COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00218-CR
DEREK WRYAN WILSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1290837D
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CONCURRING OPINION
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I concur in the result reached by the majority opinion because I agree that
the majority has properly applied Dowthitt and its progeny in arriving at the
conclusion that in this case Wilson was not legally in custody, but I write
separately to voice my belief that what the officers in this case did was
deliberately circumvent Miranda by choosing to delay their arrest of the only
suspect in order to obtain a confession. Miranda v. Arizona, 384 U.S. 436, 450,
86 S. Ct. 1602, 1615 (1966); Dowthitt v. State, 931 S.W.2d 244, 251 (Tex. Crim.
App. 1996).
Here, during the interview, Detective Woodside repeatedly expressed to
Wilson that he was their only suspect. Woodside can be heard throughout the
interview saying “Everything leads to you,” “I’m telling you right now you did this,”
and “My investigation leads right to you.” And the facts of this case quickly bear
out that Detective Woodside was correct. There is no possible suspect in this
case other than Wilson, which begs the question: why did the police not arrest
Wilson at the moment they knew he was the assailant? The logical answer is
that they wanted a confession, a confession that the police intended to use
against Wilson at trial. See Esparza v. Quarterman, No. SA-07-CA-265-FB,
2010 WL 9532282, at *45 (W. D. Tex. Mar. 24, 2010) (“A practice the police
should know is reasonably likely to evoke an incriminating response from a
suspect amounts to ‘interrogation.’”). Indeed, throughout the interview, Detective
Woodside can be heard telling Wilson that the video of his interview would be
played to a jury and that no jury would believe anything other than that Wilson
had purposely assaulted Amy. Detective Woodside even told Wilson that he
himself was going to testify against Wilson at trial because he had no doubt that
Wilson was the assailant.
The setting in which this interview took place had all the markings of an
interrogation. The detectives interviewed Wilson in the middle of the night in a
small room at the police station. Both Detectives Woodside and Eubanks used
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the classic interrogation techniques by tag-teaming their questioning, by leaving
the room claiming that they needed to check on something just as Wilson began
to unroll his confession, and by using frequent intimidating language that Wilson
needed to “man up.” Detective Eubanks even gradually scooted his chair closer
and closer to Wilson as Wilson began to express his guilt, eventually serving as a
human barrier between Wilson and the door.
All of these tactics echo the psychological interrogation methods discussed
in Miranda which prompted the Supreme Court of the United States to dictate
that a defendant be read his rights to remain silent and invoke counsel. Miranda,
384 U.S. at 444, 86 S. Ct. at 1615. In Miranda, the Court expressed concern that
modern-day interrogations involved psychological stress borne out by
interviewing the suspect at the police station and expressing confidence in the
suspect’s guilt:
“‘If at all practicable, the interrogation should take place in the
investigator’s office or at least in a room of his own choice. The
subject should be deprived of every psychological advantage. In his
own home he may be confident, indignant, or recalcitrant. He is
more keenly aware of his rights and more reluctant to tell of his
indiscretions of criminal behavior within the walls of his home.’”
...
“[Police interrogation manuals] instruct the police to display an
air of confidence in the suspect’s guilt and from outward appearance
to maintain only an interest in confirming certain details. The guilt of
the subject is to be posited as a fact. The interrogator should direct
his comments toward the reasons why the subject committed the
act, rather than court failure by asking the subject whether he did it. .
. . These tactics are designed to put the subject in a psychological
state where his story is but an elaboration of what the police purport
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to know already—that he is guilty. Explanations to the contrary are
dismissed and discouraged. The texts thus stress that the major
qualities an interrogator should possess are patience and
perseverance.” Miranda, 384 U.S. at 449, 86 S. Ct. at 1615.
These quotes from Miranda detailing the psychological techniques utilized
in an interrogation prompting the necessity that a suspect be informed of his
rights is precisely what transpired in this case. The officers routinely expressed
confidence that Wilson was guilty, they interviewed him in a small room at the
police station in the middle of the night, and this “incommunicado interrogation of
[Wilson] in a police-dominated atmosphere, result[ed] in self-incriminating
statements without full warnings of [his] constitutional rights.” Id. at 445, 1612.
But these coercive police tactics are deemed lawful because the police told
Wilson that he was free to leave at the start of the interview. See Dowthitt, 931
S.W.2d at 255 (“[C]ustody is established if the manifestation of probable cause,
combined with other circumstances, would lead a reasonable person to believe
that he is under restraint to the degree associated with an arrest.”). That,
however, was simply a ruse because the police were finished investigating who
had assaulted Amy. They knew Wilson had done it. All they wanted was a
confession. And the officers in this case appear to have skirted by Miranda to
obtain one by postponing Wilson’s arrest and delaying telling him he was not free
to leave. See Oregon v. Mathiason, 429 U.S. 492, 499, 97 S. Ct. 711, 716 n.5
(1977) (J. Marshall dissenting) (“I trust today’s decision does not suggest that
police officers can circumvent Miranda by deliberately postponing the official
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“arrest” and the giving of Miranda warnings until the necessary incriminating
statements have been obtained.”); see also Missouri v. Seibert, 542 U.S. 600,
620, 124 S. Ct. 2601, 2615 (2004) (“The police used a two-step questioning
technique based on a deliberate violation of Miranda.”). Thus, I write separately
to express my concerns that such tactics by law enforcement result in nothing
more than a rhetorical circumvention of Miranda and its progeny. But because
that appears to be the law and controlling precedent in this case under Dowthitt, I
concur with the majority’s opinion.
/s/ Bill Meier
BILL MEIER
JUSTICE
PUBLISH
DELIVERED: August 14, 2014
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