                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00154-CR


JUSTIN M. WILLIAMS                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Justin M. Williams appeals his jury-assessed sentence of sixty

years‘ confinement stemming from his conviction for aggravated robbery while

using a deadly weapon.2 In one point, Williams contends that the trial court erred


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 29.03(a)(2) (West 2011).
by denying his motion to suppress a video recording of an interrogation in which

he detailed his involvement in three aggravated robberies conducted over a ten-

day period, culminating in the aggravated robbery which led to the conviction that

is the basis of the sentence he now appeals. The video was played for the jury

during the punishment phase at trial. We will affirm.

                                 II. BACKGROUND

      Williams and an accomplice named Devaughn Bryant became the focus of

Fort Worth Police Detective Sandra Castillo‘s investigation into reports of two

men involved in a spree of ―five or six‖ armed robberies during May 2010.

Castillo wrote ―at least four‖ arrest warrants for Williams. Closely following his

arrest under these warrants on May 26, 2010, Castillo interrogated Williams

specifically about an additional armed robbery of a Whataburger in Fort Worth

that occurred on May 20, 2010. A video camera captured this interview.

      At the first in a series of three suppression hearings, Castillo testified that

Williams was ―[v]ery cooperative‖ during her interview. According to Castillo, she

and Williams ―had a good rapport with each other.‖ Castillo averred that after

she and Williams read the Fort Worth Police Department‘s standard Miranda

―form‖ aloud together, Williams waived his rights and agreed to her interview.

From there, Castillo interrogated Williams for nearly an hour regarding his

involvement in the Whataburger robbery, as well as ―several [other] offenses,‖

before Williams requested a bathroom break. Castillo obliged. Castillo said that

at no time did Williams request an attorney or otherwise ask to terminate the


                                         2
interrogation.   After the bathroom break, Fort Worth Detective Danny Payne

joined Castillo in interrogating Williams.

      Castillo recalled that when Payne entered the room, Williams ―kind of

clammed up a little bit . . . I could tell he just wasn‘t comfortable at first.‖ Castillo

said, however, that ―after talking a few minutes [with Payne], he seemed to be

okay talking again.‖     Castillo said that at no time during this portion of the

interview did Williams indicate that he wished to terminate the interview.

According to Castillo, if Williams had indicated at all that he wished to terminate

the interview, ―I would have stopped.‖ In the second portion of the interview,

Williams confessed more details pertaining to multiple armed robberies.

      At the initial pretrial hearing, the State introduced a video of the complete

interview, which included Castillo‘s individual interview of Williams, a twelve-

minute break, and then Castillo and Payne‘s dual interview of Williams. In a

later-held suppression hearing, the trial court allowed Williams to offer a

forensically audio-enhanced version of the interview in evidence. Ultimately, the

trial court found that Williams never asked to terminate the interview. The trial

court further found that the twelve-minute break did not result in two separate

interviews; rather, the trial court found that the police conducted one, continual

interrogation. The trial court overruled William‘s motion to suppress the video,

and it was played for the jury at the punishment phase of trial. The jury assessed

punishment at sixty years‘ confinement. This appeal followed.




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                                 III. DISCUSSION

      In his sole point, Williams argues that the trial court erred by denying his

motion to suppress the portion of his interview in which Payne participated.

Given the statutes and caselaw cited in his brief, Williams‘s overall argument

seems to be that any statements he made in Payne‘s presence should have

been suppressed because he invoked his right to silence when Castillo returned

with Payne after a twelve-minute break from when Castillo interviewed Williams

individually. Even though Williams claims that he ―presents a sole point of error,‖

he argues the ―collateral issue‖ that Castillo and Payne ―deliberately attempted to

circumvent his Miranda warnings.‖ He further argues that subsumed in his sole

point is the complaint that ―Payne‘s version of the warnings‖ to Williams when

Payne joined the interrogation ―actually missed one of the basic five components

of the warning.‖

      Because Williams cited Texas Code of Criminal Procedure Article 38.22 in

his objection to the trial court and because he begins his discussion in his brief

by citing the same, we will analyze his complaints under the standards dictated in

Article 38.22, rather than relying solely on federal law concerning the invocation

and waiver of these related rights. See Tex. Code Crim. Proc. Ann. art. 38.22,

§ 2 (West Supp. 2013); see also Mayfield v. State, 828 S.W.2d 568, 571 (Tex.

App.—Houston [14th Dist.] 1992, pet. ref‘d) (―There are some differences

between the warnings required under article 38.22 and the Miranda warnings.‖);

see also Knowles v. State, No. 13-09-00170-CR, 2010 WL 3279396, at *6 (Tex.


                                        4
App.—Corpus Christi Aug. 19, 2010, no pet.) (mem. op., not designated for

publication) (holding an objection citing Miranda was sufficient to preserve error

under Article 38.22 because the trial court considered the objection in the context

of Article 38.22).

      A.     Standard of Review

      We review a trial court‘s ruling on a motion to suppress evidence under a

bifurcated standard of review.      Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court‘s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). 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. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court‘s rulings on

(1) questions of historical fact, even if the trial court‘s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility


                                           5
and demeanor of the witnesses, we review the trial court‘s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court‘s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court‘s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court‘s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court‘s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 818.

      We must uphold the trial court‘s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave

the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

      B.      Payne’s Warnings and Participation in the Interrogation

      Williams concedes that there were no constitutional or statutory violations

of his rights concerning Castillo‘s interviewing him individually, and he also

concedes that he waived those rights.       See Tex. Code Crim. Proc. Ann. art.

38.22, § 2; see also Miranda v. Arizona, 384 U.S. 436, 490, 86 S. Ct. 1602, 1636


                                        6
(1966).   But part of Williams‘s complaint is that when Payne entered the

interrogation with Castillo after the twelve-minute break, it was incumbent upon

Payne to again properly advise Williams of his rights under Article 38.22 and that

again Williams would have needed to waive those rights in order for the portion

of the interrogation in which Payne participated to be introduced against him.

See Tex. Code Crim. Proc. Ann. art. 38.22, § 2.         Williams also argues that

Payne‘s reminder to him of Castillo‘s earlier proper warnings coupled with a

summary of those rights was insufficient to advise him properly because Payne

did not express that statements made by him could be used against him at trial.

See id.

      The trial court rejected Williams‘s argument that what occurred in this case

were two distinct and separate interrogations. Instead, the trial court specifically

found that Castillo‘s individual interview of Williams, the twelve-minute break, and

the joint interview by Payne and Castillo that followed the break were all part of

one ―continual interrogation.‖ Nonetheless, Williams invites us to treat this series

of events as two distinct interrogations. Williams does not provide any authority

supporting this position.

             1.    Castillo’s Credibility

      In an apparent attempt to challenge the trial court‘s finding that a single

interrogation occurred, Williams spends several pages in his brief assailing

Castillo‘s veracity concerning her testimony at the pretrial suppression hearings

and at trial as to why Payne joined the interrogation after the break. Williams


                                         7
claims that ―Castillo‘s credibility in general is highly questionable,‖ that her ―real

motivation‖ for taking a break in the interview and returning with Payne was to

―intimidate‖ him into a confession, and that Castillo‘s testimony as to why she

brought Payne into the interview ―was arguably concocted for the benefit of the

trial court.‖ Williams even accuses Castillo of ―retrofit[ting]‖ her testimony at the

suppression hearing, because she realized ―Payne‘s sudden unexplained

appearance on the tape . . . could compromise the second half of‖ the

interrogation. Williams also suggests that Castillo‘s testimony is questionable

because Castillo was ―perhaps attempt[ing] to attenuate the taint associated with

Payne‘s failure to complete [a] second set of Miranda warnings about a different

offense.‖

      We conclude that Williams‘s antagonism toward Castillo‘s credibility is an

attempt to ask this court to ignore that 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

during a suppression hearing. See Wiede, 214 S.W.3d at 24–25 (―An appellate

court reviewing a trial judge‘s ruling on a motion to suppress ‗must view the

evidence in the light most favorable to the trial court‘s ruling.‘ Trial judges, unlike

their appellate court counterparts, are uniquely situated to ‗observe[ ] first hand

the demeanor and appearance of a witness[.]‘‖). We overrule Williams‘s point to

the extent that he invites us to hold that the trial court could not have found

Castillo‘s testimony credible.




                                          8
             2.    One Continual Interview

      Whether a subsequent interview constitutes a continuation of an earlier

interview, and thus a single interview, has been addressed on several occasions

by the Texas Court of Criminal Appeals. See Bible v. State, 162 S.W.3d 234,

242 (Tex. Crim. App. 2005) (―Under these circumstances, we find that the two

sessions were part of a single interview for the purpose of Article 38.22 and

Miranda.‖); Ex parte Bagley, 509 S.W.2d 332, 337 (Tex. Crim. App. 1974) (―[T]he

express written warning given petitioner some 6 to 8 hours previous to the

complained of confession . . . satisfied the dictates of Miranda.‖).

      We have examined the record against the caselaw, and we conclude that

there is no evidence in the record contrary to the trial court‘s finding that the

twelve-minute break after the first interview conducted by Castillo, followed by

Payne joining Castillo for a joint interview of Williams, constituted a single

continual interrogation. See Stallings v. State, No. 09-09-00200-CR, 2010 WL

2347244, at *2–3 (Tex. App.—Beaumont June 9, 2010, pet. ref‘d) (mem. op., not

designated for publication) (―Although Stallings was not reminded of these

warnings when the joint interview began, only a matter of minutes passed

between Stallings‘s individual and joint interviews.‖); see also Hayes v. State, No.

05-11-00260-CR, 2013 WL 1614108 (Tex. App.—Dallas Feb. 19, 2013, no pet.)

(mem. op., not designated for publication) (―[L]ess than ninety minutes elapsed

between the time appellant was initially read his rights and his confession.

Although different officers conducted the two interviews, and the crimes they


                                          9
inquired about were different, the duration of the break in questioning was less

than thirty minutes, and Harrison verified that appellant had been read his rights

before he began his interview. Moreover, the evidence indicates that appellant

remained in custody and in the same interview room throughout the two sessions

of questioning and the intervening break.‖).         We hold that under these

circumstances, neither Castillo nor Payne were required to give Williams

additional admonishments before continuing with the joint portion of the

interview. We overrule this portion of Williams‘s sole point.

      C.    Williams Did Not Invoke His Right to Silence

      In the remainder of his sole point, Williams argues that he had ―clear[ly]‖

terminated the interrogation when Payne arrived by stating, ―I really just don‘t

know, and for . . . to say anything else,‖ and that his ―continued attempts to

invoke his Fifth Amendment rights were literally and figuratively drowned out by

the interrogating detectives.‖ We disagree.

            1.      The Right to Terminate Questioning

      The right to terminate questioning is among the procedural safeguards that

Miranda and Article 38.22 establish to protect the Fifth Amendment right to

remain silent. See Williams v. State, 257 S.W.3d 426, 432 (Tex. App.—Austin

2008, pet ref‘d).   This right requires police officers to immediately terminate

questioning when a suspect ―indicates in any manner, at any time prior to or

during questioning, that he wishes to remain silent.‖ Ramos v. State, 245 S.W.3d

410, 418 (Tex. Crim. App. 2008) (quoting Miranda, 384 U.S. at 473–74, 86 S. Ct.


                                        10
at 1627). The suspect is not required to use any particular phraseology to invoke

the right to remain silent. Ramos, 245 S.W.3d at 418. Any declaration of a

desire to terminate the questioning should suffice. Id. A law enforcement officer

may not continue to question the suspect in an attempt to persuade the suspect

to change his mind and talk. Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim.

App. 1996).

      But an interrogating officer is not required to terminate his questioning

unless the suspect‘s invocation of his rights is unambiguous.        Ramos, 245

S.W.3d at 418 (citing Dowthitt, 931 S.W.2d at 257). ―If the suspect‘s statement is

not an unambiguous or unequivocal request [to terminate the interview or to

invoke the right to silence], the officers have no obligation to stop questioning

him.” Davis v. United States, 512 U.S. 452, 461–62, 114 S. Ct. 2350, 2356

(1994).   A police officer is permitted, but not required, to clarify a suspect‘s

wishes when faced with an ambiguous invocation of the right to remain silent.

Marshall v. State, 210 S.W.3d 618, 628 (Tex. Crim. App. 2006) (citing Davis, 512

U.S. at 461–62, 114 S. Ct. at 2356). In determining whether the right to remain

silent was unambiguously invoked, courts look at the totality of the

circumstances.    Williams, 257 S.W.3d at 433.       Ambiguity exists when the

suspect‘s statement is subject to more than one reasonable interpretation under

the circumstances. Id. at 433–34.




                                       11
             2.     Williams’s Alleged Attempt to Terminate the Interrogation

      Williams argues that he was ―as clear as he could be‖ that he wanted to

terminate the interview with Payne when he stated, ―I really just don‘t know, and

for . . . to say anything else.‖ But the statement, ―I really just don‘t know, and

for . . . to say anything else,‖ was not in itself a clear and unambiguous statement

of Williams‘s refusal to talk to Payne. When the phrases ―I was like good to talk

to her, but like since you came in here, you know‖ and ―because you know‖ were

added to qualify that statement, Williams further signaled indecision or

ambivalence toward waiving his rights, but he did not unambiguously express a

desire to remain silent in these statements. See Mayes v. State, 8 S.W.3d 354,

359 (Tex. App.—Amarillo 1999, no pet.) (holding that statement made by

defendant that she did ―not know if she wanted to talk‖ expressed ambivalence

toward waiving her rights and was not an unambiguous assertion of right to

remain silent); see also Baez v. State, No. 14-07-00426-CR, 2008 WL 4915682,

at *4 (Tex. App.—Houston [14th Dist.] Nov. 18, 2008, pet. ref‘d) (mem. op., not

designated for publication) (holding that defendant‘s inquiry of ―do I have to say‖

expressed ambivalence toward waiving his rights but did not unambiguously or

clearly express definite desire to invoke right to remain silent).

      Further, when taking an even broader look at the interview and the

circumstances surrounding Williams‘s statements—even considering the lengthy

colloquy taken from the interview and transcribed in Williams‘s own brief—a

reasonable interpretation of Williams‘s statements is that he was considering


                                          12
whether talking to Payne would make him look bad to his accomplice. Indeed,

the second session began with Payne explaining to Williams that he had already

obtained the statement of Williams‘s accomplice. Payne also discussed with

Williams that he wanted Williams to ―get [his] side of the story out,‖ a notion that

Williams‘s affirmatively agreed to multiple times at the beginning of Payne‘s

portion of the interview.

      Additionally, and during the conversation that included his alleged

invocation of the right to terminate the interview, both Payne and Castillo

reminded Williams that Castillo had warned Williams of his rights, and they both

inquired whether he still wanted to continue the interview.           Considering the

totality of the circumstances, we hold that Williams‘s statement, ―I really just don‘t

know, and for . . . to say anything else‖ was not a clear and unambiguous

invocation of his right to remain silent. See Kupferer v. State, 408 S.W.3d 485,

489–90 (Tex. App.—Houston [1st Dist.] 2013, pet. ref‘d) (defendant‘s statement

that ―To tell you the truth, I really don't want to talk about it, but I mean . . .‖ was

not unambiguous invocation of right to remain silent). We overrule this portion of

Williams‘s point.

             3.     The Record Does Not Support That Castillo and Payne
                    Interfered With Williams’s Alleged Repeated Attempts to
                    Terminate the Interview

      Williams argues that he repeatedly attempted to terminate the interview but

that Castillo and Payne ―drowned out‖ his attempts by interrupting him and

talking over him. To this, Williams alleges that his ―videotape[d confession] is


                                          13
replete with examples of both detectives cutting off or ignoring [his] responses.‖

In support of his position, Williams provides this court with what he calls a

transcript of the interview. This transcript was not introduced into evidence at

trial and is not a part of the appellate record. Thus we cannot consider it in our

review. See Vanderbilt v. State, 629 S.W.2d 709, 717 (Tex. Crim. App. 1981),

cert. denied, 456 U.S. 910 (1982). We do note, however, that of the multiple

instances in the transcript in which Williams claims he was interrupted by police

and prevented from invoking his rights, the only statement that even comes close

to being an invocation-type statement is the one discussed above that we have

held was not an unambiguous statement that he wished to terminate the

interview.

      Williams also attaches to a statement by the trial court made during the

first pretrial suppression hearing, where the trial court seemed to be inclined to

make a finding that Williams had attempted to invoke his right to terminate the

interview but that he was interrupted. But after the trial court conducted two

more suppression hearings during which it considered multiple oral and written

arguments by both parties, and an agreed-to, audio-enhanced version of the

videotaped confession, the trial court specifically found that, ―At no time during

the interview did [Williams] ask for an attorney or to terminate the interview or

invoke his rights to terminate or any of the other rights contained in the Texas

Code of Criminal Procedure, Article 38.22, or his . . . Fifth Amendment rights.‖




                                        14
      When determining whether police officers violated a defendant‘s rights by

continuing to question, the threshold question is whether the suspect invoked his

rights. Luna v. State, 301 S.W.3d 322, 325 (Tex. App.—Waco 2009, no pet.).

Williams has not pointed to any evidence in the record that undermines the trial

court‘s finding that he never attempted to invoke his rights. In fact, Williams does

not even address this specific finding by the trial court. We have reviewed the

record, including watching all versions of the interview that were provided to the

trial court during the suppression hearings, and we hold that when viewing the

evidence in the light most favorable to the trial court‘s finding, Williams never

invoked any of his statutory or constitutional protections. Kelly, 204 S.W.3d at

818–19. We overrule the remainder of Williams‘s sole point.

                                 IV. CONCLUSION

      Having overruled Williams‘s sole point in its entirety, we affirm the trial

court‘s judgment.




                                             BILL MEIER
                                             JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 5, 2013




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