                           NUMBER 13-11-00505-CR

                             COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


ERNESTO IVAN MARTINEZ,                                                Appellant,

                                           v.

THE STATE OF TEXAS,                                                    Appellee.


                  On appeal from the 404th District Court
                       of Cameron County, Texas.


                           MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
              Memorandum Opinion by Chief Justice Valdez
      Pursuant to a plea bargain agreement with the State, appellant, Ernesto Ivan

Martinez, pleaded no contest to murder and was sentenced to life imprisonment. See

TEX. PENAL CODE ANN. § 19.02(b) (West 2011).      By three issues, which we have

renumbered as four, Martinez contends that the trial court abused its discretion by

denying his motion to suppress his confession because, for various reasons, the

confession was not voluntary. We affirm.
                             I.      MOTION TO SUPPRESS HEARING

       At the motion to suppress hearing, Detective Thomas Clipper of the Brownsville

Police Department testified that he was involved in the investigation of Barry Horn’s

murder.     Horn was found in his home by a coworker and had been stabbed

approximately sixty times. Detective Clipper stated that Horn’s vehicle, wallet, and cell

phone were missing. Detective Clipper discovered that Horn had previously filed two

“burglary reports” and that Martinez was the suspect in those crimes. On October 26,

2009, two days after the discovery of Horn’s body, Martinez was found in Matamoros,

Mexico, in possession of Horn’s vehicle. Detective Clipper testified that at that point,

Martinez became a “person of interest” in Horn’s murder. Martinez was apprehended

by Mexican police and was sent back to the United States where he was arrested for

“being in possession of stolen property.”

       Detective Clipper stated that he conducted a video-recorded interview of

Martinez, which was admitted into evidence at the suppression hearing. The video,

taken on October 26, 2009 at 10:58 p.m., shows that Detective Cris Ortiz began the

interview by reading Martinez his Miranda warnings.                 Martinez indicated that he

understood the warnings by initialing and signing a form; Martinez stated that during the

interview he understood his rights after Detective Ortiz explained them to him.1

       Detective Clipper asked Martinez if he knew why he was there, and Martinez

replied that he did not. Detective Clipper asked Martinez where he was before he was

brought to Brownsville, Texas.         Martinez stated that he was in Matamoros at his


       1
          The video shows that Detective Ortiz explained each warning to Martinez and asked him if he
understood the warning. Martinez stated that he understood each warning, and Martinez initialed and
signed a form containing the warnings.


                                                 2
grandmother’s house. When asked what vehicle he was driving, Martinez said that he

was driving a “Hyundai Sonora” belonging to Horn. Detective Clipper then asked, “Who

was Barry Horn,” and Martinez replied, “The guy that has been murdered.”2

      Detective Clipper then asked Martinez to explain how he gained control of Horn’s

vehicle. Martinez explained that at midnight, Horn and a man named “Will” called him

on his cell phone and invited him to Horn’s home. Martinez did not know his own cell

phone number. Detective Ortiz explained that the police could review Horn’s phone

records to determine whether Horn actually called Martinez. Martinez then stated that

Horn did not call his cell phone but instead called his cousin’s phone.

      Martinez explained that after being invited, he walked to Horn’s home. Martinez

explained that the following occurred:

      And they [Horn and Will] were there and they were just drinking some
      wine, and I don’t know what else, and I was just talking there. I just got
      there and I went to sat [sic] down and just talked to them. Just talking to
      them, and then they . . . An hour passed and they went . . . Barry and Will,
      they went to the room and they starting [sic] discussing about something.
      I don’t know about what.

                ....

      They were arguing.

                ....

      About some money. I don’t know about what money, and then Mr. Will,
      Mr. Barry Horn’s friend, he went outside.

                ....

      To his truck, and he just went in and I didn’t see him what he had in his
      hand and he had a bat, and he just beat me up. I have a ball right here.
      He hit me right here and I just got . . . I just feel [sic] unconscious, and he
      started beating me up too on my ankles and my knees and on my back.

      2
          During the video-taped interview, neither detective told Martinez that Horn had been murdered.


                                                    3
              ....

       I just feel [sic] unconscious and like when I woke up, I didn’t have my
       pants on, and Mr. Barry Horn he was just over there in the hallway, Sir.
       He was just laying there all stabbed, Sir, and I didn’t have my pants on.

              ....

       And then I just got scared and I just grabbed Mr. Barry Horn’s car keys
       and I just took off to Mexico.

       Detective Clipper said that Horn had previously asked Martinez to stay away

from his property because Horn believed Martinez had been stealing from him.

Detective Clipper stated,

       This comes from several people. Several people. Even your brother said
       that Mr. Horn did not want you on the property anymore. Why? Because
       you were stealing, using his credit card without permission. The whole
       nine yards. Okay. Is that true? That’s true. He told you not to go to the
       house anymore.

Martinez replied, “He did tell me once, sir, but then he called me, Sir. I’m saying [sic]

the truth, Sir.” Martinez agreed that Horn had changed the locks to his house and that

he did not have a key to Horn’s home. The detectives told Martinez that his fingerprints

were found on Horn’s bathroom window and that they believed that was how Martinez

had entered Horn’s residence. Martinez claimed he was “doing number two” and that

was why he had opened the bathroom window.

       After Detective Ortiz pointed out that there was evidence that Martinez climbed in

Horn’s bathroom window and that Martinez needed to be honest, Martinez said, “I did it,

Sir. . . . I did it because he raped me, Sir.” Martinez said, “I got very drunk sir, and I got

very pissed off sir because they . . . [b]ecause I was remembering that. Because he

had been . . . [b]ecause he raped me. . . . [a] couple of weeks before.” Martinez told



                                              4
the detectives that Will was not present when he committed the murder. Martinez said

that he had climbed in through the bathroom window after trying to open several

windows. Martinez admitted that he had stabbed Horn with a kitchen knife and that he

had disposed of the knife by throwing it into a ditch. Martinez stated that he then

grabbed the keys to Horn’s vehicle and drove to Mexico.

       Later, Martinez said, “I want to stop, Sir. I want to stop.” Detective Clipper asked

Martinez if he needed a break, and Martinez replied that he did. Martinez then asked

that the camera be turned off because he did not want to talk anymore, and Detective

Clipper stopped the interview.

       After this video was played for the trial court, Martinez’s defense attorney asked

Detective Clipper to explain why Detective Ortiz said something to the effect of, “Tell us

what happened so we can help you.” Detective Clipper stated he was not sure what

Detective Ortiz was implying. When asked if Martinez asked permission to speak to a

family member, Detective Clipper said that Martinez asked him “to call his girlfriend.”

       According to Detective Clipper, Martinez was “magistrated” either on the 27th or

28th of October. Detective Clipper was not sure on which date it occurred; however, he

was sure that it did not occur on the morning of the 27th because on that day, Martinez

asked to speak with Detective Clipper again. Detective Clipper explained:

       I went downstairs to see what the procedure was with the magistration,
       and then I advised him that I wasn’t able to contact his girlfriend, so he
       would know that I did make an attempt to contact his girlfriend. And that’s
       when he asked me, “Hey, I want to talk to you about something,” and I
       said, “Okay, but I’m not going to talk to [you] just here, I need to read you
       your rights again.”

       Detective Clipper testified that because he was not expecting to interview

Martinez again that morning, it took him a while to set up the interview. He had to

                                            5
locate another detective to sit in on the interview, and he had to acquire a tape for the

video recorder. Once he was organized, Detective Clipper started the video recorder.

Detective Clipper stated that Martinez acknowledged on the video that he had asked

Detective Clipper to conduct the second interview.      The trial court asked Detective

Clipper to explain how Martinez made contact with him if he was in jail. Detective

Clipper elaborated:

              They’re lining them up in the morning, I’m assuming to go in front of
      the magistrate. And I said—I was down there to do the magistrate. I
      wanted to see who the judge was and stuff like that so I could be aware of
      it. And the—I said, “I tried to contact your girlfriend, actually twice, and
      she didn’t answer.” He just nods his head okay. And he goes, “I need to
      talk to you, Detective.” And I said, “Okay. So if you talk to me, I need to
      read your rights on anything [sic].” So at that time, we walked him
      upstairs.

      The video of Martinez’s second statement was admitted into evidence. In the

video, the following exchange occurred:

      [Detective Clipper]: And right now, you [Martinez] know, you’re being
                           recorded on camera. Uhm . . . yesterday you ended
                           the interview by saying you wanted to stop. You
                           wanted a break or whatever.

      [Martinez]:          Yes, Sir.

      [Detective Clipper]: And this morning you contacted me and said you just
                           want to talk. I said okay. So I came and I setup the
                           camera. I told you we’re going to have to reread you
                           your rights because yesterday was one interview.
                           Today’s the second interview. Okay? Uhm . . . and
                           I’m going to put that up here. Uhm . . . Two for
                           second interview. Okay? Uhm . . . and you said you
                           just wanted to tell me the truth now. Is that correct?

      [Martinez]:          Yes, Sir.

      [Detective Clipper]: Cause you know what you said. I’m going to ask
                           Detective Vallejo to read your rights to you. Is that
                           okay or do you want to read them?

                                           6
        [Martinez]:         No. That’s okay.

        [Detective Clipper]: Okay.

        [Detective Vallejo]: You want me to read them to you?

        [Martinez]:         Yeah.

        Detective Vallejo proceeded to read the Miranda warnings to Martinez, stating

that:   (1) he had the right to remain silent and not make any statement; (2) any

statement Martinez made may be used as evidence against him in court; (3) he had the

right to have a lawyer present to advise him prior to and during the questioning; (4) if he

was unable to employ a lawyer, he had the right to have a lawyer appointed to advise

him prior to and during the questioning; and (5) he had the right to terminate the

interview at any time. See Miranda v. Arizona, 384 U.S. 436, 467–68 (1966). Martinez

stated that he understood those rights, and he wrote his initials next to each statement

on the document. Detective Vallejo read the following to Martinez:

        I have read this statement of my rights, and this statement of my rights
        has been read to me, and I understand what my rights are. I am willing to
        discuss subjects presented and answer questions. I do not want a lawyer
        at this [time]. I understand and know what I am doing. No promise or
        threats have been made to me, and no pressure or coercion has been
        used against me.

Martinez stated that he understood this waiver of his rights, and he signed the

document. In addition to verbally acknowledging that he initiated the second interview

and that he understood his rights, Martinez indicated he understood and that he initiated

the interview by nodding his head up and down.

        During the second interview, Martinez repeated the same set of facts that he set

out in the first interview. Martinez explained that he became intoxicated at a party,



                                            7
became angry at Horn, entered Horn’s home by climbing in the bathroom window, used

a kitchen knife he brought from his aunt’s home to kill Horn, and took Horn’s car to

Matamoros. Martinez, however, provided additional details of the events that evening.

He stated that a friend named “Chino” gave him a ride to Horn’s house and waited for

him at a nearby abandoned house. Martinez described how he attempted to enter

Horn’s residence through sliding doors that were locked and then discovered the open

bathroom window. Martinez continued to maintain that although he took Horn’s car, he

did not take Horn’s wallet or cell phone after the murder.

        Martinez admitted that he did steal a television set from Horn’s residence on

October 22, 2009. Martinez explained that on that date, he used a key to enter Horn’s

residence without permission. Martinez sold the television to “Taxis” in Mexico. At the

conclusion of the interview, Detective Clipper stated, “Okay. You called this meeting.

You’re the one that said hey I want to tell you the truth. So do you have anything else to

tell me?” Martinez replied, “No, Sir.” The interview ended at 9:18 a.m. on October 27,

2009.

        A final third video tape was admitted into evidence. Detective Clipper described

the video as a “walk-thru” of Horn’s residence involving Martinez and Detective Clipper

that took place later that day. Detective Clipper did not participate in this video.

        On cross-examination by the State, Detective Clipper testified that based on his

experience, he believed Martinez understood that he had waived his rights. Detective

Clipper agreed that by asking to stop the video tape, Martinez indicated that he

understood that he had several rights he could invoke and that at that point, Martinez

actually invoked his right to stop the interview. Detective Clipper stated that he never



                                              8
promised that he would do anything for Martinez if Martinez cooperated with him, and

he never threatened or coerced him into cooperating. According to Detective Clipper,

Martinez never asked to speak to a lawyer at any time. The prosecutor asked, “You

didn’t say to him, ‘If you want to know about your girlfriend, come talk to me’?” and

Detective Clipper replied, “No, sir.” Detective Clipper affirmed that he did not initiate the

second interview with Martinez and that he merely informed Martinez that he could not

contact Martinez’s girlfriend. Detective Clipper testified that he “made it clear on the

video” that Martinez had requested the second interview “[b]y stating at the beginning of

the video he’s the one that wanted to interview, go ahead and say what he wanted to

say.” Detective Clipper stated that Martinez agreed with those facts.

       Martinez testified that when the Brownsville police took custody of him, he

complained that he was injured so the detectives took him to the hospital. 3 Martinez

was then taken to the police station. Martinez claimed that “[t]hey told [him] [he] had to

make a statement because—well, because I had the car. . . .” Martinez stated that he

did not want to make a statement and that before the interview, “[he] was told that [he]

was supposed to make a statement because if [he] didn’t make one, [his] family was

going to get incarcerated.” Martinez testified that he would not have made a statement

if he had not been told his family would be arrested. Martinez stated that although he

signed the documents indicating he understood that he was waiving his rights, he “didn’t

feel like it was out of [his] free will.” Martinez testified that Detective Clipper told him he

had to make the second statement. Martinez stated that he did not understand the

consequences of signing the document waiving his rights. Regarding the “walk-thru,”


       3
           Martinez claimed that the Mexican police beat him with a bat on two occasions.


                                                     9
Martinez claimed that he did not want to do it, but that Detective Ortiz made him do it

and told him “what [he] had to do, [and] what [he] had to say[.]” Specifically, Martinez

claimed that Detective Ortiz told him what to say concerning Horn’s murder and asked

him to admit that he had committed the crime. According to Martinez, Detective Ortiz

spoke with him for more than three hours before the “walk-thru.” Martinez agreed that

Detective Ortiz “[w]as giving [him] specific facts” to say on the tape. Martinez insisted

that the facts he stated during the “walk-thru” were facts that Detective Ortiz told him to

say.

       When asked how long it was before he saw a judge for magistration, Martinez

replied, “I believe it was almost 72 hours.” Martinez stated that he saw the magistrate

the day after the second interview and walk-thru. Martinez testified that he was turned

over to the Brownsville police at about 7:30 p.m.

       On cross-examination by the State, Martinez agreed that before the first

interview, he was informed that he had a right to remain silent, anything he said could

be used against him at his trial, he had a right to have a lawyer present before and

during any questioning, if he did not have the ability to hire a lawyer the court would

appoint one, and he had a right to terminate the interview at any time. Martinez agreed

that he initialed the document indicating that he understood each of those rights and

that he signed the document indicating that those rights had been read to him, he

understood those rights, he was willing to answer questions, and that he did not want a

lawyer.   The document admitted into evidence shows that Martinez signed the

document on October 26, 2009 at 11:03 p.m.

       Martinez agreed that on October 27, 2009, before the second interview, the



                                            10
same rights were read to him; that on a second document he initialed next to each right;

and that he signed the document indicating that those rights were read to him, he

understood those rights, he was willing to answer questions, and he did not want a

lawyer. Martinez stated that he signed the document on October 27, 2009 at 8:03 a.m.

Martinez agreed that before the “walk-thru” of Horn’s residence, on October 27, 2009,

he was again informed of the same rights, he initialed a third document, and he signed

that document. The document shows that Martinez signed it on October 27, 2009 at

10:41 a.m. Martinez agreed that someone read these rights to him a fourth time at an

abandoned house, which was documented on the video, and that he signed the bottom

of the third document indicating that those rights had been read to him a fourth time at

11:41 a.m. on October 27, 2009. Martinez agreed that the rights were read to him a fifth

time on October 27 at 11:59 a.m. when he was taken to Alton Gloor Road in

Brownsville, which was also documented on the video. Again, Martinez signed the

bottom of the third document indicating that the rights had been read to him at that time.

After the prosecutor reviewed the time line of October 27 with Martinez, Martinez

agreed that it was not possible that Detective Ortiz talked to him for over three hours

before the walk-thru. Martinez acknowledged that he was aware of his right to remain

silent, to have a lawyer present before and during the interview, and that if he could not

hire a lawyer the court would appoint one. Martinez agreed that he invoked the right to

remain silent by asking the detectives to stop the video and that the detectives stopped

the video. Martinez also agreed that the detectives did not ask him any more questions

after he asked that they stop the video.

      During cross-examination by the State, the following exchange occurred:



                                           11
      [The State:] Okay. At first during that statement, you tell Detective
                   Clipper that you had nothing to do with the death of Barry
                   Horn, right?

      [Martinez:]   Right.

      Q.            And then you tell Detective Clipper that you did kill Mr. Horn,
                    right?

      A.            Right.

      Q.            At one point, you’re lying, right? You can’t have it both
                    ways, is that correct, Mr. Martinez?

      A.            Correct.

      Q.            Either you did kill him or you didn’t.

      A.            Correct.

      Q.            So you didn’t feel so threatened as not to lie to Detective
                    Clipper, right?

      A.            Right.

                    ....

      Q.            Mr. Martinez, if you felt so threatened that your family was
                    going to be put in jail, you would have either tell them [sic]
                    exactly what they wanted you to say or tell them the truth if
                    that’s what they wanted, right?

      A.            Right.

      Q.            But at some point you lie.

      A.            Right.

Martinez stated that he was brought before the judge on October 28, 2009 at “around

11:00 in the morning.”

      Martinez argued to the trial court that he was suffering from a physical ailment at

the time of the interviews with police and that there is nothing in the video showing that



                                            12
he had the “the ability and capacity to understand what those [Miranda] rights are . . . .”

Martinez maintained that in order to waive a right, one must be aware of his rights under

the circumstances and that he was not aware of those rights. Martinez then requested

that his statements to the detectives be suppressed. The State countered that the

evidence before the trial court showed that Martinez understood his rights and chose to

waive them.    The trial court then denied Martinez’s motion to suppress the video

statements.

       Martinez pleaded guilty to murder, and the trial court sentenced him to life in

prison. This appeal followed.

                                II.     STANDARD OF REVIEW

       Whether the trial court properly denied a defendant’s motion to suppress is

reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720,

725 (Tex. Crim. App. 2007); Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—

Corpus Christi 2009, no pet.).        We give almost total deference to the trial court’s

determination of historical facts and review de novo the trial court’s application of law to

facts not turning on credibility and demeanor. Scardino, 294 S.W.3d at 405; see Ford v.

State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). When, as in this case, the trial

court makes no explicit findings of historical fact, the evidence must be viewed in the

light most favorable to the trial court’s ruling. St. George, 237 S.W.3d at 725. We must

uphold the trial court’s ruling if it is correct under any theory of law applicable to the

case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Estrada v. State,

154 S.W.3d 604, 607 (Tex. Crim. App. 2005). “Absent a clear abuse of discretion, the

ruling on the admissibility of evidence will not be disturbed.” Fonseca v. State, 881



                                              13
S.W.2d 144, 149 (Tex. App.—Corpus Christi 1994, no pet.) (citing Rivera v. State, 808

S.W.2d 80, 96 (Tex. Crim. App. 1991)).

       “A statement of an accused may be used in evidence against him if it appears

that the same was freely and voluntarily made without compulsion or persuasion . . . .”

TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005). “To decide this case the court of

appeals must examine the totality of the circumstances surrounding the acquisition of

the statement to determine whether it was given voluntarily.” Creager v. State, 952

S.W.2d 852, 856–57 (Tex. Crim. App. 1997) (en banc); Sossamon v. State, 816 S.W.2d

340, 345 (Tex. Crim. App. 1991) (en banc), abrogated on other grounds by Graham v.

State, 994 S.W.2d 651, 656 (Tex. Crim. App. 1999) (quoting Fisher v. State, 379

S.W.2d 900, 902 (Tex. Crim. App. 1964)).

                                    III.   DISCUSSION

       By his first through fourth issues, Martinez contends that his confession was

involuntary because: (1) the detectives told him that the questioning concerned “theft

by possession, but immediately began interviewing him about a possible capital murder,

but without notifying him of the same”; (2) he invoked his right to “cut off questioning”

which was not “scrupulously honored”; (3) the detectives threatened him concerning

“what the judge and jury would do if he did not tell the truth”; and (4) he was not taken

before the magistrate within forty-eight hours.

A.     Notification of Murder Investigation

       As we understand it, by his first issue, Martinez argues that his confession was

rendered involuntary because he was arrested for theft and the detectives allegedly hid

from him the fact that they were investigating Horn’s murder. Martinez appears to imply



                                            14
that in order for his confession to have been voluntary, the detectives were under an

obligation to tell him that they were investigating the murder and not the theft. However,

Martinez has cited no authority, and we find none, providing that a defendant’s

confession is rendered involuntary because he has been arrested for an offense other

than the offense which he has confessed to committing. Furthermore, the record shows

that during the first interview, it was Martinez who brought up the subject of Horn’s

murder.    When Detective Clipper asked Martinez whose vehicle he was driving,

Martinez responded that he was in Horn’s vehicle. Then, when Detective Clipper asked

Martinez who Horn was, Martinez replied, “The guy that has been murdered.” It was

Martinez who volunteered information concerning Horn’s death.              Finally, at the

suppression hearing, Martinez did not argue that he was somehow “tricked” into

confessing because the detectives allegedly failed to inform him that they were

investigating Horn’s murder. See TEX. R. APP. P. 33.1. Under these circumstances, we

cannot conclude that the trial court abused its discretion by denying Martinez’s motion

to suppress his confession on this basis. We overrule Martinez’s first issue.

B.     Right to Cut Off Questioning

       By his second issue, Martinez contends that the detectives violated his right to

remain silent because they did not respect his right to cut off questioning.

       A defendant must be advised of his right to remain silent before a custodial

interrogation. Miranda, 384 U.S. at 467–68. The failure to cut off questioning after a

suspect invokes his right to remain silent is a violation and any subsequently-obtained

statements are inadmissible. Michigan v. Mosley, 423 U.S. 96, 103–04 (1975); Dowthitt

v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). “The Mosley Court rejected any



                                            15
reading of Miranda under which a person who has invoked his right to silence can never

again be subjected to custodial interrogation. Instead, the admissibility of statements

obtained after a person in custody has decided to remain silent depends on whether the

right to cut off questioning was scrupulously honored.” Williams v. State, 257 S.W.3d

426, 435 (Tex. App.—Austin 2008, pet. ref’d) (internal citations omitted); see Mosley,

423 U.S. at 102–04. We determine whether the defendant’s right to remain silent was

scrupulously honored based on the facts and circumstances of each case. Maestas v.

State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999). In making this determination, the

court of criminal appeals has stated we consider the following five factors:

        1) whether the suspect was informed of his right to remain silent prior to
        the initial questioning; (2) whether the suspect was informed of his right to
        remain silent prior to the subsequent questioning; (3) the length of time
        between initial questioning and subsequent questioning; (4) whether the
        subsequent questioning focused on a different crime;[4] and (5) whether
        police honored the suspect's initial invocation of the right to remain silent.

Maestas, 987 S.W.2d at 62.
        4
           In Maestas v. State, the court of criminal appeals acknowledged that the subsequent
questioning of the appellant concerned the same crime. 987 S.W.2d 59, 64 (Tex. Crim. App. 1999).
However, the court determined that the officers had scrupulously honored the appellant’s right to remain
silent despite this fact. Id. The Maestas court stated:

        Subsequent questioning did not focus on a different crime, so the fourth Mosley factor
        does not weigh in favor of “scrupulous honoring.” As part of the Mosley analysis,
        however, we also consider other facts and circumstances in determining whether
        Appellant’s right to remain silent was “scrupulously honored.” Appellant was not coerced,
        threatened, or promised anything for talking with officers. Officers testified Appellant had
        access to necessities such as food, water, and restroom facilities. Finally, although
        officers initiated the questioning that resulted in Appellant's statement, ongoing
        investigations provided them with additional information which tended to show that
        Appellant was present at the scene of the murder. These additional considerations tend
        to support the conclusion that police ‘scrupulously honored’ Appellant’s right to remain
        silent.
Id.
          Here, there was also testimony that Martinez had access to necessities and that he was not
coerced, threatened, or promised anything for talking to officers. Moreover, officers in this case did not
initiate the questioning that resulted in Martinez’s subsequent statement. These additional considerations
tend to support a finding that police scrupulously honored Martinez’s right to remain silent.




                                                    16
        Here, there is no dispute that Martinez was in custody and that he was told that

he had the right to remain silent before making each of his statements to police. In his

first statement to Detective Clipper, Martinez stated that he stabbed Horn with a knife

before he invoked his right to remain silent; therefore, the trial court did not abuse its

discretion in not suppressing this statement on the basis that the detectives did not

scrupulously honor his right to remain silent. See Mosley, 423 U.S. at 102–04; Dowthitt,

931 S.W.2d at 257 (providing that even when the request to cut off questioning is not

scrupulously honored, only statements obtained after the defendant invokes his right to

remain silent are inadmissible).

        Furthermore, viewing the evidence in the light most favorable to the trial court’s

ruling, we note that Detective Clipper ceased questioning Martinez during the first

interview immediately when Martinez told him he did not want to talk any more. The

trial court heard evidence that it was Martinez who initiated the second interview and not

Detective Clipper. “This is not a case, therefore, where the police failed to honor a

decision of a person in custody to cut off questioning, either by refusing to discontinue

the interrogation upon request or by persisting in repeated efforts to wear down his

resistance and make him change his mind.” Mosley, 423 U.S. at 105–06. In contrast to

such practices, the evidence here supported a finding that the police immediately

ceased the first interview when Martinez stated he wanted to stop talking.                           The

detectives did not approach Martinez to re-initiate questioning and instead resumed the

questioning only after Martinez requested a second interview and after the passage of a

significant period of time.5 Moreover, the detectives provided a fresh set of warnings at


        5
          The trial court was free to believe Detective Clipper’s testimony that he merely approached
Martinez to inform him that he was unable to contact Martinez’s girlfriend and that Martinez asked for the

                                                   17
the subsequent interview, and Detective Clipper began the second interview by stating,

“Tell me what you want to say.” Martinez then explained the series of events that

occurred on the date when Horn was murdered.

              Through the exercise of his option to terminate questioning [a
       defendant] can control the time at which questioning occurs, the subjects
       discussed, and the duration of the interrogation. The requirement that law
       enforcement authorities must respect a person’s exercise of that option
       counteracts the coercive pressures of the custodial setting.

Id. at 103–04. Here, there is evidence that supports a finding that Martinez was in

control of the time at which the second interview occurred, the subjects discussed at

that interview, and the duration of the interview. Thus, after considering the Mosley

factors, we cannot conclude that the trial court abused its discretion in determining that

the detectives scrupulously honored Martinez’s right to cut off questioning. See id.;

Maestas, 987 S.W.2d at 61 (“Following the Miranda language to its logical conclusion

would produce the absurd result that no confession or inculpatory statement would ever

be admissible—even if the accused changed his mind and wanted to speak with police

after invoking the right to remain silent.”); see also Liner v. State, No. 10-08-00362-CR,

2010 Tex. App. LEXIS 6989, at *8–9 (Tex. App.—Waco Aug. 25, 2010, no pet.) (mem.

op., not designated for publication) (concluding that the trial court properly determined

that the appellant’s right to remain silent had not been violated under similar

circumstances because it was the appellant who asked to talk to the police officer);

Urias v. State, No. 08-01-00355-CR, 2006 Tex. App. LEXIS 7820, at *12–17 (Tex.

App.—El Paso Aug. 31, 2006, pet. ref’d) (mem. op., not designated for publication)

(same). We overrule Martinez’s second issue.


second interview. See Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996).


                                                 18
C.     Threats

       By his third issue, Martinez contends that he was coerced into confessing that he

murdered Horn. Martinez argues that he was coerced into confessing by Detective

Ortiz’s statement that “things would go better for him if he told the truth and [was]

remorseful.” He also complains that he was told, “If we prove [you’re] lying . . . it’s only

going to make things worse.”              Martinez appears to argue that these statements

constituted coercive threats.

       “Coercive government misconduct renders a confession involuntary if the

defendant's ‘will has been overborne and his capacity for self-determination critically

impaired.’” Contreras v. State, 312 S.W.3d 566, 574 (Tex. Crim. App. 2010). We must

take into consideration the totality of all the surrounding circumstances, which includes

“both the characteristics of the accused and the details of the interrogation.” Dickerson

v. United States, 530 U.S. 428, 434, (2000); see also Springsteen v. State, No. AP-

74,223, 2006 Tex. Crim. App. LEXIS 2340, at *30–31 (Tex. Crim. App. May 24, 2006).

“The determination ‘depends upon a weighing of the circumstances of pressure against

the power of resistance of the person confessing.’” Dickerson, 530 U.S. at 434; see

also Springsteen, 2006 Tex. Crim. App. LEXIS 2340, at *30–31. The defendant’s will

may be “overborne” if the record shows that there was “official, coercive conduct of such

a nature” that a statement from the defendant was “unlikely to have been the product of

an essentially free and unconstrained choice by its maker.” Alvarado v. State, 912

S.W.2d 199, 211 (Tex. Crim. App. 1995); Frank v. State, 183 S.W.3d 63, 75 (Tex.

App.—Fort Worth 2005, pet. ref’d). 6


       6
           The Texas Court of Criminal Appeals recognized the following:


                                                   19
       First, Martinez generally alleges that Detective Clipper threatened him. However,

Martinez does not cite the portion of the record where Detective Clipper made any

threats, and we cannot locate any.             Therefore, we conclude that this allegation is

without merit. Next, Martinez claims that the complained-of statements were threats.

However, at the suppression hearing, no evidence was presented that the complained-

of statements caused Martinez to confess. And a review of the video of the second

interview shows that the colloquy between Detective Clipper and Martinez was

conversational and that appellant was calm and cooperative. There was no evidence

that any of the detectives exhibited hostile, aggressive, or threatening behavior toward

Martinez. Also, Martinez acknowledged during cross-examination by the State that he

did not feel threatened enough by the detectives not to initially lie about what happened

on the night of Horn’s death. Therefore, considering the totality of the surrounding

circumstances, the record supports a finding that Martinez’s will was not overborne by

the complained-of statements. See Dickerson, 530 U.S. at 434; see also Springsteen,

2006 Tex. Crim. App. LEXIS 2340, at *30–31. Furthermore, Martinez did not argue to

the trial court that these statements constituted threats that caused him to confess. See

       Statements that have been found to be involuntary under Miranda or the Due Process
       Clause . . . [:] (1) the suspect was subjected to a four-hour interrogation while
       incapacitated and sedated in an intensive-care unit; (2) the suspect, while on medication,
       was interrogated for over eighteen hours without food, medication, or sleep; (3) the police
       officers held a gun to the head of the wounded suspect to extract a confession; (4) the
       police interrogated the suspect intermittently for sixteen days using coercive tactics while
       he was held incommunicado in a closed cell without windows and was given limited food;
       (5) the suspect was held for four days with inadequate food and medical attention until he
       confessed; (6) the suspect was subjected to five days of repeated questioning during
       which police employed coercive tactics; (7) the suspect was held incommunicado for
       three days with little food, and the confession was obtained when officers informed him
       that their chief was preparing to admit a lynch mob into the jail; (8) the suspect was
       questioned by relays of officers for thirty-six hours without an opportunity for sleep.

Oursbourn v. State, 259 S.W.3d 159, 170–71 (Tex. Crim. App. 2008) (internal footnotes and citations
omitted).


                                                   20
TEX. R. APP. P. 33.1. Accordingly, we overrule Martinez’s third issue.

D.    Unnecessary Delay in Presenting Martinez to the Magistrate

      By his fourth issue, Martinez argues that because he was allegedly not brought

before a magistrate within forty-eight hours of being in custody, his statements should

have been suppressed. See TEX. CODE CRIM. PROC. ANN. art. 15.17(a) (West Supp.

2011) (“In each case enumerated in this Code, the person making the arrest or the

person having custody of the person arrested shall without unnecessary delay, but not

later than 48 hours after the person is arrested, take the person arrested or have him

taken before some magistrate of the county where the accused was arrested or, to

provide more expeditiously to the person arrested the warnings described by this article,

before a magistrate in any other county of this state. . . .”). However, based upon our

review of the record, we conclude that there was evidence that Martinez was brought

before the magistrate within forty-eight hours of being in police custody.      Martinez

testified that he was turned over to the Brownsville Police Department on October 26 at

“[a]bout 7:30” p.m. and taken before the magistrate on October 28 at “around” 11:00

a.m. Thus, Martinez’s complaint is without merit.

      Nonetheless, to the extent that Martinez claims that the detectives purposefully

caused an unnecessary delay in taking him to see the magistrate, we note that,

“[a]bsent a showing of a causal connection between the failure to take an accused

before a magistrate and the accused’s confession, however, the validity of a confession

is not affected for failure to comply with the statute.” Boyd v. State, 811 S.W.2d 105,

124–25 (Tex. Crim. App. 1991).        Here, Martinez did not testify that the alleged

unnecessary delay played a role in his decision to confess, as he now appears to argue



                                           21
on appeal. Instead, Martinez testified that he confessed because he did not feel that he

had a choice and that the detectives threatened to arrest his family. 7 Therefore, the

record does not support a finding of a causal connection between any failure to timely

take Martinez before the magistrate and his confession. Moreover, “an unreasonable

delay in presenting an arrestee before a magistrate will not vitiate an otherwise

voluntary confession if the arrestee was properly advised of his Miranda rights.” Cantu

v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992); Boyd, 811 S.W.2d at 125 (“[A]

violation of the requirement that a defendant be taken before a magistrate without delay

will not invalidate a confession which was voluntarily given after a defendant received

his [Miranda] rights.”); see County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991)

(noting that, as a general rule, a forty-eight hour delay without presentment before a

magistrate is not an unnecessary delay).                 Here, the record clearly shows that the

detectives read the Miranda warnings to Martinez each time he made a statement to

them. Thus, the trial court did not abuse its discretion in denying Martinez’s motion to

suppress his confession on that basis. We overrule Martinez’s fourth issue.

                                              IV.     CONCLUSION

        We affirm the trial court’s denial of Martinez’s motion to suppress.

                                                                 _____________________
                                                                 ROGELIO VALDEZ
                                                                 Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
15th day of March, 2012.


        7
          We note that the trial court was free to disbelieve Martinez’s assertion that the detectives made
such a threat. See Green, 934 S.W.2d at 98.


                                                    22
