Maestas v. State

¶1OPINION

¶2A grand jury indicted Appellant for aggravated assault with a deadly weapon. Tex. Penal Code § 22.02(a)(1). The jury found Appellant guilty and the court assessed punishment at ten years imprisonment.1 The court of appeals affirmed Appellant’s conviction. Maestas v. State, 963 S.W.2d 151 (Tex.App. — Corpus Christi 1998, pet. granted). We granted Appellant’s petition for discretionary review to determine whether the court of appeals properly evaluated Appellant’s claim that the police violated her Fifth Amendment right to remain silent.2 Because the facts of this case do not involve an evaluation of credibility of any witness by the trial judge, we will conduct our own de novo review. See Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997).

¶3I.

¶4On October 4,1993, Officer Jaime Vasquez arrested Appellant at the McAllen airport. Vasquez advised Appellant that she was under arrest and read her the Miranda3warnings. Vasquez read Appellant her Miranda rights again upon arrival at the police station, approximately one hour after her arrest. Appellant indicated she understood her rights and signed a waiver. Appellant stated she did not want to talk to police.4 After Appellant initialed the form, police placed her in a holding cell at approximately 4:30 p.m.

¶5On October 5, 1993 at approximately 11:00 a.m., Appellant signed another waiver form. Appellant told Vasquez she did not want to talk to police. Vasquez left Appellant in her cell and continued to investigate the crime. Around 8:00 p.m. Vasquez brought Appellant to his office, Mirandized her again, and asked some additional questions. Appellant then indicated she was willing to talk to the police. Vasquez Mirandized Appellant again, and she signed a statement indicating she understood her rights. Vasquez questioned Appellant *61for several hours and took notes on her responses. Police returned Appellant to her cell while Vasquez prepared a typed version of Appellant’s statement. On October 6, 1993, Appellant read the statement, including the Miranda warnings, and signed it at approximately 1:30 a.m.

¶6Later that day, Appellant provided additional information to Vasquez. Vasquez advised Appellant of her Miranda rights again before discussing the new information.5 Appellant assisted Vasquez in modifying her original statement to include the new information. Vasquez prepared the amended statement, which included Miranda warnings, and read it to Appellant. Appellant signed the statement. During this entire time period, the police provided Appellant with basic necessities including drinking water, a toilet, a bed, and a source of light. Appellant never invoked her right to an attorney.

¶7Appellant moved to suppress her statement on the ground that it was obtained in violation of her constitutional right to remain silent. The trial court overruled Appellant’s motion to suppress, and admitted the confession at trial.

¶8II.

¶9The Fifth Amendment to the United States Constitution guarantees that “No person ... shall be compelled in any criminal case to be a witness against himself[.]” The importance of this right is emphasized by its inclusion in the Miranda warnings. In Miranda, the United States Supreme Court explained the implications of an assertion of the right to remain silent:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

¶10Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602. Following the Mirandalanguage to its logical conclusion, however, would produce the absurd result that no confession or inculpato-ry statement would ever be admissible — even if the accused changed his mind and wanted to speak with police after invoking the right to remain silent.

¶11In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Supreme Court explained that no passage in the Mirandaopinion “can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has” indicated a right to remain silent.” Mosley, 423 U.S. at 102-103, 96 S.Ct. 321. The Court continued,

A reasonable and faithful interpretation of the Mirandaopinion must rest on the intention of the Court in that case to adopt ‘fully effective means ... to notify the person of his right of silence and to assure that they exercise of the right will be scrupulously honored ...’ 384 U.S., at 479 [86 S.Ct. 1602]. The critical- safeguard identified in the passage at the time is a person’s ‘right to cut off questioning.’ Id., at 474 [86 S.Ct. 1602]. Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Mirandaon whether his ‘right to cut off questioning’ was ‘scrupulously honored.’

¶12Mosley, 423 U.S. at 103-104, 96 S.Ct. 321 (footnotes omitted). Examining the facts *62present in Mosley, the Court concluded admission of the petitioner’s statement did not violate his right to remain silent.

¶13In Mosley, The Supreme Court found the following factors important to this analysis: (1)whether the suspect was informed of his right to remain silent prior to the initial questioning; (2) whether the suspect was informed of his right to remain silent prior to the subsequent questioning; (3) the length of time between initial questioning and subsequent questioning; (4) whether the subsequent questioning focused on a different crime; and (5) whether police honored the suspect’s initial invocation of the right to remain silent. Thus Mosleycreated an ad hoc test in which “courts must evaluate the facts of each case to determine if the resumption of police interrogation ,was consistent with scrupulous observance of the right to cut off questioning.” United States v. Alvarado-Saldivar, 62 F.3d 697, 699 (5th Cir.1995), citing Wilcher v. Hargett, 978 F.2d 872, 877 (5th Cir.1992); see also Phillips v. State, 701 S.W.2d 875, 890-91 (Tex.Crim.App.1985).6See also Watson v. State, 762 S.W.2d 591 (Tex.Crim.App.1988),7 and Murphy v. State, 766 S.W.2d 246 (Tex.Crim.App.1989).

¶14III.

¶15In Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997), this Court explained the standards of review for different types of cases. We said

appellate courts, including this Court, should afford [almost total deference] to trial courts’ rulings on ‘application of law to fact questions,’ also known as ‘mixed questions of law and fact,’ if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. The appellate courts may review de novo ‘mixed questions of law and fact’ not falling within this category.

¶16Guzman, 955 S.W.2d at 89. The first step in our appellate analysis is to determine which standard applies.

¶17The present case presents an “application of law to fact” question. In making the decision we now review, the court of appeals had to consider evidence in the record and apply the law regarding the right to remain silent, as set forth in Mirandaand Mosley. Under the circumstances present in this case, the resolution of this issue does not turn on an evaluation of credibility and demeanor.8 As such, we review the court of appeals’ decision de novo.

¶18*63In our de novo review, we apply Mirandaand Mosley. We recognize the prominence of the right to remain silent as well as the ad hoc review set forth by the United States Supreme Court. With this in mind, we turn to the factors set out in Mosleyand examine the record to determine whether each factor weighs in favor of finding a “scrupulous honoring” of Appellant’s right to remain silent. See United States v. AlvaradoSaldivar, 62 F.3d 697, 699 (5th Cir.1995) (examining the record and weighing the Mosleyfactors). We emphasize that whether a resumption of questioning is consistent with “scrupulously honoring” the right to remain silent depends on the unique facts and circumstances of each case.9

¶19Police testified that they informed Appellant of her rights prior to the initial questioning as well as prior to each subsequent questioning. Accordingly, the first two Mosleyfactors weigh in favor of “scrupulous honoring.” In addition, police stopped interrogating Appellant as soon as Appellant said she wished to invoked her right to remain silent. Once Appellant began to talk to the officers, she did not try to re-invoke her right to remain silent, to end the interrogation, or to speak with an attorney. Thus the fifth Mosleyfactor also weighs in favor of “scrupulous honoring.”

¶20Officer Vasquez testified that Appellant appeared to be intoxicated when she was arrested and initially read her Mirandarights.10 Officers Mirandized Appellant again after she had slept and appeared to be sober, and Appellant indicated she wished to remain silent. Approximately nine hours later, Vasquez confronted Appellant with additional information discovered during his investigation. He Mirandized Appellant, who indicated that she understood her rights and then signed a statement waiving those rights. Appellant’s conversation with Vasquez lasted several hours. Appellant then waited several hours for Vasquez to prepare a written version of her statement, which she signed. The third Mosleyfactor was meant to guard against abuses in subsequent questioning. For example, in United States v. Hernandez, 574 F.2d 1362 (5th Cir.1978), the Fifth Circuit found a Mirandaviolation where police resumed questioning thirty to forty-five minutes after the appellant’s invocation of the right. The present case is more like Kelly v. Lynaugh, 862 F.2d 1126 (5th Cir.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3263, 106 L.Ed.2d 608 (1989) and West v. Johnson, 92 F.3d 1385 (5th Cir.1996), two cases in which the Fifth Circuit found police had scrupulously honored the suspect’s assertion of the right to remain silent. In Kelly, police Mir-andized Kelly when he was arrested. Five hours later, officers approached Kelly and read the Mirandawarnings, and Kelly again invoked his right to remain silent, which the police honored. After four to six hours, po*64lice approached Kelly with a co-defendant’s confession. Kelly orally confessed and signed a written confession which included the Mirandawarnings. In West, police Mir-andized West when arresting him. He invoked his right to remain silent during the initial police interview and police terminated the questioning. Police approached West again more than thirteen hours later. We find the third Mosleyfactor weighs in favor of “scrupulous honoring.”

¶21Subsequent questioning did not focus on a different crime, so the fourth Mosleyfactor does not weigh in favor of “scrupulous honoring.” As part of the Mosleyanalysis, however, we also consider other facts and circumstances in determining whether Appellant’s right to remain silent was “scrupulously honored.” Appellant was not coerced, threatened, or promised anything for talking with officers. Officers testified Appellant had access to necessities such as food, water, and restroom facilities. Finally, although officers initiated the questioning that resulted in Appellant’s statement, ongoing investigations provided them with additional information which tended to show that Appellant was present at the scene of the murder. These additional considerations tend to support the conclusion that police “scrupulously honored” Appellant’s right to remain silent.

¶22After applying the ad hoc test set out in the case law to the evidence in the record and performing our de novo review, we find Appellant’s right to remain silent was “scrupulously honored.” As such, we hold the court of appeals did not err in holding the police scrupulously honored Appellant’s right to remain silent.

¶23The judgement of the court of appeals is affirmed.