bair-chase-property-company-llc-a-nevada-limited-liability-company ( 2008 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00703-CR
Jesse Williams, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
NO. 3021005, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
CONCURRING OPINION
Although I agree with the result reached by the majority, I write separately to express
my belief that the evidence obtained through the May 15 questioning was erroneously admitted.
However, because I also believe that the error was harmless, see Tex. R. App. P. 44.2, I concur with
the majority’s judgment.
The police brought the appellant to the police station in handcuffs in order to
interview him. Before questioning the appellant, the police informed him of his Miranda rights,
including the right to remain silent. See Miranda v. Arizona, 384 U.S. 436, 479 (1966). Immediately
after being informed of his rights, the appellant stated, “I want to terminate everything right now.”
In determining whether the appellant intended to invoke his right to remain silent with his statement,
the majority examines the circumstances surrounding the statement, and after performing this
examination, the majority concludes that the statement was, at best, an ambiguous invocation of the
right to remain silent.
For the reasons that follow, I disagree with the majority. When describing how an
individual in police custody may invoke his right to remain silent, the Supreme Court explained that
a person invokes his right when he “indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent.” Id. at 473-74 (emphasis added); see Dinkins v. State,
894 S.W.2d 330, 350 (Tex. Crim. App. 1995); see also Watson v. State, 762 S.W.2d 591, 597
(Tex. Crim. App. 1988) (explaining that phrase “in any manner” encompasses more than “verbal
expression or explicit objection”). Moreover, the court of criminal appeals has instructed that no
particular wording needs to be used in order to properly invoke the right and clarified that any
declaration of an intention to terminate the questioning will suffice. Ramos v. State, 245 S.W.3d
410, 418 (Tex. Crim. App. 2008); see also Watson, 762 S.W.2d at 597 (explaining that there are no
“talismanic” words or phrases for invoking right).
In this case, the majority erroneously looked to “the totality of the circumstances” to
determine whether the appellant’s otherwise clear declaration of his desire to terminate the
questioning was in fact an invocation of the right to remain silent. As support for this proposition,
the majority improperly relies on Watson v. State. In that case, the court was confronted with the
situation of determining whether a defendant, who never actually communicated his intention to
invoke his right to remain silent, invoked that right by remaining silent for long periods of time.
762 S.W.2d at 594. Ultimately, the court concluded that silence can be used to invoke the right, id.
at 599, but the court warned that invocation by inactivity might be “insolubly ambiguous” in certain
contexts, id. at 597. When referring to this type of passive invocation, the court explained
that the resolution of whether the right was invoked will depend “on the totality of the
circumstances.” Id. at 597.
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In this case, we are not confronted with a passive or ambiguous invocation. On the
contrary, in this case, we are presented with a direct and unambiguous invocation of the right to
remain silent. For this reason, the majority need not and should not have considered the totality of
the circumstances surrounding the appellant’s statement.
This conclusion is supported by a recent opinion released by the court of criminal
appeals. In Ramos, the court concluded that the statement “I don’t want to talk to you” was an
“unambiguous, unequivocal, and unqualified assertion” of the right to remain silent. 245 S.W.3d
at 419. Moreover, the court opined that in light of Ramos’s unambiguous assertion, it would be
improper to consider Ramos’s other statement as part of the determination of whether Ramos had
invoked his right because the other statement was “entirely irrelevant.” Id. In other words, the court
concluded that it is inappropriate to examine the circumstances surrounding an accused’s invocation
of the right to remain silent when the invocation is unambiguous.
Despite the fact that the appellant invoked his right to remain silent, the police
continued to question him. Once it is determined that an accused invoked his right to remain silent
and that statements were obtained despite the invocation, courts must then analyze whether the
police “scrupulously honored” that assertion. See id. Stated differently, if the police fail to cease
questioning a suspect after he has invoked his right to remain silent, any statements obtained after
the invocation are inadmissible. Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996);
see also Miranda, 384 U.S. at 474 (providing that once individual makes assertion, police must
discontinue their questioning). In this case, there was no break in the interrogation following the
appellant’s invocation of his right. Accordingly, it can hardly be argued that the appellant’s right
was “scrupulously honored.”
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However, as previously stated, I believe that the admission of the evidence was
harmless error and therefore concur in the judgment of the majority.
____________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear
Filed: June 6, 2008
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