      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00140-CR



                                   Armando Moran, Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
        NO. 3021024, HONORABLE BRENDA P. KENNEDY, JUDGE PRESIDING



                               DISSENTING OPINION

               Because I strongly disagree with the majority’s characterization of the officer’s

offhand comment in this case as one he should have known would elicit an incriminating response,

I would affirm the conviction and must respectfully dissent.


                                          DISCUSSION

               The issue in this case is whether Moran was “interrogated” in violation of his

Miranda rights. The purpose of these procedural safeguards is to prevent the “interrogation

environment” from subjugating the suspect to the will of the examiner and thereby undermining his

privilege against compulsory self-incrimination. Miranda v. Arizona, 384 U.S. 436, 457-58 (1965).

These safeguards come into play when a suspect in custody is subjected to questioning or its

functional equivalent; that is, words or actions that the police should know are reasonably likely to

elicit a response that the prosecution may seek to introduce at trial. Rhode Island v. Innis, 446 U.S.
291, 300-01 & n.5 (1980). Where, as here, a defendant has invoked his right to an attorney, all

further police questioning must stop. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (“[A]n

accused, . . . having expressed his desire to deal with the police only through counsel, is not subject

to further interrogation by the authorities until counsel has been made available to him, unless the

accused himself initiates further communications, exchanges, or conversations with the police.”);

see also Arizona v. Roberson, 486 U.S. 675, 681 (1988) (Miranda’s and Edwards’s prophylactic

protections are necessary to counteract inherently compelling pressures of custodial interrogation and

suspect’s waiver of rights upon continued pressure despite his request for counsel is presumptively

involuntary); Innis, 446 U.S. at 305-06. Because the “interrogation environment” includes practices

other than express questioning of the suspect, the prohibition on custodial interrogation after the

suspect requests an attorney includes other “techniques of persuasion,” including statements that the

questioners know are likely to elicit an incriminating response. Id. at 299. However, offhand

comments or remarks not designed to elicit a response do not constitute interrogation. Camarillo

v. State, 82 S.W.3d 529, 535 (Tex. App.—Austin 2002, no pet.) (citing Innis, 446 U.S. at 303). We

do not hold the police accountable for unforeseeable results of their words or actions, so the

definition of interrogation does not include words or actions unless the police should have known

they were likely to elicit an incriminating response. Innis, 446 U.S. at 302.

               Certainly here, where the officers responded to Moran’s request for counsel by saying,

“That’s fine,” and that he had the right to an attorney before mentioning that they had spoken to other

witnesses and standing up and walking to the door, this statement was not designed to elicit a




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response. I would hold that, under Rhode Island v. Innis, such a statement cannot be considered

interrogation and that Moran’s rights against compelled self-incrimination were not violated.

               In Rhode Island v. Innis, the defendant, after having been advised of his Miranda

rights, interrupted a conversation between two police officers in his presence regarding the danger

to students from a school for handicapped children in the area who might find and accidentally injure

themselves with a firearm left in the vicinity. 446 U.S. 291, 295 (1980). The defendant offered to

show police the location of the gun; after being reminded of his Miranda rights, he indicated that he

understood them but that he wanted to remove the gun because of his concerns for the children from

the school in the area, and led the police to the weapon. Id. The United States Supreme Court held

that the officers’ conversation in the defendant’s presence did not constitute “interrogation.” Id. at

304.

               In reaching this conclusion, the Supreme Court noted that the conversation was not

direct questioning, but a dialogue between two officers “to which no response from the respondent

was invited.” Id. at 302. Similarly, Moran was not invited to respond to the officer’s comment, as

evidenced by the officer’s acknowledgment that, because Moran requested an attorney, their

conversation was over and by both officers’ movement toward the door. “‘Interrogation,’ as

conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that

inherent in custody itself.” Id. at 300. In this appeal, we are faced with a situation in which the

officers were immediately leaving the room, had ceased communicating with the suspect, and in

which there was no visible compulsion other than that Moran remained in custody.




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               As in Innis, “this case boils down to whether, in the context of a brief conversation,

the officers should have known that the respondent would suddenly be moved to make a self-

incriminating response.” Id. at 303. In Innis, as here, the officers made a few offhand remarks, not

a lengthy harangue, and I do not believe that the officer’s comment was particularly evocative,

especially given that Moran already knew that the witnesses the officer named had been taken into

custody.1 See id. at 303 (comments were not particularly evocative and officers had no way of

knowing that “respondent would be particularly susceptible to an appeal to his conscience

concerning the safety of handicapped children.”). In Innis, this meant that the officer should not

have reasonably expected that his remarks would evoke such an incriminating response; I cannot see

how Moran could make a more compelling case.2 The offhand comment does not constitute

interrogation as defined by the United States Supreme Court.

               Moran’s confession may only be excluded if the State has failed to show that he

reinitiated communication with the police and thereafter validly waived his right to counsel. Cross

v. State, 144 S.W.3d 521, 527 (Tex. Crim. App. 2004). Once a suspect initiates communications

with police and expressly waives his right to counsel, the police are free to obtain statements as long



       1
         There is also no evidence that the officer made representations of or threats concerning the
content of the other witnesses’ statements.
       2
         Indeed, if anything, Moran’s case is less compelling than that in Innis, where the suspect
was confined in a car with two officers who could have gone on pressuring the suspect for any length
of time regarding a continuing danger handicapped children. See Innis, 446 U.S. at 294-95.
Although Moran was confined in a room as an incident of his being in custody, the officers
questioning him had indicated that they would respect his right to consult an attorney before
speaking and had stood up and were exiting the room before he voluntarily spoke to them. There
was no threat or possible danger; from all appearances all circumstances would remain as they were
until Moran had an opportunity to consult an attorney as requested.

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as each one is voluntarily made after the waiver of Miranda rights. Id. at 529. Here, the police

terminated communication with Moran once he invoked his right to counsel, but Moran reinitiated

communication when he stopped the officers from leaving the room as they reached for the door.

Before writing his first statement, during which time the officers left the room, Moran initialed

statements indicating that he understood his Miranda rights.3 He then waived his rights by writing

his “Voluntary Written Statement.” This waiver was valid if the trial court properly found it to be

knowing and intelligent under the totality of the circumstances, including the necessary fact that the

accused, not the police, reopened the dialogue with the authorities. Oregon v. Bradshaw, 462 U.S.

1039, 1046 (1983) (citing Edwards, 451 U.S. at 486 n.9). Here, in admitting both of Moran’s

statements, the trial court found that his waiver was knowing and intelligent under all the

circumstances. Because the record indicates that Moran was repeatedly informed and understood

that he had a right not to talk and to have an attorney present and that the police had demonstrated

their willingness to cease questioning if he invoked his Miranda rights, I would uphold the trial

court’s finding that the waiver was voluntary and intelligent and its conclusion that the waiver was

valid.

                Thus, because the State has successfully shown that Moran reinitiated communication

with the police and thereafter validly waived his right to counsel, I would hold that the trial court did

not err in refusing to exclude his written confessions. Cross, 144 S.W.3d at 527.




         3
            Moran initialed statements reading: “I have the right to remain silent . . . any statement I
make may be used against me in court,” “I have the right to have a lawyer present to advise me either
prior to . . . or during any questioning,” and “I have the right to terminate this interview at any time,”
among others.

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                                          CONCLUSION

               Because the officer’s remark did not amount to interrogation under Innis and the State

has satisfied both prongs from Cross, I would hold that the admission of Moran’s written confessions

into evidence was not harmful error and affirm the judgment of the trial court. I respectfully dissent.




                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Filed: July 7, 2005




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