Opinion issued December 10, 2015




                                   In The

                           Court of Appeals
                                   For The

                       First District of Texas
                        ————————————
                           NO. 01-14-00911-CR
                        ———————————
                     JEREMY HOWARD, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee



                 On Appeal from the 209th District Court
                         Harris County, Texas
                     Trial Court Case No. 1392158



                              OPINION

     A jury convicted appellant, Jeremy Howard, of the first-degree felony

offense of aggravated robbery and assessed his punishment at thirty years’
confinement. 1 In four issues, appellant argues that the trial court erroneously

denied his motion to suppress three recorded statements because the recordings did

not contain a knowing, intelligent, and voluntary waiver of his statutory rights and

that the trial court erroneously overruled his objection to testimony concerning his

post-arrest, post-Miranda invocation of his right to remain silent and right to

counsel.

      We affirm.

                                   Background

      A. Factual Background

      On June 8, 2013, Judy Gorman stopped by a Tobacco Mart store in

northwest Houston around 8:00 or 8:30 in the morning. Gorman pulled up to the

drive-thru window and rang the bell, but no employee answered or came to the

window. Gorman then banged on the window and honked her car horn. While she

honked her horn, she heard a “pop pop” sound “like a car backfiring.” Gorman

believed that the noise might have been coming from her car, so she checked

underneath it but did not see anything out of the ordinary. When she stood back

up, she saw the cashier of the Tobacco Mart standing at the drive-thru window,

“and he was holding himself and blood was everywhere.” Gorman called 9-1-1.

After speaking with the 9-1-1 dispatcher, she saw a truck swerve out from the


1
      See TEX. PENAL CODE ANN. § 29.03 (Vernon 2011).

                                         2
Tobacco Mart parking lot, and she followed the truck to report its license plate

number to the dispatcher. Gorman followed the truck for a little while, but the

truck was driving recklessly, and the dispatcher told her to return to the Tobacco

Mart and wait for the police. Gorman could not see the faces of anyone inside the

truck.

         Alkarim Virani, the complainant, worked as a manager at the Tobacco Mart.

Around 8:45 in the morning on June 8, 2013, two black men entered the Tobacco

Mart and requested a pack of cigarettes. When Virani turned to put the cigarettes

on the counter, one of the men removed a gun from his pocket and shot Virani in

the stomach.      Both of the men then jumped over Virani and started putting

cigarette packs in a trash bag. The shooter asked Virani where money was located

in the store, and Virani showed him to the office. After the shooter left the office,

Virani tried to shut the door, but the shooter shot through the door and hit Virani in

the finger. After the shooter and the other man left the Tobacco Mart, Virani

pushed a panic button and spoke with a customer who called the police. Virani

saw the faces of both men during the robbery, but he was unable to identify any

suspects in a photo-array, and he did not identify appellant in court as being

involved in the robbery. The trial court admitted a copy of the surveillance video

from the inside of the Tobacco Mart, which depicted the robbery, during Virani’s

testimony.



                                          3
      Houston Police Department (“HPD”) Officer A. Larkin responded to the

panic call. When he walked toward the Tobacco Mart, he saw a stack of cash

sitting on the wheelchair ramp. Inside, Officer Larkin found Virani and called for

an ambulance. Officer Larkin discovered spent shell casings and a bullet inside the

Tobacco Mart, and he also found surveillance cameras that looked as though they

had been ripped from the ceiling.

      B. Hearing on Motion to Suppress Oral Statements

      The trial court held a pre-trial hearing on appellant’s motion to suppress four

custodial statements.2

      Officer M. Houston and his partner Sergeant Mora, with the HPD robbery

division, conducted an interview with appellant on June 9, 2013. Officer Houston

began the interview by reading appellant each of his statutory rights. Appellant

nodded his head after Officer Houston read each right, which Houston interpreted

as appellant indicating that he understood each right.        Appellant appeared to

understand what Officer Houston was reading, and appellant had no questions

about any of his rights. After Officer Houston finished reading appellant his rights,

appellant began answering Houston’s questions.           Appellant seemed relaxed


2
      Appellant ultimately withdrew consideration of the first statement, an unrecorded
      statement made to Officer L. Magness on June 8, 2013, from the motion to
      suppress, but he then objected to admission of the statement on hearsay grounds.
      The trial court sustained the objection, and this statement was not admitted into
      evidence.

                                          4
throughout the interview, and Officer Houston did not threaten or coerce appellant

into giving a statement, and he never promised appellant anything in exchange for

a statement. Officer Houston testified that appellant was coherent throughout the

interview, that he did not appear to be under the influence of drugs or alcohol, and

that he appeared eager to “share his side of things.” Appellant did not invoke his

right to remain silent or his right to counsel during this interview. This interview

lasted approximately ten minutes.

      Officer J. Curtis, also with the robbery division, interviewed appellant on

two occasions—June 13, 2013, and June 21, 2013. Officer Curtis testified that

before he spoke with appellant about the offense on June 13, he read appellant his

statutory and constitutional rights. After reading each of the rights, Officer Curtis

asked appellant if he understood and waited for appellant to respond before

moving on to the next one. Officer Curtis stated that appellant “affirmatively”

responded that he understood each of his rights.        Appellant did not ask any

questions about his rights, and Officer Curtis did not feel as though appellant did

not understand his rights. Once Officer Curtis had read appellant his rights and

appellant had stated that he understood each one, Curtis began questioning

appellant, and appellant answered Curtis’s questions. Appellant never stopped the

interview or asked for an attorney. Appellant did not indicate that he did not want

to speak to Officer Curtis or that he wanted to invoke his statutory rights, and



                                         5
Curtis believed that appellant voluntarily provided information to him during this

interview. Officer Curtis testified that he never threatened or coerced appellant

into giving a statement, that he never promised appellant anything in exchange for

a statement, and that appellant did not appear incoherent or under the influence of

anything during the interview. Officer Curtis characterized appellant’s demeanor

as relaxed, “very matter of fact,” and not “troubled by anything” at the time of the

interview. This interview lasted approximately 15 minutes.

      Officer Curtis spoke with appellant again on June 21, 2013, after he had

been charged with aggravated robbery in the Tobacco Mart case. Officer Curtis

again read appellant his statutory warnings and ensured that appellant affirmatively

responded that he understood each one before Curtis read the next warning.

Officer Curtis testified that he did not coerce appellant into giving a statement, and

he did not promise appellant anything in exchange for a statement. Appellant had

a “relaxed matter of fact demeanor” during this interview. In this interview, after

approximately eighteen minutes of questioning, appellant stated that he did not

want to make any further statements without an attorney present. Officer Curtis

then terminated the interview.

      On cross-examination, both Officer Houston and Officer Curtis agreed with

defense counsel that they did not expressly ask appellant if he wished to waive his

statutory rights before they began questioning him.



                                          6
      After hearing argument from the parties, the trial court denied appellant’s

motion to suppress the June 9, June 13, and June 21 statements.

      C. Trial

      At trial, Officer Houston testified that he and Sergeant Mora conducted an

interview with appellant on June 9, 2013. Officer Houston identified appellant in

court as the person he interviewed. Officer Houston testified that he began the

interview by reading appellant his Miranda warnings. After he read each warning

to appellant, he asked if appellant understood, and appellant indicated his

understanding of each of the warnings by nodding his head. Appellant appeared

coherent and not under the influence of any substances during the interview, he

had no problems communicating, he appeared relaxed, and he did not ask Officer

Houston any questions about his rights. After reading appellant his rights, Officer

Houston testified that he told appellant, “There is one side to the story that I have, I

don’t know your side.” Appellant then gave a statement during this interview, and

he did not ask to stop the interview. Officer Houston did not threaten or coerce

appellant during the interview, and he did not make any promises to appellant in

exchange for a statement. Officer Houston testified that appellant indicated that he

wanted to give a statement because he “started telling a story and he never stopped

talking to us the entire time and he never once asked for an attorney.”




                                           7
      The trial court admitted a video recording of the June 9, 2013 interview.

Appellant had not been charged in this case at the time he spoke with Officer

Houston and Sergeant Mora. During the interview, appellant stated that a family

friend told him that he had been involved in the Tobacco Mart robbery. He told

the officers that the robbers took cigarettes and approximately $10,000 from the

Tobacco Mart and that the robbers shot the cashier in the stomach with a 9 mm

handgun. Appellant displayed no hesitation in answering questions, he corrected

the officers when they stated details incorrectly, he provided lengthy answers to

questions, and he gave the officers names and descriptions of the people he said

were involved in the robbery.

      Officer Curtis testified that he visited the Tobacco Mart after the robbery

occurred on June 8, 2013. There were no suspects at the time he visited the scene.

Officer Curtis later spoke with Officer Houston, who told him about his interview

on June 9 with appellant. Curtis did not consider appellant to be a suspect in the

robbery at that time. After speaking with Officer Houston, Officer Curtis received

a Crime Stoppers tip and viewed still photographs from the surveillance video of

the Tobacco Mart. At that point, he considered appellant a suspect. The trial court

admitted these photographs into evidence. Several photographs show appellant

holding a gun inside the Tobacco Mart.




                                         8
      Officer Curtis interviewed appellant for the first time on June 13, 2013.

Officer Curtis read appellant the statutory warnings and asked appellant if he

understood each of the rights. Appellant indicated that he understood each of the

rights “[e]ither verbally or with the shake of his head in the affirmative.”

Appellant then provided a statement about the case. Officer Curtis stated that he

did not threaten or coerce appellant, nor did he promise him anything in exchange

for a statement. Appellant never asked to stop the interview, and he did not ask to

have an attorney present. The trial court admitted an audio recording of this

interview. During this interview, appellant did not indicate that he was involved in

the robbery of the Tobacco Mart. He instead blamed another man who Officer

Curtis later determined was not involved with the robbery. Appellant told Officer

Curtis details about the robbery that had not been released to the public.

      Several days after this interview, Officer Curtis viewed the surveillance

video from the Tobacco Mart. Relative to the still photographs, the video gave “a

clearer depiction as to what happened during the incident,” and appellant remained

a suspect after Officer Curtis watched the video. After speaking with appellant’s

mother and sister, he still remained a suspect. Officer Curtis filed charges against

him and another man.

      Officer Curtis interviewed appellant a second time on June 21, 2013, after he

had been charged with the underlying offense. Officer Curtis again started the



                                          9
interview by reading appellant his statutory warnings. Appellant verbally indicated

that he understood each right by saying “all right” after each right that Officer

Curtis read. The prosecutor and Officer Curtis then had the following exchange:

      [The State]:        After reading the Defendant’s rights, did he agree
                          to give you a statement?
      [Officer Curtis]:   Yes, ma’am.
      [The State]:        During the course of that statement, did the
                          Defendant ever ask you to stop?
      [Officer Curtis]:   Only at the end.
      [The State]:        Did he ask for an attorney?
      [Officer Curtis]:   At the end, yes, ma’am, he did.

Defense counsel objected to the testimony concerning appellant’s asking to see an

attorney as a comment on appellant’s post-arrest, post-Miranda right to silence.

The trial court overruled this objection. 3      The trial court admitted an audio

recording of this interview. In this interview, Appellant implicated himself as the

man who shot Virani during the robbery.

      The jury found appellant guilty of the offense of aggravated robbery and

assessed his punishment at thirty years’ confinement. This appeal followed.




3
      The trial court included the following instruction in the jury charge: “You are
      instructed that 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.”

                                          10
                                Motion to Suppress

      In his first three issues, appellant contends that the trial court erred in

denying his motion to suppress the interviews with police taken on June 9, 13, and

21 because the recordings of the interviews did not demonstrate that he knowingly,

intelligently, and voluntarily waived his statutory rights.

      A. Standard of Review

      We review the trial court’s denial of a motion to suppress evidence for an

abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App.

2008) (citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). When

we review a trial court’s denial of a motion to suppress, we give “almost total

deference to a trial court’s express or implied determination of historical facts” and

review de novo the court’s application of the law to the facts. Id. We view the

evidence in the light most favorable to the trial court’s ruling. Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808,

818 (Tex. Crim. App. 2006)). The trial court is the “sole trier of fact and judge of

the credibility of the witnesses and the weight to be given to their testimony.” St.

George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The trial court may

choose to believe or disbelieve any part or all of a witness’s testimony. Green v.

State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996). We sustain the trial court’s

ruling only if it is reasonably supported by the record and correct on any theory of



                                          11
law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App.

2003).

      B. Whether Appellant Waived His Statutory Rights

      A defendant’s statement may be admitted into 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 (Vernon 2005). Code of

Criminal Procedure article 38.22 “establishes procedural safeguards for securing

the privilege against self-incrimination.” Joseph v. State, 309 S.W.3d 20, 23 (Tex.

Crim. App. 2010). This article provides that no oral statement of an accused made

as a result of custodial interrogation shall be admissible unless (1) an electronic

recording is made, and (2) prior to the statement but during the recording, “the

accused was warned of his rights and knowingly, intelligently, and voluntarily

waived those rights.” Id. at 23–24; see TEX. CODE CRIM. PROC. ANN. art. 38.22,

§ 3 (Vernon Supp. 2015). The warnings must inform the accused that:

      (1)   he has the right to remain silent and not make any statement at
            all and that any statement he makes may be used against him at
            his trial;
      (2)   any statement he makes may be used as evidence against him in
            court;
      (3)   he has the right to have a lawyer present to advise him prior to
            and during any questioning;
      (4)   if he is unable to employ a lawyer, he has the right to have a
            lawyer appointed to advise him prior to and during any
            questioning; and


                                        12
      (5)    he has the right to terminate the interview at any time[.]

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a); Joseph, 309 S.W.3d at 24. For the

statement to be admissible, “prior to the statement but during the recording the

accused [must] . . . knowingly, intelligently, and voluntarily waive[] any rights set

out in the warning.” TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(2).

      The State bears the burden of demonstrating that the defendant knowingly,

intelligently, and voluntarily waived his statutory and Miranda rights. See Joseph,

309 S.W.3d at 24 (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602,

1612 (1966), and Hill v. State, 429 S.W.2d 481, 486 (Tex. Crim. App. 1968)). The

State must establish waiver by a preponderance of the evidence. See id. The State

does not have to prove that the defendant expressly waived his Miranda rights,

only that he did so “knowingly, intelligently, and voluntarily.” Id. at 24–25; see

also North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757 (1979)

(stating that “in at least some cases waiver can be clearly inferred from the actions

and words of the person interrogated”). To be valid,

      the relinquishment of the right must have been voluntary in the sense
      that it was the product of a free and deliberate choice rather than
      intimidation, coercion, or deception. Second, the waiver must have
      been made with full awareness of both the nature of the right being
      abandoned and the consequences of the decision to abandon it. Only
      if the “totality of the circumstances surrounding the interrogation”
      reveals both an uncoerced choice and the requisite level of
      comprehension may a court properly conclude that the Miranda rights
      have been waived.


                                         13
Joseph, 309 S.W.3d at 25 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.

Ct. 1135, 1141 (1986)).        When determining whether the “totality of the

circumstances” demonstrate waiver, courts consider “‘all the circumstances

surrounding the interrogation,’ including the defendant’s experience, background,

and conduct.” Id. (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560,

2572 (1979)); see also Leza v. State, 351 S.W.3d 344, 353 (Tex. Crim. App. 2011)

(stating that although “implied waivers are not to be preferred,” it is within trial

court’s discretion “to rely upon an implied waiver whenever the totality of the

circumstances, as reflected by the recording of the oral statement, supports it”).

      An implied waiver of a defendant’s rights can be established upon a showing

that the defendant (1) was given the proper warnings; (2) understood the warnings

and their consequences; and (3) made an uncoerced statement. See Hernandez v.

State, 387 S.W.3d 881, 885 (Tex. App.—San Antonio 2012, no pet.). “As a

general proposition, the law can presume that an individual who, with a full

understanding of his or her rights, acts in a manner inconsistent with their exercise

has made a deliberate choice to relinquish the protection those rights afford.” Id.

(quoting Berghuis v. Thompkins, 560 U.S. 370, 385, 130 S. Ct. 2250, 2262 (2010)).

“Simply making a statement is often the kind of conduct viewed as indicative of

one’s intention to waive [his] rights.” Id. “[A] suspect who has received and

understood the Miranda warnings, and has not invoked his Miranda rights, waives

                                          14
the right to remain silent by making an uncoerced statement to the police.”

Berghuis, 560 U.S. at 388–89, 130 S. Ct. at 2264.

      Here, appellant does not contend that he did not receive his statutory and

Miranda warnings, nor does he contend that he did not understand his rights.

Instead, he argues that the recordings for each of the three statements do not

contain a waiver of his rights.

      In each of the three recordings, the interrogating officers started the

interviews by reading appellant his statutory warnings. In the June 9 interview,

with Officer Houston and Sergeant Mora, Officer Houston read appellant each

right and asked if appellant understood that right. Appellant nodded after Officer

Houston read each right. In the June 13 and June 21 statements with Officer

Curtis, appellant affirmatively responded that he understood each of the rights that

Curtis read to him. Two minutes into the June 13 statement, Officer Curtis had

technical difficulties with his digital recorder and had to switch to a new one. At

the beginning of the second part of that interview, Officer Curtis asked appellant if

he was still willing to speak with Curtis about the Tobacco Mart robbery.

Appellant responded that he was. At the end of this interview, Officer Curtis asked

appellant if he could meet with appellant again in the event Curtis had more

questions. Appellant responded, “Yes sir, I don’t mind.”




                                         15
      In both the June 9 and June 13 interviews, the interrogating officers read

appellant his rights and then began asking questions.        Appellant immediately

responded and provided detailed answers to their questions, at times correcting the

officers when they stated something that appellant believed was incorrect. See

Joseph, 309 S.W.3d at 26 (“Immediately after being warned by [the officer] that he

had the right to remain silent and that he did not have to make any statement to

anyone, Appellant willingly participated in a six-hour interview.”); Hargrove v.

State, 162 S.W.3d 313, 319 (Tex. App.—Fort Worth 2005, pet. ref’d) (noting, in

determining that defendant impliedly waived statutory rights, that defendant “then

proceeded without hesitation to discuss the present offense, although he denied any

involvement during this first interview”); State v. Oliver, 29 S.W.3d 190, 193 (Tex.

App.—San Antonio 2000, pet. ref’d) (noting that defendant indicated that he

understood his rights and “[t]hen, without any hesitation, [the defendant]

proceeded to discuss the circumstances surrounding the murder with [the

officer]”). In both of these interviews, appellant implicated other individuals in the

Tobacco Mart robbery, and he specifically gave the officers names and physical

descriptions of the individuals he said were involved. Appellant did not ask to

terminate these interviews, and he did not ask for an attorney. See Joseph, 309

S.W.3d at 26 (considering whether defendant invoked right to remain silent and

right to attorney in determining voluntariness of implied waiver of rights). During



                                         16
the June 13 interview, Officer Curtis twice asked appellant if he had any other

information that he could provide “to help out” the investigation, and appellant

provided additional information without hesitation.

      In the June 21 interview, which occurred after appellant had been charged

with aggravated robbery, appellant indicated that he understood his rights and

agreed with Officer Curtis when he stated that appellant had been charged in

connection with the Tobacco Mart incident.           In contrast to the previous two

interviews, appellant did not immediately answer Officer Curtis’s questions,

instead remaining silent for several minutes. Appellant did, however, eventually

answer questions, explaining that his co-defendant was the one who owned the gun

used in the robbery, that his co-defendant coerced him at gunpoint to participate in

the robbery, that the robbery was his co-defendant’s idea, and that both men had a

gun. See Joseph, 309 S.W.3d at 26 (“Moreover, the fact that Appellant felt free to

decline answering particular questions suggests that the information he did choose

to provide was given voluntarily.”). During the course of the interview, appellant

implicated himself as the shooter. The interview lasted for approximately sixteen

minutes before appellant informed Officer Curtis that he needed to speak with an

attorney to “see if I can work a deal out.” 4 See Oliver, 29 S.W.3d at 193 (“The


4
      In his brief, appellant points out that the defendant in Joseph spoke with the police
      for six hours and never asked that the interview be terminated or requested an
      attorney, whereas in the June 21 statement, appellant’s interview lasted only

                                           17
invocation of [the right to counsel] after questioning had proceeded for some time

demonstrates [the defendant] understood his rights when the interview began and

waived same when he discussed the case.”). Officer Curtis asked if appellant

wanted his attorney present, and appellant responded that he did. Officer Curtis

did not ask appellant any further questions about the robbery. The portion of the

interview in which appellant invoked his right to remain silent and his right to

counsel was included in the recording played for the trial court at the suppression

hearing but was redacted from the recording admitted into evidence during the

trial.

         There was no indication in any of the interviews that the officers threatened

or coerced appellant into making a statement, or that they made any promises to

him in exchange for making a statement. See Joseph, 309 S.W.3d at 26 (noting, in

determining that defendant impliedly waived his statutory rights, that “there

appears to be no possibility that a promise from police could have jeopardized the

voluntariness of Appellant’s statement.”). In the June 9 interview, Sergeant Mora


         eighteen minutes before he stated that he wanted to speak to an attorney. As the
         State points out, however, the length of the interview was only one factor that the
         Court of Criminal Appeals considered in determining that the defendant impliedly
         waived his statutory rights. See Joseph v. State, 309 S.W.3d 20, 26–27 (Tex.
         Crim. App. 2010) (also considering facts that, after being read his rights,
         defendant immediately participated in interview, never requested attorney, never
         asked for interview to be stopped, and “seemed eager to share information with the
         detectives”; there was no indication of coercion or intimidation; defendant “felt
         free to decline answering particular questions”; and officers made no promises in
         exchange for statement).

                                             18
explicitly stated that the officers were not making appellant any promises, and

appellant agreed and continued answering their questions.

      The totality of the circumstances demonstrates that appellant was aware of

his rights, that he understood his rights, and that he impliedly waived his rights by

speaking with Officer Houston and Sergeant Mora on June 9 and with Officer

Curtis on June 13 and June 21. See id. at 27 (stating, in affirming ruling that

defendant impliedly waived his statutory rights, that, immediately after being read

his rights, defendant “willingly participated in a six-hour interview with police”

and defendant never “ask[ed] that the interview be stopped, nor did he request an

attorney”); Hargrove, 162 S.W.3d at 319; Oliver, 29 S.W.3d at 193; see also

Turner v. State, 252 S.W.3d 571, 583 (Tex. App.—Houston [14th Dist.] 2008, pet.

ref’d) (finding implied waiver of rights when defendant indicated he understood

rights “and then proceeded to answer [the officer’s] questions”). We therefore

hold that the trial court did not err in denying appellant’s motion to suppress the

June 9, June 13, and June 21 statements.

      We overrule appellant’s first, second, and third issues.

                  Post-Miranda Invocation of Right to Counsel

      In his fourth issue, appellant contends that the trial court erroneously

overruled his objection to Officer Curtis’s testimony commenting on appellant’s




                                           19
post-arrest, post-Miranda assertion of his right to counsel during the June 21

statement.

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

As long as the trial court’s evidentiary ruling is “within the zone of reasonable

disagreement,” we may not reverse it. Rezaie v. State, 259 S.W.3d 811, 814 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d) (citing Green, 934 S.W.2d at 102). We

will not disturb a trial court’s evidentiary ruling if it is correct on any theory of law

applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.

App. 2009).

      Evidence of an accused invoking his right to counsel “may indeed be

construed adversely to a defendant and may improperly be considered as an

inference of guilt.” Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991);

see also Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976) (holding

that use of defendant’s silence “at the time of arrest and after receiving Miranda

warnings” for impeachment purposes violated due process clause of Fourteenth

Amendment). “The guaranty of fundamental fairness in the Due Process Clause

forbids the government from making the Miranda promises and breaking them by

using a suspect’s exercise of a right as evidence against him.” Griffith v. State, 55

S.W.3d 598, 605 (Tex. Crim. App. 2001). Thus, if a defendant invokes his right to



                                           20
remain silent after receiving his post-arrest Miranda warnings, the State cannot use

that invocation as evidence of guilt at trial. Friend v. State, No. 01-14-00884-CR,

2015 WL 5026078, at *5 (Tex. App.—Houston [1st Dist.] Aug. 25, 2015, pet.

filed).

          Here, at trial, Officer Curtis testified concerning his June 21 interview with

appellant. He stated that, at the time of this interview, appellant had been formally

charged with aggravated robbery, and he related how he read appellant his

Miranda warnings, how appellant stated that he understood each right, and how

appellant behaved during the interview. Officer Curtis and the State then had the

following exchange:

          [The State]:        After reading the Defendant’s rights, did he agree
                              to give you a statement?
          [Officer Curtis]:   Yes, ma’am.
          [The State]:        During the course of that statement, did the
                              Defendant ever ask you to stop?
          [Officer Curtis]:   Only at the end.
          [The State]:        Did he ask for an attorney?
          [Officer Curtis]:   At the end, yes, ma’am, he did.

Defense counsel objected to this testimony, arguing that the testimony

impermissibly commented on appellant’s post-arrest, post-Miranda right to

silence.     The trial court overruled this objection.      The trial court admitted a




                                            21
recording of the June 21 statement into evidence, and appellant’s invocation of his

right to remain silent and his right to counsel was redacted from that exhibit.

       Even if the trial court erred in admitting Officer Curtis’s testimony

concerning appellant’s invocation of his right to remain silent and his right to

counsel, we hold that the error is harmless. Because this error affects appellant’s

constitutional rights, we analyze harm in this case under Texas Rule of Appellate

Procedure 44.2(a). See Friend, 2015 WL 5026078, at *9; see also Cooper v. State,

961 S.W.2d 222, 227 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (analyzing

harm in such cases under predecessor rule to 44.2(a)). Rule 44.2(a) requires

reversal in cases involving constitutional error “unless the court determines beyond

a reasonable doubt that the error did not contribute to the conviction or

punishment.” TEX. R. APP. P. 44.2(a); see Snowden v. State, 353 S.W.3d 815, 819–

20 (Tex. Crim. App. 2011) (“[T]he constitutional harmless-error standard should

ultimately serve to vindicate the integrity of the fact-finding process rather than

simply looking to the justifiability of the fact-finder’s result . . . .”).

       In this analysis, we focus upon the error itself in the context of the trial as a

whole “in order to determine the likelihood that [the error] genuinely corrupted the

fact-finding process.” Friend, 2015 WL 5026078, at *9 (quoting Snowden, 353

S.W.3d at 819). Instead of focusing on whether the evidence supported the jury

verdict, we focus on whether “the error adversely affected the integrity of the



                                             22
process leading to the conviction.” Id. (quoting Langham v. State, 305 S.W.3d

568, 582 (Tex. Crim. App. 2010)). We focus on whether the error “might possibly

have prejudiced the jurors’ decision-making,” not “on the weight of the other

evidence of guilt.”   Id.   Although error is not harmless “simply because the

reviewing court is confident that the result the jury reached was objectively

correct,” the presence of “overwhelming evidence of guilt is a factor to be

considered.” Id. (quoting Snowden, 353 S.W.3d at 819, and Motilla v. State, 78

S.W.3d 352, 357 (Tex. Crim. App. 2002)). Other non-exclusive factors that we

may consider include the nature of the error, whether the error was emphasized by

the State, the probable implications of the error, and the weight the jury would

likely have assigned to the error in the course of its deliberations. Id. (citing

Snowden, 353 S.W.3d at 822); see also Kalisz v. State, 32 S.W.3d 718, 723 (Tex.

App.—Houston [14th Dist.] 2000, pet. ref’d) (considering, in case involving

admission of videotape that included defendant’s invocation of right to counsel,

factors articulated in Snowden as well as source of error, probable collateral

implications of error, and whether “declaring the error harmless would encourage

the State to repeat it with impunity”). We must “first isolate the error and all its

effects and then ask whether a rational trier of fact might have reached a different

result if the error had not occurred and its effects had not resulted.” Kalisz, 32

S.W.3d at 724.



                                        23
      Here, the source of the error is the State’s questioning of Officer Curtis

about the June 21 interview he conducted with appellant, during which Curtis

testified that appellant asked to terminate the interview and invoked his right to

counsel. The error thus implicates appellant’s constitutional rights to remain silent

and right to counsel. See id. (“[T]he nature of the error is one of constitutional

proportion in that it creates an inescapable conclusion that appellant has invoked

his right to counsel and to terminate the interview.”). The State did not emphasize

this error.   It did not ask any further questions of Officer Curtis concerning

appellant’s invocation of his rights; the audio recording of the June 21 interview

was redacted to remove appellant’s statements concerning his desire to end the

interview and speak with an attorney; and, although the State discussed the

contents of appellant’s three interviews during closing argument, the State did not

mention appellant’s invocation of his rights.

      Appellant argues that the “probable collateral implication” of the error “is

that the jury may have adversely or improperly considered evidence of an accused

invoking a constitutional right or privilege as an inference of guilt.” See id.

However, as the State points out, appellant admitted his involvement in the offense

and implicated himself as the shooter in the same interview in which he also later

invoked his right to remain silent and right to counsel.       Moreover, the State

presented strong evidence of appellant’s guilt of the charged offense, including



                                         24
appellant’s confession in the June 21 interview, the surveillance video in the

Tobacco Mart that captured the robbery, and appellant’s June 9 and June 13

interviews, during which he offered several details about the robbery that had not

been released to the public. By contrast, appellant does not identify any conflicting

evidence concerning his guilt. Thus, in light of the strong evidence of appellant’s

guilt, including his admissions that he was involved in the offense, the jury likely

did not place great weight on Officer Curtis’s testimony that, after confessing to

the offense, appellant asked to end the interview and requested counsel.            Cf.

Friend, 2015 WL 5026078, at *12 (stating, in DWI case, that “[i]t is not easy to

determine what weight a juror would place on an error such as the one in this case”

because “[t]he contested issue at trial was whether Appellant was intoxicated”);

Kalisz, 32 S.W.3d at 724 (“Because the evidence of [the defendant’s guilt] was

conflicting, it is difficult to gauge how much weight a juror would probably place

on the error even in light of the trial court’s instruction [that a portion of the video

would be muted.]”).

      We therefore conclude beyond a reasonable doubt that, to the extent the

State offered Officer Curtis’s testimony about appellant’s invocation of his rights

as substantive evidence of guilt and the trial court erroneously overruled

appellant’s objection to this evidence, any error did not contribute to appellant’s

conviction. See TEX. R. APP. P. 44.2(a).



                                           25
      We overrule appellant’s fourth issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Publish. TEX. R. APP. P. 47.2(b).




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