Avery Lynn Jones v. State ( 2020 )

Opinion issued August 6, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00824-CR
———————————
AVERY LYNN JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1495266
MEMORANDUM OPINION
A jury convicted appellant, Avery Lynn Jones, of the first-degree felony
offense of murder and assessed his punishment at sixty years’ confinement.1 In three
issues, appellant contends that the trial court erred by (1) refusing to submit his
1
See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2).
requested instructions on self-defense and defense of a third person; (2) failing to
suppress his oral statement to police because the statement was not voluntary; and
(3) refusing to grant his motion for mistrial made after the State violated a motion in
limine by mentioning that he made a statement to police.
We affirm.
Background
A. Factual Background
The complainant, Chevey John Leal, was married to Jessica Leal for
approximately sixteen or seventeen years, and they had a house in the southwest
Houston area. The couple had three biological children, and Jessica had a son from
a previous relationship whom Leal never formally adopted. Leal and Jessica had
marital troubles, and Leal began confiding in his sister, Mary Lou Nimmons, about
these problems around Christmas Eve 2015. Around this time, Leal and Jessica
separated. Leal and the children were predominantly living with Jessica’s parents,
while Jessica sometimes stayed with them and sometimes stayed elsewhere.
However, Leal regularly returned to his and Jessica’s house, where he worked out
of the house repairing washing machines and dryers.
In early January 2016, Nimmons accompanied Leal to a legal clinic because
Leal planned to seek a divorce from Jessica and wanted to obtain sole custody of the
children. The representative at the legal clinic told Leal that the clinic could help
2
with the three youngest children, who were Leal’s biological children, but could not
help with the oldest child, who was not. According to Nimmons, Leal still planned
to seek a divorce from Jessica, but he was trying to find a way that he could keep all
four children together and with him. Nimmons never witnessed any violent or angry
exchanges between Leal and Jessica, although she testified that, around the
beginning of 2016, Leal did not want to go to their home by himself to gather
personal belongings, so he called the police. Nimmons stated, “He didn’t want to
have any interaction with her.”
On January 12, 2016, Nimmons received a call from Leal, who was “very
excited.” Jessica had just purchased a new phone, and she had left her old phone at
their house. Nimmons testified that Leal “was very excited because there was a lot
of stuff in there [on Jessica’s old phone] that Chevey felt could help him gain custody
of the kids.” Leal and Nimmons met at Nimmons’s house that evening, and Leal
showed her the contents of Jessica’s phone. While Leal was at Nimmons’s house,
he called “Avery.”2 Leal went home that evening, but he left Jessica’s old phone
with Nimmons “[t]o keep it safe.” Nimmons later turned this phone over to police
investigators.
2
The State asked Nimmons if she knew who “Avery” was, and Nimmons stated,
“Only that it was one of Jessica’s boyfriends.” After she gave this answer, defense
counsel objected on hearsay grounds, and the trial court sustained the objection.
Nimmons later testified that appellant was one of the men Jessica “was around” at
the time she and Leal separated.
3
Jesse Lambert had been friends with Leal since they were in high school, and,
around December 2015 and January 2016, he and Leal spoke on the phone nearly
every day. Lambert was aware of Leal and Jessica’s marital troubles, and he knew
that Leal and the children were generally staying with Jessica’s parents. On January
13, 2016, Leal called Lambert around 9:00 a.m. while Lambert was at work. During
the beginning of the conversation, Leal was in a “regular mood,” talking about
dropping the children off at school and asking Lambert how his day was going, while
he was doing his own work on washing machines and dryers. During their
conversation, Leal informed Lambert that Jessica had arrived at the house, and
Leal’s mood changed to “[a] somber mood, kind of bummed-out mood.” Lambert
could hear a woman’s voice over the phone line, but he could not identify that voice.
After hearing a woman’s voice, Lambert could hear a discussion and “faint
conversation.” At this time, no one spoke with raised voices, and Lambert could not
hear any banging noises or anything “that sounded violent or physical.” Later, Leal
began speaking with Lambert again, and at that point, he sounded excited. Leal told
Lambert, “He’s got a gun,” and then he said, “I’m out of here, call 911, you got my
back.” Lambert did not know who Leal was referring to when he said “he,” but
Lambert was able to hear a male voice over the phone line.
Lambert had been speaking to Leal on his personal cell phone, but when Leal
told him to call 911, he kept the line open on his personal cell phone and used his
4
work cell phone to call 911. Lambert testified, “I’m talking to 911, I hear a shot, I
hear Chevey wailing, I’m trying to give information to 911 and then multiple shots
after that.” Lambert could hear multiple gunshots, but he could not recall how many
he heard. On the line he had open with Leal, Lambert called Leal’s name. He heard
“rustling,” or a sound as if a cell phone was placed in a pocket, and “then after that
[Lambert heard] music and then a car door and that’s it.” Lambert called Leal’s name
a few more times, hung up when he received no response, and immediately called
Leal’s phone back. That call went straight to voicemail. Lambert then drove over to
Leal’s house. When he arrived, police were already there. Lambert gave two written
statements to officers while at the scene.
Harris County Sheriff’s Department Deputy J. Coddou was the first officer to
arrive at Leal’s house. When he and other deputies entered the house, they found
Leal lying face-down on the floor in a doorway and short hallway between the master
bedroom and the master bathroom, and it was not immediately clear if he was still
alive. Leal was partially lying on his left arm, and his right arm was stretched out
above his head. Coddou could see that the back of Leal’s shirt was red and that there
were small holes in his shirt. There were bloody footprints on the carpet near Leal’s
body in both the bathroom and the bedroom. There was also a knife lying next to
Leal’s left hand, there were multiple spent cartridge casings on the floor, a chair and
vase were knocked over, and there was a broken picture frame. Coddou testified that
5
it appeared as though the master bathroom was the only place in the house where a
struggle had taken place. EMS personnel determined that Leal had passed away, and
he was not transported to the hospital.
Deputy Roy Glover, with the Harris County Sheriff’s Department’s crime
scene unit, processed the scene for evidence. He took pictures of two knife sets
located in the kitchen “because we had a knife at the scene next to the complainant.”
Ten spent cartridge casings were located near Leal’s body, in the bathroom and in
the short hallway that led to the master bedroom. Leal had injuries on his thumb and
finger that “appeared to be made with a sharp object.” Glover stated that Leal’s shirt
was “saturated” with blood, and he observed three gunshot wounds to Leal’s back.
Glover agreed that the knife found next to Leal had the “same sort of handle” as
knives found in the kitchen, and he stated that was significant because it “most
likely” showed “that the knife came from the house and that it wasn’t brought into
the house.” He tested the knife for fingerprints but “[n]o prints of value were
developed” that could be compared with prints from a known individual.
The autopsy performed on Leal revealed that he had “some sharp-force
injuries” on his hands, including incisions and punctures. Dr. Michael Condron, who
performed the autopsy, agreed that it was possible that these wounds “could have
occurred with somebody being in a defensive state.” Leal sustained nine gunshot
wounds, one to the back of the neck, three to the upper back, two to the mid back,
6
one to the lower chest, one to the right side, and one to the back of the left shoulder.
He did not have any stab wounds on his sides or back.
Two surveillance videos obtained from nearby houses reflected that, after the
shooting, Jessica walked from Leal’s house to the house of her sister, Anita Delgado,
and then Delgado drove Jessica to their mother’s house. Jessica did not seem to be
panicked or rushed while she was walking. While at her mother’s house, Jessica
called 911, and a recording of this call was entered into evidence. During her 911
call, Jessica stated that she was at her house when her husband “tried to get [her]
with a crow[bar]”3 and she then pushed him down and stabbed him in the back or
the side with a kitchen knife. She told the 911 operator that she was currently at her
mother’s house, that Leal was still at their house, and that she took his keys and left
their house on foot because she was scared that he was going to chase her. Jessica
stated that police officers were already at her and Leal’s house, but she wanted to
talk to police to explain what had happened. She also stated that they had separated,
Leal had moved out, and she was trying to obtain a restraining order. The 911 call
ended when police arrived at Jessica’s mother’s house. Jessica did not mention the
presence of another person aside from herself and Leal at their house, and she did
not mention that Leal had been shot.
3
Deputy Glover testified that he was told by investigators to search for a crowbar or
a tire iron at the scene. He did not find either object at the house.
7
Deputy J. Vuong spoke with Jessica while she was at her mother’s house, and
Jessica informed him that the shooter—whom she identified as “Brion” or “Brione”
Jackson—had stolen her car, a blue BMW sedan. Vuong issued a Be-On-the-
Lookout, or “BOLO,” notice for this car and gave a physical description of the
suspect. Vuong did not see any injuries on Jessica when he spoke with her. Deputies
took Jessica from her mother’s house back to her house.
Deputy M. Jones, the primary homicide investigator assigned to this shooting,
spoke with Jessica three times on January 13. During his first conversation with her,
Jessica provided the name of “Brion Jones” as a suspect, and she later gave the
names of “Brion Jackson,” “Mike Jones,” and “Cutta Jackson” as suspects. Deputy
Jones showed her several pictures of men “obtained from different social media sites
that were under Jessica Leal’s account” in an attempt to identify the suspect. The
trial court admitted these pictures into evidence, but Jones did not identify who the
men in the pictures were. He stated, “[W]e knew we had a suspect, we just [were
not] certain if those individuals were the actual suspect.” Appellant’s name had not
been mentioned as a suspect, and Deputy Jones did not meet appellant until early the
next morning.
Humble Police Department Officer J. Cox was on patrol around 11:00 p.m.
on January 13, 2016, and was stopped behind a blue BMW sedan at an intersection.
He ran the license plate of the car and an alert from the Harris County Sheriff’s
8
Department popped up and listed the car as stolen. Cox and another officer
conducted a traffic stop and encountered appellant. Cox spoke with Jessica by phone
and informed her that appellant was driving her car. Jessica immediately informed
Cox that appellant was her friend and that she had given him permission to drive her
car. Appellant was calm and not combative during the traffic stop, and he did not
appear surprised that the car had been listed as stolen. During the traffic stop,
marijuana was discovered in appellant’s possession, and he was arrested. After
appellant was in custody, Deputy Jones and Sergeant S. Miller interviewed appellant
early on the morning of January 14, 2016.
Deputy Glover processed Jessica’s car for evidence two days after the
shooting. He took swabs of the door handles, steering wheel, seat belt buckle, gear
shift, and backrest of the driver’s seat for DNA evidence. There were dry bloodstains
in the car. In the trunk of the car, Glover photographed a trash bag that contained
three smaller bags. These smaller bags contained a backpack, a pair of boots, a red
shirt, black pants and a belt, and a pair of socks. The sole of the boots had a
bloodstain that Glover swabbed. He sent the clothing to the Harris County Institute
of Forensic Sciences for further processing.
DNA testing revealed that Leal could not be excluded as the sole contributor
to the DNA profile from the bloodstains on the knife, the backrest of driver’s seat of
Jessica’s car, and the sole of the boots found in the trunk of the car. With respect to
9
a bloodstain found on the driver’s seat near the center console, there was a mixture
of DNA profiles, and Leal could not be excluded as the possible major contributor,
but no conclusion could be reached about the minor contributor. For the black pants
recovered from Jessica’s car, there was a mixture of DNA profiles, and appellant
could not be excluded as the possible major contributor. Forensic scientists tested a
different portion of one of the boots, and that portion revealed a mixture of three or
more DNA profiles; appellant could not be excluded as a possible major contributor.
Mixtures of DNA profiles were also found on the socks and the red shirt, and
appellant could not be excluded as the possible major contributor for either of those
items. Appellant also could not be excluded as the possible major contributor to a
mixture of DNA profiles found on a swab of the gas pedals in Jessica’s car.
B. Appellant’s Custodial Statement
Deputy Jones testified that he first heard of appellant after appellant was
arrested while driving Jessica’s car. Jones met with appellant after midnight on
January 14. Appellant matched the general description of the suspect that Jessica had
provided. Jones and the State had the following exchange:
The State: Now, at any point in time did you learn the
relationship between Avery Jones and Jessica Leal?
Deputy Jones: Yes.
The State: And what was that?
Deputy Jones: Girlfriend/boyfriend relationship.
10
The State: And is this information that came from the
defendant?
Deputy Jones: Yes.
Defense counsel: I’m going to object to that, You Honor. Can we
approach?
The Court: Yes.
Defense counsel: It is—the answer—
The Court: Okay. I’ll sustain your objection.
Defense counsel: I filed a motion in limine about statements of the
defendant—
The Court: I sustained your objection. Would you like an
instruction?
Defense counsel: I would like an instruction.
The Court: At this time, ladies and gentlemen, you’re instructed
to disregard the previous question and the response
between the prosecutor and the witness.
Defense counsel: I move for a mistrial.
The Court: Denied.
The State then requested a hearing on the admissibility of appellant’s statements to
Deputy Jones, stating that he “want[ed] to talk about some of the things [appellant]
said in there or didn’t say, for that matter.”
During a suppression hearing outside the presence of the jury, the trial court
expressed frustration that it was just then learning that appellant had made a
statement to police. Defense counsel stated, “So I have a lot to say, objections about
the statement coming in, whether it was voluntary or involuntary.” Deputy Jones
11
testified that he read appellant the Miranda warnings, that appellant audibly agreed
that he understood the warnings, that Jones asked appellant if he wanted to talk, and
appellant agreed to speak with Jones. Jones stated that the interview was recorded
on video, that his reading of the Miranda warnings was on video, and that appellant
never requested an attorney.
On cross-examination, defense counsel asked Jones whether appellant
requested to terminate the interview “because he was exhausted and wanted to
sleep.” Jones recalled appellant saying on multiple occasions that he was tired, but
he did not “remember him saying he wanted to terminate the interview.” At this
point, the trial court, still frustrated that it was just then hearing about appellant’s
statement, especially after it had granted defense counsel’s motion in limine, paused
the suppression hearing until the next day and directed the State to move on to
another witness. Off the record, the trial court reviewed a redacted version of the
interview.4
The suppression hearing continued the next morning, still outside the presence
of the jury. The trial court watched an unredacted recording of the interview,
frequently pausing the video to seek clarification of what appellant had said. During
the hearing, the prosecutor stated that, in addition to appellant’s statement to Deputy
4
The following day, the trial court recounted on the record that it viewed a recording
of the interview after it had excused the jury for the day, and while this occurred,
defense counsel noticed that they were watching a redacted interview.
12
Jones that he was in dating relationship with Jessica, the prosecutor also wanted to
ask Jones about appellant’s demeanor, appellant’s initial denial of being at Leal and
Jessica’s house, Jones’s statement to appellant that Leal was on the phone at the time
of the shooting, and appellant’s response that he “knew that,” a statement in which
appellant “puts himself at the scene.” Defense counsel then addressed her objections:
Defense counsel: I want to say that my client invoked his right to
remain silent and his right to terminate the interview
will be my first argument.
The Court: At which point are you saying he’s terminating the
interview?
Defense counsel: I’ll show you. I have it written down. I have that at
first he says he’s cold.
The Court: We’ve already heard that, this part.
Defense counsel: Right. Second, it’s 2:00 o’clock in the morning, he’s
been up all night and all day.
The Court: “I just want to go to sleep.”
Defense counsel: He says—at 2:04 in the morning and 54 seconds,
the officer says, Explain what happened today. He
shakes his head no. He shakes his head no again at
2:05.
The Court: Well, shaking his head no, that’s—you know, that
can mean, well, I don’t know—
Defense counsel: And then at 2:07, he yawns and says he wants to go
to sleep. At 2:10, he again says, I just want to go to
sleep. At 2:13, he’s falling asleep and he says he
wants to go to sleep. In that same context, around
2:13, I want to go to sleep, I’m tired.
Officer tells him he won’t have a bond. He then—
he says several more times throughout the interview
he wants to go home. At one point he asked, Do you
13
have a warrant for my arrest in my name? I want
to—if not, I want to go to sleep and leave, in those
words, but he doesn’t ever say I’m terminating the
interview, which he’s not required to do. But I think
a culmination of all those facts, that he’s freezing,
he’s exhausted, he’s falling asleep in this interview.
Also I think there’s evidence that he was arrested
with marijuana in Humble while he’s driving the
car. He tells the officer there that he just bought
marijuana, that he’s high during this interview. I
think it will be involuntary based on the culmination
of all that information but you have to watch the
whole interview before I can make that argument
but if it helps you while you’re watching it to see
where my argument is.
The trial court continued watching the recording and continued to pause the
recording occasionally to try to decipher what appellant said.
Ultimately, the trial court made a finding that the interview was voluntary up
until the point appellant stated that he knew Leal was on the phone, noting that the
State was “not interested in anything past this point.” The State also agreed that it
did not intend to play the recording of the interview for the jury and that it only
intended to introduce, through Deputy Jones, appellant’s statement about knowing
Leal was on the phone. The trial court filed handwritten findings concerning the
interview and its conclusion that the statement was voluntary.
In the presence of the jury, Deputy Jones testified that, during his interview
with appellant, Jones mentioned that Leal was on the phone when he was shot. Jones
testified that appellant responded, “I knew the dude was on the phone.”
14
C. Defensive Jury Instructions
During cross-examination, Deputy Vuong testified that he took a statement
from Anita Delgado, Jessica’s sister. Defense counsel asked Vuong if he knew the
difference between murder and justifiable homicide, and, while Vuong stated that he
did, he could not articulate that difference. Defense counsel repeatedly asked Vuong
if, based on Delgado’s statement, he could tell if the shooting of Leal was a murder
or a justifiable homicide, but the trial court sustained the State’s objections to these
questions. Vuong testified only that he conveyed Delgado’s statement to
investigators and that he thought it was important that the investigators know what
Delgado had said, but he never testified as to the contents of Delgado’s statement.
Sergeant F. Garcia, who spoke with Delgado on a separate occasion, passed on what
she said to the investigators. Defense counsel asked Garcia whether, after he spoke
with Delgado, he was concerned that the shooting “could be a justified homicide,”
and he responded, “It was possible, yes.” Garcia did not testify concerning what
Delgado told him.
Defense counsel had the following exchange with Deputy Glover, the crime
scene unit officer, on cross-examination:
Q: Were you ever presented with a scenario to see if this evidence
[at Leal’s house] was consistent or not consistent with a self-
defense situation?
A: I wasn’t. Well, as far as the—be more specific.
15
Q: Well, you were presented with a scenario and you were asked to
see if the forensic evidence lines up with the situation that you
were presented, correct?
A: Well—
Q: Is that correct?
A: I was—
Q: Is that correct?
A: Yes.
Q: So did anybody present you with a scenario that involved self-
defense?
A: Yes.
Q: So you knew about a self-defense claim in this situation?
A: I knew about possible self-defense.
Q: All right. That’s why I said “a claim,” right?
A: Uh-huh.
Q: And what evidence in all these pictures contradicts that?
A: What contradicts that?
Q: Sure.
A: Well, there’s no evidence that shows as far—well, the evidence
on [Leal’s] body shows that there are defensive wounds from—
with a sharp object so—
Q: Does that mean that the body never had a weapon in his hand?
A: Well, we’re—
Q: Does that—
A: We assume that the defensive wounds came from him protecting
himself.
16
Glover agreed with defense counsel that, based on the scene, there was no “way to
tell” whether Leal “was ever holding a weapon.” Glover also agreed that he could
not determine whether “there was another weapon at this scene other than a gun and
a knife.” Defense counsel also asked Glover questions about the positioning of the
knife relative to the sink and asked whether that evidence was “consistent with a
female and a male struggling over the knife near the sink.” Glover agreed that it was
possible. Glover also agreed that it was possible that a person could be standing in a
closet that was connected to the master bathroom and “see that struggle with a knife.”
He further stated that, based on the location of the fired cartridge casings, it was
possible that someone was inside the closet, fired a gunshot, “bust[ed] out of the
closet,” and stepped over Leal while continuing to shoot before leaving the house.
During the charge conference, that trial court stated that it intended to charge
the jury without a self-defense instruction and noted that “the defense attorney is
objecting to that charge and requesting defensive issues be included.” Defense
counsel and the trial court stated:
Defense counsel: My objection is that the language that was in the
original charge given to me, which included self-
defense, remain—
The Court: The first draft of a charge?
Defense counsel: The first draft, yes, Judge. And that’s the one that I
would like to go with.
17
Defense counsel argued that self-defense had been raised by the evidence,
specifically the officers who spoke to Delgado “that they heard a version of self-
defense and that they thought it was credible enough to pass it along” to other
investigating officers, as well as Glover’s testimony that self-defense was
“consistent with the physical evidence,” and Garcia’s testimony that “it could be
self-defense in this fact scenario.” The trial court refused to submit a self-defense
instruction.
Ultimately, the jury found appellant guilty of the offense of murder and
assessed his punishment at sixty years’ confinement. This appeal followed.
Refusal to Submit Defensive Instructions
In his first issue, appellant contends that the trial court erred by failing to
submit in the jury charge his requested instructions on self-defense and defense of a
third person.
A. Standard of Review and Governing Law
We review jury charge error in a two-step process. Barrios v. State, 283
S.W.3d 348, 350 (Tex. Crim. App. 2009). The first step is to determine whether there
is error in the charge. Id.; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
If there is error and the defendant objected to the error at trial, we must reverse “if
the error ‘is calculated to injure the rights of the defendant,’ which we have defined
to mean that there is ‘some harm.’” Barrios, 283 S.W.3d at 350 (quoting Almanza v.
18
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). We must determine whether
the defendant suffered actual harm, rather than merely theoretical harm. Reeves v.
State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In determining harm, we
consider the entire jury charge, the state of the evidence, including the contested
issues and the weight of probative evidence, the argument of counsel, “and any other
relevant information revealed by the record of the trial as a whole.” Barron v. State,
353 S.W.3d 879, 883 (Tex. Crim. App. 2011).
Code of Criminal Procedure article 36.14 provides that, in every felony case,
the trial court shall deliver to the jury “a written charge distinctly setting forth the
law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14; Beltran de la
Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019) (“The purpose of the
jury charge is to inform the jury of the applicable law and guide them in its
application to the case.”) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996)). The trial court is required to instruct the jury on statutory defenses,
affirmative defenses, and justifications when they are raised by the evidence.
Walters v. State, 247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007); see also TEX.
PENAL CODE ANN. § 2.03(c) (“The issue of the existence of a defense is not
submitted to the jury unless evidence is admitted supporting the defense.”), id.
§ 2.04(c) (stating same with respect to affirmative defenses).
19
A defendant is entitled to an instruction on every defensive issue raised by the
evidence, regardless of whether the evidence is strong, feeble, unimpeached, or
contradicted, and even when the trial court thinks that the evidence is not worthy of
belief. Walters, 247 S.W.3d at 209. When reviewing a trial court’s decision to deny
a requested defensive instruction, we view the evidence in the light most favorable
to the defendant’s requested submission. Gamino v. State, 537 S.W.3d 507, 510
(Tex. Crim. App. 2017). A trial court errs in denying a requested defensive
instruction if there is some evidence, from any source, which, when viewed in the
light most favorable to the defendant, will support the elements of the defense. Id.;
Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007) (stating that defense
is raised by evidence “if there is some evidence, from any source, on each element
of the defense that, if believed by the jury, would support a rational inference that
that element is true”).
Texas Penal Code Chapter 9 is entitled “Justification Excluding Criminal
Responsibility,” and section 9.02 provides that “[i]t is a defense to prosecution that
the conduct in question is justified under this chapter.” TEX. PENAL CODE ANN.
§ 9.02. Two of the justification defenses provided for in Chapter 9 are self-defense
and defense of a third person. A person is justified in using force against another
when and to the degree the actor reasonably believes the force is immediately
necessary to protect the actor against the other’s use or attempted use of unlawful
20
force. Id. § 9.31(a). If the actor is justified in using force against another, the actor
is also justified in using deadly force when and to the degree the actor reasonably
believes deadly force is immediately necessary to protect against the other’s use or
attempted use of unlawful deadly force. Id. § 9.32(a)(1), (a)(2)(A); id. § 9.01(3)
(defining “deadly force” as “force that is intended or known by the actor to cause,
or in the manner of its use or intended use is capable of causing, death or serious
bodily injury”). The evidence does not have to show that the complainant was
actually using or attempting to use unlawful deadly force “because a person has the
right to defend himself from apparent danger as he reasonably apprehends it.”
Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing Hamel v. State,
916 S.W.2d 491, 493 (Tex. Crim. App. 1996)).
A person is justified in using force or deadly force against another to protect
a third person if (1) under the circumstances as the actor reasonably believes them
to be, the actor would be justified under section 9.31 or 9.32 in using force or deadly
force to protect himself against the unlawful force or deadly force he reasonably
believes to be threatening the third person he seeks to protect; and (2) the actor
reasonably believes that his intervention is immediately necessary to protect the third
person. TEX. PENAL CODE ANN. § 9.33. The focus of this defense is “upon what the
actor reasonably believes concerning the situation of the third person.” Morales v.
State, 357 S.W.3d 1, 8 (Tex. Crim. App. 2011). “In other words, a defendant is
21
justified in defending a third person if, under the circumstances as the defendant
reasonably believes them to be, the third person would be justified in defending
himself.” Henley v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016). Both self-
defense and defense of a third person “require that there be a reasonable belief in the
immediate need to act.” Id.
Self-defense and defense of a third person are both “confession and
avoidance” defenses. See Jordan, 593 S.W.3d at 343 (self-defense); Henley v. State,
454 S.W.3d 106, 114 (Tex. App.—Fort Worth 2014) (defense of third person), rev’d
on other grounds, 493 S.W.3d 77 (Tex. Crim. App. 2016). In a case involving a
confession and avoidance defense, an instruction on the defense is appropriate only
when “the defendant’s defensive evidence essentially admits to every element of the
offense, including the culpable mental state, but interposes the justification to excuse
the otherwise criminal conduct.” Cornet v. State, 417 S.W.3d 446, 451 (Tex. Crim.
App. 2013); Shaw, 243 S.W.3d at 659. Thus, to be entitled to instructions on
confession and avoidance defenses such as self-defense and defense of a third
person, the defendant must “admit to his otherwise illegal conduct.” Jordan, 593
S.W.3d at 343; Gamino, 537 S.W.3d at 512 (“Admitting to the conduct does not
necessarily mean admitting to every element of the offense.”). A defendant “cannot
both invoke self-defense and flatly deny the charged conduct.” Jordan, 593 S.W.3d
at 343; Villa v. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013) (“If the defensive
22
evidence does no more than attempt to negate an element of the offense, a defendant
is not entitled to a defensive instruction on any defense that is subject to the doctrine
of confession and avoidance.”); Anderson v. State, 11 S.W.3d 369, 372 (Tex. App.—
Houston [1st Dist.] 2000, pet. ref’d) (“Self-defense is inconsistent with a denial of
the conduct. To raise the issue of self-defense, [a defendant] must admit the
committed offense and then offer self-defense as justification.”).
B. Analysis
Appellant argues that the record contains evidence supporting the theory that
the shooting of Leal was a justifiable homicide and that he was therefore entitled to
jury instructions on self-defense and defense of a third person. As supporting
evidence, he points to (1) Sergeant Garcia’s testimony that, after he spoke with Anita
Delgado, Jessica’s sister, he believed it was possible that the shooting was a justified
homicide; (2) Deputy Glover’s testimony that, based on the physical evidence
present in the bathroom where Leal was killed, it was “possible” that a man and
woman had been struggling over a knife in the bathroom and that a third person, who
had been hiding in the attached closet, had started shooting upon seeing this struggle;
and (3) Jessica’s 911 call, in which she stated that Leal had come at her with a
crowbar and she stabbed him with a kitchen knife to defend herself. We disagree
that this evidence entitles appellant to jury instructions on self-defense and defense
of a third person.
23
As stated above, both self-defense and defense of a third person are
“justification” defenses that justify otherwise criminal conduct. They are also both
“confession and avoidance” defenses, meaning that, to be entitled to the defense, the
defensive evidence must “essentially admit[] to every element of the offense,
including the culpable mental state, but interpose[] the justification to excuse the
otherwise criminal conduct.” Cornet, 417 S.W.3d at 451; Shaw, 243 S.W.3d at 659.
To be entitled to an instruction on a confession and avoidance defense, the defendant
must “admit to his otherwise illegal conduct.”5 Jordan, 593 S.W.3d at 343. Here,
there is no evidence in the trial record in which appellant admits to the illegal conduct
of shooting Leal.
5
We do not hold that, to be entitled to an instruction on a confession and avoidance
defense, the defendant himself must testify and admit on the witness stand to the
otherwise criminal conduct. Recent cases from the Court of Criminal Appeals have
held that “the defensive evidence” must essentially admit every element of the
offense. See, e.g., Cornet v. State, 417 S.W.3d 446, 451 (Tex. Crim. App. 2013);
Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007). This evidence could
take the form of, for example, statements made by the defendant during a custodial
interrogation or testimony from a defensive witness who saw the defendant commit
the otherwise criminal conduct. See, e.g., Davis v. State, 490 S.W.3d 268, 276 (Tex.
App.—Fort Worth 2016, pet. ref’d) (considering statements made by defendant in
custodial interrogation in concluding that defendant did not sufficiently admit
culpability in robbery offense and therefore he was not entitled to instruction on
necessity, which is also a confession and avoidance defense); see also VanBrackle
v. State, 179 S.W.3d 708, 713–14 (Tex. App.—Austin 2005, no pet.) (considering,
in determining whether some evidence existed in record raising issue of self-defense
when defendant did not testify at trial, testimony from both State and defense
witnesses concerning altercation that formed basis of underlying charge).
24
Sergeant Garcia testified that he spoke with Delgado, Jessica’s sister, after the
shooting, and that he passed on what she said to the investigators. Based on what
Delgado told him, Garcia believed that it was “possible” that the shooting of Leal
was justified. Garcia did not testify concerning the contents of Delgado’s statement
to him. Deputy Glover, with the crime scene unit, processed the scene of the shooting
for physical evidence. He agreed that, when investigating the scene, he had been
presented with a scenario involving a self-defense claim to consider. He testified that
he assumed Leal’s defensive wounds were the result of him trying to protect himself,
and he agreed that he could not tell, based on the evidence at the scene, whether Leal
had held a weapon. Defense counsel asked Glover about the positioning of the knife
found next to Leal relative to the bathroom sink and asked whether that evidence
was “consistent with a female and a male struggling over the knife near the sink.”
Glover agreed that this was possible. He also agreed that it was possible that a person
could have been standing in the closet connected to the master bathroom and could
have seen “that struggle with a knife.” He further stated that, based on the location
of the fired cartridge casings, it was possible that someone inside the closet fired a
gunshot, “bust[ed] out of the closet,” and stepped over Leal while continuing to
shoot him.
Neither Sergeant Garcia’s testimony nor Deputy Glover’s testimony
specifically mentions appellant or constitutes an admission by appellant that he
25
committed the shooting, let alone that he acted in self-defense or that he was
defending another person when he did so. This evidence amounts to nothing more
than the mere possibility that the shooting occurred in self-defense or to defend
another; it is not evidence that satisfies the elements of self-defense or defense of a
third person. See Shaw, 243 S.W.3d at 657–58 (stating that defense is raised by
evidence “if there is some evidence, from any source, on each element of the defense
that, if believed by the jury, would support a rational inference that that element is
true”).
With respect to her 911 call, Jessica told the 911 dispatcher that she had had
an argument with Leal, her husband, at their house. Leal “tried to get [her] with a
crow[bar],” or some other instrument that she did not know the name of, but she
pushed him down and stabbed him in the back or the side with a kitchen knife. She
stated that she took Leal’s keys and left their house on foot to go to her mother’s
house because she was afraid that he was going to chase her. She mentioned that
they had been having marital problems, and she stated that she had tried to get a
restraining order. Jessica did not mention that Leal had been shot, she did not
mention the presence of a third person at their house, and she did not mention
appellant in her 911 call. Jessica’s 911 call, which does not reference appellant, let
alone reference any actions that he may have taken at Leal’s house, also does not
26
constitute an admission by appellant that he committed the shooting, nor is it
evidence that even placed him at the scene of the crime.
To be entitled to jury instructions on self-defense and defense of a third
person, defensive evidence must admit to “every element of the offense, including
the culpable mental state, but interpose[] the justification to excuse the otherwise
criminal conduct.” Cornet, 417 S.W.3d at 451; Shaw, 243 S.W.3d at 659. There is
no evidence in this record in which appellant admits that he committed the criminal
conduct—the shooting of Leal. Because no such admission was presented to the jury,
we conclude that appellant was not entitled to jury instructions on self-defense and
defense of a third person, two “confession and avoidance” defenses. See Jordan, 593
S.W.3d at 343 (“Self-defense is a confession-and-avoidance defense requiring the
defendant to admit to his otherwise illegal conduct.”); Anderson, 11 S.W.3d at 372
(“Self-defense is inconsistent with a denial of the conduct. To raise the issue of self-
defense, [a defendant] must admit the committed offense and then offer self-defense
as justification.”). We hold that the trial court did not err by denying appellant’s
requested jury instructions on these two defenses.
We overrule appellant’s first issue.
Voluntariness of Defendant’s Statement
In his second issue, appellant contends that the trial court erred in denying his
motion to suppress Deputy Jones’s testimony that, during a custodial interrogation,
27
appellant stated that he “knew the dude [Leal] was on the phone” because the
custodial interrogation was involuntary and coercive under Code of Criminal
Procedure articles 38.21 and 38.22, Miranda v. Arizona, and state and federal due
process protections.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress for an abuse of
discretion. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). We view
the evidence in the light most favorable to the trial court’s determination, and we
will reverse only if the ruling is arbitrary, unreasonable, or “outside the zone of
reasonable disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App.
2014) (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).
Because the trial court is the sole trier of fact at a suppression hearing, we give almost
total deference to the court’s determination of historical facts, especially when those
determinations are based on assessments of credibility and demeanor. Ramirez-
Tamayo v. State, 537 S.W.3d 29, 35 (Tex. Crim. App. 2017); Story, 445 S.W.3d at
732; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) (“The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimony.”). The trial court is entitled to believe or
disbelieve all or any part of a witness’s testimony, even if that testimony is
uncontroverted, because the court has the opportunity to observe the witness’s
28
demeanor and appearance. Valtierra, 310 S.W.3d at 447. This deferential standard
of review also applies to a trial court’s determination of historical facts based on a
videotape recording admitted into evidence at a suppression hearing, although we
may review de novo “‘indisputable visual evidence’ contained in a videotape.” State
v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013) (quoting Carmouche v.
State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000)); State v. Fikes, 585 S.W.3d 636,
641 (Tex. App.—Austin 2019, no pet.).
If the trial court makes express findings of fact, we view the evidence in the
light most favorable to its ruling and determine whether evidence supports the fact
findings. Valtierra, 310 S.W.3d at 447. If the trial court does not make express
factual findings, we still view the evidence in the light most favorable to the ruling,
and we assume that the trial court made implied findings of fact that support its
ruling as long as those findings are supported by the record. Ramirez-Tamayo, 537
S.W.3d at 35–36 (quoting Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App.
2006)).
We review de novo the trial court’s application of the law to facts that do not
turn on credibility and demeanor. Story, 445 S.W.3d at 732; see Abney v. State, 394
S.W.3d 542, 547 (Tex. Crim. App. 2013) (“[A] question ‘turns’ on an evaluation of
credibility and demeanor ‘when the testimony of one or more witnesses, if believed,
is always enough to add up to what is needed to decide the substantive issue.’”)
29
(quoting Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998)). We will
uphold the trial court’s ruling if the decision is correct under any theory of applicable
law. Cortez, 543 S.W.3d at 203.
B. Voluntariness of Defendant’s Statement
The Fifth Amendment of the United States Constitution provides that no
person “shall be compelled in any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due process of law.” U.S. CONST.
amend. V; TEX. CONST. art. I, § 10 (providing that, in all criminal prosecutions,
accused “shall not be compelled to give evidence against himself”), § 19 (providing
that no citizen of Texas shall be deprived of liberty “except by the due course of the
law of the land”). In Miranda v. Arizona, the United States Supreme Court required
procedural safeguards to protect this right and provided that, during a custodial
interrogation, the accused must be warned prior to any questioning that, among other
things, he has the right to remain silent, anything he says can be used against him in
court, and he has the right to have an attorney present during the interrogation. 384
U.S. 436, 478–79 (1966). After the accused has received these warnings and has had
the opportunity to exercise his rights, he may knowingly and intelligently waive his
rights and agree to answer questions or make a statement. Id. at 479. Until the State
demonstrates that the warnings were given and the accused waived his rights, “no
evidence obtained as a result of interrogation can be used against him.” Id.
30
 Texas has expanded on these rights by statute. Code of Criminal Procedure
article 38.21 provides that “[a] statement of an accused may be used in evidence
against him if it appears that the same was freely and voluntarily made without
compulsion or persuasion, under the rules hereafter prescribed.” TEX. CODE CRIM.
PROC. ANN. art. 38.21; Williams v. State, 402 S.W.3d 425, 433 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d). Article 38.22 governs when written and oral statements
of an accused may be used at trial. Section 2 of that article, specifically addressing
written statements, provides:
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:
(a) the accused, prior to making the statement, . . . 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
31
waived the rights set out in the warning prescribed by
Subsection (a) of this section.
TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2. Article 38.22, section 3 governs oral
statements and provides that no oral statement of an accused, made as a result of
custodial interrogation, shall be admissible unless, among other requirements, “prior
to the statement but during the recording the accused is given the warning in
Subsection (a) of Section 2 above and the accused knowingly, intelligently, and
voluntarily waives any rights set out in the warning.” Id. art. 38.22, § 3.
Article 38.22 also includes procedural requirements that must be met when
the defendant raises a question about the voluntariness of the statement:
In all cases where a question is raised as to the voluntariness of a
statement of an accused, the court must make an independent finding
in the absence of the jury as to whether the statement was made under
voluntary conditions. If the statement has been found to have been
voluntarily made and held admissible as a matter of law and fact by the
court in a hearing in the absence of the jury, the court must enter an
order stating its conclusion as to whether or not the statement was
voluntarily made, along with the specific finding of facts upon which
the conclusion was based, which order shall be filed among the papers
of the cause. . . . Upon the finding by the judge as a matter of law and
fact that the statement was voluntarily made, evidence pertaining to
such matter may be submitted to the jury and it shall be instructed that
unless the jury believes beyond a reasonable doubt that the statement
was voluntarily made, the jury shall not consider such statement for any
purpose nor any evidence obtained as a result thereof. . . .
Id. § 6; Oursbourn v. State, 259 S.W.3d 159, 171 (Tex. Crim. App. 2008) (stating
that article 38.22, section 6 “applies to both an accused’s custodial and non-custodial
statements because it provides that only ‘voluntary’ statements may be admitted”).
32
A defendant may claim that his statement was not freely and voluntarily made
under several different theories: (1) “general voluntariness” under article 38.22,
section 6; (2) Miranda, as expanded by article 38.22 sections 2 and 3; or (3) the Due
Process Clause, and a statement “may be involuntary under one, two, or all three
theories.” Oursbourn, 259 S.W.3d at 169; Ramjattansingh v. State, 587 S.W.3d 141,
153 (Tex. App.—Houston [1st Dist.] 2019, no pet.). “A statement that is
‘involuntary’ as a matter of constitutional law is also ‘involuntary’ under Article
38.22, but the converse need not be true.” Oursbourn, 259 S.W.3d at 169.
The State bears the burden of establishing a valid waiver of Miranda rights
by a preponderance of the evidence. Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim.
App. 2011). The Court of Criminal Appeals has held that “[t]here are two facets to
any inquiry” regarding the adequacy of a waiver of an accused’s Miranda rights:
First, the waiver must be “voluntary in the sense that it was the product
of a free and deliberate choice rather than intimidation, coercion, or
deception.” Second the waiver must be made “with a full awareness
both of the nature of the right being abandoned and the consequences
of the decision to abandon it.”
Id. (quoting Ripkowski v. State, 61 S.W.3d 378, 384 (Tex. Crim. App. 2001)). For a
waiver of a Miranda right to be involuntary “there must be some element of official
intimidation, coercion, or deception.” Id.; Oursbourn, 259 S.W.3d at 169–70 (stating
that confession is “voluntary” within meaning of Due Process Clause “absent some
coercive police activity” causally related to confession).
33
A waiver is knowing and intelligent if the accused “has been made aware, and
fully comprehends, that he has the right to remain silent in the face of police
interrogation and to discontinue the dialogue at any time, and that the consequence
of his waiver is that his words may be used against him later in a court of law.” Leza,
351 S.W.3d at 350. “The Due Process Clause is aimed at protecting suspects from
police overreaching, not at protecting people from themselves or other private
actors.” Oursbourn, 259 S.W.3d at 170. Claims of involuntariness under the Due
Process Clause and Miranda “do not require ‘sweeping inquiries into the state of
mind of a criminal defendant who has confessed,’” but instead involve “an objective
assessment of police behavior.” Id. at 171 (quoting Colorado v. Connelly, 479 U.S.
157, 167 (1986)).
For Fifth Amendment purposes, an accused’s waiver of the privilege against
compelled self-incrimination during custodial interrogation is involuntary “only if it
is a product of official coercion, intimidation, or deception.” Leza, 351 S.W.3d at
352. However, a claim that a waiver of the statutory rights set out in article 38.22 is
involuntary “need not be predicated on police overreaching.” Id. (quoting
Oursbourn, 259 S.W.3d at 172). Claims of involuntariness under article 38.22 can
involve police overreaching, but these claims can also involve inquiries into the
accused’s state of mind that are not relevant to due process claims. Oursbourn, 259
S.W.3d at 172. “Circumstances unattributable to the police that nevertheless
34
adversely impact an accused’s ability to resist reasonable police entreaties to waive
his statutory rights, such as intoxication, are ‘factors’ in the voluntariness inquiry,
though they ‘are usually not enough, by themselves, to render a statement
inadmissible under Article 38.22.’” Leza, 351 S.W.3d at 352 (quoting Oursbourn,
259 S.W.3d at 173); see Oursbourn, 259 S.W.3d at 172–73 (stating that while youth,
intoxication, illness, medication, and mental and intellectual disabilities are usually
not enough, by themselves, to hold that confession is involuntary, they are factors
that may be considered).
We consider the totality of the circumstances in determining whether an
accused’s statement was voluntary. Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim.
App. 2007); Allen v. State, 479 S.W.3d 341, 350 (Tex. App.—El Paso 2015, no pet.);
see also Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010) (stating that
totality-of-circumstances approach requires consideration of “all the circumstances
surrounding the interrogation,” including accused’s experience, background, and
conduct) (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)).
C. Analysis
Appellant argues that his entire interview with Deputy Jones and Sergeant
Miller was involuntary—and thus should have been suppressed—because he was
cold, the interview occurred early in the morning and he had not slept, he was
35
possibly under the influence of marijuana at the time, and he invoked his right to
remain silent and terminate the interview.
The suppression hearing in this case occurred over two days. At the beginning
of the hearing, Deputy Jones testified that he and Sergeant Miller interviewed
appellant after the Humble Police Department arrested him for possession of
marijuana. Appellant had been stopped while driving Jessica’s car, which she had
reported as stolen, although she informed the arresting officer that appellant had
permission to drive her car. Jones testified that he read appellant the Miranda
warnings, appellant responded that he understood the warnings, and appellant agreed
to talk with the detectives. The trial court viewed an unredacted recording of
appellant’s interrogation and discussed with counsel various statements that
appellant made throughout the interview.
After the suppression hearing, the trial court made the following handwritten
findings concerning the voluntariness of the interrogation:
Prelim. Finding—[Defendant’s] Statement was Voluntary
Hearing Outside Presence of Jury began Wed., 8/29/18 & continued
Thurs. 8/30/18
Murder offense date: morning of 1/13/16
[Defendant’s] arrest: approx. 11pm same day
Interview: approx. 2am 1-14-16
Defendant was arrested driving deceased’s vehicle, which had been
reported stolen from their driveway by deceased’s wife, Jessica Leal.
(She was later charged as a co-defendant in the murder of her husband.)
36
HCSO Deputy [M.] Jones interviewed Defendant at the Humble Police
Dept. near where he had been stopped in the vehicle that had been
reported stolen and also was in possession of marihuana.
Jones gave Defendant his Miranda warnings & after each Defendant
indicated he understood. There was a lengthy interview.
There were times when Defendant, on a particular subject matter being
discussed by the interviewer(s), would say he didn’t want to talk about
it (whatever the subject was) anymore, but would continue to respond.
There were occasions when defendant would say he wanted to go to
sleep, or would inquire about a bond, or whether there was a warrant
for his arrest, but he continued to participate. He would say, as to a
matter, “I got nothing else to say,” but talked fairly freely about staying
at a hotel with deceased’s wife, about her kids, that his work was that
he “does music,” etc.
The only statement during the entire interview that the State presented
before the jury was the Defendant indicating that the deceased, on the
morning of 1/13/16, was on the phone.6
Defendant never asked for an attorney.
Conclusion: The statement by the defendant was voluntarily made.
A review of appellant’s interrogation with Jones and Miller reflects that the
interview began around 1:48 a.m. on January 14, 2016. At the beginning of the
interview, Deputy Jones read appellant each of the Miranda warnings, appellant
verbally indicated that he understood each of the warnings, and appellant agreed to
speak with the detectives. Early in the interview, appellant stated that he was cold,
6
Because the State represented that the only statement of appellant’s that it wished
to introduce into evidence was appellant’s statement that he knew Leal was on the
phone, which occurred approximately one hour and four minutes into the interview,
the trial court did not consider anything that happened in the interview after this
point in determining whether the statement was voluntarily made.
37
and this was the only such reference to the conditions in the interview room that he
made.7 Appellant yawned several times throughout the interview; approximately
nineteen minutes into the interview he asked if he could go to sleep; and he stated
on at least three other occasions, “I just want to go to sleep.” Despite these
statements, appellant did not fall asleep while talking to Jones and Miller, and there
is no indication on the recording that he was having difficulty staying awake.
Appellant did not state, during the interview, that he had smoked or otherwise
ingested marijuana.8
Appellant occasionally answered questions during the interview. He told the
detectives that he knew Jessica, that she had been his girlfriend for around one
month, and that they had met through social media. He answered questions about his
use of Jessica’s car, at one point correcting one of the detectives and stating that
Jessica had lent her car to him “yesterday.” He informed detectives that he and
7
Appellant’s interview occurred in mid-January. He was wearing a hooded sweatshirt
during his interview. Both detectives were wearing dress shirts without suit jackets.
8
It is undisputed that when Officer Cox arrested appellant at 11:14 p.m., appellant
had marijuana in his possession. During the suppression hearing, defense counsel
stated, “Also, I think there’s evidence that [appellant] was arrested with marijuana
in Humble while he’s driving the car. He tells the officer there that he just bought
marijuana, that he’s high during this interview.” Cox’s incident report, which was
admitted into evidence for the purpose of the suppression hearing, included this
statement: “[Appellant] stated that he was headed home to Kenswick from a
friend[’]s house where he purchased marijuana.” The report did not include any
indications that appellant had stated that he was under the influence of marijuana at
the time of his arrest. Cox did not mention marijuana when he testified before the
jury, and he did not testify during the suppression hearing.
38
Jessica had spent the night—presumably the night before the shooting—together at
a hotel, although he refused to tell the detectives which hotel because he did not
believe it was important. He answered questions about Jessica’s children and his
own daughter. He also talked about his work, which he described as “doing music.”
Appellant also participated in the interview by asking questions of the detectives. He
asked questions about the amount of his bond, several questions either clarifying or
summarizing statements that Jessica had allegedly made to the detectives, a question
about an arrest warrant, and a question about whether Jessica was at the scene when
the police arrived.
The detectives repeatedly asked appellant questions about what happened
with Leal—questions such as “explain what happened today” and questions about
who had possession of the gun and who had the knife. Appellant did not answer
these questions. He either remained silent or shook his head. Approximately fifty
minutes into the interview, at 2:38 a.m., he mentioned that he would rather go home,
and he said something like, “No matter what I say it won’t change anything.” Three
minutes later, he asked the detectives questions about Jessica’s story, and one of the
detectives asked, “So she gave you the car?” Appellant said something along the
lines of “I’m not speaking on that,” but he immediately continued talking. The
detectives asked him, “Before you left [Jessica and Leal’s house], her husband
showed up. Is that true?” Appellant did not answer. Ten minutes later, at 2:51 a.m.,
39
an hour and four minutes into the interview, Deputy Jones told appellant that they
knew Leal was on the phone at the time of the shooting, that they had the phone call
and “people in the background,” and that they “know who was there.” Appellant
responded, “I did know he was on the phone.”
To the extent appellant argues that the interview in its entirety—and his
statement that he knew that Leal was on the phone, in particular—was involuntary
because he was cold, he was extremely fatigued, and he was possibly under the
influence of marijuana at the time of the interview, we disagree that these factors
adversely impacted appellant’s ability to comprehend the Miranda warnings and to
“resist reasonable police entreaties to waive his statutory rights.” See Leza, 351
S.W.3d at 352. Although it is apparent from the recording that appellant was tired
during the interview, he did not express any confusion over his rights when Deputy
Jones read him his Miranda warnings. Instead, appellant agreed that he understood
each of the rights, and he agreed to talk with the detectives. Appellant participated
throughout the interview, occasionally answering questions and asking questions of
his own. His questions and answers, although sometimes hard to hear due to his quiet
voice and propensity to mumble, followed logically from the flow of the interview.
Appellant routinely declined to answer questions that would have placed him at the
scene of the shooting, until he stated that he knew that Leal was on the phone. We
conclude that the cold, appellant’s fatigue, and his possible use of marijuana before
40
the interview did not render his statement involuntary. See id.; Oursbourn, 259
S.W.3d at 172–73.
Appellant also argues that his statement was involuntary because he invoked
his right to remain silent and sought to terminate the interview, but the detectives
continued questioning him. If an individual in custody “indicates in any manner, at
any time prior to or during questioning, that he wishes to remain silent, the
interrogation must cease.” Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App.
2008) (quoting Miranda, 384 U.S. at 473–74); Dowthitt v. State, 931 S.W.2d 244,
257 (Tex. Crim. App. 1996) (“If a statement is governed by Miranda (i.e. the suspect
is in custody), then a failure to cut off questioning after a suspect invokes his right
to remain silent violates his rights and renders any subsequently obtained statements
inadmissible.”). A suspect is not required to use any particular language to invoke
the right to remain silent. Ramos, 245 S.W.3d at 418. However, the officer “need not
stop his questioning unless the suspect’s invocation of rights is unambiguous, and
the officer is not required to clarify ambiguous remarks.” Id. (quoting Dowthitt, 931
S.W.2d at 257); Parlin v. State, 591 S.W.3d 214, 221 (Tex. App.—Houston [1st
Dist.] 2019, no pet.) (“If the suspect’s statement is not an unambiguous or
unequivocal request to terminate the interview or to invoke the right to silence, then
the officers have no obligation to stop questioning him.”); Beham v. State, 476
S.W.3d 724, 731 (Tex. App.—Texarkana 2015, no pet.) (“The suspect’s comments
41
must ‘clearly manifest his desire to remain silent.’”) (quoting Mayes v. State, 8
S.W.3d 354, 358 (Tex. App.—Amarillo 1999, no pet.)). “[A]nything less than a clear
manifestation does not obligate the officer to stop the interrogation.” Mayes, 8
S.W.3d at 358–59.
In determining whether the defendant unambiguously invoked his right to
remain silent, we look at the totality of the circumstances. Parlin, 591 S.W.3d at
221; Williams v. State, 257 S.W.3d 426, 433 (Tex. App.—Austin 2008, pet. ref’d);
see Beham, 476 S.W.3d at 731–32 (“The totality of circumstances surrounding the
interrogation and alleged invocation must illustrate that the suspect actually invoked
his right.”). “Ambiguity exists when the suspect’s statement is subject to more than
one reasonable interpretation under the circumstances.” Parlin, 591 S.W.3d at 221;
Williams, 257 S.W.3d at 433.
As discussed above, on several occasions during the interview appellant stated
that he was tired or that he “just wants to go to sleep.” Appellant also asked questions
about whether he would get a bond and whether there was a warrant for his arrest.
Around fifty minutes into the interview, he said something that sounded like, “I’d
rather go home” and “No matter what I say it won’t change anything.” Appellant
continued participating in the interview, and he asked the detectives questions about
what Jessica had allegedly said in her interview. One of the detectives then asked
42
him, “So she gave you the car?” Appellant said, “I’m not speaking on that,” but he
immediately continued speaking, and he talked about his relationship with Jessica.
In Dowthitt, the Court of Criminal Appeals held that the defendant’s statement
that “I can’t say more than that[;] I need to rest” was not an unambiguous invocation
of his right to remain silent. See 931 S.W.2d at 257. The court reasoned that, instead,
the defendant’s statement “merely indicates that he believed he was physically
unable to continue—not that he desired to quit.” Id.; see Franks v. State, 90 S.W.3d
771, 786–87 (Tex. App.—Fort Worth 2002, no pet.) (holding that defendant’s
statement of “I don’t want to talk anymore. I’m tired” did not unambiguously invoke
right to remain silent and therefore officer did not violate defendant’s rights by
continuing interrogation); see also Hargrove v. State, 162 S.W.3d 313, 319–20 (Tex.
App.—Fort Worth 2005, pet. ref’d) (holding that defendant did not unambiguously
request to terminate interview when he said, “Let’s just terminate it” and, in response
to officer questioning him about whether he wanted to stop, he stated, “Why should
we go on because I’ll be spinning my wheels. You’re spinning your wheels,” but
defendant did not answer question about whether he wanted to stop, he continued
speaking, and he “never again requested to terminate the interview”). In contrast, the
Court of Criminal Appeals has held that the suspect’s statement that he “didn’t want
to talk to [the interrogating officer]. That he didn’t want to talk about it anymore”
was “an unambiguous, unequivocal, and unqualified assertion of his right to remain
43
silent.” Ramos, 245 S.W.3d at 413, 418–19; see Cooper v. State, 961 S.W.2d 222,
226 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding that defendant
unambiguously invoked his right to terminate interview when he stated, “I’m not
answering any questions,” and defendant “continued to invoke that right throughout
the remainder of the video”).
We conclude that appellant’s statements to the detectives were more like those
made by the suspects in Dowthitt, Franks, and Hargrove rather than the suspects’
statements in Ramos and Cooper, and we agree with the trial court that appellant did
not unambiguously invoke his right to remain silent or request to terminate the
interview. Appellant’s statements that he was tired and he wanted to go to sleep were
ambiguous and did not clearly express a desire to stop speaking with the officers.
See Dowthitt, 931 S.W.2d at 257; Franks, 90 S.W.3d at 786–87. Appellant’s
statements that he would “rather go home” because “no matter what I say it won’t
change anything” is similar to the defendant’s statement in Hargrove—“Let’s just
terminate it” because he believed he was “spinning [his] wheels”—which the Fort
Worth Court of Appeals held was ambiguous, especially because the defendant
continued speaking with the officer. See 162 S.W.3d at 319–20. Furthermore,
although appellant stated, “I’m not speaking on that,” in response to a question about
his use of Jessica’s car, he immediately continued speaking with the detectives and
gave them further information about his relationship with Jessica. See Mayes, 8
44
S.W.3d at 359 (“By stating that she did not know if she wanted to talk, [the
defendant], at best, expressed ambivalence toward waiving her rights. But, by
following that statement with more speech, separated by little more than a breath, it
is clear she resolved her dilemma; in short, she wanted to talk.”).
As the trial court noted in its written findings, appellant participated in the
interview, spoke “fairly freely” about certain topics, and, with respect to other topics,
would state that he did not want to talk about that topic, or he would not answer the
detectives’ questions on that topic. Considering the totality of the circumstances, we
conclude that appellant did not unambiguously invoke his right to remain silent or
his right to terminate the interview prior to his statement to the detectives that he
knew Leal was on the phone. See Parlin, 591 S.W.3d at 221; Williams, 257 S.W.3d
at 433. We therefore hold that the trial court did not abuse its discretion when it
concluded that appellant’s statement was voluntary and refused to suppress the
statement. See Cortez, 543 S.W.3d at 203 (stating that we review rulings on motions
to suppress for abuse of discretion); Delao, 235 S.W.3d at 239 (stating that we
consider totality of circumstances in determining whether statement was voluntary).
We overrule appellant’s second issue.
Motion for Mistrial
In his third issue, appellant contends that the trial court erred by denying his
motion for mistrial made after the State violated a motion in limine. Specifically,
45
defense counsel had requested that the State not mention that appellant had made a
statement to police until after a motion to suppress could be heard outside the
presence of the jury. Appellant contends that the State violated this motion by asking
Deputy Jones if the information that appellant and Jessica were in a dating
relationship came from appellant. The trial court sustained appellant’s objection and
instructed the jury to disregard Jones’s answer, but it denied appellant’s motion for
mistrial.
A. Standard of Review
A mistrial “is a device used to halt trial proceedings when error is so
prejudicial that expenditure of further time and expense would be wasteful and
futile.” Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009). A mistrial is
an appropriate remedy “in extreme cases for a narrow class of highly prejudicial and
incurable errors.” Turner v. State, 570 S.W.3d 250, 268 (Tex. Crim. App. 2018);
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Ordinarily, a prompt
instruction to disregard is sufficient to cure error associated with an improper
question and answer. Pena v. State, 554 S.W.3d 242, 250 (Tex. App.—Houston
[14th Dist.] 2018, pet. ref’d); Perez v. State, 187 S.W.3d 110, 113 (Tex. App.—
Waco 2006, pet. ref’d) (“An instruction to disregard is presumptively inadequate
only in the most blatant cases; only offensive or flagrant improper conduct warrants
reversal when there has been an instruction to disregard . . . .”). “We generally
46
presume the jury follows the trial court’s instructions in the manner presented.”
Garcia v. State, —S.W.3d—, No. PD-0035-18, 2019 WL 6167834, at *7 (Tex. Crim.
App. Nov. 20, 2019) (quoting Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim.
App. 1998)). Mistrials should only be granted in cases where the error “was clearly
calculated to inflame the minds of the jury or was of such damning character as to
suggest it would be impossible to remove the harmful impression from the jurors’
minds.” Young, 283 S.W.3d at 878.
We review a trial court’s ruling denying a motion for mistrial for an abuse of
discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We view
the evidence in the light most favorable to the trial court’s ruling, and we consider
only those arguments that were before the court at the time of the ruling. Turner, 570
S.W.3d at 268. We must uphold the trial court’s ruling if it was within the zone of
reasonable disagreement. Id. Whether an error requires a mistrial must be
determined by the particular facts of the case. Ocon, 284 S.W.3d at 884. Because a
mistrial is an extreme remedy, mistrials should be granted “‘only when residual
prejudice remains’ after less drastic alternatives are explored.” Id. at 884–85
(quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. App.—Fort Worth 2005), aff’d,
189 S.W.3d 272 (Tex. Crim. App. 2006)); see Jenkins v. State, 493 S.W.3d 583, 612
(Tex. Crim. App. 2016).
47
B. Analysis
Deputy Jones testified that he first learned of appellant after he was stopped
by Officer Cox while driving Jessica’s car. Appellant had not previously been
mentioned during the investigation. Deputy Jones and the State had the following
exchange:
The State: Now, at any point in time did you learn the
relationship between Avery Jones and Jessica Leal?
Deputy Jones: Yes.
The State: And what was that?
Deputy Jones: Girlfriend/boyfriend relationship.
The State: And is this information that came from the
defendant?
Deputy Jones: Yes.
Defense counsel: I’m going to object to that, Your Honor. Can we
approach?
The Court: Yes.
Defense counsel: It is—the answer—
The Court: Okay. I’ll sustain your objection.
Defense counsel: I filed a motion in limine about statements of the
defendant—
The Court: I sustained your objection. Would you like an
instruction?
Defense counsel: I would like an instruction.
The Court: At this time, ladies and gentlemen, you’re instructed
to disregard the previous question and the response
between the prosecutor and the witness.
Defense counsel: I move for a mistrial.
48
The Court: Denied.
The State then requested that the trial court hold a hearing on the admissibility of
appellant’s statements to the detectives, and the trial court began the suppression
hearing.
It is well established that motions in limine do not preserve error, regardless
of whether the motion is granted or denied. Webb v. State, 760 S.W.2d 263, 275
(Tex. Crim. App. 1988); Wert v. State, 383 S.W.3d 747, 757 (Tex. App.—Houston
[14th Dist.] 2012, no pet.). A ruling on a motion in limine is, therefore, not a ruling
on the merits, but is instead a ruling regarding the administration of the trial. Lusk v.
State, 82 S.W.3d 57, 60 (Tex. App.—Amarillo 2002, pet. ref’d); Harnett v. State, 38
S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref’d). As such, the remedy for a
violation of a ruling on a motion in limine rests with the trial court. Lusk, 82 S.W.3d
at 60 (citing Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972)). The
remedy of instructing the jury to disregard testimony elicited in violation of a motion
in limine is “one of the broad range of remedies available to the trial court in
exercising its discretion as to conduct of the trial.” Id. at 61–63 (assuming that
testimony concerning extraneous offenses, elicited in violation of motion in limine,
was inadmissible, but holding that testimony was not such that prejudicial effect of
evidence could not have been cured by instruction to disregard and, therefore, trial
court did not abuse its discretion in denying motion for mistrial).
49
The State acknowledges that, by asking Deputy Jones if the information that
appellant and Jessica were in a dating relationship came from appellant, it violated
the trial court’s ruling on appellant’s motion in limine, which required the State to
approach the bench before eliciting testimony concerning any recorded statements
that appellant made to the detectives. It argues, however, that the trial court did not
abuse its discretion by denying appellant’s motion for mistrial. We agree.
In questioning Deputy Jones, the State elicited testimony that appellant and
Jessica were in a dating relationship, and Jones testified that this information came
from appellant. The trial court sustained appellant’s objection to this testimony and
instructed the jury to disregard the State’s previous question and Deputy Jones’s
response. The information elicited by the State is not so “offensive or flagrant” that
the trial court’s instruction to disregard could not cure any prejudicial effect arising
from the testimony. See Perez, 187 S.W.3d at 113; see also Pena, 554 S.W.3d at 250
(stating that, ordinarily, prompt instruction to disregard is sufficient to cure any error
arising out of improper question and answer). Moreover, Mary Lou Nimmons,
Leal’s sister, had already testified that “Avery” was “one of Jessica’s boyfriends”
and that appellant was one of the men Jessica “was around” during the time she and
Leal were separated. Thus, the substance of the testimony elicited from Deputy Jones
was already properly before the jury. See Harris v. State, 164 S.W.3d 775, 783 (Tex.
App.—Houston [14th Dist.] 2005, pet. ref’d) (“[I]nadmissible evidence can be
50
rendered harmless if other evidence is admitted at trial without objection and it
proves the same fact that the inadmissible evidence sought to prove.”) (quoting
Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991)); see also Rogers v. State,
200 S.W.3d 233, 238 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (“[E]ven
assuming that the trial court erred in refusing the mistrial, such error would be
harmless because other evidence that [the defendant] violated a protective order was
admitted without objection.”).
The trial court had before it a broad range of remedies available to address the
State’s violation of its motion in limine ruling, including instructing the jury to
disregard the testimony elicited in violation of the ruling. See Lusk, 82 S.W.3d at 63.
We conclude that the objected-to question and answer in this case does not fall
within the “narrow class of highly prejudicial and incurable errors” such that a
mistrial was required. See Turner, 570 S.W.3d at 268; Ocon, 284 S.W.3d at 884–85
(stating that mistrial is “extreme remedy” that should be granted “‘only when
residual prejudice remains’ after less drastic alternatives are explored”). We hold
that the trial court did not abuse its discretion in denying appellant’s motion for
mistrial.
We overrule appellant’s third issue.9
9
We further note that, ultimately, after the suppression hearing, the trial court ruled
that appellant’s statement to the detectives was voluntary up until appellant’s
statement that he knew Leal was on the phone, which occurred roughly one hour
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Lloyd, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
into the recording of his interrogation. Appellant first acknowledged that he and
Jessica had a dating relationship approximately two minutes after the detectives read
him his Miranda warnings.
52