NUMBER 13-99-581-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
RICHARD DEASES
, Appellant,v.
THE STATE OF TEXAS
, Appellee.___________________________________________________________________
____________________________________________________________________
Before Justices Hinojosa, Chavez, and Rodriguez Opinion by Justice Chavez
Richard Deases, appellant, was convicted of two counts of aggravated sexual assault(1) after pleading nolo contendere without a plea agreement. This conviction was enhanced by a prior felony conviction and Deases was sentenced to thirty-five years in prison. On appeal, he contends the trial court should have granted his pre-trial motion to suppress two statements including a confession. We overrule this argument and affirm the conviction.
On January 26, 1999, the lead investigator, Detective Sergeant Ross Gonzales of the Wharton County Sheriff's Department, met with appellant, a suspect in the aggravated sexual assault of his niece. According to Gonzales's testimony, he read appellant his Miranda warnings and appellant invoked his right to remain silent after about ten minutes, but at no time did appellant invoke his right to an attorney. Gonzales honored the invocation by ceasing questioning and placing appellant in a holding cell where he had access to necessities. Approximately one-and-a-half hours later, Gonzales approached Deases and read him his rights, and this time appellant waived his right to remain silent by giving a written statement. Four days later, on February 1, 1999, after explaining appellant's rights to him again, a second statement was taken by Sergeant Raymond Jansky at Gonzales's request in which appellant confessed to committing the crime. Both officers testified that at no point did they yell, threaten, make promises, or coerce appellant.
Testimony by the appellant differs from that of the officers in several ways. Appellant's testimony regarding the first interview is substantially similar to that of Officer Gonzales. However, appellant stated that during the second interrogation he told Gonzales he did not want to talk to him, that he only wanted to talk to "the DA, lawyer, or judge," but Gonzales continued to interrogate him anyway. He stated the officers insisted he sign the Miranda waiver and that Sergeant Jansky, who is built considerably larger than appellant, yelled at him. Appellant claims he signed the Miranda waiver because he was scared. Appellant believed the third interrogation to be on the same day as the others, although the statement indicates that it was on February 1. Appellant filed a motion to suppress the two statements, arguing the police failed to scrupulously honor his previously invoked right to remain silent.
In Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997), the court explained that the appellate court may review de novo "mixed questions of law and fact" not involving the issue of credibility, however, appellate courts 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. Id. at 89. The officers and the appellant provided conflicting testimony. Resolution of this conflict involves an evaluation of credibility and demeanor because the trial court would have to decide which testimony deserved more weight. Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999). Therefore, this Court must defer to the trial court's application of the law to the facts. Guzman, 955 S.W.2d at 89.
The Fifth Amendment to the United States Constitution guarantees that "No person . . . shall be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V. If a suspect indicates a desire to remain silent, the interrogation must stop because he has shown that he intends to exercise his Fifth Amendment right and "any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise." See Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). However, the Supreme Court in Michigan v. Mosley, 423 U.S. 96 (1975), explained no part of Miranda should 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 desire to remain silent." Id. at 102-03. The Mosley Court held that admissibility of statements obtained after invocation of the right to silence depends on whether the right to silence was "scrupulously honored." Id. at 104. The Mosley Court found five factors important to determine whether a suspect's right to silence had been violated: (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. Id.
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. See Maestas v. State, 987 S.W.2d 59, 63 (Tex. Crim. App. 1999). Police testified that they informed appellant of his rights prior to the initial questioning as well as prior to each subsequent questioning. Accordingly, the first two Mosley factors weigh in favor of "scrupulously honoring." In addition, police testified that the interrogation of appellant ceased as soon as he said he wished to invoke his right to remain silent. Once appellant did begin to speak to the officers, he did not try to re-invoke his right to remain silent, to end the interrogation, or to speak with an attorney. Thus, the fifth Mosley factor also weighs in favor of "scrupulously honoring." The questioning focused on the same crime, however, the principal complaint of appellant centers on the third factor regarding the amount of time that elapsed between interviews. Appellant argues that the one-and-a-half hour break between when appellant first invoked his right to silence and when he made a statement is coercive.
The third Mosley factor was meant to guard against coercion and abuses in subsequent questioning. See id. at 63. For example, in Maestas the court of criminal appeals held the police scrupulously honored the appellant's right to remain silent where police resumed questioning nine hours after the appellant's invocation of the right. Id. at 60-61. The Fifth Circuit Court held 30 minutes to be too short in United States v. Hernandez, 574 F.2d 1362 (5th Cir. 1978), but held the suspect's right to silence scrupulously honored in Kelly v. Lynaugh, 862 F.2d 1126 (5th Cir. 1988), where police approached the suspect five hours after his first invocation and approached the suspect again four to six hours after his second invocation. Appellant argues his case is similar to Watson v. State, 762 S.W.2d 591 (Tex. Crim. App. 1988), where the court found the appellant's right to silence was not scrupulously upheld. In Watson, four interrogations took place on the same day separated by a few hours. Id. at 592-94. During the third interrogation, the suspect made a statement that led officers to evidence which was presented to him in the fourth interrogation at which time he confessed. Id. However, in Watson, the officers continued to ask questions after the suspect's initial invocation of his right to silence. Id. Unlike Watson, the officers in this case respected appellant's initial invocation of his right to silence by ceasing questioning. Furthermore, the statement in this case that was made one-and-a-half hours after invocation did not provide officers with evidence to use during the third interrogation against appellant which would elicit the confession to the crime. We find the present case is more parallel to Meastas than to Watson.
Even if we were to consider the time between interrogations a problem, the statement containing the confession should not be suppressed. In Baker v. State, 956 S.W.2d 19, 23 (Tex. Crim. App. 1997), the court held the Tucker/Elstad rule applies to failure to scrupulously honor the invocation of Miranda rights. The Tucker/Elstad rule states that in the absence of actual coercion, the fruits of a statement taken in violation of Miranda need not be suppressed under the "fruits of the poisonous tree doctrine." Id. Because we defer to the trial court's finding that there was no coercion during the third interrogation, even if the second statement should be suppressed for failure to scrupulously honor appellant's right to silence, the third statement in which he confessed should not be suppressed.
We hold the trial court did not abuse its discretion in denying the motion to suppress and overrule appellant's point of error. The judgment of the trial court is AFFIRMED.
MELCHOR CHAVEZ
Justice
Do not publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed
this 29th day of June, 2000.
1. Tex. Pen. Code Ann. § 22.021 (Vernon 1994).