                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-09-00222-CR


MARK ALAN MCCULLEY                                                    APPELLANT

                                           V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                                     OPINION

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                                  I. INTRODUCTION

      Appellant Mark Alan McCulley appeals his conviction for murder. In two

points, McCulley contends that the trial court erred by determining that he was

not in custody at the time he made incriminating statements to the police and by

determining that he did not invoke his right to terminate the interview. Because

we hold that the police cured their failure to timely advise McCulley of his rights,

and because we hold that McCulley never unambiguously invoked his right to

terminate the interview, we will affirm.
                                 II. BACKGROUND

      McCulley called the police on the night of May 20, 2007. When police

arrived at his house, McCulley was covered in blood and his wife had been

stabbed.   The police took McCulley to the hospital, where an ambulance

transported his wife, who later died.      The police extensively photographed

McCulley. From there, McCulley accompanied the police to the police station,

where the police questioned him for almost four and one-half hours. McCulley

eventually implicated himself in his wife’s death. Before trial, McCulley filed a

motion to suppress the statement he made to police. The trial court held a

suppression hearing.

      At the suppression hearing, the State called Detective Kelly Brunson of the

City of Wichita Falls Police Department to testify. Brunson testified that he was

trained in conducting interviews for the police department. He averred that he

also had been trained regarding Miranda warnings and the warnings contained in

Texas Code of Criminal Procedure article 38.22.        According to Brunson, his

sergeant called him on the night of May 20, 2007. The sergeant sent Brunson to

the hospital to ―view the body and to speak to [] McCulley.‖ After McCulley

consented to the search of his house, Brunson said that he asked McCulley to go

to the police station so that he could interview him.      Brunson testified that

McCulley obliged and that another officer brought McCulley to the police station.

He also said that McCulley was not a suspect at this time and that the interview

was intended to ―gather leads and any intelligence he might have to try to find out

                                    2
what happened.‖        Brunson said that the videotaped interview began shortly

before 1:00 a.m. on May 21.

      Brunson said that as he interviewed McCulley, he had McCulley verify to

him that he was there of his own free will, and Brunson said that McCulley freely

answered his questions. Brunson testified, as the video of the interview played

for the trial court, that after asking McCulley, ―is there anything that you haven’t

talked about that might help me out on this case, anything at all that might help

me, ― McCulley responded, ―I just want to see her,‖ and ―I just want to go to the

hospital.‖ After telling McCulley that his wife ―was still at the hospital,‖ Brunson

told McCulley that he could see her ―as soon as we finish here.‖

      Brunson said that during the interview, he reminded McCulley that he was

still free to leave: ―I was just making sure that he understood that he was there

on his own free will, that he wasn’t under arrest and he wasn’t charged with any

offense.― Brunson testified that his specific statement was ―You’re here under

your own free will, you still understand that, right?‖ McCulley responded, ―I would

like to go to the hospital.‖ Brunson responded, ―Even if we let you go to the

hospital, . . . I don’t know if we would let you see your wife right away,‖ and

―Now’s probably not a good time to see her.‖ When asked what would have

happened if McCulley had gone to the hospital, Brunson said, ―I wouldn’t have let

him see her [body].‖

      Brunson testified that after asking to go to the hospital, McCulley asked,

―Can I go home?‖ Brunson responded that the police were still at his house and

                                     3
that he could take him there as soon as they were finished. As the interview

continued, Brunson said that another detective stepped into the interview room.

Brunson explained to the other detective that McCulley wanted to see his wife

and that Brunson had told McCulley it probably wasn’t a ―good idea at this time.‖

The detective responded that she did not think it was a good idea for McCulley to

see his wife and also that the police would be at his home for some time.

McCulley asked again, ―Can I go home?‖ He was told again that it was not a

good idea. Brunson said that what the detective meant when she said that the

police would be at McCulley’s home for a while was that the police would be

processing crime-scene evidence and no one would be allowed in the home.

Brunson said that even after these requests, McCulley was not a suspect at this

time and that he was still free to leave the interview.

      By Brunson’s account, if McCulley were to leave the police station, an

officer ―would have transported him.‖ Brunson acknowledged that McCulley was

not wearing shoes. Brunson said that McCulley’s transportation ―would have

been up to me.‖ An hour into the interview, Brunson asked McCulley whether he

had committed the murder.        Later, Brunson explained to McCulley that the

person closest to the victim is often the suspect in a murder.          Brunson

maintained that for the majority of the nearly four and one-half hour interview,

McCulley was free to leave at any time but that to leave would have required

Brunson’s assistance because ―it’s . . . kind of a sneaky way out.‖ When asked



                                      4
directly how McCulley would have left the police station, Brunson said, ―I would

have to had shown him the way out.‖

      Brunson said that just before 5:00 a.m., he and McCulley read McCulley’s

Miranda rights and his article 38.22 rights together.        Brunson averred that

McCulley acknowledged that he understood his rights. When asked whether he

was still willing to talk to Brunson, McCulley responded, ―Can I just go to sleep?‖

Brunson responded, ―We need to talk. We need to get things worked out.‖ He

told McCulley, ―You can go to sleep when we’re done.‖ But Brunson also said, ―If

you want to invoke your rights, that’s your right also." McCulley said, ―I’ll talk to

you,‖ and signed a waiver that he understood his rights and that he was talking to

the police voluntarily. According to Brunson, he did not have probable cause to

arrest McCulley even at this juncture, but McCulley ―was becoming a focus of the

investigation.‖ At that time, another detective entered the room, and McCulley

said, in response to the detective’s question about how he was doing, that he

was not doing well because he was being charged with murder. The detective

responded that McCulley was not actually being charged at this time.             But

Brunson did testify that at this time, McCulley was no longer free to leave. The

trial court denied McCulley’s motion to suppress.

      The video of the interview reflects many of the statements Brunson

testified to. In the video, as the interview begins, Brunson tells McCulley that he

is not under arrest and is not being charged with anything. Brunson also has

McCulley verify that he knows he is there of his own free will. It is clear that

                                     5
McCulley is not wearing shoes. Less than thirty minutes into the interview, the

questions by the detectives primarily concern McCulley’s timeline of events.

McCulley’s initial story is that his wife had left earlier that day, that he was

watching a movie, and that his stomach got upset during the movie, so he went

for a walk. When he arrived home from his walk, he discovered his wife lying on

the living room floor, bleeding. According to McCulley’s initial story, she asked

for his help and declared that she was dying.

      Brunson asks McCulley about previous physical altercations with his wife

and a prior record of violence with her. Brunson asks several questions about

why McCulley was not wearing shoes, what shoes he wore when he allegedly

went for a walk during the movie, and when and where he took them off.

Brunson physically examines McCulley by looking at the bottoms of his feet,

looking at his hands, and lifting up his shirt and examining his torso. Brunson

questions McCulley about cuts on his hands. Each time McCulley asks to go

home or to the hospital, Brunson’s responses, although couched in terms of that

not being a ―good idea‖ or not ―right now,‖ were statements suggesting that

McCulley could eventually go to those places, but not during the time the

interview was being conducted. At one moment, McCulley asks ―when‖ he can

go to the hospital. Brunson responds, ―[A]s soon as we finish here.‖ Later, when

McCulley asks to go home, Brunson responds similarly with, ―[W]e can take you

there when we get finished.‖



                                    6
      Multiple times during the interview, Brunson asks McCulley whether things

had gotten ―out of hand,‖ and ―[D]id you do this?,‖ and he tells McCulley that the

person closest to the victim is usually the suspect.       Multiple detectives ask

McCulley about the whereabouts of a particular knife. Multiple detectives also

state to McCulley that his timeline does not make sense.

      In the interview, two detectives other than Brunson also question

McCulley.   The first of the two question him before he was ever given any

warnings. She asks him about violence in his relationship. The detective also

tells McCulley that, according to his timeline, he would have been leaving the

movie during its climactic moment. She tells him directly that his timeline does

not make sense.       After almost four hours, Brunson and McCulley read

McCulley’s Miranda and article 38.22 warnings together. McCulley eventually

states that he had ―killed her‖ and had thrown the knife in a neighboring yard.

      The State introduced McCulley’s videotaped statement at trial, and a jury

found him guilty of murder. The jury also found that McCulley acted in the heat

of passion. See Tex. Penal Code Ann. § 19.02 (West 2011). McCulley was

sentenced to twenty years’ incarceration. This appeal followed.

         III. CUSTODY AND THE ADMISSIBILITY OF MCCULLEY’S STATEMENT

      In his first point, McCulley contends that the trial court erred by determining

that he was not in custody at any time during his nearly four and one-half hour

interview with the police. McCulley does not contend in his brief that the trial

court should have granted his motion to suppress his statement made to police

                                     7
because he was in custody. But because that is the logical extension of his

argument, we assume that he intended to argue that his statement should have

been suppressed.

      A.      Custody

      The prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effective to secure the privilege

against self-incrimination.   Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct.

1602, 1612 (1966). Additionally, article 38.22 of the code of criminal procedure

precludes the use of statements that result from custodial interrogation without

compliance with its procedural safeguards. See Tex. Code Crim. Proc. Ann. art.

38.22 (West 2005) (providing that no statement made as a result of a custodial

interrogation shall be admissible against the accused in a criminal proceeding

unless, among other things, prior to the giving of the statement, the statutory

warnings are administered to the accused).

      Custodial interrogation is questioning initiated by law enforcement officers

after a person has been taken into custody or otherwise deprived of his freedom

of action in any significant way. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. If

an investigation is not at an accusatorial or custodial stage, a person’s Fifth

Amendment rights have not yet come into play, and the voluntariness in waiving

those rights is not implicated. Melton v. State, 790 S.W.2d 322, 326 (Tex. Crim.

App. 1990).

                                    8
      Four factors are relevant to determining whether a person is in custody:

(1) probable cause to arrest, (2) subjective intent of the police, (3) focus of the

investigation, and (4) subjective belief of the defendant. Dowthitt v. State, 931

S.W.2d 244, 254 (Tex. Crim. App. 1996). Factors two and four have become

irrelevant except to the extent that they may be manifested in the words or

actions of police officers; the custody determination is based entirely upon

objective circumstances. Id.; see also Stansbury v. California, 511 U.S. 318,

322–23, 114 S. Ct. 1526, 1528–29 (1994). Simply becoming the focus of the

investigation does not necessarily equate to custody for purposes of determining

whether a statement is voluntarily given. Meek v. State, 790 S.W.2d 618, 621

(Tex. Crim. App. 1990).

      As a general rule, when a person voluntarily accompanies law

enforcement to a certain location, even though he knows or should know that law

enforcement suspects that he may have committed or may be implicated in

committing a crime, that person is not restrained or ―in custody.‖ Livingston v.

State, 739 S.W.2d 311, 327 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1210

(1988). More specifically, so long as the circumstances show that a person is

acting only upon the invitation, request, or even urging of law enforcement, and

there are no threats, either express or implied, that he will be taken forcibly, the

accompaniment is voluntary, and such person is not in custody. Anderson v.

State, 932 S.W.2d 502, 505 (Tex. Crim. App. 1996), cert. denied, 521 U.S. 1122

(1997). But the mere fact that an interrogation begins as noncustodial does not

                                     9
prevent custody from arising later; police conduct during the encounter may

cause a consensual inquiry to escalate into custodial interrogation. Ussery v.

State, 651 S.W.2d 767, 770 (Tex. Crim. App. 1983).

      There are at least four general situations when a suspect’s detention may

constitute custody: (1) when the suspect is physically deprived of his freedom of

action in any significant way, (2) when a law enforcement officer tells the suspect

that he cannot leave, (3) when law enforcement officers create a situation that

would lead a reasonable person to believe that his freedom of movement has

been significantly restricted, and (4) when there is probable cause to arrest1 and

law enforcement officers do not tell the suspect that he is free to leave. Dowthitt,

931 S.W.2d at 255.     In the first through third situations, the restriction upon

freedom of movement must amount to the degree associated with an arrest as

opposed to an investigative detention. Id. (citing Stansbury, 511 U.S. at 322–23,

114 S. Ct. at 1528–29). Concerning the fourth situation, the officers’ knowledge

of probable cause must be manifested to the subject, and such manifestation

could occur if information sustaining the probable cause is related by the officers

to the suspect or by the suspect to the officers. Id.; see Ruth v. State, 645

S.W.2d 432, 436 (Tex. Crim. App. [Panel Op.] 1979) (holding that a suspect’s

―statement that he had shot the victim immediately focused the investigation on
      1
        Probable cause to arrest exists when, at that moment, the facts and
circumstances within the knowledge of the arresting officer and of which he has
reasonably trustworthy information would warrant a reasonable and prudent man
in believing that a particular person has committed or is committing a crime.
Jones v. State, 493 S.W.2d 933, 935 (Tex. Crim. App. 1973).

                                     10
him and furnished probable cause to believe that he had committed an offense[;]

[a]fter that time, the continued interrogation must be considered a custodial

one‖). Situation four, however, will not automatically establish custody; rather,

custody 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. Dowthitt, 931 S.W.2d at 255.

Additionally, the length of time involved is an important factor to consider in

determining whether a custodial interrogation occurred. Id. at 256.

       Here, according to Brunson, McCulley voluntarily rode with an officer to the

police station from the hospital. Brunson’s testimony is the only evidence at the

suppression hearing regarding McCulley’s ride to the police station.             This

testimony indicates that McCulley was not in custody when the interview at the

police station began.   Miller v. State, 196 S.W.3d 256, 266 (Tex. App.—Fort

Worth 2006, pet. ref’d) (reasoning that appellant’s choice to voluntarily meet

police at a location demonstrated          that police encounter was initially

noncustodial). McCulley, however, was not wearing shoes and had blood on his

clothing. At the suppression hearing, Brunson testified that in order for McCulley

to return home or to the hospital, the police would have needed to transport him.

When    asked    whether   McCulley    was   dependent     upon   the   police    for

transportation, Brunson answered, ―It would have been up to me.‖ Brunson also

averred that leaving the interrogation room would have been difficult, requiring

knowledge of a ―sneaky way out,‖ so much so that Brunson said more than once

                                     11
that he would have been required to escort McCulley out of the building. When

taken as a whole, we conclude that McCulley was physically deprived of his

freedom in a significant way.

      And even though the police never directly told McCulley that he could not

leave, a reasonable person in McCulley’s situation would have believed that his

freedom of movement had been significantly restricted.      Each time McCulley

indicated a desire to go to the hospital or his home, the police indicated that he

could not go to those places until the police were ―finished.‖ Furthermore, the

police possessed probable cause that McCulley had committed the murder, and

Brunson expressed this directly to McCulley several times during questioning.

The questioning in the video reflects an interview primarily focused on McCulley.

His version of his timeline was the subject of most of the questions asked by

multiple police officers. Regarding McCulley’s statement that he had been on a

walk only to come home and find that his wife had been stabbed, Brunson asked

McCulley several questions about his lack of shoes and when he had taken them

off. Brunson asked McCulley multiple times, ―Did you do this?,‖ and if things had

gotten ―out of hand.‖ Brunson also examined McCulley’s hands, asked about

cuts on his fingers, examined the bottoms of his feet, and even had him raise up

his shirt to physically examine his torso.        McCulley had already been

photographed in this same manner at the hospital before he went to the

interrogation room. Multiple police officers directed questions to McCulley that

focused on the murder weapon.

                                    12
      At one point, Brunson explained to McCulley that the person closest to the

victim was a natural suspect. McCulley responded ―I’m probably in trouble.‖ This

statement later served as one of Brunson’s transitions back to questioning

McCulley about his timeline and about whether McCulley had been the one who

stabbed his wife. McCulley was also told directly that his timeline did not make

sense, and detectives asked him why he would leave the movie he was watching

at such a climactic moment.      Again, all of these questions were framed by

McCulley’s questions about when he could go home or to the hospital, and each

time those requests were rebuffed with statements indicating that McCulley could

not go to either of those places and, moreover, could not leave until the officers

were finished questioning him. Police finally read McCulley his rights almost four

hours after they brought him to the interrogation room. See Dowthitt, 931 S.W.2d

at 255–56 (reasoning that the length of time involved is an important factor to

consider in determining whether a custodial interrogation occurred).             We

conclude that McCulley was in custody and the focus of the police’s investigation

well before 4:55 a.m., when police finally read McCulley his Miranda and article

38.22 warnings. See id., 931 S.W.2d at 254 (holding that a suspect being the

focus of police investigation is a relevant factor in determining whether suspect is

in custody). But our analysis does not end with this conclusion.

      B.    McCulley’s Custodial Statement

      The real question in McCulley’s first point is whether the trial court erred by

overruling his motion to suppress his statement that was the result of custodial

                                     13
interrogation without the benefit of police timely providing him with Miranda and

article 38.22 warnings.

            1.     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).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002).

            2.     Midstream Miranda Warnings

      Generally, the failure to give timely Miranda warnings2 results in the

prosecution being required to forfeit the use of any statement obtained during

that interrogation during its case-in-chief. Missouri v. Seibert, 542 U.S. 600, 608,

124 S. Ct. 2601, 2608 (2004); Martinez, 272 S.W.3d at 620.           But not every


      2
        The seminal cases analyzing midstream Miranda warnings all use the
same analysis to determine the subsequent effectiveness of both Miranda and
article 38.22 warnings. See Carter v. State, 309 S.W.3d 31, 36 (Tex. Crim. App.
2010) (analyzing midstream Miranda warnings and article 38.22 warnings with
singular analysis); see also Martinez v. State, 272 S.W.3d 615, 622–23 (Tex.
Crim. App. 2008) (same); Ervin v. State, 333 S.W.3d 187, 213–14 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d), cert. denied, --- S. Ct. ----, No. 10-9555,
2011 WL 999357 at *1 (U.S. June 13, 2011) (same).

                                     14
violation of Miranda requires suppression of the evidence obtained; evidence is

admissible when the central concerns of Miranda are not likely to be implicated

and when other objectives of the criminal justice system are best served by its

introduction. Martinez, 272 S.W.3d at 624 (citing Seibert, 542 U.S. at 618–19,

124 S. Ct. at 2614) (Kennedy, J., concurring).         A suspect who has once

responded to unwarned yet uncoercive questioning is not thereby disabled from

waiving his rights and confessing after he has been given the requisite Miranda

warnings.   Oregon v. Elstad, 470 U.S. 298, 318, 105 S. Ct. 1285, 1297–98

(1985). The central question when determining the admissibility of post-Miranda

warning confessions made after Miranda violations is whether the evidence

shows that the officer deliberately employed a two-step ―question first, warn later‖

interrogation technique to circumvent the suspect’s Miranda protections. Carter,

309 S.W.3d at 36. This is so because when the warnings are inserted in the

midst of coordinated and continuing interrogation, they are likely to mislead and

deprive a defendant of knowledge essential to his ability to understand the nature

of his rights and the consequences of abandoning them. Martinez, 272 S.W.3d

at 626, n.20 (citing Moran v. Burbine, 475 U.S. 412, 423–24, 106 S. Ct. 1135,

1142 (1986)). When a question-first interrogation begins, it cannot be known

whether the suspect will incriminate himself, but the suspect’s rights as set out in

Miranda have already been violated. Martinez, 272 S.W.3d at 624. And it is

immaterial whether incriminating statements emerged from the unwarned portion

of the interrogation. Id. If a deliberate two-step question-first strategy has been

                                     15
used, post-Miranda statements that are related to the substance of pre-Miranda

statements must be excluded unless curative measures are taken before the

post-Miranda statements are made. Id. at 626–27. No curative steps were taken

in this case.

      Here, police should have given McCulley his Miranda and article 38.22

warnings at the moment his interview turned from an investigation to an

interrogation.       Therefore, we must determine whether the police deliberately

employed a two-step question-first strategy in an effort to thwart McCulley’s

understanding of his rights.

                3.     No Deliberate Tactic by Police to Undermine Miranda

      The standard of review for a trial court’s finding of an officer’s subjective

deliberateness in the ―question first, warn later‖ Miranda context is that the

finding shall not be set aside unless clearly erroneous, and due regard shall be

given to the opportunity of the trial court to judge the credibility of the witnesses.

Carter, 309 S.W.3d at 38–39. Because the ―question of whether the interrogating

officer deliberately withheld Miranda warnings will invariably turn on the credibility

of the officer’s testimony in light of the totality of the circumstances surrounding

the interrogation,‖ a factual finding regarding the officer’s credibility is entitled to

deference on appeal and is reviewed only for clear error. Id. at 39.

      Here, the trial court made the specific finding of fact at the suppression

hearing that Brunson was a credible witness. Brunson testified that he did not

believe that McCulley was in custody at any time during the interview. Because

                                       16
the question of whether Brunson deliberately withheld warnings turns on his

credibility and because the trial court determined he was in fact credible, we

defer to the trial court’s determination.   Based on the trial court’s credibility

determination, the record does not show a deliberate tactic to employ a two-step

interrogation technique. We hold that the record fails to show that the police

deliberately used a two-step, ―question first, warn later‖ strategy. See Carter,

309 S.W.3d at 36; see also Ervin, 333 S.W.3d at 213–14) (―Because the trial

court found credible the officers’ testimony that appellant was not in custody . . .

even if the officers erred in their belief that she was not in custody, that error

does not amount to a deliberate tactic to circumvent Miranda.‖).

            4.      McCulley’s Statement was Admissible

      When the two-step questioning tactic is not deliberately employed, ―the

admissibility of any subsequent statement should turn . . . solely on whether it is

knowingly and voluntarily made.‖ Elstad, 470 U.S. at 309, 105 S. Ct. at 1293;

Carter, 309 S.W.3d at 32.        Thus, the factfinder must examine all of the

circumstances and the course of police conduct in evaluating the voluntariness of

those post-Miranda statements. Carter, 309 S.W.3d at 41. We must give great

deference ―to the trial judge’s decision to admit or exclude such evidence, which

will be overturned on appeal only where a flagrant abuse of discretion is shown.‖

Id. at 42; see United States v. Stewart, 536 F.3d 714, 723 (7th Cir. 2008) (stating

that when the interrogation process used was not a deliberate end run around

Miranda, a trial court should determine ―whether the initial unwarned confession

                                     17
would flunk the voluntariness standard of Elstad such that the taint would carry

over to the second warned confession‖).

      In this case, the trial judge made specific findings that McCulley’s post-

Miranda statement to police was voluntarily made. We find that the record and

reasonable inferences from that record support this finding.               Brunson

administered appropriate Miranda and article 38.22 warnings prior to McCulley’s

statement that he had killed his wife. In the video of the interview, McCulley

repeatedly said that he understood his rights and was willing to talk to the police.

Thus, predicated on the legal conclusion that it was voluntarily made, we agree

with the trial judge that McCulley’s statement was admissible. See Carter, 309

S.W.3d at 37 (holding that trial court’s finding that defendant’s statement was

voluntarily made supported trial court’s admission of statement despite mid-

Miranda warning). We overrule McCulley’s first point.

               IV. MCCULLEY’S RIGHT TO TERMINATE THE INTERVIEW

      In his second point, McCulley contends that the police did not honor his

request to remain silent or to terminate the interview.

      A.     Standard of Review

      An appellate court should afford almost total deference to a trial court’s

determination of the historical facts that the record supports, especially when the

trial court’s fact findings are based on an evaluation of credibility and demeanor.

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

State, 15 S.W.3d 586, 591 (Tex. App.—Austin 2000, no pet.). Appellate courts

                                     18
should give the same amount of deference to a trial court’s rulings on ―application

of law to fact questions,‖ also known as ―mixed questions of law and fact,‖ if the

resolution of those ultimate questions turns on an evaluation of credibility and

demeanor. Guzman, 955 S.W.2d at 89; Hargrove v. State, 162 S.W.3d 313, 318

(Tex. App.—Fort Worth 2005, pet. ref’d). Appellate courts review de novo ―mixed

questions of law and fact‖ not falling within this category. Guzman, 955 S.W.2d

at 89; Hargrove, 162 S.W.3d at 318. At the hearing on a motion to suppress, the

trial court is the sole trier of fact and judge of the witnesses’ credibility and the

weight to be given their testimony. Ramirez v. State, 44 S.W.3d 107, 109 (Tex.

App.—Austin 2001, no pet.). The trial judge may choose to believe or disbelieve

any or all of a witness’s testimony. Id.

      B.      Invoking the Right to Remain Silent

      The Fifth Amendment privilege against self-incrimination is protected

during custodial interrogation by certain procedural safeguards delineated in

Miranda. 384 U.S. at 444, 86 S. Ct. at 1612. These ―safeguards‖ have been

codified in the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc.

Ann. art. 38.22.      Within these principles, the right to terminate a custodial

interrogation is a ―critical safeguard‖ of the right to remain silent. See Michigan v.

Mosley, 423 U.S. 96, 103, 96 S. Ct. 321, 326 (1975). No formal invocation of this

right is necessary.    Watson v. State, 762 S.W.2d 591, 597 (Tex. Crim. App.

1988).     If the suspect indicates ―in any manner‖ that he invokes the right to

remain silent, the interrogation must stop.     Miranda, 384 U.S. at 473–74, 86

                                      19
S. Ct. at 1627. But any indication that the suspect wishes to remain silent must

be unambiguous, and interrogating officers are not required to clarify wishes that

are ambiguous.      Dowthitt, 931 S.W.2d at 257.        An officer’s failure to stop

custodial interrogation after an unambiguous invocation of the right to remain

silent renders any later obtained statements inadmissible. Id.

      ―Of course, when a suspect makes an ambiguous or equivocal statement it

will often be good police practice for the interviewing officers to clarify whether or

not he actually wants‖ to terminate the questioning. Davis v. U.S., 512 U.S. 452,

461, 114 S. Ct. 2350, 2356 (1994). The officer is not, however, required to ask

clarifying questions, and 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, 512 U.S. at 461–

62, 114 S. Ct. 2356; Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App.

2008). In determining whether the right to remain silent was unambiguously

invoked, courts look to the totality of the circumstances. Williams, 257 S.W.3d at

433 (Tex. App.—Austin 2008, pet. ref’d).

      Here, McCulley contends that his questions about whether he could go to

the hospital or go home, coupled with his statements that he wanted to ―go to

sleep,‖ were sufficient to invoke his right to terminate the interview. But none of

these statements constitute an unambiguous and unequivocal invocation of the

right to remain silent or otherwise terminate the interview.        And each time,

Brunson followed the statements with clarifying remarks of his own. In fact, when

                                      20
McCulley ultimately told Brunson, ―I just want to go to sleep,‖ Brunson did not

simply ignore the statement and continue questioning. Instead, Brunson sought

to clarify McCulley’s wishes before continuing the interview. See Marshall v.

State, 210 S.W.3d 618, 628 (Tex. Crim. App. 2006), cert. denied, 552 U.S. 847

(2007) (stating that federal constitutional law does not prohibit officer from

clarifying whether arrestee wished to waive right to remain silent); Williams v.

State, 257 S.W.3d at 432 (same). Brunson even told McCulley, ―If you want to

invoke your rights, that’s your right, also.‖ McCulley replied, ―I’ll talk to you.‖

Giving due deference to the factfinder’s credibility determinations, we conclude

that the trial court did not abuse its discretion by overruling the motion to

suppress as pertaining to any right to remain silent and admitting McCulley’s

statement. See 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 that he was physically unable to continue); Hargrove, 162

S.W.3d at 319 (holding that accused’s statement that he wanted to ―terminate it‖

was ambiguous and did not require the officer to stop questioning); Franks v.

State, 90 S.W.3d 771, 786–87 (Tex. App.—Fort Worth 2002, no pet.) (holding

defendant’s statement, ―I don't want to talk anymore. I’m tired,‖ was ambiguous,

and his rights were not violated by the continuation of the interrogation). We

overrule McCulley’s second point.




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                              V. CONCLUSION

     Having overruled both of McCulley’s points, we affirm the trial court’s

judgment.




                                        BILL MEIER
                                        JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

PUBLISH

DELIVERED: August 18, 2011




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