            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0606-09



                          CARL ALLEN CARTER, Appellant

                                              v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE SEVENTH COURT OF APPEALS
                           WHEELER COUNTY

       C OCHRAN, J., delivered the opinion of the unanimous Court.

                                        OPINION

       This case involves the distinction between “inadvertent” pre-Miranda questioning and

“deliberate” two-step questioning to avoid Miranda protections. At trial, the judge admitted

appellant’s post-Miranda statements to the arresting officer even though the officer had

asked three questions before reading appellant his Miranda rights. The court of appeals

reversed, holding that the trial judge improperly admitted appellant’s statements because they
                                                                                 Carter      Page 2

were elicited during an illegal two-step interrogation.1 The State contends that the court of

appeals erred in substituting its assessment of the facts for that of the trial judge in holding

that the officer had engaged in an illegal two-step interrogation technique.2 Because we find

that the record supports the trial judge’s findings that (1) the trooper did not deliberately

employ a two-step interrogation technique calculated to undermine appellant’s rights, and

(2) appellant’s post-warning statements were voluntarily made, we reverse the court of

appeals.

                                        I. Background

A. Trial Proceedings

       On March 31, 2003, DPS Trooper James Henderson stopped a rental car driven by

Craig Wills 3 for traffic violations. Appellant was in the passenger seat. The stop was

captured by the patrol car’s onboard video camera. Trooper Henderson requested Wills’s



       1
         Carter v. State, __ S.W.3d __, No. 07-07-0157-CR, 2009 Tex. App. LEXIS 2437, at
*40-41 (Tex. App.—Amarillo April 1, 2009) (“Under the circumstances presented here,
considering all of the relevant factors, it is clear that the Miranda warnings could not have
functioned effectively. The two-step interrogation technique had the likely effect of undermining
both appellant’s ability to assert his right to remain silent and his ability to knowingly,
voluntarily, or intelligently waive that right.”)
       2
          The State’s ground for review is, “Whether the Court below erred in finding that both
the pre- and post-Miranda statements made by appellant to a trooper were the product of an
illegal two-step interrogation technique that undermined appellant’s right to remain silent and his
ability to voluntarily waive that right. This holding contravenes decisions from this Court, as
well as the United States Supreme Court, and therefore calls for this Court to grant the State’s
Petition for Discretionary Review. See, TEX . R. APP . P. § 66.3(c).”
       3
         The court of appeals spelled the driver’s name as Craig “Willis,” while the court
reporter spelled it as “Wills.”
                                                                               Carter     Page 3

driver’s license and registration. Wills admitted that he did not have a driver’s license, and

appellant produced a rental contract showing that he had leased the car. Wills and appellant

gave the trooper inconsistent stories as to the origin and nature of their trip.4 Trooper

Henderson asked if there were weapons or narcotics in the car. Appellant responded that he

didn’t think so, but that it was a rental car, so “you never know.”

       Appellant gave Trooper Henderson consent to search the car. While searching the

trunk, Trooper Henderson saw that laundry detergent, which is commonly used to mask the

odor of narcotics, had been sprinkled across the trunk’s floor. He lifted the back seat and

discovered two packages of cocaine hidden underneath. The trooper then arrested both Wills

and appellant, and he put appellant in his patrol car. 5 On the way to the police station,

appellant made incriminating statements about the offense in response to Trooper

Henderson’s questioning.

       Appellant filed a motion to suppress, alleging that the statements were obtained in

violation of his Miranda 6 rights. Trooper Henderson was the only witness at the suppression

hearing. In addition to the above facts, he testified that, once appellant was in his patrol car,

appellant was “advised of [his] Miranda rights. He, at that point in time on audio video,



       4
        Wills explained that they were driving on I-40 through Wheeler County from Tucson,
Arizona, where his brother played college basketball. Appellant said that they were coming from
Phoenix, where they had stayed at a friend’s house for two days’ vacation.
       5
           Wills was transported by another deputy.
       6
           Miranda v. Arizona, 384 U.S. 436 (U.S. 1966).
                                                                              Carter     Page 4

waived his rights. I asked him if the cocaine was his, he did advise that the cocaine was both

his and Mr. Wills. They had paid $8000 cash to purchase the drugs and were trying to make

some money off it.” Based on Trooper Henderson’s testimony, the trial court denied

appellant’s motion.

       At trial, the State offered the onboard videotape of appellant’s arrest into evidence.

The videotape showed that appellant was arrested, handcuffed, and placed in Trooper

Henderson’s patrol car where he could see deputies searching the car. Approximately nine

minutes later, the trooper returned to the patrol car, and, as he began driving appellant to the

police department, he asked the following:

       Henderson:     Y’all know what you are under arrest for, right?

       Appellant:     Yes, sir.

       Henderson:     Is that cocaine or crack cocaine?

       Appellant:     Cocaine.

       Henderson:     It’s cocaine?

       Appellant:     Yes sir.

       Appellant objected to these statements on the ground that he was in custody and had

not yet been Mirandized. After initially overruling the objection, the trial court sustained it

and instructed the jury to disregard those statements, but denied appellant’s motion for

mistrial. Appellant then objected to the admission of any further statements made after he
                                                                                 Carter      Page 5

had been given his Miranda warnings, but the judge overruled that objection.7                  The

prosecutor resumed playing the onboard videotape, which continued with Trooper

Henderson’s warnings.8        The trooper testified that appellant acknowledged that he

understood and waived his rights.9 The videotape confirmed the facts to which Trooper

Henderson had testified at the suppression hearing: In response to questioning, appellant

admitted that (1) there were eighteen ounces of cocaine; (2) it belonged to both him and

Wills; (3) they had picked it up in Phoenix; (4) they had paid $8,000 for it; and (4) they

expected to turn a big profit selling it. A Department of Public Safety chemist then testified



       7
       That objection and ruling was as follows:
Defense:     Your Honor, I’m going to object to any further statements based on
             the fact that he did it after he Mirandized, the prior statements he
             had already incriminated himself and this is just further indication
             of the fact that he was not – the statements were not voluntary and
             he had already violated the rules, which is not as good as –
Court:       Well, . . . my understanding of Miranda is . . . that if you don’t give
             [the warnings] then nothing he ever says is admissible. It’s
             anything he says prior to being Mirandized, once he’s Mirandized
             would be admissible is my understanding of the rule.
       8
         The trooper told appellant,
       You have not been advised of your rights so you don’t have to say no more and
       I’ll read your rights here in just a second. You are under arrest for possession of
       cocaine. Anything you say can be used in a court of law; you have a right to stop
       answering questions at any time; you have a right to an attorney; if you can’t
       afford one, one will be appointed for you. You understand all these questions I
       covered with you today?
       9
         Although we defer to the trial court’s finding that appellant was properly Mirandized,
we note that the record does not reflect that Trooper Henderson expressly requested a waiver of
those rights. As has been suggested before, interrogating officers should request an express
waiver of Miranda rights to avoid later litigation and the possible exclusion of incriminating
statements. See Joseph v. State, ___ S.W.3d ___, No. PD-1111-08, 2010 WL 625072, at *5
(Tex. Crim. App. Feb. 24, 2010) (Cochran, J., concurring).
                                                                             Carter     Page 6

that the cocaine found in the rental car weighed 491.64 grams with a 67 percent purity. The

jury convicted appellant of possession with intent to deliver a controlled substance and

sentenced him to twenty-five years in prison.

B. Proceedings in the Court of Appeals

       Appellant raised seven issues on appeal, two of which related to his statements to

Trooper Henderson. The key issue was whether the trial judge erred in admitting appellant’s

post-Miranda statements. The court of appeals abated the case for the trial judge to make

findings regarding the voluntariness of appellant’s statements.10 The trial court entered

numerous findings in support of his ruling, including the following:

       (13) The Court finds beyond a reasonable doubt that Carter did then knowingly waive
       those rights and did then and there freely and voluntarily without being induced by
       any compulsion, threats, promises, or persuasion, confess orally on videotape . . .

       (14) The Court finds that there was no deliberate attempt to avoid the requirements
       of Miranda and Article 38.22 by Trooper Henderson when he asked the two questions
       that he did of Carter after Carter’s arrest but before he was warned . . . and the Court
       further finds that the failure of Trooper Henderson to warn Carter before those two
       questions were asked was simply an oversight on the part of Trooper Henderson.

       (15) The Court finds that Trooper Henderson did not deliberately employ a two-step
       questioning technique in violation of Miranda and Article 38.22, and the Court further
       finds that Trooper Henderson’s initial failure to warn Carter before obtaining the two
       incriminating responses that he did was inadvertent on his part.

       (16) The Court finds that the Miranda and Article 38.22 warnings given by Trooper
       Henderson after Carter’s two inculpatory pre-warning admissions were effective,
       there was no carryover taint beyond the two unwarned admissions, and the warnings
       came at a time when Carter could still make a knowing, free, and voluntary choice to

       10
         Carter v. State, 2008 Tex. App. LEXIS 3954, at *2 (Tex. App.—Amarillo, May 29,
2008) (not designated for publication) (citing TEX . CODE CRIM . PROC., art. 38.22, § 6).
                                                                                Carter      Page 7

       make the further admissions that he did . . . .

       On review after remand, the court of appeals concluded that the facts were

“uncontroverted;” thus, it reviewed the trial court’s ruling de novo.11 Based on its assessment

of the facts, the court of appeals held that “Trooper Henderson’s two-step approach was a

conscious choice, calculated to undermine Appellant’s Miranda rights.” 12 It then noted that

the trooper did not administer any curative measures and that the unwarned and warned

statements were made “during an undifferentiated single event.”13 Thus, the court of appeals

held that the trial court erred in denying appellant’s motion to suppress, and it found that the

error was not harmless beyond a reasonable doubt.

       On discretionary review, the State argues that the historical facts are not

“uncontroverted.” It contends that, although the videotape was helpful to resolve the factual

issues, the trial court had an opportunity to view the witness and was “uniquely qualified”

to determine Henderson’s demeanor and credibility. That credibility issue, according to the

State, is critical to this “question first, warn later” issue.




       11
            Id. at *14-15.
       12
          Id. at *32. The court of appeals pointed to the facts that (1) Trooper Henderson was
“highly experienced;” (2) he began interrogating appellant within nine minutes of his arrest; (3)
“[w]ithin three short questions spanning approximately seventeen seconds,” appellant had
confessed; (4) Henderson immediately Mirandized appellant and then resumed interrogation.
       13
            Id. at *40.
                                                                             Carter     Page 8

                     II. “Question First, Warn Later” Legal Principles

A. Oregon v. Elstad

       In Miranda, the United States Supreme Court explained that the issue of voluntariness

“encompasses all interrogation practices which are likely to exert such pressure upon an

individual as to disable him from making a free and rational choice.” 14 More recently, that

Court stated that “the coercion inherent in custodial interrogation blurs the line between

voluntary and involuntary statements, and thus heightens the risk” that the privilege against

self-incrimination will not be observed.15        To minimize that risk, the Miranda Court

conditioned the admissibility of any custodial confession on warning a suspect of his rights.16

Failure to provide the warnings and obtain a waiver prior to custodial questioning generally

requires exclusion of statements obtained.17

       But Oregon v. Elstad 18 governs the admissibility of post-warning confessions made

after inadvertent, minimal Miranda violations. In that case, the Supreme Court explained

that “there is no warrant for presuming coercive effect where the suspect’s initial inculpatory




       14
            Miranda, 384 U.S. at 464-65.
       15
            Dickerson v. United States, 530 U.S. 428, 435 (2000).
       16
            Miranda, 384 U.S. at 467.
       17
            Id.
       18
            470 U.S. 298 (1985).
                                                                                 Carter     Page 9

statement, though technically in violation of Miranda, was voluntary.” 19 Thus, “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.” 20

In upholding the admission of Elstad’s post-Miranda statements, the Court concluded that

there were “none of the earmarks of coercion” in that particular factual situation and that the

officer’s initial failure to warn was merely an “oversight.” 21

B. Missouri v. Seibert

       The Supreme Court clarified its approach to “question first, warn later” situations in

Missouri v. Seibert.22 In that case, officers were acting under express orders to withhold

Miranda warnings from Seibert, who was charged with murder.23 An officer questioned

Seibert for thirty to forty minutes at the police station while squeezing her arm and repeating

incriminating statements in an attempt to have her confess. Seibert eventually did confess;

only then did the officers give her Miranda warnings and ask her to repeat her earlier,


       19
          Id. at 318. The evidence showed that officers went to Elstad’s home to arrest him on a
burglary charge. During a “brief stop” in Elstad’s living room, officers asked him if he knew
why they were there. Elstad said “No.” An officer told him that he “felt” that Elstad was
involved, and Elstad responded that he “was there.” Officers transported him to police
headquarters, Mirandized him, and he gave a confession. Id. at 301.
       20
           Id. at 318. The Court explained that the “psychological impact” of prior statements that
“let the cat out of the bag,” without more, does not compel the conclusion that a subsequent
confession was involuntary. Id. at 311-12.
       21
            Id. at 316.
       22
            542 U.S. 600 (2004).
       23
            Id. at 604.
                                                                                  Carter      Page 10

unwarned confession.24

       Although the Court echoed the Elstad proposition that not every violation of Miranda

requires suppression of a later confession, it determined that, under these circumstances, the

post-admission warnings did not serve their purpose. A plurality of the Court noted that, by

any objective measure, this police strategy was adapted to undermine the efficacy of Miranda

warnings.25      The plurality applied an objective, multifactor test to determine whether

midstream warnings could have been effective to accomplish the goals of Miranda 26 and

concluded that “a reasonable person” in Seibert’s position “would not have understood [the

warnings] to convey a message that she retained a choice about continuing to talk.” 27

       The crucial fifth vote was that of Justice Kennedy, who wrote a concurring opinion.

Although he agreed that the interrogation technique used with Seibert undermined the goals

of Miranda and thus required suppression,28 he noted that the plurality “envisions an

objective inquiry from the perspective of the suspect, and applies in the case of both


       24
         Id. at 604-05. After a twenty-minute break, the interrogator Mirandized Seibert, then
confronted her with her prewarning statements, prompting her to repeat her earlier confession.
       25
           Id. at 616. In a footnote to this conclusion, the plurality explained that “[b]ecause the
intent of the officer will rarely be as candidly admitted as it was here . . . the focus is on facts
apart from intent to show the question-first tactic at work.” Id. at n.6.
       26
         Id. at 615 (those factors included “the completeness and detail of the questions and
answers in the first round of interrogation, the overlapping content of the two statements, the
timing and setting of the first and the second, the continuity of police personnel, and the degree
to which the interrogator’s questions treated the second round as continuous with the first.”).
       27
            Id. at 617.
       28
            Id. at 618 (Kennedy, J., concurring).
                                                                                Carter     Page 11

intentional and unintentional two-stage interrogations.” 29 Concluding that “this test cuts too

broadly,” he “would apply a narrower test applicable only in the infrequent case . . . in which

the two-step interrogation technique was used in a calculated way to undermine the Miranda

warning.” 30 He explained that, in such cases, post-warning statements must be excluded

unless “curative measures” are taken before the post-warning statement is made.31 Unless

a deliberate two-step strategy is employed, Elstad applies.

       In sum, the Seibert plurality set out an objective, totality-of-the-circumstances inquiry

to determine the effectiveness of midstream Miranda warnings and focused on the

perspective of a reasonable person in the suspect’s shoes irrespective of an officer’s intent.

Justice Kennedy, the fifth vote, would apply the plurality’s objective inquiry only after

finding that the officer deliberately used a two-step, “question first, warn later” strategy. In

short, the plurality’s test is an objective “effects” one, while Justice Kennedy’s is a subjective

“intent” one that precedes (and potentially precludes) the effects analysis.


C. Martinez v. State



       29
            Id. at 621.
       30
          Id. at 622 (Justice Kennedy reasoned that “Miranda’s clarity is one of its strengths, and
a multi-factor test that applies to every two-stage interrogation” would undermine that clarity).
       31
          Id. (“Curative measures should be designed to ensure that a reasonable person in the
suspect’s situation would understand the import and effect of the Miranda warning and of the
Miranda waiver. For example, a substantial break in time and circumstances between the
prewarning statement and the Miranda warning may suffice in most circumstances, as it allows
the accused to distinguish the two contexts and appreciate that the interrogation has taken a new
turn.”).
                                                                                 Carter   Page 12

       This Court first applied Seibert in Martinez v. State,32 in which the arresting officers

did not Mirandize the defendant before questioning him at the police station.              After

subjecting Martinez to a three- to four-hour polygraph examination, the officers told him that

he had failed the examination.33 He later received Miranda warnings from a magistrate and

gave a videotaped statement. This Court, echoing Justice Kennedy’s Seibert concurrence,

concluded that “‘the two-step interrogation technique was used in a calculated way to

undermine the Miranda warning.’” 34 We noted that this “question first, warn later” technique

was “not a mistake based on the interrogating officers’ mistaken belief that appellant was not

in custody, but rather a conscious choice.” 35 We then addressed whether the record showed

curative measures as drawn from both the Seibert plurality and concurring opinions.36

       In Martinez, we did not explicitly adopt either the plurality or concurring opinion from

Seibert. But it is well settled that “[w]hen a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five Justices, the holding of the Court may

be viewed as that position taken by those Members who concurred in the judgments on the




       32
            272 S.W.3d 615 (Tex. Crim. App. 2008).
       33
            Id. at 617-18.
       34
            Id. at 623 (quoting Seibert, 542 U.S. at 621 (Kennedy, J., concurring)).
       35
            Id. at 624.
       36
            Id. at 626-27.
                                                                               Carter      Page 13

narrowest grounds.” 37 We therefore join numerous state and federal jurisdictions in adopting

Justice Kennedy’s concurrence in Seibert because it is narrower in scope than the plurality

opinion and applies only to two-step interrogations involving deliberate police misconduct.38

Consequently, the question is whether the evidence shows that Trooper Henderson

deliberately employed a two-step “question first, warn later” interrogation technique to

circumvent appellant’s Miranda protections.


       37
         Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotation omitted); see also
Haynes v. State, 273 S.W.3d 183, 186-87 (Tex. Crim. App. 2008).
       38
           See United States v. Nunez-Sanchez, 478 F.3d 663, 668 n.1 (5th Cir. 2007) (“In
Missouri v. Seibert, Justice Kennedy provided the fifth vote in a 5-4 decision, and decided the
case on narrower grounds than the majority. ‘It is well established that when we are confronted
with a plurality opinion, we look to that position taken by those Members who concurred in the
judgments on the narrowest grounds.’ Therefore, we find Seibert’s holding in Justice Kennedy’s
opinion concurring in the judgment.”), (quoting United States v. Courtney, 463 F.3d 333, 338
(5th Cir. 2006)); United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007) (“We treat
Justice Kennedy’s concurrence as controlling since it provided the fifth vote necessary for a
majority and since it was decided on narrower grounds than the plurality opinion.”); United
States v. Carter, 489 F.3d 528, 536 (2d Cir. 2007) (“We now join our sister circuits in holding
that Seibert lays out an exception to Elstad for cases in which a deliberate, two-step strategy was
used by law enforcement to obtain the postwarning confession.”); State v. Fleurie, 968 A.2d 326,
333 (Vt. 2008) (citing Marks and adopting Justice Kennedy’s concurrence as the narrower
holding; “Under Justice Kennedy’s test, the threshold inquiry is whether the police intentionally
withheld Miranda warnings to circumvent its protections. If warnings were not intentionally
withheld, both Kennedy and the Seibert plurality would apply the Elstad framework.”) (citation
omitted); State v. Gaw, 285 S.W.3d 318, 323-24 (Mo. 2009) (“[T]his Court determines that
Justice Kennedy’s ‘deliberate violation’ standard represents a ‘lowest common denominator’
between his views and those of the four-justice plurality. This Court accordingly joins numerous
other courts that have held that Justice Kennedy’s concurring opinion supplies the standard to be
applied”), cert. denied, 2010 WL 58585 (2010); Tengbergen v. State, 9 So. 3d 729, 735 (Fla. Ct.
App. 2009) (“Florida courts have heretofore applied Justice Kennedy’s rule, as it represents the
narrower view.”); but see United States v. Heron, 564 F.3d 879, 884-86 (7th Cir. 2009) (noting
that Justice Kennedy’s approach was “different” from that of the plurality, not narrower, and thus
“it is risky to assume that the Court has announced any particular rule of law,” but finding it
unnecessary to resolve what rule can be gleaned from Seibert as the defendant’s statements
would be admissible under “any test one might extract”).
                                                                                 Carter      Page 14

D. Standard of Review

       As an initial matter, we note that Justice Kennedy provided no guidance on how to

conduct or review a deliberateness determination. We thus consider how various courts have

treated such issues.39 In United States v. Stewart, the Seventh Circuit noted that “[t]here is

not yet a general consensus among the circuits about the standard of review that applies to

Seibert-deliberateness determinations, but the trend appears to be in the direction of review

for clear error.” 40 It explained that 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. This is

a factual finding entitled to deference on appeal” and reviewed only for clear error.41

Numerous other jurisdictions have applied this same standard to the “deliberateness”



       39
          One of the Supreme Court’s earlier cases that addressed the trial court’s critical role in
assessing “intent” was Anderson v. Bessemer City, 470 U.S. 564, 573 (1985), in which the Court
held that “a finding of intentional discrimination is a finding of fact.” Thus, the standard of
review of a trial court’s finding of intent “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.” Id. at 575. Factual findings concerning intent or deliberateness should not be
disturbed by an appellate court absent contradicting extrinsic evidence or internal inconsistencies
that render testimony “implausible on its face.” Id. This standard is similar to our “great
deference” standard of review for all factual findings, including intent, if such findings are
supported by the record. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)
(appellate courts should afford almost total deference if the resolution of an ultimate question
turns on an evaluation of credibility and demeanor).
       40
            536 F.3d 714, 719 (7th Cir. 2008).
       41
          Id. at 720-21 (holding that, despite plausible alternative explanations, the district
court’s determination that the officer did not engage in deliberate sequential interrogation was
not clearly erroneous.).
                                                                                Carter      Page 15

question in addressing “question first, warn later” scenarios.42 As one state court has noted,

the trial judge’s assessment of the interrogating officer’s subjective intent is especially

important under Justice Kennedy’s approach in Seibert:

       By adopting Justice Kennedy’s subjective test as opposed to the plurality’s
       objective test, the role of trial courts in this state is heightened to ensure that
       the accused’s Miranda rights are protected. This is because the accused’s
       Miranda rights protections turn on whether the trial court finds an arresting
       officer’s questioning prior to the advisement of Miranda rights was inadvertent
       or intended to acquire an advantage in the interrogation process. A specific
       factual finding in this regard greatly assists the Court on appellate review.43


We therefore adopt the position of those federal and state courts that have applied a highly




       42
           United States v. Narvaez-Gomez, 489 F.3d 970, 974 (9th Cir. 2007) (applying clear-
error standard of review); United States v. Nunez-Sanchez, 478 F.3d 663, 668-69 (5th Cir. 2007)
(without deciding the matter, appearing implicitly to apply clear-error review); United States v.
Naranjo, 426 F.3d 221, 226, 232 (3d Cir. 2005) (applying clear-error standard of review); United
States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005) (applying clear-error standard of review);
Ford v. United States, 931 A.2d 1045, 1052-52 (D.C. 2007) (applying clear error to the trial
court’s findings on remand, noting that it was consistent with its review of similar trial court
determinations involving credibility and deliberateness).
        In United States v. Torres-Lona, 491 F.3d 750 (8th Cir. 2007), the district court stated
that the agents conducting a custodial interrogation should have known that their questions were
likely to elicit an incriminating response, so it suppressed the defendant’s unwarned statements.
However, the district court also noted that “the initial failure to warn appellant was ‘merely an
oversight’ on the part of the agents rather than a calculated strategy to circumvent Miranda.” Id.
at 758. The Eighth Circuit held that “the district court’s determination that the [] agents acted in
good faith” was not “clearly erroneous” and upheld the admission of the post-Miranda
statements. Id.
       43
          State v. Gaw, 285 S.W.3d 318, 324 (Mo. 2009) (officer arrested defendant after
confronting him about having marijuana and defendant produced a baggie of marijuana; during
post-arrest, pre-Miranda questioning, defendant made incriminating statements; upholding trial
court’s denial of motion to suppress post-warning statements because the unwarned questioning
was not part of a deliberate plan to undermine defendant’s understanding of Miranda rights),
cert. denied, 2010 U.S. LEXIS 346 (2010).
                                                                                Carter      Page 16

deferential review–similar to our Guzman standard 44 –of the question of an officer’s

subjective “deliberateness” in the “question first, warn later” context.

                                       III. Application


A. Seibert-deliberateness determination

       In this case, the court of appeals concluded that credibility and demeanor were not

issues because “the facts regarding the interrogation were preserved on videotape and are

completely uncontroverted.” 45 It thus reviewed the efficacy of the midstream warnings de

novo.46 We note two problems with this approach. First, a trial court’s determination of

historical facts based on a videotape recording is still reviewed under a deferential standard.47




       44
            See note 39 supra.
       45
            Carter, __ S.W.3d at __, 2009 Tex. App. LEXIS 2437, at *15.
       46
            Id.
       47
           See Montanez v. State, 195 S.W.3d 101 (Tex. Crim. App. 2006). In Montanez, we
addressed the standard of review involving a videotape of a traffic stop and subsequent search in
which the issue was voluntary consent. We noted that, “in Anderson v. Bessemer City, the
Supreme Court held that appellate courts should review a trial court’s determination of historical
facts under a deferential standard, even if that determination was not based on an evaluation of
credibility and demeanor.” Id. 108-09 (internal quotation marks omitted). Therefore, we held
that “the deferential standard of review in Guzman applies to a trial court’s determination of
historical facts when that determination is based on a videotape recording admitted into evidence
at a suppression hearing.” Id. at 109; see also State v. Gobert, 275 S.W.3d 888, 891-892 & n.13
(Tex. Crim. App. 2009) (“[T]he trial judge viewed the DVD with the State’s transcript in hand,
and he found that the appellee did in fact actually declare, ‘I don’t want to give up any right
though, if I don’t got no lawyer.’ The record supports that conclusion, even as it might also
support a different conclusion. Therefore, we will not second-guess the trial court’s
determination of the facts . . . . Under these circumstances, it is appropriate that we defer to the
trial court’s primary fact-finding function.”).
                                                                              Carter     Page 17

Second, in addition to the videotape, the trial judge saw and listened to Trooper Henderson

both during the suppression hearing and at trial. The court of appeals’s analysis does not

reflect consideration of this testimonial evidence and demeanor, which are especially relevant

to a deliberateness determination.

       The evidence shows that the colloquy between Trooper Henderson and appellant was

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

Trooper Henderson exhibited hostile, aggressive, or threatening behavior toward appellant

or that he intended to create a coercive environment.48           The trooper’s pre-Miranda

questioning lasted approximately ten seconds.            Immediately after appellant made

incriminating statements, Henderson stopped the interview, said, “You have not been

informed of your rights,” and read appellant his Miranda warnings. After appellant waived

his rights, Henderson did not repeat his pre-warning questions. We think these facts do not

necessarily exemplify the deliberate “question first, warn later” gamesmanship so obvious

in Seibert.49

       Where the totality of these facts fall on the Elstad-Seibert continuum, though, is a

question on which reasonable minds may disagree. The court of appeals, for example,

       48
          The fact that appellant was questioned while handcuffed in the backseat of a police
vehicle without Miranda warnings does not, in and of itself, show a deliberate and calculated
method to undermine the safeguards guaranteed in Miranda. See Tengbergen, 9 So.3d at 735.
Moreover, the fact that a suspect was in custody for purposes of Miranda does not, alone, require
a finding of coercion. See, e.g., Nunez-Sanchez, 478 F.3d at 668-69; Torres-Lona, 491 F.3d at
758; Gaw, 285 S.W.3d at 325.
       49
            Seibert, 542 U.S. at 616.
                                                                                Carter     Page 18

concluded that this case was “a far cry from Elstad where the initial conversation took place

in the suspect’s living room with his mother nearby. Rather, this case is more like Seibert

where the defendant was under arrest and in custody but had not received any Miranda

warnings.” 50 Indeed, the objective record could certainly support that conclusion.51 However,

the applicable standard does not permit a reviewing court to reverse a trial court’s finding of

fact simply because it would have decided the question differently.52

       Based on our review of the record, we cannot say that the trial judge’s findings–that

Trooper Henderson’s failure to initially warn appellant was “simply an oversight” and that

he did not deliberately employ a two-step questioning technique–were “implausible on [their]

face” or unsupported by the record.53 Applying the appropriately deferential standard of

review, we conclude that the record supports the trial judge’s finding that Trooper

Henderson’s pre-Miranda questioning was not a “deliberate attempt to avoid the

requirements of Miranda.”



       50
            Carter, __ S.W.__, 2009 Tex. App. LEXIS 2437, at *36-37 (internal citation omitted).
       51
          The court of appeals’s analysis closely tracked the objective “effects” approach taken
by the Seibert plurality. See Seibert, 542 U.S. at 615-17.
       52
            Anderson, 470 U.S. at 573.
       53
          See id. at 575. Of course, had the trial judge concluded that Trooper Henderson did
deliberately employ a two-step questioning technique, we might well uphold that determination
because that conclusion is also supported by the objective record. In this case, however, the
court of appeals thought it appropriate to remand the case to obtain written factual findings by the
trial judge concerning Trooper Henderson’s credibility and intent. Having done so, it could not
then ignore those specific factual findings and rely solely upon its own assessment of the
objective circumstances if applying Justice Kennedy’s subjective “intent” approach.
                                                                                Carter      Page 19

B. Elstad voluntariness inquiry

       Once a determination has been made that the pre-warning questioning was not part

of a deliberate plan to undermine a suspect’s Miranda protections, it is still necessary to

determine if appellant’s post-warning statements were voluntarily made.54                Thus, the

factfinder must examine all of the circumstances and the course of police conduct in

evaluating the voluntariness of those post-Miranda statements.55

       This Court has previously held that the trial court is the “sole and exclusive trier of

fact and judge of the credibility of the witnesses,” particularly when a motion to suppress is

based on the voluntariness of a confession.56 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.” 57

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

statements to Trooper Henderson were knowingly and voluntarily made. We find that the


       54
           United States v. Stewart, 536 F.3d 714, 723 (7th Cir. 2008) (when the interrogation
process used was not a deliberate end run around Miranda, a trial court should determine
“whether the initial unwarned confession would flunk the voluntariness standard of Elstad such
that the taint would carry over to the second warned confession”) (internal quotation marks
omitted); see Elstad, 470 U.S. at 310.
       55
            Elstad, 470 U.S. at 318.
       56
          Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007); see also Green v. State,
934 S.W.2d 92, 98-99 (Tex. Crim. App. 1996) (stating that, in the context of determining the
voluntariness of a confession, the trial court is the sole factfinder and may elect to “believe or
disbelieve any or all”of the evidence presented at a hearing on a motion to suppress).
       57
            Delao, 235 S.W.3d at 238.
                                                                             Carter     Page 20

record and reasonable inferences from that record support this finding. In cases like this,

“‘[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary

but unwarned statement ordinarily should suffice to remove the conditions that precluded

admission of the earlier statement.’”58 Trooper Henderson administered appropriate Miranda

warnings prior to further questioning, and thus we agree with the trial judge that appellant’s

post-warning statements were admissible under the Elstad standard.

                                       IV. Conclusion

       We find that the trial judge did not err in denying appellant’s motion to suppress.

Therefore, we reverse the judgment of the court of appeals and remand this case to that court

to address appellant’s remaining issue.




Delivered: March 24, 2010

Publish




       58
          United States v. Nunez-Sanchez, 478 F.3d 663, 669 (5th Cir. 2007) (quoting Elstad, 470
U.S. at 314).
