Bair Chase Property Company, LLC, a Nevada Limited Liability Company Kenneth A. Barfield And Western Property Development Company, LLC, a Delaware Limited Liability Company v. S&K Development Company, Inc., a Texas Corporation

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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