Opinion issued April 4, 2013.




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-11-00619-CR
                           ———————————
                   KEITH ALLEN KUPFERER, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 338th District Court
                           Harris County, Texas
                       Trial Court Case No. 1237989



                                 OPINION

      Appellant Keith Allen Kupferer pleaded guilty to first degree murder. See

TEX. PENAL CODE § 19.02(b)(1) (West 2011). Kupferer was sentenced to forty

years’ imprisonment. Before pleading guilty, Kupferer filed a motion to suppress

his confession and other evidence obtained by police. After a suppression hearing,
the trial court denied Kupferer’s motion. In his sole issue on appeal, Kupferer

contends that the trial court abused its discretion in denying his motion to suppress

because his custodial statement was taken in violation of his constitutional right to

remain silent. We affirm.

                                   Background

      On October 21, 2009, Kupferer shot and killed Patricia Rangel because he

believed she had given him an incurable sexually transmitted disease. Kupferer

admitted killing Rangel to his mother, father, and sister. Kupferer told his father

the general location of Rangel’s body and stated that he had attempted to clean

Rangel’s car with bleach.       Kupferer’s father informed Patricia Fulenwider,

Kupferer’s aunt, of the situation, and she called the police the next morning.

Police arrested Kupferer at Fulenwider’s house, where Kupferer had spent the

night. During the arrest, police discovered a gun and ammunition.

      Kupferer was taken to the Houston Police Department headquarters where

Sergeant Chappell conducted a videotaped interview. At the beginning of the

interview, Chappell advised Kupferer of his Miranda rights, and Kupferer said he

understood each individual right. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.

1602 (1966). Then Sergeant Chappell asked Kupferer if he would waive his rights

and explain what happened. The exchange was as follows:

      CHAPPELL: Do you agree to waive your rights and talk to me about
      what happened last night?
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      KUPFERER: (unintelligible)

      CHAPPELL: Well, let me ask you this, do you want to tell me what
      happened?

      KUPFERER: To tell you the truth, I really don’t want to talk about it,
      but I mean...

      CHAPPELL: Do you not want to talk about it because it hurts to talk
      about it?

      KUPFERER: A little bit. I know I fucked up.

      CHAPPELL: Keith, I know this is real hard, and believe me I
      understand how, how difficult this is for you. (pause). You know
      everything’s going to be okay.

      KUPFERER: No, everything’s not going to be okay...

      CHAPPELL: You know there are just varying degrees of trouble. This
      is a pretty serious one, but it’s not the end of the world. It really isn’t.
      Mistakes were made, and now it’s time to fix them. And, I don’t
      know if we can ever fix this one. All we can do is get some answers
      for the people who need them. (pause). Here. (pause)

      KUPFERER: Are you going to tell me, uh, exactly what I’m facing,
      like my time and shit?

      Over the next several minutes, Sergeant Chappell explained the various

sentences Kupferer could face, and stated that what happened to Kupferer would

depend on what he told the officers. Kupferer then began talking to Sergeant

Chappell and eventually confessed to shooting Rangel. He stated that he had been

“messing around” with Rangel and that she had given him an incurable sexually

transmitted disease. Kupferer admitted that he met with Rangel the night of the
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shooting because he wanted to “get rid of her.” Kupferer explained where he got

the gun and ammunition and said that, after he shot Rangel, he put the gun to his

own head but could not pull the trigger. Kupferer stated that he then drove

Rangel’s car to his sister’s house, where he cleaned the car with bleach.

      Kupferer filed a Motion to Suppress, alleging that the Houston Police

Department and other law enforcement officials had violated his constitutional and

statutory rights under the United States Constitution, the Texas Constitution, and

the Texas Code of Criminal Procedure. At the suppression hearing, Sergeant

Chappell testified about his interrogation of Kupferer. Sergeant Chappell testified

that he read Kupferer his Miranda rights and that Kupferer acknowledged that he

understood those rights. On direct examination, Sergeant Chappell recounted the

interview as follows:

      PROSECUTOR:         And after you had gone through those rights, what
      did you do next?

      CHAPPELL:           I asked him if he agreed to waive his rights and
      talk to me.

      PROSECUTOR:         And did he agree to talk with you?

      CHAPPELL:           Initially, no. He told me he didn’t want to talk to
      me.

      PROSECUTOR:         And did he provide any reason as to why not?

      CHAPPELL:        Yes ma’am. He put his head on the table and
      began to cry. And I asked him if the reason he didn’t want to talk to

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      me is because it hurt too much. And that’s when he began to tell me
      his story.

      PROSECUTOR:         Did he ever ask you to stop asking him questions?

      CHAPPELL:           No ma’am.

      At the end of the suppression hearing, the State argued that Kupferer’s

statement to Chappell was freely and voluntarily given after Kupferer waived his

Miranda rights and that Kupferer “knowingly and voluntarily and intelligently

waived those rights.” Defense counsel argued that Kupferer’s confession was not

voluntary and that his arrest was illegal. Defense counsel also maintained that

Kupferer invoked his Fifth Amendment right to remain silent during the

interrogation, by saying “I really don’t want to talk about it.”         Despite this

invocation, defense counsel argued, Sergeant Chappell continued to talk to him for

approximately seven minutes.

      The trial court denied Kupferer’s motion to suppress and entered findings of

fact and conclusions of law. The trial court found that Kupferer was not unduly

pressured into giving a statement, despite his emotional distress; that his

confession was freely, knowingly, and voluntarily given; and that he understood

and waived his rights by answering Sergeant Chappell’s questions. The trial court

also found that Kupferer was visibly upset and emotional—sniffling, crying, and

placing his head on the table—during his interview with Sergeant Chappell. The

trial court concluded that Kupferer’s statement, “To tell you the truth, I really don’t
                                          5
want to talk about it, but I mean,” was not a clear and unambiguous invocation of

his right to remain silent. The trial court concluded that by adding the words “but I

mean” to the end of his sentence, Kupferer left the impression that although he did

not want to talk about it, perhaps he would. Finally, the trial court found that

Sergeant Chappell’s follow-up question did not violate Kupferer’s right to remain

silent because Sergeant Chappell was attempting to clarify Kupferer’s ambiguous

and incomplete statement.

      After his motion to suppress was denied, Kupferer pleaded guilty to first

degree felony murder and was sentenced to forty years in prison.           Kupferer

appealed, challenging the denial of his motion to suppress.

                                    Discussion
A.    Standard of Review

      We review a trial court’s ruling on a motion to suppress using a bifurcated

standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.

2000). Although we give almost total deference to the trial court’s determination

of historical facts, we conduct a de novo review of the trial court’s application of

the law to those facts. Id. At a hearing on a motion to suppress, the trial court is

the sole trier of fact and judge of the credibility of the witnesses as well as the

weight to be given their testimony. Smith v. State, 236 S.W.3d 282, 289 (Tex.

App.—Houston [1st Dist.] 2007 pet. ref’d). The trial court may choose to believe


                                         6
or disbelieve all or any part of a witness’s testimony. Id. On appeal, we review

the evidence in the light most favorable to the trial court’s ruling. Id.

B.    Applicable Law

      The Fifth Amendment to the United States Constitution provides that “[n]o

person . . . shall be compelled in any criminal case to be a witness against himself.”

U.S. CONST. amend. V. Consistent with this Fifth Amendment guarantee, law

enforcement officials, before questioning a person in custody, must inform him

that he has the right to remain silent and that any statement he makes may be used

against him in court. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. “The right to

terminate questioning is among the procedural safeguards that Miranda

establishes” to protect the Fifth Amendment right to remain silent. 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. 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




                                           7
question the suspect until the officer succeeds in persuading the suspect to change

his mind and talk. Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996).

      However, an interrogating officer is not required to terminate his questioning

unless the suspect’s invocation of 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.

C.    Analysis

      Relying primarily on the Court of Criminal Appeals’s decision in Ramos v.

State, Kupferer maintains that his statement to Sergeant Chappell that he “really

[didn’t] want to talk about it” was an unambiguous invocation of his right to

remain silent. He further contends that his unambiguous invocation of this right

                                         8
was not scrupulously honored when Chappell continued to question him.

Therefore, he argues, his confession was inadmissible and the trial court erred in

denying his motion to suppress. The State responds that Kupferer’s statement was

ambiguous and could have been interpreted as an expression of emotional turmoil

rather than a desire to remain silent or to terminate the interview. Because his

statement was ambiguous, the State argues, Sergeant Chappell was free to ask

clarifying questions to determine whether Kupferer wished to continue the

interview.   Finally, the State contends that Kupferer’s own questions and his

responses to Sergeant Chappell’s questions indicated a willingness to participate in

the investigation rather than a desire to terminate the interview. We agree with the

State that Kupferer’s statement, “To tell you the truth, I really don’t want to talk

about it, but I mean,” was not an unambiguous invocation of his right to remain

silent, and, therefore, Sergeant Chappell was permitted to ask Kupferer clarifying

questions. See Marshall, 210 S.W.3d at 628 (citing Davis, 512 U.S. at 461–62,

114 S. Ct. at 2356).

      In Ramos, the defendant Ramos was questioned by police officers about his

involvement in a drive-by shooting. Ramos, 245 S.W.3d at 412. Officers told

Ramos that his girlfriend had identified him as the shooter, and Ramos told the

interrogating officer, “I don’t want to talk to you. I don’t want to talk about it

anymore.” Id. at 415–16. Police officers then left the room, returning five minutes

                                         9
later to question Ramos again.        Id. at 413.    During this second round of

questioning, Ramos confessed. Id.

      The Court of Criminal Appeals held that Ramos’s statement that he did not

want to talk to the police officer was “an unambiguous, unequivocal, and

unqualified assertion of his right to remain silent” and that “[a] reasonable police

officer in [the detective’s] position would not have found appellant’s assertion of

his right to be ambiguous.”       Id. at 418–19. Although the State argued that

Ramos’s statement was ambiguous because his refusal to talk about “it” could refer

to the shooting or the information his girlfriend provided to police, the Court said

“[a]ny ambiguity in appellant’s other statement to [the detective], that he did not

want talk about ‘it’ anymore, was, in context, entirely irrelevant” in light of his

first unambiguous and unequivocal statement. Id. at 416–19. In other words, the

Court rejected the State’s contention that any ambiguity in Ramos’s statement, “I

don’t want to talk about it anymore,” rendered his previous statement ambiguous.

      We find Ramos distinguishable. Ramos’s statement—“I don’t want to talk

to you. I don’t want to talk about it anymore”—and Kupferer’s statement—“To

tell you the truth, I really don’t want to talk about it, but I mean”—are not

equivalent. The statement, “I really don’t want to talk about it,” was not in itself a

clear and unambiguous statement of refusal to talk to Sergeant Chappell. When

the words “but I mean” were added to qualify that statement, Kupferer clearly

                                         10
signaled indecision or ambivalence toward waiving his rights, but he did not

unambiguously express a desire to remain silent. 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). Furthermore, as the

State argues and the trial court found, a reasonable officer could have interpreted

Kupferer’s statement as an expression of anguish or remorse, especially when

viewed in the context of Kupferer’s demeanor, rather than a desire to terminate the

interview. See Williams, 257 S.W.3d at 433–34 (holding that appellant’s statement

that he wanted to “terminate everything,” when considered in context of his

previous statements, was ambiguous and was indicative of his frustration at his

detention and his attempts to determine whether he had been arrested).

      Considering the totality of the circumstances, including Kupferer’s

demeanor immediately following this statement, Kupferer’s statement, “To tell you

the truth, I really don’t want to talk about it, but I mean,” was not a clear and

                                         11
unambiguous invocation of his right to remain silent. See Luna v. State, 301

S.W.3d 322, 325–26 (Tex. App.—Waco 2009, no pet.) (holding that appellant’s

statement, “No puedo” (I can’t), was not an unambiguous invocation of right to

remain silent but rather an expression of appellant’s inability to talk to

interviewing officer about source of drugs found at appellant’s house); Hargrove v.

State, 162 S.W.3d 313, 319–20 (Tex. App.—Fort Worth 2005, pet. ref’d) (holding

that appellant’s statements—“Let’s just terminate it,” followed by “Why should we

go on because I’ll be spinning my wheels. You’re spinning your wheels.”—were

ambiguous, when taken in context, because it appeared the appellant “was of the

opinion that he was wasting his time because he was of the belief that he was

‘spinning’ his wheels”); Franks v. State, 90 S.W.3d 771, 787 (Tex. App.—Fort

Worth 2002, pet. ref’d, untimely filed) (appellant’s statement that he was tired and

did not want to talk anymore was ambiguous and merely indicated he was

physically unable to continue); Dowthitt, 931 S.W.2d at 257 (holding that

appellant’s statement, “I can’t say more than that. I need to rest,” was ambiguous

and indicated only that appellant believed he was physically unable to continue).

      Because Kupferer’s statement was not an unambiguous invocation of his

right to remain silent, Sergeant Chappell was not required to terminate his

questioning. See Davis, 512 U.S. at 461–62, 114 S. Ct. at 2356; Ramos, 245

S.W.3d at 418. Sergeant Chappell was permitted to, and did attempt to, clarify

                                        12
Kupferer’s wishes before continuing the interview. See Marshall, 210 S.W.3d at

628 (noting that federal constitutional law does not prohibit police from clarifying

whether arrestee wishes to waive right to remain silent where, after arrestee’s

initial response of “no sir” to question of whether he wanted to waive his rights,

police officer continued questioning arrestee for purpose of clarifying whether he

really wanted to waive his rights). We therefore conclude that the trial court did

not abuse its discretion by overruling the motion to suppress and admitting

Kupferer’s statement.

                                    Conclusion

      We conclude that Kupferer did not unambiguously invoke his right to

remain silent and Sergeant Chappell was entitled to clarify Kupferer’s ambiguous

statement by asking further questions. Therefore, we hold that the trial court did

not abuse its discretion by denying Kupferer’s motion to suppress. Accordingly,

we affirm the judgment of the trial court.




                                              Rebeca Huddle
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).



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