                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00218-CR


DEREK WRYAN WILSON                                                 APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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        FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 1290837D

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                         CONCURRING OPINION

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      I concur in the result reached by the majority opinion because I agree that

the majority has properly applied Dowthitt and its progeny in arriving at the

conclusion that in this case Wilson was not legally in custody, but I write

separately to voice my belief that what the officers in this case did was

deliberately circumvent Miranda by choosing to delay their arrest of the only

suspect in order to obtain a confession. Miranda v. Arizona, 384 U.S. 436, 450,
86 S. Ct. 1602, 1615 (1966); Dowthitt v. State, 931 S.W.2d 244, 251 (Tex. Crim.

App. 1996).

      Here, during the interview, Detective Woodside repeatedly expressed to

Wilson that he was their only suspect. Woodside can be heard throughout the

interview saying “Everything leads to you,” “I’m telling you right now you did this,”

and “My investigation leads right to you.” And the facts of this case quickly bear

out that Detective Woodside was correct. There is no possible suspect in this

case other than Wilson, which begs the question: why did the police not arrest

Wilson at the moment they knew he was the assailant? The logical answer is

that they wanted a confession, a confession that the police intended to use

against Wilson at trial.    See Esparza v. Quarterman, No. SA-07-CA-265-FB,

2010 WL 9532282, at *45 (W. D. Tex. Mar. 24, 2010) (“A practice the police

should know is reasonably likely to evoke an incriminating response from a

suspect amounts to ‘interrogation.’”). Indeed, throughout the interview, Detective

Woodside can be heard telling Wilson that the video of his interview would be

played to a jury and that no jury would believe anything other than that Wilson

had purposely assaulted Amy. Detective Woodside even told Wilson that he

himself was going to testify against Wilson at trial because he had no doubt that

Wilson was the assailant.

      The setting in which this interview took place had all the markings of an

interrogation. The detectives interviewed Wilson in the middle of the night in a

small room at the police station. Both Detectives Woodside and Eubanks used


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the classic interrogation techniques by tag-teaming their questioning, by leaving

the room claiming that they needed to check on something just as Wilson began

to unroll his confession, and by using frequent intimidating language that Wilson

needed to “man up.” Detective Eubanks even gradually scooted his chair closer

and closer to Wilson as Wilson began to express his guilt, eventually serving as a

human barrier between Wilson and the door.

      All of these tactics echo the psychological interrogation methods discussed

in Miranda which prompted the Supreme Court of the United States to dictate

that a defendant be read his rights to remain silent and invoke counsel. Miranda,

384 U.S. at 444, 86 S. Ct. at 1615. In Miranda, the Court expressed concern that

modern-day     interrogations   involved   psychological    stress   borne    out   by

interviewing the suspect at the police station and expressing confidence in the

suspect’s guilt:

             “‘If at all practicable, the interrogation should take place in the
      investigator’s office or at least in a room of his own choice. The
      subject should be deprived of every psychological advantage. In his
      own home he may be confident, indignant, or recalcitrant. He is
      more keenly aware of his rights and more reluctant to tell of his
      indiscretions of criminal behavior within the walls of his home.’”

      ...

             “[Police interrogation manuals] instruct the police to display an
      air of confidence in the suspect’s guilt and from outward appearance
      to maintain only an interest in confirming certain details. The guilt of
      the subject is to be posited as a fact. The interrogator should direct
      his comments toward the reasons why the subject committed the
      act, rather than court failure by asking the subject whether he did it. .
      . . These tactics are designed to put the subject in a psychological
      state where his story is but an elaboration of what the police purport


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      to know already—that he is guilty. Explanations to the contrary are
      dismissed and discouraged. The texts thus stress that the major
      qualities an interrogator should possess are patience and
      perseverance.” Miranda, 384 U.S. at 449, 86 S. Ct. at 1615.

      These quotes from Miranda detailing the psychological techniques utilized

in an interrogation prompting the necessity that a suspect be informed of his

rights is precisely what transpired in this case. The officers routinely expressed

confidence that Wilson was guilty, they interviewed him in a small room at the

police station in the middle of the night, and this “incommunicado interrogation of

[Wilson] in a police-dominated atmosphere, result[ed] in self-incriminating

statements without full warnings of [his] constitutional rights.” Id. at 445, 1612.

      But these coercive police tactics are deemed lawful because the police told

Wilson that he was free to leave at the start of the interview. See Dowthitt, 931

S.W.2d at 255 (“[C]ustody is established if the manifestation of probable cause,

combined with other circumstances, would lead a reasonable person to believe

that he is under restraint to the degree associated with an arrest.”).          That,

however, was simply a ruse because the police were finished investigating who

had assaulted Amy. They knew Wilson had done it. All they wanted was a

confession. And the officers in this case appear to have skirted by Miranda to

obtain one by postponing Wilson’s arrest and delaying telling him he was not free

to leave. See Oregon v. Mathiason, 429 U.S. 492, 499, 97 S. Ct. 711, 716 n.5

(1977) (J. Marshall dissenting) (“I trust today’s decision does not suggest that

police officers can circumvent Miranda by deliberately postponing the official



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“arrest” and the giving of Miranda warnings until the necessary incriminating

statements have been obtained.”); see also Missouri v. Seibert, 542 U.S. 600,

620, 124 S. Ct. 2601, 2615 (2004) (“The police used a two-step questioning

technique based on a deliberate violation of Miranda.”). Thus, I write separately

to express my concerns that such tactics by law enforcement result in nothing

more than a rhetorical circumvention of Miranda and its progeny. But because

that appears to be the law and controlling precedent in this case under Dowthitt, I

concur with the majority’s opinion.




                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PUBLISH

DELIVERED: August 14, 2014




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