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                                      MEMORANDUM OPINION

                                                No. 04-08-00730-CR

                                                 Eddie ESQUIVEL,
                                                     Appellant

                                                            v.

                                               The STATE of Texas,
                                                     Appellee

                       From the 226th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2007CR7706
                                Honorable Sid L. Harle, Judge Presiding

Opinion by:        Catherine Stone, Chief Justice

Sitting:           Catherine Stone, Chief Justice
                   Phylis J. Speedlin, Justice
                   Steven C. Hilbig, Justice

Delivered and Filed: October 7, 2009

AFFIRMED

           Eddie Esquivel was sentenced in accordance with a plea bargain agreement but appeals the

trial court’s ruling on a pre-trial motion to suppress.1 Esquivel contends that his confession was


           1
           … The plea bargain agreement form signed by Esquivel contained a pre-printed waiver of appeal. However,
at the conclusion of the hearing at which the trial court sentenced Esquivel in accordance with the plea bargain
agreement, the trial court stated, “He has 30 days in which to file [a] motion for new trial and notice of appeal based upon
that motion.” From the record, the trial court clearly was referring to Esquivel’s motion to suppress. In addition, the
trial court’s certification of defendant’s right of appeal, which Esquivel also signed, stated that Esquivel had the right
to appeal the ruling on the motion to suppress. Given the conflicts in the record, we conclude that the waiver in the plea
bargain agreement was not a voluntary, knowing, and intelligent waiver of Esquivel’s right to appeal. See Ex parte
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involuntarily obtained in violation of the United States and Texas Constitutions. We affirm the trial

court’s judgment.

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

Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In this review we give almost total

deference to the trial court’s determination of historical facts and review the court’s application of

the law de novo. Id.

         “The right to terminate questioning is among the procedural safeguards that Miranda

establishes.” Williams v. State, 257 S.W.3d 426, 432 (Tex. App.—Austin 2008), pet. ref’d, 272

S.W.3d 614 (Tex. Crim. App. 2008); see also Miranda v. Arizona, 384 U.S. 436, 474 (1966). As

the United States Supreme Court has stated, “Once warnings have been given, the subsequent

procedure is clear. If the individual indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at

473-74; see also Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). The Court

explained, “Without the right to cut off questioning, the setting of in-custody interrogation operates

on the individual to overcome free choice in producing a statement after the privilege has been once

invoked.” Miranda, 384 U.S. at 474. “[T]he admissibility of statements obtained after the person

in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off

questioning’ was ‘scrupulously honored.’” Michigan v. Mosley, 423 U.S. 96, 104 (1975); see also

Ramos, 245 S.W.3d at 418.




Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006) (requiring pre-trial waiver to be voluntary, knowing, and
intelligent). Although the State also refers to the notation “* NO APPLS *” on the trial court’s docket sheet, the trial
court’s written certification controls over the docket sheet entry. See Garza v. Tex. Alcoholic Bev. Comm’n, 89 S.W .3d
1, 7 (Tex. 2002); Kalyanaram v. Burck, 225 S.W .3d 291, 303 (Tex. App.— El Paso 2006, no pet.).

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       The suspect is not required to use any particular phraseology to invoke the right to remain

silent. Ramos, 245 S.W.3d at 418. Any declaration of a desire to terminate the questioning should

suffice. Id. An interrogating officer is not required to stop his questioning, however, unless the

suspect’s invocation of rights is unambiguous. 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

(1994). The officer is not, however, required to ask clarifying questions, and ‘[i]f 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; see also Ramos, 245 S.W.3d at 418. 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.

       Esquivel’s complaint arises from the following exchange that occurred during his interview:

       Detective Cardenas: I’m not gonna promise you anything for you talking with me
       today, or for you telling me how things happened. You know, but I think that the
       judge and the jury are gonna want to know how things actually happened. Okay,
       because what we have Eddie is our evidence, okay? All right? Okay, but you don’t
       know what – what she’s telling us, what [the victim] is telling us how this happened.
       For all you know she could be describing you as a monster. You’re not a monster.

       Esquivel: Of course I’m not.

       Detective Cardenas: It was a mistake. There is a big difference there. Okay, now we
       need to know exactly how it happened because we have her story. Like I said she
       could be describing you as this most horrible person in – that has ever lived on this
       Earth. You know, that you would torture her, that you would tie her up, that you
       would cut her, threaten to kill her. I don’t think that’s you. Okay? You know, I’ve
       been looking into this case and I’ve been looking into you as well. You’re not that
       type of person, okay, but all of us can be that type of person that makes mistakes and
       that’s a big difference than being a monster. So, I’m trying to let you know that for


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your benefit you need to tell us how this actually happened. Did you ever force her
to do something? Did you ever put a gun to her head?

Esquivel: I never done nothing. I’m done talking. I – I want to talk to [the victim’s
mother] and see what the hell is going on. I don’t know why. I just – I need to talk
to, to.

Detective Cardenas: Okay, did you say that you don’t want to talk to me anymore?

Esquivel: No, cause I mean, what for? There ain’t no use, right?

Detective Cardenas: I don’t know. I think that there is a lot of use and I explained
it to you but if – if you don’t want to talk with me, well, then I will be leaving.

Esquivel: Man [inaudible] either way. I’m going to be doing time. I’m already doing
time. And, I don’t want to even walk around with people saying that I’m a child
molester and shit like that cause I’m not.

Detective Cardenas: Uh, the only one that knows about this case is me and, of course,
[the victim’s mother]. Okay, but as far as any – uh – police officers, you know
authorities, uh, you know the Bexar County Jail doesn’t know about this. So, as far
as police are concerned, I’m the only one that knows about this case. Okay, and I’m
trying to talk to you right now and get your side of the story. I know that something
happened, but I’m just trying to figure out how it happened. I got [the victim’s]
story, you know, you don’t know what she’s saying about you. You know that – you
know for sure that she’s saying that you touched her. Okay, but you don’t know the
way that she described it. She could be describing it —

Esquivel: And what did she say?

Detective Cardenas: – in a horrible manner. All right, you know, I’m not gonna tell
you that right now. That’s what you want me to say. You know, for me to spill my
beans, but I’m not gonna do that Eddie.

Esquivel: No, I understand that. I understand that. You’re doing your job. I
understand that.

Detective Cardenas: Well look, well listen, you say that you don’t want to talk to me
cause you told me that already so that means –

Esquivel: No, that’s, no.

Detective Cardenas: – that, you know, that I’m gonna have to leave, but is – is that


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       what you want? You don’t want to talk to me, right?

       Esquivel: No. I’ll go ahead and talk to you. What other chance do I got, right?

       Detective Cardenas: Well, I’m gonna leave right now if you don’t want to talk to me.
       I will leave. You know, I’m – I’m not going to beat you over the head with it. I’m
       not going to force you to talk to me. I will go out this door right now and leave if you
       want this to stop right now.

       Esquivel: Well, what is going to happen after that?

Detective Cardenas then began explaining the process of sending the case to the district attorney and

grand jury, and the interview continued for approximately forty additional minutes.

       During cross-examination, Detective Cardenas testified regarding his response to Esquivel’s

statement that he was done talking as follows:

       Q.      Well, isn’t it true that he several times told you that he wanted to stop
       talking?

       A.       He did say that he wanted to stop talking, but he kept on talking, and I tried
       to – I told him I would leave, but he did not want to – or he wanted to continue to
       talk.

                                                 ****

       Q.     Okay. And, in fact, you questioned him and questioned him even after
       several times he wanted to stop; isn’t that correct? He wanted to stop the
       conversation.

       A.      I want to say several times he did bring it up and I told him that if [he] wanted
       to stop talking to me I would leave, but he continued to talk with me and he wanted
       to talk with me and he posed questions for me. So, based on that, you know, I
       thought that he wanted me to stay.

                            [Relevant portion of tape-recording played]

       Q.     BY [DEFENSE COUNSEL]) Well, Detective, you’ve heard – you’ve heard
       now the conversation, and he told you at least – you asked him at least four times if
       he wanted you to stop, and he told you, he indicated to you that he did want you to
       stop. Why you [sic] did not leave at that time?


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       A.     No, that’s not true. He raised the issue once. I then tried to make sure four
       times he did not object, and then he actually said that he didn’t [sic] want to talk to
       me.

       Q.      Well, did you leave at that time?

       A.      No, because he wanted to talk with me. If he did not want to talk with me,
       then, during the playing of this audio, I was up on my feet and I was getting ready to
       go. But he did want to talk to me and so I remained there.

       The question presented is whether Esquivel’s statement that he was “done talking” was an

unambiguous invocation of his right to remain silent. The trial court found, “Roughly midway

through the interview, Defendant said he no longer wanted to talk. Det. Cardenas prepared to leave

and Defendant reversed himself – he said he did want to keep talking.” The trial court also found

that Detective Cardenas scrupulously honored Esquivel’s right to terminate the interview and warned

Esquivel several times that he did not have to talk to him and that Detective Cardenas would leave

if Esquivel wanted him to leave. The trial court further found that Detective Cardenas continued the

interview only after Esquivel said he wanted to continue. The trial court concluded, “After Defendant

expressed an interest in terminating the interview, Det. Cardenas scrupulously honored Defendant’s

request; however, Defendant intentionally, knowingly, and voluntarily reinitiated the interview on

his own accord before the interview continued.”

       In the context presented, we hold that Esquivel’s statement was not an unambiguous

invocation of his right to remain silent. Immediately after Esquivel said he was done talking,

Esquivel continued talking, which made his statement ambiguous. Detective Cardenas did not

ignore the statement, but instead sought to clarify Esquivel’s wishes before continuing the interview.

See Williams, 257 S.W.3d at 433-43 (officer could clarify appellant’s wishes when he stated that he



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wanted to “terminate everything”); see also Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App.

1996) (holding defendant’s statements that, “I can’t say more than that. I need to rest.” were not an

unambiguous invocation of the right to remain silent); Franks v. State, 90 S.W.3d 771, 786-87 (Tex.

App.—Fort Worth 2002, no pet.) (holding defendant’s statements that, “I don’t want to talk

anymore. I’m tired.” not to be an unambiguous invocation of rights). By continuing to talk after he

stated he was done talking, Esquivel made his statement ambiguous, unlike a similar statement made

by the defendant in Ramos where the evidence did not show that the defendant continued to talk after

he stated that he did not want to talk to the officer and did not want to talk about it anymore. 245

S.W.3d at 413, 418-19. Because we conclude Esquivel’s statement was ambiguous, Detective

Cardenas did not violate Esquivel’s right to remain silent by continuing the interview.

       The trial court’s judgment is affirmed.



                                                       Catherine Stone, Chief Justice

DO NOT PUBLISH




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