Maestas v. State
987 S.W.2d 59
Tex. Crim. App.
1999
Check Treatment

*1 phone over the that she and Edwards, Misty a for- started fire. girlfriend appellant’s mer brother testified

that when she visited trailer home fire, appellant,

on the afternoon of the

brother, Bingham acted secretive. Ed- testified, objection, Bingham

wards over

admitted to her at that time that

planing get to burn the trailer to insurance

money. When Edwards returned later that

afternoon, the trailer was on fire.

None the aforementioned evidence by Appeals.

was discussed the Court of In

stead, solely timing the Court focused on the Bingham’s statements to Raleeh and the

possibility that she could have made them to curry Clearly,

shift blame or favor. the tim

ing Bingham’s statements could be viewed tending

as a factor to undermine their credi

bility, ignored but the Court evidence which

could have been viewed trial court establishing reliability. their Appel

late Courts must type conduct reviews of this factors,

by examining pertinent favorable and

unfavorable, which are relevant to corrobo circumstances,

rating by giving due def

erence to the trial court’s decision to admit hearsay. Cunningham exclude the Therefore, 877 S.W.2d at 313. grounds second and third for review judgment

are sustained. The of the Court of

Appeals is reversed and the cause is remand

ed to the Appeals may Court of so that it appellant’s remaining

address point of error.

HOLLAND, J., participating. MAESTAS, Appellant,

Patricia

The STATE of Texas.

No. 496-98 Appeals

Court of Criminal of Texas.

Feb. *2 punishment years imprison-

sessed at ten Appel- The court of affirmed ment.1 conviction. Maestas lant’s 1998, (Tex.App. Corpus Christi S.W.2d 151 — pet. granted). granted Appellant’s peti- We discretionary tion for review to determine whether the appeals properly court of evalu- ated Appellant’s claim that the violated her Fifth Amendment to remain silent.2 Because facts of this case do not involve credibility an evaluation of witness judge, the trial we will conduct our de own novo review. See Guzman v. (Tex.Crim.App.1997). S.W.2d 85 I. 4,1993, Vasquez

On October Jaime Officer Appellant airport. arrested at the McAllen Vasquez Appellant advised she un the Miranda3 warn der arrest and her read her ings. Vasquez Appellant rights again upon arrival at the sta tion, approximately one hour after her arrest. Appellant her indicated she understood signed Appellant a waiver. stated police.4 she want to talk to After Gould, McAllen, appellant. Richard for form, Appellant police placed initialed the Hake, Atty., Theodore C. Asst. Dist. Edin- holding approximately in a cell at 4:30 Austin, Paul, burg, Atty., Matthew for p.m. State. 5, On October 1993 at approximately 11:00

a.m., Appellant signed another waiver form. OPINION Appellant Vasquez told she did not want to police. Vasquez Appellant talk to left in her MEYERS, J., delivered the investigate cell and continued to the crime. MeCORMICK, Court, P.J., in which p.m. Vasquez brought Appellant Around 8:00 MANSFIELD, PRICE, KELLER, office, again, to his Mirandized her and asked JOHNSON, J.J., KEASLER, joined. questions. Appellant some additional then grand jury willing police. A indicted indicated she was to talk to the aggravated deadly weapon. Vasquez Appellant again, assault with a she Mirandized 22.02(a)(1). § jury indicating a statement she understood Tex. Penal Code Appellant guilty rights. questioned the court Vasquez found as- Arizona, Additionally, 1. the trial court found that commis- U.S. 3. Miranda v. deadly 694(1966). sion of the offense involved the use of 16 L.Ed.2d weapon. During hearing on motion to Specifically, Appellant asks: confession, suppress Appel- testified previously Where a has on two occa- lant intoxicated at the time of her ar- affirmatively police, sions indicated after He stated had a moderate to rest. the administration of Miranda breath, them, strong smell of alcohol on her was a little does she does not wish to fourth, third, balance, unsteady confession obtained after the in her had somewhat blood- attempts police-initiated to interview the fifth eyes, speech, shot exhibited slurred requirement suspect comply with the that the well, following pear to be instructions and ini- suspect’s right ‘scrupulously police to remain silent? honor’ improper tialed the waiver form in an location. in-custody setting of inter- questioning,

for several hours and took on her *3 86 S.Ct. 1602. 384 U.S. at the Miranda signed it at logi- Following the Miranda language to its proximately 1:30 a.m. conclusion, however, produce the cal day, Later Appellant provided that addi- inculpato- confession or absurd result that no Vasquez. Vasquez tional information to ad- ry ever be admissible —even statement would of her Miranda rights again vised changed his mind and wanted if the accused discussing Ap- before the new information.5 invoking right police after the to pellant modifying assisted in to remain silent. original statement to include the new infor- Michigan Mosley, 423 U.S. Vasquez prepared mation. the amended (1975), the Su- S.Ct. 46 L.Ed.2d statement, which included Miranda warn- passage in preme explained Court that no ings, and it Appellant. Appellant sensibly Miranda opinion the “can be read During the statement. this entire per se proscription create a of indefinite du- period, time police provided Appellant the any questioning by any upon ration further including drinking basic necessities wa- any subject, person on once the officer ter, toilet, bed, light. and a source of right custody in has” indicated a to remain right never an at- invoked 102-103, Mosley, silent.” 423 U.S. at torney. continued, S.Ct. 321. Court The suppress moved to her state- interpretation A and faithful of reasonable ground ment on the that it was obtained the Miranda must rest on the violation of her right constitutional to remain adopt in that case to intention of the Court silent. The trial court overruled notify ‘fully effective means ... the motion suppress, and admitted the confes- right his of silence and to assure person of sion at trial. right exercise of the will be U.S., ...’ scrupulously honored at 479

II. safeguard The critical- 1602]. S.Ct. [86 The Fifth Amendment to the United passage in the at the time is a identified guarantees States Constitution per- that “No Id., person’s ‘right questioning.’ to cut off ... compelled son shall be any criminal Through the exer- 1602]. at 474 [86 case to against be a witness The himself[.]” option questioning to terminate cise of his importance right of this emphasized its question- the time at which he can control Miranda In Mi- inclusion in the warnings. occurs, discussed, subjects and the ing the randa, Supreme the United States Court interrogation. the The re- duration of explained implications of an assertion of enforcement authori- quirement law right to remain silent: respect person’s exercise of ties must warnings given, Once have been the subse- pres- the coercive option counteracts quent procedure is clear. If the individual setting. of the custodial We there- sures manner, any prior indicates in at time admissibility fore conclude that of during to or questioning, that he wishes person after the statements obtained interrogation must custody remain silent has decided to de- point cease. At this he has shown that he pends under Miranda on whether his intends to exercise his Fifth Amendment questioning’ ‘scrupu- ‘right to cut off privilege; any statement taken after the lously honored.’ person privilege invokes his cannot be oth- Mosley, at 96 S.Ct. 321 product compulsion, er than the of subtle 423 U.S. omitted). (footnotes Examining the facts right otherwise. Without the According testimony provided pre- seventh time was advised at the been the trial, hearing again since her arrest. trial this would have present Mosley, the Court ad- III. concluded petitioner’s mission statement 955 S.W.2d 85 Guzman violate his to remain silent. (Tex.Crim.App.1997), explained this Court types the standards of review for different Mosley, Supreme Court found cases. We said following analysis: important to this courts, Court, appellate including this (1)whether suspect was informed his deference] should afford total [almost prior to remain silent initial to the rulings trial courts’ on ‘application law (2) questioning; questions,’ fact also known ‘mixed informed to remain prior fact,’ questions law and if the resolution subsequent length questioning; questions of those ultimate turns on an time between questioning and subse *4 credibility evaluation of and demeanor. (4) quent questioning; whether the subse appellate may The de courts review novo quent questioning focused on a different questions not falling ‘mixed law and fact’ crime; police and whether honored the category. this within suspect’s right invocation of the to Guzman, step 955 S.W.2d at 89. The first in remain silent. Mosley Thus an ad created appellate analysis our is to which determine hoc test in which “courts must evaluate the applies. standard resump facts of each case to determine if the present The presents “appli case police tion interrogation ,was consistent question. making of law cation to fact” In scrupulous right with observance of the to review, the decision we now the court of questioning.” United Alva States v. appeals had to the consider evidence in rec C rado-Saldivar, (5th 62 F.3d 699 ir.1 apply regarding right ord and to the law the 995), citing Hargett, v. Wilcher 978 F.2d silent, remain as set forth in Miranda and th(5 Cir.1992); Phillips v. also Mosley. present Under the circumstances State, (Tex.Crim.App.1 701 S.W.2d 890-91 this the does not resolution this issue 985).6 See v. also Watson 762 S.W.2d credibility on an turn evaluation of and dem (Tex.Crim.App.1988),7 Murphy v. such, and eanor.8 As we review (Tex.Crim.App.1989). 766 S.W.2d 246 appeals’ decision novo. de crime, Phillips capital pellant regarding police 6. was a direct murder case on the same we held court, appeal to this the appellate Court. As we scrupulously appellant’s right not did honor the performed by the Mosley. review mandated Finally, totality to remain silent. we noted the the circumstances did not demonstrate that the appellant intelligently, argues knowingly, voluntari- supports and Watson her conten- police ly right. scrupulously tion that did waived not honor Watson, right present completely presents to remain silent. In we different reiterated The case Mosley requires legal inquiry. that “each ... be a must facts and different .case totality decided on the support circumstances Appellant’s Watson does not conten- Watson, particular Instead, case.” 762 S.W.2d tion that she is to relief. it entitled proposition stands for the case must be each analyzed based on its own facts and circum- Watson, appeals we concluded the court of stances. appellant erred because it assumed the had to verbally specifically and assert his to re- testimony is as to 8.This because the officers’ police scrupulously main silent before had to up transpired Appellant’s what from arrest honor need his decision remain silent: "There Appel- Appellant’s is uncontroverted. confession a not be formal invocation of or constitutional conflicting testimony provide did not or lant con- rights. Anything by said or the done presentation the the facts tradict officers’ reasonably interpreted defendant that could be addition, way. any rights as a these desire invoke be should complaints, example complaints concern- questioning.” sufficient halt Id. at 598. As cell, jail complaints ing the conditions of such, applied court of should have coerced, intimidated, she was or forced Mosley light test. of the fact that the speak stances, police. Under different circum- appellant made it he wished remain clear appellant pro- police where and the stop questioning, conflicting testimony, resolution of this interrogated vided four times same in the interrogations by question day, hours, separated would involve an evaluation credibili- few police interrogated ty court would and same and demeanor because the trial review, initially her Miranda arrested and apply In our de novo we Mi rights.10 Mirandized Officers Mosley. recognize promi randa We slept to be again after she nence of the to remain silent as well sober, she indicated wished the ad hoc review set forth the United nine la Approximately hours mind, remain silent. Supreme States Court. With this in ter, Appellant with addi Vasquez confronted Mosley we turn factors set out in to the during his in tional information discovered examine the record determine whether Appellant, Mirandized who vestigation. He weighs finding each factor in favor of a “scru indicated that she understood pulous honoring” Appellant’s right to re waiving rights. those then a statement main silent. See United States Alvarado th Vasquez lasted Cir.1995) conversation (5 Saldivar, F.3d then waited several several hours. (examining weighing the Mos the record ver prepare written hours for factors). ley emphasize that We statement, signed. she sion of her resumption questioning consistent with guard was meant Mosley third factor “scrupulously honoring” subsequent questioning. against abuses unique cir depends on facts and Hernandez, example, For in United States of each case.9 cumstances (5th Cir.1978), the Cir 574 F.2d Fifth Police testified that informed *5 police violation where cuit found a Miranda Appellant rights prior the initial thirty forty-five questioning min resumed questioning prior as well as subse each after invocation of the utes quent Accordingly, questioning. the first Kelly more like v. right. case is Mosley weigh “scrupu two in favor of (5th Cir.1988), Lynaugh, F.2d 1126 cert. 862 addition, honoring.” police stopped lous denied, 109 S.Ct. 106 492 U.S. interrogating Appellant as soon as Johnson, and West v. L.Ed.2d 608 said her right she wished invoked to re (5th Cir.1996), two cases in which F.3d main Appellant began silent. Once talk to police scrupulous Fifth found Circuit officers, try she did not re-invoke ly suspect’s assertion honored the silent, right to interroga remain to end the Kelly, police Mir- right to remain silent. tion, attorney. or with Thus the Kelly andized when he was arrested. Five fifth Mosley weighs factor also in favor later, Kelly approached hours officers “scrupulous honoring.” Kelly again read Miranda Officer testified to remain which the invoked hours, po four to six police to be intoxicated when she honored. After County testimony jail have police to decide which Houston in Anderson after deserved more learning weight. warnings and after In that our review "afford readministered murder; scrupulous in Houston almost mination, he’s honoring); Phillips total deference” the trial court’s deter- S.W.2d 875 v. accordance Guzman. (Tex.Crim.App.1985), overruled on other grounds, 757 S.W.2d Hernandez Citing many examples of the this illustrate (interrogation (Tex.Crim.App.1988) imme point, wrote: lunch, ceased, given diately defendant returned Determining resumption ques whether cell, evening warnings to his re later tioning scrupulous is consistent with observ guarantees, peated, wanted officer defendant questioning depends ance refused, given; scrupulous confession honor upon Murphy, the circumstances of each case. ing). 249; Mosley, at at S.W.2d 423 U.S. Maestas, 963 S.W.2d at 160. (interrogation 96 S.Ct. 321 immediate ceased, ly subject as on different 10. Officers first Mirandized reinstated more later, arresting placing police into a warnings her and after were re- than two hours vehicle, administered, upon scrupulous honoring arrival at the a second time constitutes Bosby, police Vasquez said smelled right); station. of (11th Cir.1982) United States v. 675 F.2d 1174 (interrogation immediately exhibited other characteristics of alcohol and intoxication, ceased, later, speech, unsteady such as slurred two weeks after warn reinstated directions, balance, readministered; inability honoring); to follow ings scrupulous (defendant she initialed the writ- evidenced the fact that Murphy, 766 S.W.2d 246 arrested warrant, wrong place County warnings when Miran- de ten in Houston on Anderson talk, days agrees police dized station. later to talk clines to fifteen approached Kelly lice with a co-defendant’s Kelly orally

confession. confessed and signed a written confession included THOMPSON, III, Appellant, Earl West, warnings. the Miranda police Mir- arresting andized when West him. He in

voked his during The STATE of Texas. interview and terminated questioning. Police approached West No. 1607-98. again more than thirteen hours later. We Mosley find weighs the third factor in favor Texas, Appeals Court Criminal “scrupulous honoring.” En Banc. Subsequent questioning focus on a crime, different Mosley so the fourth factor March weigh does not “scrupulous favor of honor-

ing.” part analysis, of Mosley As howev-

er, we also consider other facts circum-

stances determining

right to remain silent “scrupulously hon- coerced,

ored.” Appellant was not threat-

ened, promised anything talking

officers. Officers testified had ac- Cobb, Beaumont, Bruce for appellant. W. food, water, cess to necessities such as Finally, although restroom facilities. officers Asst., Waying Thompson, Atty., G. Dist. questioning initiated the Ap- that resulted in Beaumont, Paul, Atty., Matthew Aus- pellant’s statement, ongoing investigations *6 tin, for the State. provided them with additional information tended show that was present at the scene of the murder. These additional support considerations tend Appellant’s Petition Discretionary for Re- conclusion “scrupulously honored” view Refused.

Appellant’s right to remain silent. applying

After the ad hoc test set out in J., KELLER, case law to the evidence in the dissenting record delivered a review, performing our de novo we find MEYERS, joined. in which J. Appellant’s right to remain silent was “scru- In the charged such, pulously honored.” As we hold the resisting transportation with and convicted of court appeals in holding did not err § under Texas Penal Code 38.03. police scrupulously Appellant’s right honored legally contends that evidence is insuffi- remain silent. cient to his support conviction. Viewed in judgement appeals verdict, the light most favorable to the affirmed. Virginia, Jackson v. U.S. (1979), L.Ed.2d evidence HOLLAND, J., concurs with note: peace shows that appellant resisted offi- petition I would conclude cer’s attempt by standing move him discretionary review improvidently ground. App. granted. Tex. R. P. Rule 69.3. grant I appellant’s petition for sev WOMACK, J., dissented. First, eral appears reasons. there to be a conflict among courts of concern ing use of what conduct constitutes the force arrest, search, resisting transporta notes responses. Police to her on the individual to over- rogation operates returned Vasquez prepared cell while typed producing version a statement come free choice of Appellant’s statement. On October has been once invoked. privilege after the statement, including read the Miranda,