              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                       NO. PD-1111-08



                         WESLEY CHARLES JOSEPH, Appellant

                                                v.

                                   THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE THIRTEENTH COURT OF APPEALS
                             BEXAR COUNTY

     C OCHRAN, J., filed a concurring opinion in which P RICE, J OHNSON and
H OLCOMB, JJ., joined.

                                           OPINION

       I join the opinion of the Court because I agree that the trial could conclude that the

State proved, by a preponderance of the evidence, that appellant knowingly, intelligently, and

voluntarily waived his Miranda 1 rights before making a recorded statement.           I write

separately to note a rising trend in which Texas law-enforcement officers fail to explicitly

ask a suspect if he is willing to give up his Miranda rights and speak to them. This question,


       1
           Miranda v. Arizona, 384 U.S. 436 (1966).
                                                            Joseph   Concurring Opinion      Page 2

if answered affirmatively, results in an express waiver. The failure to ask one additional,

simple question has dramatically increased trial and appellate litigation and needlessly

jeopardizes the admissibility of a suspect’s subsequently obtained statement.

       Although it is well established that a suspect may validly waive his Miranda rights,

the State must prove that the required warnings have been given and that the suspect

knowingly, intelligently, and voluntarily waived those rights.2 The State must prove that

waiver by a preponderance of the evidence.3 When police obtain an express waiver–either

written or oral–from the suspect, the State’s task is not so difficult, but “the prosecution’s

burden is great” when the waiver is not express.4

       In North Carolina v. Butler, the Supreme Court stated that “a valid waiver will not be

presumed simply from the silence of the accused after warnings are given or simply from the

fact that a confession was in fact eventually obtained.” 5

       Merely asking the accused whether he understood his rights does not satisfy
       the duties of an interrogating officer or make any statement the accused might
       then make admissible. Miranda requires the interrogating officer to go further
       and make sure that the accused, knowing his rights, voluntarily relinquishes
       them.6



       2
           Id. at 479; Moran v. Burbine, 475 U.S. 412, 421 (1986).
       3
           Colorado v. Connelly, 479 U.S. 157, 168 (1986).
       4
           North Carolina v. Butler, 441 U.S. 369, 373 (1979).
       5
           Id. at 373 (quoting Miranda, 384 U.S. at 475).
       6
        United States v. Porter, 764 F.2d 1, 7 (1st Cir. 1985) (citing United States v. Christian,
571 F.2d 64, 68 (1st Cir. 1978)).
                                                          Joseph   Concurring Opinion     Page 3

However, “an express statement is not invariably necessary to support a finding that the

defendant waived either the right to remain silent or the right to counsel.” 7 Under some

circumstances, if a suspect has been fully warned of his rights and has indicated that he

understands those rights, a course of conduct consistent with waiver “may” support the

conclusion that the suspect has waived his Miranda rights.8 However,

       [t]he courts must presume that a defendant did not waive his rights; the
       prosecution’s burden is great; but at least in some cases waiver can be clearly
       inferred from the actions and words of the person interrogated.9

That is, the deck is stacked against the finding of an implicit waiver, but the State may, at

least in some cases, show that a waiver can be clearly inferred from the suspect’s words and

actions after having been warned.10 With an express waiver, the situation is reversed: the

       7
           Bui v. DiPaolo, 170 F.3d 232, 240 (1st Cir. 1999).
       8
           Butler, 441 U.S. at 373.
       9
           Id.
       10
           See id. at 375-76 (explicit waiver not necessary to show defendant waived right to
remain silent because defendant volunteered incriminating statements); Bui v. DiPaolo, 170 F.3d
at 238 (valid waiver properly inferred because defendant responded selectively to questions,
asking, “Who said I did this?” after answering “no” to prior question); United States v. Ramirez,
79 F.3d 298, 305 (2d Cir. 1996) (valid waiver properly inferred because, after receiving Miranda
warnings and agreeing to speak with officers, defendant answered some questions and not
others); Flamer v. Delaware, 68 F.3d 710, 719-20 (3d Cir. 1995) (waiver of Miranda valid
because defendant never invoked his rights, told police he knew his rights, and answered
questions); Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2002) (valid waiver properly inferred
because defendant was given Miranda rights a second time, said he understood rights, and
initiated conversation with detective); Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir. 2002) (en
banc) (valid waiver properly inferred because defendant, understanding the consequences,
continued to volunteer information after repeated Miranda warnings); Seymour v. Walker, 224
F.3d 542, 554 (6th Cir. 2000) (waiver valid because defendant “acknowledged she would talk
with” sheriff and told him that she did not want counsel, even though sheriff failed to obtain
express written or oral waiver and waiver forms were available); United States v. Jackson, 300
                                                       Joseph      Concurring Opinion      Page 4

deck is stacked in favor of a finding of waiver, but the suspect may, at least in some cases,

show that he did not knowingly, intelligently, or voluntarily waive his Miranda rights.

       While the majority is correct in stating that an explicit waiver is not invariably

necessary, I do not read North Carolina v. Butler to hold that it is never necessary. The fact

that a police officer failed to ask the suspect if he was willing to waive his rights and give

a statement does not augur well for a later judicial finding that the suspect did knowingly,

intelligently, and voluntarily waive his Miranda rights. There may be many reasons why an

officer failed to ask that question: in some instances, the suspect may be in such a rush to tell

his side of the story that he begins to speak before the officer can ask that question; in some

instances, however, that failure may be the result of poor training, inexperience, or fear that

the suspect–if asked–will decline to waive his rights. These latter reasons might well cast

doubt upon the existence of an implied waiver, and they call for close judicial scrutiny.

       The determination made by the trial judge in this case–that appellant made an implied

waiver of his Miranda rights before giving his statement to Detective Walsh– depended upon

the “totality of the circumstances,” and here those circumstances support a finding (if only



F.3d 740, 748 (7th Cir. 2002) (waiver valid despite loss of waiver form); Owens v. Bowersox,
290 F.3d 960, 963-64 (8th Cir. 2002) (waiver valid because defendant instructed mother to tell
police he wished to speak with them and later confirmed his wish to police); United States v.
Duque, 62 F.3d 1146, 1148, 1152-53 (9th Cir. 1995) (valid waiver properly inferred because,
after defendant received Miranda rights and was asked if he was “of a mind” to speak with
officers, he made incriminating statements); United States v. Yazzie, 188 F.3d 1178, 1192 (10th
Cir. 1999) (valid waiver properly inferred because defendant refused to sign waiver, but indicated
willingness to tell his side of the story); Mincey v. Head, 206 F.3d 1106, 1131-32 (11th Cir.
2000) (valid waiver properly inferred even though defendant refused to sign waiver because he
“drew a sharp distinction between what he was willing to say and what he was willing to sign”).
                                                       Joseph      Concurring Opinion     Page 5

just barely) that a valid waiver did occur. This is a very close case, and had the trial judge

found that appellant did not knowingly, intelligently, and voluntarily waive his Miranda

rights before speaking with Detective Walsh, we would have undoubtedly upheld that

determination as well. Thus, law-enforcement officers are well advised to expressly ask a

suspect to waive his Miranda rights so as to avoid later, protracted litigation and the very real

possibility that a suspect’s statement must be excluded because the totality of the

circumstances are insufficient to meet the State’s “heavy burden” to show an implied waiver.

       With these comments, I join the majority opinion.




Filed: February 24, 2010

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