref'd) (not designated for publication) (citing Bible, 162 S.W.3d at 242; Jones, 119 S.W.3d at 773 n.13).
We conclude that all four factors were met in this case. First, we note that, as found by the trial court, the video-recorded interview session began at approximately 11:52 a.m., and concluded at 2:13 p.m., although the latter portion failed to be recorded. The trial court further concluded that Munoz began providing her written statement less than an hour later at 3:02 p.m. Second, as recognized by the trial court, the same police officer, Detective Ochoa, interviewed Munoz on both occasions. Third, his interview pertained to the same offense, and was conducted in the same general area of the police station. Fourth, although the trial court made no express findings on this point, Detective Ochoa testified that he reminded Munoz that he had previously read her Miranda rights to her, and advised her that those rights were still in effect, and even displayed the rights on the screen for her to see. Munoz proceeded with the interview, and when presented with her written statement prepared therefrom, she initialed her acknowledgement that she had been warned, understood her rights, and thereafter knowingly, intelligently, and voluntarily waived her rights. Additionally, Munoz did not testify at the hearing or otherwise provide any evidence to dispute either Detective Ochoa's testimony or her written statement.
Various courts, including the Court of Criminal Appeals and this Court, have held that significantly longer breaks in time do not vitiate the effectiveness of Miranda warnings where the circumstances otherwise indicate that the interrogation process was continuous in nature. See, e.g., Bible, 162 S.W.3d at 241-42 (two interview sessions were continuous in nature where the second session began less than three hours after the beginning of the first session, despite the fact that different officers conducted the questioning during each session and each session focused on a different set of crimes, where the same officers were present during both sessions); Ex parte Bagley, 509 S.W.2d at 337 ("[T]he express written warning given petitioner some 6 to 8 hours previous to the complained of confession ... satisfied the dictates of Miranda."); Cotten, 2013 WL 6466186, at *4-5 (interviews were continuous in nature despite a two-hour break, where the same law enforcement officer conducted the questioning and the questioning was aimed at the same offense, despite the fact that the questioning took place in different locations); Franks, 712 S.W.2d at 860-61 (Miranda warnings given prior to an initial interview session of suspect were effective during a second session that took place approximately 3½ hours later, where the second session was a continuation of the interrogation process and the suspect was reminded that he had been advised earlier of his constitutional rights, and the defendant acknowledged that he had been so warned). So too, we conclude that the break between the two interview sessions lasting under an hour, did not vitiate the effectiveness of the oral Miranda warnings given at the start of Munoz's recorded interview session, and that the two sessions must be considered continuous in nature under the four-factor test set forth above. See Cotten, 2013 WL 6466186, at *4 (citing Bible, 162 S.W.3d at 242; Jones, 119 S.W.3d at 773 n.13).
In her response to the State's argument, Munoz does not dispute that any of the requirements of the four-factor test were met. Instead, she contends the trial court properly suppressed her written statement based on two other arguments. First, she contends she invoked her right to counsel after the initial interview concluded. Second, she contends her interview was not continuous considering that her custody status changed after the detectives felt they had established probable cause to arrest her. Munoz contends that there was no continuation of custodial interrogation because the initial interview itself was not custodial in nature. Although the trial court expressly found against her regarding both arguments, concluding that she did not invoke her right to counsel and/or request that the interview terminate, Munoz renews both arguments on appeal.
Munoz did not make this argument in the trial court and it does not appear that this formed the basis for the trial court's decision.
On appeal, we may uphold a trial court's decision to grant a motion to suppress based on any grounds that would support the court's order. See Furr, 499 S.W.3d at 877; Weems, 493 S.W.3d at 577. Therefore, if we were to find that Munoz did in fact invoke her right to counsel and/or that she asked the detectives to terminate the interrogation before providing her written statement, we would uphold the trial court's decision to suppress her written statement on either basis.
Whether Munoz Invoked her Right to Counsel
In her response to the State's argument, Munoz asserted the court properly suppressed her written statement because she invoked her right to counsel and requested that the interrogation be terminated before she provided her written statement. As a preliminary matter, we recognize that once a suspect invokes his or her Fifth Amendment right to counsel, police interrogation must cease until counsel has been provided, or the suspect reinitiates any dialogue. State v. Gobert, 275 S.W.3d 888, 892 (Tex. Crim. App. 2009) (citing Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). This secondary Miranda right is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights[.]" Davis v. U.S., 512 U.S. 452, 458, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994) (citing Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 1180, 108 L.Ed.2d 293 (1990)).
A suspect invokes his or her right to counsel when he or she clearly indicates a desire to speak to an attorney or have an attorney present during questioning. See Lucas v. State, 791 S.W.2d 35, 45 (Tex. Crim. App. 1989). However, an invocation must be clear and unambiguous; therefore, the mere mention of the word "attorney" or "lawyer," without more, does not automatically invoke the right to counsel. Gobert, 275 S.W.3d at 892-93 (it is well-established that not every mention of a lawyer will suffice to invoke the Fifth Amendment right to the presence of counsel during questioning) (citing Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995)).
In Davis v. United States, the United States Supreme Court established a "bright line" rule distinguishing between suspects who might be asking for a lawyer and those who actually do ask for one, holding that only the latter have invoked their right to counsel:
To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. Rather, the suspect must unambiguously request counsel. As we have observed, a statement either is such an assertion of the right to counsel or it is not. Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney [internal citations and quotations omitted].Davis, 512 U.S. at 458-59, 114 S.Ct. at 2355; see also Davis v. State, 313 S.W.3d 317, 339-41 (Tex. Crim. App. 2010) (recognizing that the test for determining whether a request for counsel was made is objective, and is based on whether the suspect "articulate[d] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney"); In re H.V., 252 S.W.3d 319, 325 (Tex. 2008).
As the Texas Court of Criminal Appeals has explained, while there are no "magical words" required to invoke an accused's right to counsel, at a minimum, a suspect must "express a definite desire to speak to someone, and that person be an attorney." Dinkins, 894 S.W.2d at 352 (citing Russell v. State, 727 S.W.2d 573, 576 (Tex. Crim. App. 1987)). "When reviewing alleged invocations of the right to counsel, we typically look at the totality of the circumstances surrounding the interrogation, as well as the alleged invocation, in order to determine whether a suspect's statement can be construed as an actual invocation of his right to counsel." Id. at 351. "[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," an officer is not required to cease questioning. Davis, 512 U.S. at 459, 114 S.Ct. at 2355. Although it may be "good police practice for the interviewing officers to clarify whether or not [the suspect] actually wants an attorney," officers are not required to ask clarifying questions. Id. at 461, 114 S.Ct. at 2356 ; see also Dinkins, 894 S.W.2d at 352; Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996); Dalton v. State, 248 S.W.3d 866, 872-74 (Tex. App.—Austin 2008, pet. ref'd).
Here, Munoz asserts she invoked her right to counsel prior to providing her written statement when she objected to being recorded. As explained above, when Munoz was first informed that her first interview had been partially recorded, she stated that she thought an attorney had to be present when being recorded. When Detective Ochoa advised Munoz that a lawyer was not required to be present to conduct a recorded interview, Munoz then asked: "So why can't my lawyer be present?" Detective Ochoa responded, "he could if you want him to, that's not a problem; that's your option; that's why when I gave you your rights, that's what that was." Rather than indicate that she wanted to invoke her right to counsel, Munoz replied that she wanted to tell them how the incident occurred. Munoz stated, "I thought that was my rights for me to tell you like the incident that had happened."
Texas courts have uniformly held that conditional statements in which a suspect indicates that he "might" want an attorney, as well as generalized questions asked by a suspect seeking to clarify his rights, are typically not considered an unambiguous expression invoking the right to counsel. See, e.g., In re H.V., 252 S.W.3d at 325-26; Dinkins, 894 S.W.2d at 352 (suspect's question concerning what an attorney would tell him to do under the circumstances does not rise to an invocation of the right to counsel) (citing Russell, 727 S.W.2d at 576 (suspect's question to officers regarding "whether they thought the presence of an attorney was necessary" did not invoke right to counsel)); Robinson v. State, 851 S.W.2d 216, 223-24 (Tex. Crim. App.1991) (suspect's question asking, "Do I need to talk to a lawyer before I sign?" was equivocal); Mbugua v. State, 312 S.W.3d 657, 665 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (suspect's question asking, "Can I wait until my lawyer gets here[?]" did not clearly state a firm, unambiguous, and unqualified condition that any further questioning must be conducted only with his attorney present); Reed v. State, 227 S.W.3d 111, 113, 116 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (suspect's question asking, "I can get a lawyer if I want one, right?" was not an unequivocal request for counsel); Gutierrez v. State, 150 S.W.3d 827, 832 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (suspect's question asking, "Can I have [a lawyer] present now?" was ambiguous and did not clearly invoke the right to counsel); Loredo v. State, 130 S.W.3d 275, 284-85 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd) (suspect's question asking, "Can I ask for a lawyer now?" was not an unambiguous invocation of right to counsel); Halbrook v. State, 31 S.W.3d 301, 302 (Tex. App.—Fort Worth 2000, pet. ref'd) (suspect's question asking, "Do I get an opportunity to have my attorney present?" did not constitute clear and unambiguous invocation of counsel); Flores v. State, 30 S.W.3d 29, 33-34 (Tex. App.—San Antonio 2000, pet. ref'd) (suspect's question asking, "Will you allow me to speak to my attorney before?" was neither clear nor unequivocal about his desire to speak to an attorney); Cooper v. State, 961 S.W.2d 222, 226 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) (suspect's question asking, "Where is my lawyer? Where is he?" was not an unequivocal assertion of the right to counsel).
Federal courts have reached similar conclusions: Mueller v. Angelone, 181 F.3d 557, 573-74 (4th Cir. 1999) (question "Do you think I need an attorney here?" posed to police officer during interrogation was an ambiguous query whether his interrogator thought that counsel might be helpful and not a clear assertion of his right to counsel); Diaz v. Senkowski, 76 F.3d 61, 63-64 (2d Cir. 1996) (question "Do you think I need a lawyer?" was not a clear invocation of the right to counsel); United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994) (a suspect asking if he "should see a lawyer" has not clearly invoked his right to counsel); United States v. March, 999 F.2d 456, 460 (10th Cir. 1993) (defendant's question "Do you think I need an attorney?" did not constitute an unequivocal request for an attorney); Lord v. Duckworth, 29 F.3d 1216, 1219-21 (7th Cir. 1994) (defendant did not invoke right to counsel by the following: "I can't afford a lawyer but is there anyway I can get one?"); Soffar v. Cockrell, 300 F.3d 588, 595 (5th Cir. 2002) (suspect did not unequivocally invoke his right to counsel by asking officer whether he should get an attorney, how to get one, and how long it would take); but see Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (defendant invoked his right to counsel by asking: "Can I get an attorney right now, man?").
We conclude that Munoz did not articulate her desire to have counsel present in a sufficiently clear enough manner that a reasonable police officer in Detective Ochoa's circumstances would have understood the statement to be a request for an attorney. Munoz's questions, at most, may be characterized as equivocal in nature. Although he was not required to do so, Detective Ochoa responded to Munoz's questions by reminding her of the rights he had previously read to her, and advising her that although an attorney was not required to be present during a recorded interview, she had the "option" of having an attorney present. However, Munoz did not request that option, and stated that she instead wanted to tell the detectives her side of what happened. Under these circumstances, we conclude that Munoz's questions to Detective Ochoa were just that—questions—and we therefore reject Munoz's argument that she affirmatively invoked her right to counsel.
Similarly, we also reject Munoz's argument that she invoked her right to remain silent during the interview. Although Munoz argues on appeal that she did so, she has failed to identify what statements she allegedly made that could be characterized as such. In the trial court, Munoz argued that because she cried and remained silent during a portion of the recorded interrogation, her actions indicated an assertion of her right to remain silent. To the extent she attempts to renew this argument on appeal, we find it to be without merit.
Consistent with the right to counsel, an accused who wants to invoke his or her right to remain silent must do so unambiguously. Berghuis v. Thompkins, 560 U.S. 370, 381-82, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010) (citing Davis, 512 U.S. at 458-59, 114 S.Ct. at 2355). Both the right to counsel and the right to remain silent are provided to protect the privilege against compulsory self-incrimination. Id. With the right to counsel, police are not required to end an interrogation, or ask questions to clarify whether a person wants to invoke Miranda rights, when ambiguous or equivocal statements are made. Id. Simple, unambiguous statements such as a person saying he or she wanted to remain silent, or did not want to talk with police would invoke a right to end questioning. However, the mere fact that an accused remains silent during an interview, even for several hours, does not constitute an invocation of the right to remain silent. Id.
Here, the undisputed testimony showed that Munoz wanted to provide information of what occurred on the day of the incident but objected to being video recorded. After she objected, the detectives ceased recording and offered her the alternative of providing a typewritten statement. Because the record lacks an affirmative request by Munoz to end questioning, we conclude that Munoz failed to invoke her right to remain silent. Thus, an invocation of the right to remain silent may not serve as a basis for upholding the trial court's decision to grant Munoz's motion to suppress.
Impact of Change in Custody Status
In her response to the State's argument, Munoz additionally asserted that the court properly suppressed her written statement because her custody status changed between the first and second session. We agree with Munoz that once she gave inculpatory statements, she clearly became the subject of custodial interrogation. See, e.g., Dowthitt, 931 S.W.2d at 256-57. However, as the State points out, Munoz failed to cite any authority for the proposition that a suspect who has already received Miranda warnings must be "re-warned" under the circumstances presented. To the contrary, the State cites various cases in which courts have rejected similar arguments, and have held that a change in custody status does not require the police to give new Miranda warnings when the defendant was properly warned at the start of the interrogation, and the interrogation was continuous in nature.
For example, in People of Territory of Guam v. Dela Pena, although the defendant was not in custody when the police initially questioned him, he was advised of his Miranda rights and waived those rights at the start of the interrogation process. People of Territory of Guam v. Dela Pena, 72 F.3d 767, 768 (9th Cir. 1995). Following a break of approximately 15 hours during which the suspect's house was searched and he was afforded an opportunity to rest, the questioning resumed. Id. By that time, however, the defendant was in custody. Prior to the second round of questioning, the police reminded the defendant of the earlier Miranda warnings he had been given, but did not re-read the warnings to him; ultimately, the defendant confessed during this second interview session. The defendant argued that his confession should have been suppressed because the warnings were not repeated once he was placed in custody. In rejecting this argument, the Court expressly held that the defendant's "subsequent custodial status [was] not the determining factor in this case," and that instead, the dispositive question was whether there was a significant break in the interrogation process due to the passage of time that would have rendered the previously-administered Miranda warnings ineffective. Id. at 769. Finding no dispositive break in the proceeding, the court held that there was no need to provide any additional warnings to the defendant. Id. at 770; see also Jarrell v. Balkcom, 735 F.2d 1242, 1254 (11th Cir. 1984) (although the defendant was not in custody when he was given Miranda warnings, his confession that was given less than four hours later when he was in custody was not rendered inadmissible because of the failure to repeat the warnings once he was in custody); United States v. Paulton, 540 F.2d 886, 891 (8th Cir. 1976) (concluding that a change in a suspect's custody status did not require the police to repeat Miranda warnings before beginning a second interview session on the same day).
We agree with this analysis. We see no reason why a change in custody status would require a police officer to provide new warnings to a suspect during an otherwise continuous interrogation. To the contrary, imposing such a requirement would effectively penalize law enforcement officers who, out of an abundance of caution, provide suspects with Miranda warnings prior to conducting an interrogation, whether they consider the suspect to be in custody or not. When an interrogation is continuous in nature, police may rely on the efficacy of Miranda warnings given at the start of a non-custodial interrogation and new warnings are not required. See generally Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985) (recognizing that the task of defining "custody" is a slippery one, and that "policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever") (citing Michigan v. Tucker, 417 U.S. 433, 446, 94 S.Ct. 2357, 2365, 41 L Ed.2d 182 (1974)).
Accordingly, we hold that the trial court erred when it concluded that Detective Ochoa violated Munoz's constitutional rights regarding her subsequent written statements on the basis that Detective Ochoa did not read aloud Miranda warnings again prior to the taking of her written statement, nor prior to her executing the written statement.
The State's Issue No. Three is sustained. Additionally, having sustained the State's alternative argument, we conclude that State's Issue No. One is rendered moot given our conclusion that the police conducted a continuous interview between their initial recording of Munoz and preparation of her written statement. See TEX.R.APP.P. 47.1.
Article 38.22 , Section 2 Requirements
In the State's second issue, it contends that Munoz's written statement met the requirements of Article 38.22, section 2 of the Code of Criminal Procedure for admission at trial. The State contends the face of the statement recited that Munoz had been warned of her rights, as required by the statute, that she acknowledged she understood her rights, and that she had "knowingly, intelligently, and voluntarily waive[d] these rights." Further, the State points out that the undisputed facts established that Munoz read the statement and initialed the paragraphs next to the statutory requirements before signing it. The State argues that this acknowledgment, standing alone, is sufficient to meet the requirements of the statute, apart from the requirements of Miranda.
We agree with the State on this point. As the Texas Court of Criminal Appeals has recognized, Article 38.22 is merely a "procedural evidentiary" rule that prescribes the various requirements that must be satisfied before a statement may be admitted against a defendant at trial. See Nonn v. State, 117 S.W.3d 874, 880-81 (Tex. Crim. App. 2003) (citing Davidson v. State, 25 S.W.3d 183, 186 (Tex. Crim. App. 2000)); see also Thai Ngoc Nguyen v. State, 292 S.W.3d 671, 676-77 (Tex. Crim. App. 2009). However, the question of whether a defendant's written statement meets the requirements of the statute and the question of whether it meets the constitutional requirements of Miranda are two separate questions. See Jones v. State, 119 S.W.3d 766, 775-76 (Tex. Crim. App. 2003); see Davidson, 25 S.W.3d at 186 n.4 (discussing the distinctions between statements obtained in violation of the statute and statements obtained as the result of a constitutional violation); State v. Aguilar, 535 S.W.3d 600, 604-05 (Tex. App.—San Antonio 2017, no pet.) (distinguishing between the constitutional requirements under Miranda, and the statutory requirements under Article 38.22). Thus, the statutory requirements for the admission of a written statement are met when a suspect acknowledges she was given Miranda warnings in the body of the statement, without regard to whether the suspect's constitutional rights were otherwise met. See Dowthitt, 931 S.W.2d at 258 (Court expressly rejected the defendant's claim that Article 38.22 required the police to provide him with Miranda warnings before it began the "unrecorded interrogation leading to [his] written statement"); Allridge v. State, 762 S.W.2d 146, 157-58 (Tex. Crim. App. 1988) (Court rejected the defendant's claim that his written statement did not comply with Article 38.22 because he was not given his Miranda warnings prior to providing his written statement); see generally Davidson, 25 S.W.3d at 186 (recognizing that giving the required warnings before an accused signs his written statement meets the statutory requirements of Article 38.22).
We also note that Munoz does not provide any counter-argument on this point.
In the present case, Munoz's written statement complied with the statute, as the face of the statement not only recited that Munoz had been warned of her statutory rights by Detective Ochoa prior to giving her statement, it also contains her acknowledgement of having understood those rights. The State's Issue No. Two is sustained.
CONCLUSION
We conclude that Munoz was properly Mirandized at the start of the recorded interview, and that the warnings she was given remained in effect for the duration of the continuous interview. We also conclude that her written statement was given in compliance with both the requirements of Miranda and the Texas Code of Criminal Procedure. Accordingly, we reverse the trial court's order granting Munoz's motion to suppress her written statement, and we remand this matter to the trial court for further proceedings in accordance with our opinion.
GINA M. PALAFOX, Justice March 28, 2018 Before McClure, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)