                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                     MEMORANDUM OPINION
                                            Nos. 04-13-00663-CR &
                                                 04-13-00713-CR 1

                                          Dillan William STANLEY,
                                                  Appellant

                                                          v.

                                              The STATE of Texas,
                                                    Appellee

                      From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2011-CR-8100B
                            Honorable Maria Teresa Herr, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: January 28, 2015

AFFIRMED

           After the trial court denied appellant Dillan William Stanley’s motion to suppress, Stanley

pled guilty to the offense of murder. On appeal, Stanley contends the trial court erred in denying

his motion to suppress the oral statements he made to law enforcement before and after his arrest.

We affirm the trial court’s judgment.


1
  After judgment, both appellant’s trial counsel and his current appellate counsel filed notices of appeal. Based on the
separate notices of appeal, this court inadvertently docketed this single appeal as two separate appeals, assigning the
first notice of appeal number 04-13-00663-CR, and then assigning the second notice of appeal number 04-13-00713-
CR. It is clear there is but one judgment and one conviction for a single offense in this case. Accordingly, we dismiss
appeal number 04-13-00713-CR because it is merely duplicative of the first filed appeal.
                                                                   04-13-00663-CR & 04-13-00713-CR


                                         BACKGROUND

       Stanley was arrested for the capital murder of Gilbert Fernandez. Prior to trial, Stanley

filed a motion to suppress oral statements he made to San Antonio detectives, Timm Angell and

Omar Omungo. At the hearing on the motion, the State presented both detectives as witnesses.

Additionally, the trial court admitted into evidence an audio recording of Stanley’s interview with

Detective Angell and a DVD recording of Stanley’s post-arrest interview with Detective Omungo.

       At the hearing, Detective Angell testified he was working at the main police station when

Detective Omungo received a phone call advising him that two men, Stanley and Eric Ramirez,

were at the Prue Road police substation. Stanley and Ramirez wanted to talk about a murder.

Detective Angell stated he and Detective Omungo went to the substation to question the men.

When they arrived, the detectives questioned the men separately.

       Detective Angell testified he found Stanley seated with another officer at a desk located

behind the service counter. Stanley was not in handcuffs. According to Detective Angell, he

introduced himself to Stanley and discovered Stanley, who was eighteen-years-old, was at the

substation to turn himself in for a robbery. Detective Angell stated he told Stanley he was not

under arrest and he could leave whenever he wanted. According to Detective Angell, Stanley

stated he did not understand why he was not under arrest. Detective Angell advised Stanley that

he might be arrested later, but at this time, he was not under arrest. Stanley then told Detective

Angell that he and Ramirez robbed Fernandez and during the robbery, Ramirez killed Fernandez

by hitting him with a bat. The conversation lasted approximately thirty-six minutes; thereafter,

Stanley left with his parents.

       Detective Omungo testified he conferred with Detective Angell about the conversation

with Stanley. Thereafter, Detective Omungo prepared a warrant for Stanley’s arrest. The police



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arrested Stanley the next morning and took him to a police substation where Detective Omungo

interviewed him.

       Detective Omungo testified that when he arrived at the substation, Stanley was in an

interview room. Detective Omungo also testified he removed Stanley’s handcuffs, introduced

himself, and asked Stanley if he was “okay.” Thereafter, the detective read Stanley his Miranda

rights. According to Detective Omungo, after he asked Stanley if he understood his rights, Stanley

nodded affirmatively. Detective Omungo then asked Stanley to share his side of the story. Stanley

replied, stating his mother had told him to wait for a lawyer. Detective Omungo testified he told

Stanley he could not force him to talk. Stanley then asked if he could call his mother to see if she

was obtaining a lawyer. Detective Omungo testified he told Stanley he could call his mother if he

wanted or he could talk to him about what happened. Stanley remained quiet for a moment and

then proceeded to tell Detective Omungo how he and Ramirez robbed Fernandez and during the

robbery, Ramirez murdered Fernandez.

       Stanley was ultimately indicted for the offense of capital murder. Before trial, Stanley

sought to suppress the statements he made to the two detectives. After the suppression hearing,

the trial court denied Stanley’s motion to suppress, making oral findings of fact. The trial court

found Stanley’s first statement — the statement he made to Detective Angell — was voluntary.

The trial court further found Stanley waived his Miranda rights and failed to invoke his right to

counsel when he made his post-arrest statement to Detective Omungo. After the trial court denied

his motion to suppress, Stanley and the State entered into a plea agreement whereby Stanley pled

guilty to the lesser offense of murder. Stanley preserved his right to appeal the denial of his motion

to suppress. After judgment was rendered, Stanley perfected this appeal.




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                                              ANALYSIS

       In two issues on appeal, Stanley contends the trial court erred by overruling his motion to

suppress the oral statements he made during his interviews with Detective Angell and Detective

Omungo. Specifically, Stanley argues the statement he made to Detective Angell was the product

of a custodial interrogation and he was not given Miranda warnings. As to his post-arrest

statement to Detective Omungo, Stanley contends the statement was involuntary and obtained in

violation of his right to counsel.

                                        Standard of Review

       We review a trial court’s ruling on a motion to suppress for an abuse of discretion under a

bifurcated standard. Hernandez v. State, 387 S.W.3d 881, 884 (Tex. Crim. App. 2012); Valtierra

v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Under a bifurcated standard, we defer to

the trial court’s determination of historical facts and witnesses’ credibility, but we review the trial

court’s application of the law to the facts under a de novo standard. Hodson v. State, 350 S.W.3d

169, 173 (Tex. App.—San Antonio 2011, pet. ref’d) (citing Carmouche v. State, 10 S.W.3d 323,

328 (Tex. Crim. App. 2000)). If the trial court makes express findings of fact, we view the

evidence in the light most favorable to the trial court’s ruling and determine whether the evidence

supports the factual findings. Valtierra, 310 S.W.3d at 447. Accordingly, we will uphold the trial

court’s ruling if that ruling is reasonably supported by the record and is correct under any theory

of law applicable to the case. Hernandez, 387 S.W.3d at 885; Valtierra, 310 S.W.3d at 447.

                                             Application

1. Pre-Arrest Statement to Detective Angell

       As stated above, Stanley contends the trial court erred by overruling his motion to suppress

the statement he made to Detective Angell. He contends the statement was the product of a



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custodial interrogation and he was not given Miranda warnings. Therefore, he asserts his

statement was involuntary.

       As this court held in Hines v. State, law enforcement must, under Miranda v. Arizona, warn

suspects of certain constitutional rights prior to a custodial interrogation. 383 S.W.3d 615, 621

(Tex. App.—San Antonio 2012, pet. ref’d) (citing Miranda v. Arizona, 384 U.S. 436, 444, 478

(1966); Hodson State, 350 S.W.3d 169, 173 (Tex. App.—San Antonio 2011, pet. ref’d)).

Additionally, law enforcement must abide by the provisions of Article 38.22 of the Texas Code of

Criminal Procedure with regard to statements made during a custodial interrogation. See TEX.

CODE CRIM. PROC. ANN. art. 38.22 (West 2011). Article 38.22 provides that an oral statement is

admissible against a defendant if the defendant was given certain warnings prior to making the

statement, the warnings and the statement were electronically recorded, and the defendant

“knowingly, intelligently, and voluntarily” waived these rights. Id. art. 38.22, §§ 2(a), 3(a)(1)-(2).

However, warnings pursuant to Miranda and Article 38.22 are necessary only when a suspect is

in custody. Hines, 383 S.W.3d at 621 (citing Miranda, 384 U.S. at 444; Hodson, 350 S.W.3d at

173). “‘A person is in ‘custody’ only if, under the circumstances, a reasonable person would

believe that his freedom of movement was restrained to the degree associated with a formal

arrest.’” Hodson, 350 S.W.3d at 173–74 (quoting Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.

Crim. App. 1996)).

       According to the Texas Court of Criminal Appeals, four situations constitute situations in

which a defendant may be in custody: (1) when a suspect is physically deprived of his freedom of

action in any significant way; (2) when a police officer tells a suspect he cannot leave; (3) when a

police officer creates a situation that would lead a reasonable person to believe his freedom of

movement has been significantly restricted; and (4) when there is probable cause to arrest and a

police officer does not tell a suspect he is free to leave. Hodson, 350 S.W.3d at 174. It is the
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objective circumstances, not the subjective views of either the police officer or the defendant, that

determine whether the defendant was subject to custodial interrogation. Hines, 383 S.W.3d at 621

(citing Dowthitt, 931 S.W.2d at 254); Garza v. State, 34 S.W.3d 591, 593 (Tex. App.—San

Antonio 2000, pet. ref’d).

        The State has no burden to show it complied with the mandates of Miranda or Article 38.22

“unless and until the defendant proves that the statements he wishes to exclude were the product

of custodial interrogation.” Hines, 383 S.W.3d at 621 (quoting Herrera v. State, 241 S.W.3d 520,

526 (Tex. Crim. App. 2007) (quoting Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App.

2005)). Accordingly, Stanley had the burden to establish he was in custody before the State was

required to show compliance with Miranda or Article 38.22. See id. We hold tStanley failed to

meet this burden with regard to the statement made to Detective Angell.

        A determination as to whether Stanley was in custody when he made the complained of

statement to Detective Angell presents a mixed question of law and fact. See Herrera v. State, 241

S.W.3d at 526. Therefore, as to the portion of the custody issue that turns on witness credibility,

we will defer to the trial court. See Hodson, 350 S.W.3d at 173. However, we will review the

court’s application of the law to the facts under a de novo standard. See id.

        Stanley contends the interrogation by Detective Angell was custodial because: (1) Stanley

provided the police with a damaging statement that established probable cause for his arrest, and

(2) he was not allowed to speak to his family, who were in the process of obtaining an attorney on

his behalf. We disagree and conclude the conversation between Detective Angell and Stanley did

not rise to the level of a custodial interrogation.

        Although a defendant’s damaging admission with regard to a crime may be the key factor

in establishing probable cause for his arrest, merely making a damaging statement is not enough

to turn a situation into a custodial interrogation. See Saenz v. State, 411 S.W.3d 488, 497 (Tex.
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Crim. App. 2013) (holding officer’s knowledge of probable cause to arrest does not by itself create

situation classified as custodial interrogation); Trejos v. State, 243 S.W.3d 30, 46–47 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d) (“Although a statement made by a person is sufficient to

establish probable cause, the statement is not custodial if the court determines based on other facts

that the person was not under arrest.”). Instead, custody is established if the manifestation of

probable cause in combination with other factors would lead a reasonable person to believe he is

under restraint to the degree associated with a formal arrest. Saenz, 411 S.W.3d at 496.

       In this case, the trial court’s oral findings of fact support the trial court’s conclusion that

despite his admissions, Stanley was not in custody during his interview with Detective Angell.

First, the evidence establishes, and the trial court found, that Stanley voluntarily went to the police

substation to provide police with his version of the robbery and killing of Fernandez. See Estrada

v. State, 313 S.W.3d 274, 294-95 (Tex. Crim. App. 2010) (holding that defendant was not in

custody when he went to police station voluntarily, was told he was free to leave, and stayed

willingly for five-hour interview); White v. State, 395 S.W.3d 828, 836 (Tex. App.—Fort Worth

2013, no pet.) (holding that defendant was not in custody when he voluntarily went to police station

for one-hour interview, despite making pivotal admission). Second, Detective Angell testified he

repeatedly told Stanley he was not under arrest, and the trial court subsequently found that although

Stanley may have thought his admission would cause him to be arrested, he was informed several

times he was not under arrest. See Estrada, 313 S.W.3d at 295 (holding reasonable person would

believe he was free to leave when told by police several times he was free to leave even if defendant

states he wants to leave but voluntarily stays); Garcia v. State, 106 S.W.3d 854, 858 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d) (holding that defendant was not in custody when he voluntarily

went to police station, and after he was told he could leave, he gave damaging statement). In

addition, the record shows Stanley was questioned by Detective Angell for approximately thirty-
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six minutes in an open area, was not physically prevented from leaving the substation, was allowed

to speak with his parents when he asked to speak to them, and was permitted to leave the substation

with his parents.

       Stanley points out that Detective Angell ignored his repeated requests to speak to his family

regarding an attorney. However, Detective Angell testified he told Stanley he was free to leave

when Stanley expressed concern about talking with an attorney. Detective Angell also testified

that when Stanley asked to speak to his father, Detective Angell took Stanley to his father, who

was seated twenty yards away.

       Applying the applicable legal standard, we must give almost total deference to the trial

court’s custody determination when questions of historical fact turn on witnesses’ credibility or

demeanor. Here, we hold Detective Angell’s testimony provides sufficient evidence to support

the trial court’s finding that Stanley was not in custody.

       Under these circumstances, we hold a reasonable person would not believe he was under

restraint to the degree associated with an arrest. We therefore conclude Stanley failed to meet his

burden to establish he was in custody when he made his oral statement to Detective Angell.

Because Stanley was not in custody, Detective Angell was not required to give Stanley warnings

pursuant to Miranda or Article 38.22 prior to or during the interview. Accordingly, we hold the

trial court did not err in denying the motion to suppress.

2. Post Arrest Statement to Detective Omungo

       Stanley next contends the trial court erred in denying his motion to suppress with regard to

his post-arrest statement to Detective Omungo. Stanley contends his post-arrest statement was

involuntary because he did not fully understand the Miranda warnings read to him, and he did not

waive his rights after the warnings were read. Stanley also claims he invoked his right to counsel



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before giving any statement to Detective Omungo, but Detective Omungo ignored his request for

counsel. We will address each of these arguments separately.

                                             Waiver

       As noted above, Article 38.22 of the Code of Criminal Procedure provides that an oral

statement made by an accused as a result of custodial interrogation shall not be admissible against

him in a criminal proceeding unless the statement was recorded and, prior to the statement but

during the recording, the accused was warned of his rights and knowingly, intelligently, and

voluntarily waived those rights. TEX. CODE CRIM. PROC. art. 38.22 § 3. The Article 38.22 warning

must inform a defendant that:

       (1) [H]e has the right to remain silent and not make any statement at all and that
       any statement he makes may be used against him at his trial;
       (2) any statement he makes may be used as evidence against him in court;
       (3) he has the right to have a lawyer present to advise him prior to and during any
       questioning;
       (4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed
       to advise him prior to and during any questioning; and
       (5) he has the right to terminate the interview at any time[.]

TEX. CODE CRIM. PROC. art. 38.22, § 2. The State bears the burden to show by a preponderance

of the evidence that the accused knowingly, intentionally, and voluntarily waived his rights. See

Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010) (citing Miranda, 384 U.S. at 444).

       To be valid, a waiver of rights must be made with the full awareness of not only the nature

of the rights being abandoned, but also the consequences of the decision to abandon those rights.

Joseph, 309 S.W.3d at 25. To be voluntary, a waiver must be the product of a free and deliberate

choice, not a result of coercion, intimidation or deception. Id. However, a waiver does not need

to assume a particular form and can be inferred by the actions and words of the accused. Id. at 24

(citing North Carolina v. Butler, 441 U.S. 369, 373 (1979)); see also Watson v. State, 762 S.W.2d

591, 601 (Tex. Crim. App. 1988) (highlighting that waiver is not required to be written or orally


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expressed). In other words, a waiver may be presumed upon a showing that an individual was

given proper warnings, acted in a manner that indicated he fully understood his rights and the

consequences of waiving such rights and made an uncoerced statement. Berghuis v. Thompkins,

560 U.S. 370, 384–85 (2010); Joseph, 309 S.W.2d at 25. To determine if an accused validly

waived his rights, we must consider the totality of the circumstances surrounding the interrogation.

See Joseph, 309 S.W.2d at 25–26.

       The DVD recording of the post-arrest statement shows Detective Omungo read Stanley his

rights and asked Stanley if he understood his rights. Stanley remained silent, but appeared to nod

his head affirmatively. Detective Omungo confirmed Stanley’s action by responding, “Yes.” At

the suppression hearing, Detective Omungo testified he asked Stanley if he understood his rights,

and Stanley indicated he did. Furthermore, Detective Omungo testified he did not have any

concerns about Stanley’s mental capacity or his ability to understand the process. And, it is

undisputed that after the detective read the warnings to Stanley, Stanley continued with the

interview.

       Stanley counters, arguing he did not affirmatively nod, and therefore, he did not expressly

waive his rights. Stanley also contends he did not act in any way to show an affirmative waiver

of his rights. The trial court found that although Stanley may not have clearly nodded, there was

no showing or indication that Stanley did not want to proceed with the interview, and therefore,

he waived his rights. We agree. As stated above, an express waiver of rights is not required. See

Joseph, 309 S.W.2d at 24. It is within the trial court’s discretion to rely upon an implied waiver

when the totality of the circumstances, as reflected by the DVD recording and Detective Omungo’s

testimony, supports it. Id. at 25–26. There is nothing in the record to lead this court to conclude

Stanley did not understand his rights. Although Stanley did not specifically state that he wished

to waive his rights or that he understood his rights, Stanley acted in a manner to show he
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understood his rights when he proceeded to speak to Detective Omungo and gave no indication he

wished to remain silent. We therefore conclude the totality of the circumstances supports the trial

court’s reliance upon appellant’s implied waiver of his rights.

                                  Invocation of Right to Counsel

       Stanley next contends that even if he did initially waive his rights, he later invoked his right

to counsel when he asked to speak to his mother about an attorney before providing any statement

to Detective Omungo. We disagree.

       When an accused requests to speak to an attorney, a police officer must stop asking the

accused questions until he is provided with an attorney. Davis v. State, 313 S.W.3d 317, 339 (Tex.

Crim. App. 2010); State v. Gobert, 275 S.W.3d, 888, 893 (Tex. Crim. App. 2009). However, a

request for counsel must be unambiguous; in other words, it must be sufficiently clear that a

reasonable police officer would understand the statement to be a request for an attorney. Davis v.

United States, 512 U.S. 452, 459 (1994); Davis, 313 S.W.3d at 339; Dalton v. State, 248 S.W.3d

866, 872 (Tex. Crim. App. 2008). If an accused makes an ambiguous or equivocal statement, a

police officer is under no obligation to ask the accused questions to clarify whether he really wants

an attorney. Davis, 313 S.W.3d at 339; Dalton, 248 S.W.3d at 872.

       Whether an accused actually invoked his right to counsel is an objective inquiry. Davis,

313 S.W.3d at 339. To determine if an accused invoked his right to counsel, we look at the totality

of the circumstances surrounding the interrogation in combination with the accused’s statement.

Dalton, 248 S.W.3d at 872–73.

       The DVD recording shows Stanley told Detective Omungo that his mother told him not to

speak to anyone unless he had an attorney. Detective Omungo informed eighteen-year-old Stanley

that it was up to him whether he wanted to discuss what happened. Stanley then asked if he could

call his mother to ask if she was bringing an attorney, and Detective Omungo told Stanley he could
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call his mother, but he was old enough to decide if he wanted to speak to the detective. Moreover,

at the suppression hearing, Detective Omungo testified he told Stanley he was an adult and could

make the decision on his own whether to speak to the detective without an attorney. Stanley

paused, and Detective Omungo asked him what he would like to do. Stanley then proceeded to

provide Detective Omungo with a statement regarding the robbery and murder.

       After watching the DVD recording and hearing the testimony, the trial court found that

Stanley did not clearly invoke his right to counsel. Rather, Stanley considered his options and

decided to move forward and provide Detective Omungo a statement. We agree.

       When considering the totality of the circumstances, we hold Stanley’s request to speak to

his mother with regard to her obtaining an attorney for him was not a clear invocation of his right

to counsel. Texas case law holds that an invocation of the right to counsel must be clear and

unambiguous. See, e.g., Davis, 313 S.W.3d at 341 (holding that defendant’s statement “Should I

have an attorney?” was not clear request for counsel); Dalton, 248 S.W.3d at 873 (holding that

defendant’s statement to officer to tell his friends to get lawyer was not direct, unequivocal request

for attorney); Mbugua v. State, 312 S.W.3d 657, 665 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d) (holding that “Can I wait until my lawyer gets here?” was not clear and unambiguous

invocation of right to counsel).

       Here, Detective Omungo attempted to clarify Stanley’s statement by asking him what he

wanted to do. Contrary to the situation presented in In re H.V., where a Bosnian juvenile’s

statement that he “wanted his mother to ask for an attorney” was construed as an unambiguous

request for an attorney under the totality of the circumstances, this case involves an adult

requesting to ask his mother whether she hired an attorney. See 252 S.W.3d 319, 327 (Tex. 2008).

Stanley’s ambiguous question about calling his mother to inquire about the status of counsel was

followed by his unambiguous decision to continue to discuss the situation with Detective Omungo.
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Accordingly, considering the totality of the circumstances from an objective viewpoint, we

conclude the trial court did not err in concluding Stanley did not invoke his right to counsel. If

anything, Stanley’s request to speak to his mother about an attorney confirms Stanley understood

his rights as well as the consequences of waiving such rights, and therefore, made a valid waiver.

Consequently, we hold the trial court did not err in denying the motion to suppress Stanley’s post-

arrest statement to Detective Omungo.

                                          CONCLUSION

       Based on the foregoing, we conclude the trial court did not err in denying Stanley’s motion

to suppress. Accordingly, we overrule Stanley’s complaints and affirm the trial court’s judgment.


                                                  Marialyn Barnard, Justice

Do Not Publish




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