                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-18-00406-CR
                           _______________________

                      THE STATE OF TEXAS, Appellant

                                        V.

                   GERARD DANTE SIMMONS, Appellee



                    On Appeal from the 75th District Court
                           Liberty County, Texas
                         Trial Cause No. CR32855


                          MEMORANDUM OPINION

      Gerard Dante Simmons (Simmons, Defendant, or Appellee) was indicted for

the murder of Latasha Evette Rucker a/k/a Latasha Green. The State alleged that on

or about the 15th day of August 2016, Simmons

      intentionally or knowingly cause[d] the death of . . . Latasha . . . by
      applying pressure to [her] neck and/or throat area . . . with an object
      unknown [] restricting the airway and/or blood flow of Latasha [] until
      she was dead; and/or by applying pressure to the neck and/or throat area
      of Latasha [] with the defendant’s hands, restricting the airway and/or
      blood flow of Latasha [] until she was dead[.]

                                         1
Simmons moved to suppress evidence and argued that the State violated his rights

under “Texas Statute[s]” and the “United States and Texas Constitutions” by

obtaining his statements after placing him in custody without a knowing and

intelligent waiver of his rights and ignoring his desire to terminate the interrogation.

Simmons moved to suppress the statements he made during two interrogations and

any evidence discovered from the statements. Simmons filed a brief in support of

his motion to suppress. After holding a hearing, the trial court granted the motion to

suppress. The State filed an appeal. We affirm in part and reverse in part.

                                Suppression Hearing

      The trial court held an oral hearing on the motion to suppress and heard

testimony from the State’s witnesses Kevin Cooke, John Shaver, and Darrel

Broussard. During the hearing the trial court admitted three DVDs into evidence

without objection. The first DVD, State’s Exhibit 1, contains video recordings from

an officer’s body camera and video cameras in the jail and generally depicts

Simmons when he was first taken into custody, as well as Simmons’s booking and

initial contact with officers at the jail. The second DVD, State’s Exhibit 2, includes

recordings of what the parties describe as the “initial interrogation” or the “first

interrogation” of Simmons. In the initial interrogation, Simmons is questioned by

two Cleveland Police officers. The second DVD also contains video of the exchange

                                           2
between the Cleveland Chief of Police and Simmons that took place in the hallway

or corridor at the jail, after Simmons left the interview room from the initial

interrogation and as Simmons was being escorted back to his cell. The third DVD,

State’s Exhibit 3, includes video of what the parties and the trial court refer to as the

“second interrogation” of Simmons. The second interrogation was conducted by the

Cleveland Chief of Police and a Liberty County Sheriff’s Deputy who was not part

of the initial interrogation. The parties stipulated that the initial interrogation lasted

two hours and was on August 15, 2016, from approximately 6:15 p.m. to 8:15 p.m.

The parties also agreed that the second interrogation was on August 16, 2016, and it

began around 1:00 a.m.

      The testimony from the State’s witnesses at the suppression hearing

established that Darrel Broussard, the City of Cleveland Chief of Police (Chief

Broussard), received a telephone call from Simmons’s mother (the Mother). The

Mother told Chief Broussard that her son Gerard told her that he killed Latasha.

Cleveland police officers responded to the Mother’s call, spoke with the Mother,

found Simmons outside, restrained him, arrested him for public intoxication,

transported him to the jail, and placed him in a jail cell.

      Officer Cooke testified that he was involved in the initial interrogation of

Simmons in August 2016 conducted as part of the Latasha Green missing person

                                            3
case. He testified he knew from previous cases that Simmons was Latasha’s

boyfriend, and he had obtained information that Simmons told his Mother that he

had killed Latasha. Cooke testified that the interrogations were recorded and were

not edited or altered. Cooke agreed that Simmons was in custody and not free to

leave at that time. Cooke identified State’s Exhibit 2. Cooke also identified the

voices on the recordings in State’s Exhibit 2 as the voices of Officer Cooke,

Detective Shaver, Sergeant Edwards, Chief Broussard, and Simmons. Detective

Shaver and Officer Cooke conducted the initial interrogation recorded on Exhibit 2.

According to Cooke, Detective Shaver read Simmons what is commonly called a

“Miranda warning,” and Cooke agreed that they informed Simmons that he had the

“right to terminate the interview at any time[.]” Cooke testified that Simmons did

not “explicitly ask for an attorney[,]” and he did not ask for clarification of his rights.

During the initial interrogation, Simmons mentioned a different case that Detective

Shaver had investigated that involved a member of Simmons’s family. Cooke

testified he was not involved in that investigation. According to Cooke, he had also

previously spoken with Simmons on the telephone about an earlier altercation

between Simmons and Latasha, and at that time Simmons said he was “trying to get

his life together[,]” he planned to play arena football, and he was working in

Houston. At that time Cooke said Simmons seemed “normal.” Cooke testified that

                                            4
when he interviewed Simmons on August 15th, Simmons seemed “abnormal” in that

he had “heavy breathing, flexing of the muscles, [] from one extreme emotion to the

next[, and] back and forth reciting numbers with no idea what the numbers were

for.” Cooke agreed that Simmons appeared to have moments of clarity and moments

of confusion. Cooke also agreed that the video shows that during the interrogation

Simmons says “Leave me alone. Please leave me alone.” Cooke testified that he

believed this statement by Simmons meant Simmons wanted Cooke to quit bothering

him. When asked why they did not leave Simmons alone, Cooke answered

      [i]n the context of this interview I didn’t leave him alone because we
      were trying to find a missing person.

      We were trying to find Latasha Green. We were told that he killed her.
      So, we were trying to find her body to return it to her family.

      According to Cooke, he told Simmons to sit down at one point and Simmons

said, “I don’t want to talk about nothing, man.” Cooke explained that during the

interview the officers opened the interview door and said, “Come on. Get your stuff

and let’s go,” and Simmons continued to sit there. According to Cooke, at another

point Simmons said “I don’t want to help y’all do nothing. You ain’t trying to help

me do nothing[.]” Cooke testified that he believed Simmons meant, “You help me I

help you.” Cooke agreed that Simmons said, “I don’t want to talk about nothing else

no more[,]” and Simmons said “I’m guilty. I’m black[.]” Cooke testified that after

                                        5
he and Shaver finished interviewing Simmons, and after exiting the interview room

to walk Simmons back to his cell, Chief Broussard spoke to Simmons in a corridor

of the jail. According to Cooke, during the exchange in the corridor, Simmons told

Chief Broussard “Wells Cemetery Road to the left[]” and that Simmons said, he

“didn’t care if his life was over with.” The trial court asked Cooke how much time

had passed from the time they left the interview room and the time when Simmons

made the “Wells Cemetery Road” statement. Cooke answered, “[a]pproximately one

minute.”

      Cooke testified that during the initial interrogation Simmons never requested

an attorney, and he never unequivocally requested to terminate the interview, nor

did he invoke his right to remain silent. Cooke recalled that, even after Simmons

made statements about not wanting to talk, Simmons would then continue to talk

and sometimes just say “[n]ext question[,]” or “Speak, Willie Lynch[.]” According

to Cooke, “[Simmons] just didn’t show any indication that he wanted to get up and

leave the interview.”

      On cross-examination Cooke testified that when Simmons said, “I don’t even

want to talk to you at all, period, about nothing about nothing[,]” it was ambiguous.

Cross-examination continued about further statements made by Simmons:

      Q. Just before 20:17, is that your voice we’re hearing?

                                         6
A. I believe so.

Q. And you say, “If you knew where she was, would you tell us so we
could find her,” and there’s a pause and dead air silence.
      You say, “Her family is awful worried about her,” and there is a
pause, dead air. Then he says, “I don’t want to talk no more. This is
manipulative.” Did you hear that?

A. I did.

Q. Is that ambiguous, “I don’t want to talk no more,” when you’re
asking him a direct question about where she is?

A. Yes.

Q. That’s ambiguous to you?

A. Yes.

....

Q. And either you or another officer in the room says, “We’re not trying
to manipulate you at all, brother,” and he again says, “I don’t want to
talk,” correct?

A. Yes.

Q. Is that ambiguous?

A. Yes.

....

Q. So, at 22:18 he says, “I don’t want to talk. That’s my woman. Leave
me alone. Please leave me alone.” Is that what happens?

A. Yes.

                                   7
      Q. Is that ambiguous?

      A. Yes.

Detective Cooke agreed that Simmons was arrested for public intoxication, that he

was intoxicated, and that at the time Cooke believed Simmons “wasn’t right

mentally[.]”

      Detective Shaver testified that he participated in the initial interrogation of

Simmons on August 15, 2016, and that he had spoken to Simmons on at least ten

prior occasions dating back from when Shaver first joined the Cleveland Police

Department. Shaver testified that Simmons acted differently in the August 15th

interview as compared to their previous encounters in that Simmons was “agitated[,]

. . . mumbling on[,] . . . was speaking blurting out numbers[, and] [h]e slammed his

head against the table.” On one of the prior occasions he had spoken to Simmons to

investigate someone else for the assault of a member of Simmons’s family. But no

arrest was made in that case. According to Detective Shaver, about seven minutes

into the initial interrogation Simmons said, “I don’t want to talk to you at all about

nothing for nothing, period[,]” he believed Simmons meant that he did not want to

talk to “[Shaver] personally[]” because Simmons also said Shaver did not care about

the assault of the family member, and Shaver believed it was not that Simmons did

not want to talk about Latasha Green. Shaver agreed that at another point Simmons

                                          8
said “6 all I got to say[,]” but that Shaver thought this was “[g]ibberish[]” and did

not know what Simmons meant by the statement. Shaver did not understand this

statement to mean Simmons was invoking his right to remain silent, or to an attorney,

or to terminate the interview. When asked at the hearing, “Did you take any

statement that Mr. Simmons made during the course of this interview considering

the entirety of the interview to invoke clearly, unequivocally, unambiguously any of

those rights[,]” Shaver responded, “Absolutely not. . . . He never said that he wanted

an attorney, never told me that he didn’t want to talk about what we were there for.”

Shaver agreed that he based this opinion on his understanding of the “totality” of the

flow of the interview, the context of the interview, and Simmons’s actions. When

Shaver heard Simmons say, “Don’t even talk to me,” Shaver thought Simmons made

that statement because he was angry with Shaver.

      On cross-examination Shaver was questioned about different statements by

Simmons:

      Q. So, not only did you hear him say, “I don’t even want to talk to you
      at all, period, about nothing about nothing,” you heard that?

      A. I did.

      Q. So, he didn’t limit that to the investigation of the assault of his
      [family member], did he?

      A. I’m not sure exactly what he meant.

                                          9
     Q. Listen to my question: Did he limit his desire not to talk to you just
     to the investigation of the assault of his [family member]?

     A. It sounded like he said he didn’t want to talk about nothing about
     nothing.

     Q. So, that’s not limited to just his [family member]?

     A. I would agree.

     Q. He said he didn’t want to talk about nothing?

     A. Right.

     Q. About nothing?

     A. Right.

     Q. Would you agree with me that “I don’t want to talk about nothing”
     includes the reason he’s being interrogated about Latasha Green?

     A. It could encompass anything.

     Q. As a matter of fact, nothing encompasses everything, doesn’t it?

     A. Exactly.

     The Defense Attorney also used specific segments of the video from the initial

interrogation in his cross-examination of Detective Shaver, with each segment

referencing statements made by Simmons.

     ....

     Q. 45:40, “I don’t want to talk about nothing else no more.” 49:36,
     “Stop playing with me. Stop playing my head.” 59:33, “I don’t want to
     talk about that on recorded and on camera.”
                                       10
             This is an hour and 53 into it, hour and 5324, “I don’t want to
      talk to you, man. Leave me alone.”

      A. I’m not sure exactly where in the interview, but I did get up and
      leave.

      Q. Okay. But all of those are reflected on those recordings, correct?

      A. I agree, yes, sir.

      Q. Did you terminate the interview when he said any of those
      declarations that he didn’t want to talk?

      A. Absolutely. We tried.

      Q. You tried to immediately stop that interview?

      A. Absolutely.

      Q. You got up and walked out and said, “We’re not going to talk
      anymore”?

      A. I got up, opened the door, told him to get his stuff. Let’s go. He
      didn’t want to. He continued the conversation.

      Q. After each one of those statements, you opened the door and tried to
      take him back to the cell?

      A. Not after each one statement.

      Cleveland Police Chief Broussard testified that he talked to Simmons in the

hallway on August 15, 2016 about a missing person, Latasha Green. Chief Broussard

testified that he did not make any threats to Simmons, did not exhibit any firearms,

and did not exhibit any coercion. The State played a segment of the video that depicts

                                         11
the Chief speaking to Simmons in the hallway, and the Chief agreed at the hearing

that on the video Simmons can be heard saying “Wells Cemetery Road.” According

to Chief Broussard, the officers from the Cleveland Police Department went to Wells

Cemetery Road where they recovered the body of Latasha Green. Chief Broussard

testified that after law enforcement recovered the body, he accompanied Sergeant

Lasko from the Liberty Sheriff’s Office and they conducted another interview of

Simmons. Chief Broussard testified that he read Simmons his rights as recorded on

State’s Exhibit 3 and the Chief did not receive any indication that Simmons did not

understand his rights or that he wanted to invoke any of his rights. In Chief

Broussard’s opinion, Simmons never invoked his right to remain silent, his right to

terminate the interview, or his right to an attorney.

      On cross-examination, Chief Broussard testified as follows:

      Q. At the time that you had talked to him -- well, let me back up. You
      knew why he was in your facility up in Cleveland, correct?

      A. My understanding he was there because he was intoxicated and was
      acting a bit out of the norm in his grandma’s backyard.

      Q. So, he was arrested officially for public intoxication, right?

      A. Officially, yes.

      Q. But you also knew that he was a suspect in the disappearance and
      death of Latasha Green, correct?


                                          12
A. I know we were looking for Latasha. Her mom had reported her
missing, and her family had been in communication with me about
trying to help locate her.

Q. You were in possession of some information indicating that she was
dead and he was responsible?

A. After receiving a call from Ms. Mary Simmons, I did have some
information.

Q. And that’s before you went out and arrested Mr. Simmons?

A. We went to go talk to -- Ms. Simmons requested that we come to her
home.

Q. Were you in possession of that information before you went and
arrested him for public intoxication?

A. Yes, we were.

Q. So, you knew why he was in jail and why he was being questioned?

A. At the time he was arrested for the public intoxication, and later it
led to us interviewing about four or five hours later after we felt that he
was maybe more suited to talk to and not under an intoxicated state.

Q. More suited. You would agree with me then he was definitely under
the influence of something?

A. I would say he was.

Q. And at one point in this second interview there is even discussion
about the fact that he’s on PCP or wet, correct?

A. That is correct.

Q. And that’s the second one that’s taking place at 1:00 in the morning?

                                    13
      A. Yes.

      Q. So, if we’re talking about him being strung out at 1:00 in the morning
      he was definitely under the influence on that first interview, correct?

      A. There could have been some indications. He would at times act
      properly, and then there were times he would act unreasonable.

      According to Chief Broussard, during the four-hour period between the first

and second interrogation the Cleveland police were out looking for Latasha Green,

and they were still investigating what happened. Chief Broussard agreed that he

watched the initial interview either from the other side of the glass or on a video

monitor as Simmons was being interviewed, but he testified that he may not have

watched the entire interview. Chief Broussard testified that generally the word

“attorney” is a key word when someone wishes to invoke their right to an attorney

or their Fifth Amendment right. He agreed that the statement “I don’t want to talk to

you about nothing[]” may signal “a time to stop.” Chief Broussard agreed he may

have heard Simmons say in the initial interrogation that he did not want to talk but

then Simmons was given the opportunity to return to his cell and he instead

continued to talk.

      During the second interrogation, Sergeant Lasko asked Simmons, “where is

Latasha at[,]” and Simmons answered, “She’s in the woods . . . Wells Cemetery.”

Lasko then asked, “Who put her there?” Simmons answered, “I did.” The Chief also

                                         14
asked Simmons “what happened yesterday, tell me what happened,” and Simmons

answered, “I killed Latasha Green.” Simmons explained that he “strangled her” with

his “bare hands.” When Sergeant Lasko asked Simmons if he meant to do what he

did, Simmons answered, “No . . . I didn’t, . . . I’m tripping . . . I’m crazy.”

      Simmons told Lasko and Broussard that he put Latasha’s body in the trunk of

her car and drove the car to Wells Cemetery Road, and he had a black and red shovel

in the trunk that he planned to use to bury Latasha, but the shovel broke at some

point. Lasko asked Simmons why he put Latasha on Wells Cemetery Road, and

Simmons answered, “I thought it would be a good place to hide a dead body.”

Simmons told them he left Latasha’s body in the woods on Wells Cemetery Road

and drove away and then wrecked her car in the “ditch line.” Simmons said that after

he wrecked her car a stranger stopped and gave him a ride to the road near his friend

Crystal’s house, and he then stayed the rest of the day with Crystal and “did cocaine

all day.” According to Simmons, later he went to his grandmother’s house to take a

bath. Simmons also told Lasko that he had just recently gotten out of prison, and that

Latasha gave him the cocaine. At some point in the second interrogation, Simmons

also told Lasko and Broussard that he broke Latasha’s cell phone and put it into a

dumpster behind a motel.



                                         15
      The Defense did not present any witnesses or evidence during the hearing. At

the end of the hearing, the trial court asked the parties to brief the issues and the

applicability of article 38.22, section 3(c), and the right to terminate an interrogation,

as well as to review several cases. 1 The trial court reconvened the hearing at a later

date and announced its ruling granting the motion to suppress. The trial court signed

a written Order Sustaining Defendant’s Motion to Suppress Statements and Findings

of Fact in Support Thereof.

      In its written order, the trial court found:


      1
          The trial court asked the parties to brief the application of article 38.22,
section 3(c) of the Texas Code of Criminal Procedure, Miranda v. Arizona, 384 U.S.
436 (1966); Michigan v. Mosley, 423 U.S. 96 (1975); Watson v. State, 762 S.W.2d
591 (Tex. Crim. App. 1988); Marshall v. State, 210 S.W.3d 618 (Tex. Crim. App.
2006); Woods v. State, 152 S.W.3d 105 (Tex. Crim. App. 2004); and Perillo v. State,
758 S.W.2d 567 (Tex. Crim. App. 1988). The original clerk’s record reflects that
Simmons filed a Brief in Support of Defendant’s Motion to Suppress Evidence on
October 15, 2018. After the appeal was filed and after the original clerk’s record was
filed in the appeal, the Liberty County District Attorney filed a letter with the Liberty
County District Clerk requesting a supplemental clerk’s record, and it was then
prepared and filed in the appeal as a supplemental record. In the letter that appears
in the supplemental record, the District Attorney states that he “hand delivered”
certain documents to the trial court on October 15, 2018. The documents referenced
in the letter include a copy of the “State’s Brief in Support of Admissibility of
Statements[,]” and “State’s Proposed Findings of Fact for Purpose of Jackson v.
Denno and Article 38.22 Texas Code of Criminal Procedure[.]” Simmons argues on
appeal that “[t]he State did not file a brief, but later sought to supplement the Clerk’s
Record on December 18, 2018” with documents allegedly delivered to the trial court
on October 15, 2018.


                                           16
1. The Defendant was under arrest at the time of the interrogations.

2. The Defendant was in custody during the interrogations.

3. Officers of the Cleveland P.D. read the Defendant the warnings
   required by Article 38.22 Tex. Code Crim. Pro[c]. prior to the initial
   interrogation.

4. Officers of the Cleveland P.D. conducted each interrogation of the
   Defendant.

5. The Defendant was under the influence of intoxicants at the time of
   the interrogations.

6. The Defendant repeatedly invoked his right to terminate the initial
   interrogation and to remain silent in the following statements:

   a. I don’t even want to talk to you at all, period. About nothing.
      About nothing. [S-2 8:38]
   b. Six is all I got to say. Six is all I got to say. [S-2 8:56]
   c. Don’t talk to me. [S-2 9:15]
   d. That’s all I have to say. [S-2 9:42]
   e. I don’t want to talk no more. [S-2 20:17]
   f. I don’t want to talk. [S-2 20:36]
   g. I don’t want to talk. [S-2 22:15]
   h. Leave me alone. Please leave me alone. [S-2 22:22]
   i. I don’t want to talk about nothing man. [S-2 31:10]
   j. I don’t want to talk about nothing else dealing with this shit, man.
      [S-2 35:55]
   k. I don’t want to help y’all do nothing. [S-2 37:22]
   l. I don’t want to talk about nothin’ else no more. [S-2 45:40]
   m. Stop playing with me; stop playing with my head. [S-2 49:36]
   n. I don’t want to talk about that on recorded and on camera. I don’t
      want to talk about this [S-2 59:33]
   o. I don’t want to talk to you man. [S-2 1:53:24]



                                   17
7. The Defendant’s statements and invocations enumerated above
   were not ambiguous and constituted a clear expression by the
   Defendant that all questioning should terminate.

8. The interrogating officers did not immediately discontinue
   questioning of the Defendant once he invoked his right to terminate
   the interrogation.

9. The interrogating officers did not scrupulously honor the
   Defendant’s invocation of his rights to terminate the interrogation
   and remain silent.

10. During the course of the initial interrogation and after the
    Defendant invoke[d] his right to terminate the interrogation as set
    forth in 6 above, the Defendant – in response to continued
    questioning – disclosed the location of the body of Latasha Green,
    (“the Decedent”).

11. Utilizing the information provided to it as set forth in 10. above,
    law enforcement found and took possession of the body of the
    Decedent and a shovel found near the body.

12. After two (2) hours of questioning and after the Defendant made
    the disclosure set forth in 10. above, the officers placed the
    Defendant back in his cell.

13. At approximately 1:00 a.m. on August 16, 2016, officers woke the
    Defendant and removed him from his cell.

14. Officers of the Cleveland P.D. again read the Defendant his Art.
    38.22 warnings.

15. The officers continued to interrogate the Defendant about the body
    of the Decedent that was found as a result of the initial
    interrogation.



                                  18
      16. The State failed to show sufficient attenuation between the initial
          interrogation of the Defendant and the continuation thereof after
          locating the body of the Decedent.

      17. The second interrogation constitutes a continuation of the initial
          interrogation and is likewise tainted due to the findings set forth in
          6-9 set forth above.

      18. The body of the Decedent and the shovel constitute evidence
          obtained by law enforcement in violation of the Constitution and
          laws of the State of Texas.

            The Court finds that the Defendant’s statements were not made
      under voluntarily [sic] conditions due to law enforcement’s failure to
      scrupulously honor the Defendant’s unambiguous request to
      discontinue the interrogation.

            The Court further finds that all evidence obtained by law
      enforcement and having a direct nexus to the disclosure made by the
      Defendant during the course of the interrogations, together with any
      analysis thereof and opinions associated therewith, is inadmissible
      during the trial of this case pursuant to Article 38.23 of the Code of
      Criminal Procedure.

                                  Issue on Appeal

      The State argues on appeal that the trial court erred in granting the motion to

suppress. According to the State, the trial court erred in finding that the Appellee’s

statements were not made under voluntary conditions “due to law enforcement’s

failure to scrupulously honor Appellee’s unambiguous requests to discontinue the

interrogation[]” because Appellee’s requests were ambiguous. The State also

contends that the statement Simmons made to Chief Broussard in the corridor about

                                         19
the location of the body is admissible under article 38.22, section 3(c) of the Texas

Code of Criminal Procedure. The State also argues that the trial court erred in

concluding “all evidence obtained by law enforcement and having a direct nexus to

the disclosure made by Appellee during the course of the interrogations, together

with any analysis thereof and opinions associated therewith, is inadmissible during

the trial of Appellee’s case.” The State emphasizes that the officers complied with

Miranda and article 38.22, and that “[n]oncompliance with art. 38.22’s statutory

component does not require exclusion of Appellee’s subsequent oral statement.”

                                 Standard of Review

      We review a trial court’s ruling on a motion to suppress under a bifurcated

standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).

We afford almost total deference to a trial judge’s determination of historical facts,

especially when those determinations are based on assessments of credibility and

demeanor. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). A

reviewing court will also give deference to the trial court’s rulings that apply the law

to the facts if those determinations turn on credibility or demeanor. Id. A reviewing

court reviews de novo mixed questions of law and fact that do not turn on credibility

and demeanor. Id. At a suppression hearing, the trial judge is the sole trier of fact



                                          20
and exclusive judge of the credibility of the witnesses and the weight to be given

their testimony. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007).

      The same deferential standard of review applies to a trial court’s

determination of historical facts, demeanor, and credibility even when that

determination is based on a video recording. State v. Duran, 396 S.W.3d 563, 570

(Tex. Crim. App. 2013). The Texas Court of Criminal Appeals has expressly rejected

the proposition that a video changes the “almost total deference standard.” Montanez

v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006). Still, we must determine

whether the evidence, when viewed in the light most favorable to the trial court’s

ruling, supports the trial court’s fact findings. State v. Kelly, 204 S.W.3d 808, 818-

19 (Tex. Crim. App. 2006). We may reject a trial court fact finding if it is contrary

to “indisputable visual evidence[.]” Carmouche v. State, 10 S.W.3d 323, 332 (Tex.

Crim. App. 2000); State v. Houghton, 384 S.W.3d 441, 446 (Tex. App.—Fort Worth

2012, no pet.) (the reviewing court is to give almost total deference to the trier of

fact’s factual determinations unless the video recording indisputably contradicts

those findings).

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case, even if the trial court gave the

wrong reasons for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App.

                                          21
2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). When the

trial court makes explicit fact findings, we determine whether the evidence, when

viewed in the light most favorable to the trial court’s ruling, supports those findings.

Kelly, 204 S.W.3d at 818; see also State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim.

App. 2006) (recognizing findings and conclusions may be “stated on the record at

the hearing[]”). We then exercise de novo review of the trial court’s legal rulings

unless the trial court’s explicit fact findings that are supported by the record are also

dispositive of the legal ruling. Kelly, 204 S.W.3d at 818.

          The Fifth Amendment, Miranda, and Texas Statutory Warnings

      The Fifth Amendment to the United States Constitution provides that “[n]o

person . . . shall be compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V. This guarantee was made applicable to the states by the Due

Process Clause of the Fourteenth Amendment. Ramos v. State, 245 S.W.3d 410, 418

(Tex. Crim. App. 2008) (citing Malloy v. Hogan, 378 U.S. 1, 8 (1964)). Consistent

with this Fifth Amendment guarantee, law enforcement officials, before questioning

a person in custody, must inform a suspect that he has the right to remain silent and

that any statement he makes may be used against him. Dickerson v. United States,

530 U.S. 428, 435 (2000); Miranda v. Arizona, 384 U.S. 436, 444 (1966). “If the

individual indicates in any manner, at any time prior to or during questioning, that

                                           22
he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-

74. “But, an officer need not stop his questioning unless the suspect’s invocation of

rights is unambiguous, and the officer is not required to clarify ambiguous remarks.”

Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). If a person who is

in custody invokes his Fifth Amendment right to remain silent, then the admissibility

in court of statements obtained thereafter depends on whether the person’s right was

“scrupulously honored.” Ramos, 245 S.W.3d at 418 (citing Michigan v. Mosley, 423

U.S. 96, 104 (1975)). The Court of Criminal Appeals has explained that the Supreme

Court found in Mosley that several factors are important to this analysis including

(1) whether the suspect was informed of his right to remain silent prior to the initial

questioning; (2) whether the suspect was informed of his right to remain silent prior

to the subsequent questioning; (3) the length of time between initial questioning and

subsequent questioning; (4) whether the subsequent questioning focused on a

different crime; and (5) whether police honored the suspect’s initial invocation of

the right to remain silent. Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App.

1999) (citing Mosley, 423 U.S. at 103-05). There is no “per se proscription of

indefinite duration upon any further questioning[.]” Mosley, 423 U.S. at 102-03.

Each case must be evaluated based on its facts, after examination of the Mosley

factors, and “we also consider other facts and circumstances” such as do the facts

                                          23
show there was coercion, threats, or promises to the suspect, was the suspect given

basic necessities, and was additional information obtained from the ongoing

investigations that tended to show the suspect was present at the scene of the crime.

Maestas, 987 S.W.2d at 64. “Mosley created an ad hoc test in which ‘courts must

evaluate the facts of each case to determine if the resumption of police interrogation

was consistent with scrupulous observance of the right to cut off questioning.’” Id.

at 62 (citations omitted, emphasis added).

      Miranda warnings must include a statement informing the individual of the

right to remain silent, that any statement made by the defendant may be used as

evidence against him, that he has the right to have an attorney present during

questioning, and he has the right to have an attorney appointed if he cannot afford

one. Miranda, 384 U.S. at 444. The warnings required by article 38.22 of the Texas

Code of Criminal Procedure incorporate Miranda, as well as an additional warning

stating that the suspect “has the right to terminate the interview at any time[.]” Tex.

Code Crim. Proc. Ann. art. 38.22, § 2(a). Article 38.22 outlines when the defendant’s

statements may be used at trial. Section 2(a) of article 38.22 bars admission of a

defendant’s written statement unless the statement on its face shows the defendant

has been warned of the following:

      (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;
                                         24
      (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
      (5) he has the right to terminate the interview at any time[.]

Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a).

      Article 38.22, section 3 governs oral statements, and provides:

      (a) No oral or sign language statement of an accused made as a result
      of custodial interrogation shall be admissible against the accused in a
      criminal proceeding unless:
            (1) an electronic recording, which may include motion picture,
      video tape, or other visual recording, is made of the statement;
            (2) prior to the statement but during the recording the accused is
      given the warning in Subsection (a) of Section 2 above and the accused
      knowingly, intelligently, and voluntarily waives any rights set out in
      the warning;
            (3) the recording device was capable of making an accurate
      recording, the operator was competent, and the recording is accurate
      and has not been altered;
            (4) all voices on the recording are identified; and
            (5) not later than the 20th day before the date of the proceeding,
      the attorney representing the defendant is provided with a true,
      complete, and accurate copy of all recordings of the defendant made
      under this article.

      ....

      (c) Subsection (a) of this section shall not apply to any statement which
      contains assertions of facts or circumstances that are found to be true
      and which conduce to establish the guilt of the accused, such as the
      finding of secreted or stolen property or the instrument with which he
      states the offense was committed.

                                         25
       ....

       (e) The courts of this state shall strictly construe Subsection (a) of this
       section and may not interpret Subsection (a) as making admissible a
       statement unless all requirements of the subsection have been satisfied
       by the state, except that:
             (1) only voices that are material are identified; and
             (2) the accused was given the warning in Subsection (a) of
       Section 2 above or its fully effective equivalent.

Id. § 3.

       Subsection 3(c) provides an exception that allows certain types of oral

statements to be admissible despite the failure to comply with the requirements of

subsection 3(a). See Watson v. State, 762 S.W.2d 591, 593-94 n.3 (Tex. Crim. App.

1998); Moore v. State, 999 S.W.2d 385, 400-01 (Tex. Crim. App. 1999); Port v.

State, 791 S.W.2d 103, 105-06 (Tex. Crim. App. 1990); Perillo v. State, 758 S.W.2d

567, 575 (Tex. Crim. App. 1988).

                                        Analysis

       We construe the State’s arguments on appeal as a challenge to the trial court’s

decision to suppress the statements from the initial and the second interrogation, to

the trial court’s conclusion that the physical evidence is “tainted,” to the trial court’s

conclusion that the statements in the second interrogation are “tainted” by the refusal

to terminate the initial interrogation, and to the trial court’s conclusion that there was

insufficient attenuation between the two interviews. The State also argues the trial

                                           26
court erred in concluding that the statements were not made under “voluntary

conditions due to law enforcement’s failure to scrupulously honor the Appellee’s

unambiguous request to discontinue the interrogation[.]”

      Simmons argued in the trial court and argues now on appeal that his

statements on August 15th must be suppressed because the State failed to terminate

the interview when he unambiguously invoked his right to terminate the interview

and to remain silent. Simmons also asserts that when he said “6 all I got to say” he

invoked his Sixth Amendment right to counsel, and “[l]aw enforcement’s

unrelenting questioning in the face of Appellee’s reduced state due to intoxication

on drugs and the duration of the interrogation amounted to coercion [and] any

evidence obtained as a result of the Constitutional violation is fruit of the poisonous

tree.” Simmons also contends that because the statements made in the second

interrogation on August 16th were obtained as part of the same continuation of the

initial interview, the entire second interview must also be suppressed because it is

“tainted” by the failure of the police to adhere to the requests to terminate that

Simmons made in the initial interview. And Simmons argues that the State failed to

show attenuation between the initial interview on August 15th and the second

interview on August 16th. There is no contention from Simmons that the warnings

that were given by the police failed to comply with Miranda or article 38.22.

                                          27
      The interrogation conducted on August 15th and the interrogation on August

16th were both recorded by video and the recordings were marked and admitted into

evidence at the hearing. Simmons does not challenge the accuracy of the recordings.

Simmons agrees he received his Miranda and article 38.22 warnings before the

initial interrogation on August 15th, and that he received his warnings again at the

beginning of the second interrogation on August 16th. The record reflects that before

questioning Simmons on August 15th, Officer Cooke read the warnings to Simmons.

Cleveland Police Officers Cooke and Shaver conducted the questioning of Simmons

during the two-hour interrogation on August 15th, and Chief Broussard also asked

Simmons some questions in the hallway on August 15th when Simmons was

walking back to his jail cell.

      The second interrogation began around 1:00 a.m. on August 16th. Near the

beginning of the video recording of the second interrogation, Chief Broussard reads

Simmons his Miranda rights and article 38.22 warnings again, and Simmons orally

acknowledges that he understands his rights.

      The trial court found that Simmons repeatedly invoked his right to terminate

the initial interrogation by making the statements enumerated in the trial court’s

findings. The trial court found that Simmons’s requests to terminate the interrogation

were not ambiguous, that the officers did not immediately discontinue their

                                         28
questioning of Simmons after these comments, that Simmons in response to

continued questioning disclosed the location of Latasha’s body, and that Simmons’s

statements “were not made under voluntar[]y conditions due to law enforcement’s

failure to scrupulously honor the Defendant’s unambiguous request to discontinue

the interrogation.” 2

       An interrogating officer need not stop his questioning unless the suspect’s

invocation of rights is unambiguous. Ramos, 245 S.W.3d at 418; Dowthitt, 931

S.W.2d at 257. A police officer does not violate a suspect’s right to remain silent



       2
         Each of these findings references the initial interrogation. After reviewing
the record, we conclude that during the second interrogation Simmons never uses
any language that can be construed as an invocation of his rights. As to the initial
interrogation, Simmons argues on appeal that when he said “6 all I got to say” he
invoked his Sixth Amendment right to counsel during the initial interrogation. We
disagree because the context in which the statement was made shows no more than
an ambiguous reference to the number six. See Davis v. United States, 512 U.S. 452,
459 (1994) (to invoke the right to counsel a suspect “must unambiguously request
counsel[]” and an officer need not cease questioning if a suspect’s reference to an
attorney is ambiguous or equivocal in that a reasonable officer given the
circumstances would have understood only that the suspect might be invoking the
right to counsel); Dinkins v. State, 894 S.W.2d 330, 351-52 (Tex. Crim. App. 1995)
(noting that merely mentioning the word “attorney” or “lawyer” without more does
not automatically invoke the right to counsel, and while there are no “magical
words” required to invoke an accused’s right to counsel, a suspect must at least
express a definite desire to speak to someone and that the person be an attorney);
Mbugua v. State, 312 S.W.3d 657, 665 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d) (defendant’s question, “Can I wait until my lawyer gets here,” was not a clear
and unambiguous invocation to the right to counsel).

                                         29
when he attempts to clarify whether the suspect wishes to remain silent, and then the

suspect chooses to keep talking. Hopkins v. Cockrell, 325 F.3d 579, 583 (5th Cir.

2003); Barnes v. Johnson, 160 F.3d 218, 224-25 (5th Cir. 1998) (officer did not

violate defendant’s right to silence when he attempted to clarify whether defendant

wished to invoke right with “a few explanatory, noncoercive questions,” and

defendant chose to keep talking).

      When determining whether the right to remain silent was unambiguously

invoked, courts look to the totality of the circumstances. Watson, 762 S.W.2d at 597.

Ambiguity exists when the suspect’s statement is subject to more than one

reasonable interpretation under the circumstances. See Williams v. State, 257 S.W.3d

426, 433 (Tex. App.—Austin 2008, pet. ref’d) (citing Dowthitt, 931 S.W.2d at 257

(suspect’s statement, “I can’t say more than that. I need to rest[]” was ambiguous

and suggested only that suspect believed that he was physically unable to continue);

and Franks v. State, 90 S.W.3d 771, 787 (Tex. App.—Fort Worth 2002, pet. ref’d

untimely filed) (suspect’s statement that he was tired and did not want to talk

anymore was ambiguous and merely suggested the suspect was physically unable to

continue)). The existence of a disability, such as intoxication, does not mean a

statement given by a defendant is necessarily involuntary. See Oursbourn v. State,

259 S.W.3d 159, 173 (Tex. Crim. App. 2008); Paolilla v. State, 342 S.W.3d 783,

                                         30
792 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). “When the record reflects

evidence of narcotics, medications, or other mind-altering agents, the question

becomes whether those intoxicants prevented the defendant from making an

informed and independent decision to waive [his] rights.” Paolilla, 342 S.W.3d at

792 (citing Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996)).

      Affording almost total deference to the trial judge’s determination of

historical facts as we must when those determinations are based on assessments of

credibility and demeanor, we cannot say that the trial court clearly abused its

discretion in finding that Simmons made unambiguous requests to terminate the

initial interrogation. See Guzman v. State, 955 S.W.3d 85, 89 (Tex. Crim. App. 1997)

(whether request to terminate interview was ambiguous is a mixed question of law

and fact whose resolution turns on credibility and demeanor). The trial court could

have disbelieved the testimony of the Cleveland officers that they thought the

requests made by Simmons in the initial interrogation were ambiguous. See

Miranda, 384 U.S. at 473-74; Ramos, 245 S.W.3d at 418-19 (defendant’s statement

that he “did not want to talk to [the detective]” during interrogation was

“unambiguous, unequivocal, and unqualified assertion of his right to remain

silent[]”); Mayberry v. State, No. 04-12-00704-CR, 2013 Tex. App. LEXIS 15166,

at **3-8 (Tex. App.—San Antonio Dec. 18, 2013, no pet.) (mem. op., not designated

                                        31
for publication) (defendant’s statement during interrogation that “[he didn’t] want to

talk about this no more[]” was an unambiguous invocation of right to remain silent

that required police to scrupulously honor it).

      Next, we must determine whether the trial court erred in finding that the police

failed to “scrupulously honor” the right to terminate the initial interrogation. See

Mosley, 423 U.S. at 104 (admissibility of statements obtained after suspect invokes

right to remain silent depends under Miranda on whether suspect’s right to cut off

questioning was “scrupulously honored[]”). The invocation of one’s right to remain

silent does not create “a per se proscription of indefinite duration” against further

questioning. Id. at 102-03. Rather, as we previously stated, whether the resumption

of questioning is consistent with scrupulously honoring the invocation of the right

to remain silent depends on the unique circumstances of each case and includes the

following factors: (1) whether the suspect was informed of his right to remain silent

before the initial questioning; (2) whether the suspect was informed of his right to

remain silent before the subsequent questioning; (3) the length of time between

initial questioning and subsequent questioning; (4) whether the subsequent

questioning focused on a different crime; and (5) whether police scrupulously

honored the suspect’s initial invocation of the right to remain silent. See Maestas,

987 S.W.2d at 62 (citing Mosley, 423 U.S. at 103-05).

                                         32
      The trial court heard the testimony from the witnesses at the hearing and it

viewed video clips from the video of the initial interrogation during the cross-

examination of the witnesses. When Chief Broussard spoke to Simmons in the

corridor about the whereabouts of Latasha Green, a missing person, Simmons had

received his Miranda and 38.22 warnings, and the other two officers had just

finished interrogating Simmons and were returning Simmons to his cell. The Chief

did not repeat the warnings before he spoke to Simmons in the corridor. A very short

period had elapsed between when the interrogating officers had terminated their

questioning and when the Chief spoke to him in the corridor. The Chief asked

Simmons to “help himself” by telling the police where to look for Latasha.

      Applying the factors as outlined in Mosley to the uncontroverted facts, the

trial court could have reasonably concluded that the police did not honor the

suspect’s invocation of the right to terminate the initial interrogation because the

Chief continued to ask further questions of Simmons in the corridor after Simmons

told the officers he wanted to terminate the interrogation. See id. at 62 (citing Mosley,

423 U.S. at 103-05). We cannot say it was an abuse of discretion for the trial court

to conclude that the officers failed to scrupulously honor Simmons’s requests to

terminate the initial interrogation prior to the time Simmons made his statement to

the Chief in the corridor telling the officers to look for Latasha on Wells Cemetery

                                           33
Road. See Ramos, 245 S.W.3d at 418 (citing Mosley, 423 U.S. at 104-05). 3 That said,

the State argues that the statement is still admissible because the statement Simmons

made to the Chief in the corridor telling the officers to look on Wells Cemetery Road

fits within the exception codified in article 38.22, section 3(c).

      Before we examine the application of article 38.22, section 3(c), we address

Simmons’s argument that the trial court’s order should be affirmed because the trial

court concluded that “Defendant’s statements were not made under voluntar[]y

conditions due to law enforcement’s failure to scrupulously honor the Defendant’s

unambiguous request to discontinue the interrogation.” Simmons contends that if

Simmons’s statements were not voluntary, then article 38.22 (and therefore the

exception in section 3(c)) would not apply. See Tex. Code Crim. Proc. Ann. art.

38.22, § 6; Oursbourn, 259 S.W.3d at 171 (article 38.22, section 6 provides that only

“voluntary” statements may be admitted).

      A statement may be deemed “involuntary” under three different theories: (1)

failure to comply with Code of Criminal Procedure article 38.22; (2) failure to

comply with the dictates of Miranda; or (3) it was taken in violation of due process


      3
       To the extent that the trial court’s ruling granting the suppression of the
statements was based on the trial court’s finding that Simmons made “an
unambiguous invocation” of the right to counsel, we conclude that finding is
unsupported by the record. See Davis, 512 U.S. at 459.

                                          34
or due course of law because the statement was not freely given due to coercion,

incompetence, or improper influence. Wolfe v. State, 917 S.W.2d 270, 282 (Tex.

Crim. App. 1996); Moore v. State, 233 S.W.3d 32, 44 (Tex. App.—Houston [1st

Dist.] 2007, no pet.); Miller v. State, 196 S.W.3d 256, 266 (Tex. App.—Fort Worth

2006, pet. ref’d) (per curiam) (mem. op.). Simmons expressly concedes that he duly

received his Miranda and statutory warnings before he made his statements, and his

challenge depends on his argument that his right to terminate was not scrupulously

honored which he contends was a constitutional violation. Therefore, we construe

his challenge as an alleged due process violation. For the trial court to have found

that his statements were not made under voluntary conditions, the record must

reasonably support the conclusion that his statements were not freely given due to

coercion, incompetence, or improper influence. See Wolfe, 917 S.W.2d at 282.

      To determine the voluntariness of Simmons’s statements, we examine the

totality of the surrounding circumstances. Delao v. State, 235 S.W.3d 235, 239 (Tex.

Crim. App. 2007); Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App.

1997). A confession is involuntary if circumstances show that the defendant’s will

was “overborne[]” by police coercion. Creager, 952 S.W.2d at 856. In other words,

a statement is involuntary if the record reflects “official, coercive conduct of such a

nature” that any statement obtained thereby is “unlikely to have been the product of

                                          35
an essentially free and unconstrained choice by its maker.” Alvarado v. State, 912

S.W.2d 199, 211 (Tex. Crim. App. 1995).

      The trial court found that Simmons invoked his right to terminate, but nothing

in the record suggests that Simmons was subjected to the type of coercive police

activity that could render his statements involuntary under the due process

clause. See Estrada v. State, 313 S.W.3d 274, 297 (Tex. Crim. App. 2010) (holding

interrogation techniques employed, which were much more intense than those in this

case, were “not the type of brutal ‘third-degree’ techniques” that would render the

confession involuntary under the Due Process Clause). Thus, the trial court’s ruling

cannot be affirmed on a due process challenge to the voluntariness of the statement.

      Next, we determine whether the exception in section 3(c) applies to the

statement given by Simmons in the corridor. The State contends that despite the

officers’ failure to scrupulously honor Simmons’s requests to terminate the initial

interrogation, the statement Simmons made in the corridor telling the Chief to look

on Wells Cemetery Road is admissible under the exception in article 38.22, section

3(c). We disagree. We believe that while section 3(c) is an exception to the

requirements in section 3(a), the exception does not nullify the obligation of the

police to scrupulously honor an invocation of the right to terminate a custodial

interrogation as recognized in Mosley. See generally Hutchison v. State, 424 S.W.3d

                                        36
164, 179-82 (Tex. App.—Texarkana 2014, no pet.) (section 3(c) is an exception to

“prohibition of oral nonrecorded statements contained in Section 3(a)” but not an

exception to the Miranda warnings in section 2(a)). So we conclude the trial court

did not err in suppressing the statement Simmons made in the corridor telling the

police to look on Wells Cemetery Road.

                                Tucker/Elstad/Baker

      The State also argues that even if the State failed to scrupulously honor the

defendant’s requests to terminate the initial interrogation, the trial court erred in

excluding the body and the shovel, all the physical evidence, and the second

interrogation. The trial court concluded that all such evidence was “tainted” by the

failure of the police “to scrupulously honor the Defendant’s requests to terminate the

interrogation.” We find that the trial court incorrectly applied the applicable law.

      It is well settled that the Wong Sun “fruit of the poisonous tree” doctrine does

not apply to mere violations of the prophylactic requirements in Miranda. Baker v.

State, 956 S.W.2d 19, 22 (Tex. Crim. App. 1997) (citing Wong Sun v. United States,

371 U.S. 471 (1963)). Thus, “while the statement taken in violation of Miranda must

be suppressed, other evidence subsequently obtained as a result of that statement

(i.e. the “fruits” of the statement) need not be suppressed.” Id. (citing Oregon v.

Elstad, 470 U.S. 298, 314 (1985); Michigan v. Tucker, 417 U.S. 433, 452 (1974)).

                                          37
      Both Tucker and Elstad involved a failure to give the required warnings rather

than the failure to scrupulously honor warnings given. See Elstad, 470 U.S. at 300;

Tucker, 417 U.S. at 435. In Baker, the Texas Court of Criminal Appeals applied

the Tucker/Elstad rule to the fruits of statements made in the context of a failure to

scrupulously honor the warnings that were given. See Baker, 956 S.W.2d at 22. The

failure to adhere to the warnings that were provided, like the “mere noncompliance

with Miranda does not result in a carryover taint beyond the statement itself. The

failure to scrupulously honor a suspect’s invocation of his right to remain silent by

continuing questioning is not necessarily coercive.” Id. at 23. “[T]he Miranda

requirements embody an exclusionary rule or remedy rather than a substantive right

or entitlement. Statements taken in violation of Miranda are not obtained in violation

of the law; they are simply statements that are subject to a judicially imposed

prophylactic rule of exclusion[.]” Id. at 24.

      The Tucker/Elstad rule applies to the failure to scrupulously honor the

invocation of Miranda rights. In the absence of actual coercion, the fruits of a

statement taken in violation of Miranda need not be suppressed under the “fruits”

doctrine. Baker, 956 S.W.2d at 23. The failure to scrupulously honor a suspect’s

invocation of his right to terminate a custodial interrogation by continuing

questioning is not, by itself, coercive. Baker, 956 S.W.2d at 23. In finding an absence

                                          38
of coercion in Tucker, the Supreme Court noted that no legal sanctions, such as

perjury or contempt, attached to a refusal to answer questions. 417 U.S. at 445.

Moreover, the case was unlike classical examples of coercion, which ranged from

torture, to prolonged isolation from family or friends in a hostile setting, to a

seemingly endless interrogation designed to exhaust the accused. Id. at 448-49.

             Likewise, continuing questioning after an accused’s invocation
      of his right to silence does not, by itself, involve torture, isolation from
      family and friends, endless interrogation, the attachment of legal
      sanctions to the refusal to answer questions, or any other coercive
      activities. One federal circuit has expressly applied the Tucker/Elstad
      rule to the failure to scrupulously honor a suspect’s invocation of his
      Miranda right to counsel. Krimmel v. Hopkins, 44 F.3d 704, 708-709
      (8th Cir.), vacated on other grounds, 56 F.3d 873 (1995). We hold that
      the Tucker/Elstad rule applies to the failure to scrupulously honor the
      invocation of Miranda rights. In the absence of actual coercion, the
      fruits of a statement taken in violation of Miranda need not be
      suppressed under the “fruits” doctrine of Wong Sun.

Baker, 956 S.W.2d at 23. We believe the same rationale applies here.4 See id.

      Without any actual coercion, the fruits of a statement taken in violation of

Miranda need not be suppressed under the fruit-of-the-poisonous-tree doctrine.

United States v. Patane, 542 U.S. 630, 639, 641-42, 644 (2004) (The police do not

violate the Fifth Amendment or Miranda by negligent or even deliberate failures to


      4
       Simmons did not claim in the trial court, nor does he contend on appeal, that
there was “actual coercion,” or that he was tortured. He argues that the failure to
terminate the questioning along with his intoxication made the questioning
“coercive.”
                                        39
provide a suspect with Miranda warnings, and potential violations only occur upon

admission of such statements into evidence at trial. At that point, the exclusion of

the statement is a complete and sufficient remedy and suppression of physical fruits

of suspect’s statement is not required.); Baker, 956 S.W.2d at 22 (“The ‘fruit of the

poisonous tree’ doctrine espoused in Wong Sun does not apply to mere violations of

the prophylactic requirements in Miranda: while a statement taken in violation

of Miranda must be suppressed, other evidence subsequently obtained as a result of

that statement (i.e. the ‘fruits’ of the statement) need not be suppressed.”).

       There is no evidence in the record of actual coercion, and no evidence of

police overreaching. We conclude that the physical evidence obtained as a result of

Simmons’s statement in the corridor, i.e., the body and shovel, and other physical

evidence, should be admissible. See Elstad, 470 U.S. at 318; Baker, 956 S.W.2d at

22. And, the trial court erred in concluding otherwise at the pretrial suppression

hearing.

      The Fifth Amendment’s Self-Incrimination Clause prohibits compelling a

defendant to testify against himself at trial, but it is not implicated by the introduction

of non-testimonial physical evidence at trial even when that evidence was recovered,

obtained, or found as a result of such statements. Patane, 542 U.S. at 635-37. “More

generally, the Miranda rule ‘does not require that the statements [taken without

                                            40
complying with the rule] and their fruits be discarded as inherently tainted.’” Id. at

639 (internal citations omitted).

      The trial court erred in concluding that all the evidence obtained by law

enforcement and having a direct nexus to the disclosure made by the Defendant

during the interrogations, “together with any analysis thereof and opinions

associated therewith,” is inadmissible during the trial of this case. The trial court also

erred in concluding that the evidence is barred by article 38.23 of the Code of

Criminal Procedure. Miranda or article 38.22, not article 38.23, is the vehicle for

excluding statements obtained in violation of the Miranda guidelines, and Miranda

claims do not fall within the exclusionary rule in article 38.23. Contreras v. State,

312 S.W.3d 566, 583 (Tex. Crim. App. 2010).

      Simmons states in his appellate brief that “the issue here is not whether the

police read Simmons his rights and recorded the interrogation[.]” In other words,

this case does not involve a failure to provide Miranda or article 38.22 warnings.

Rather, according to Simmons, “[t]he violation here that caused the trial court to

suppress was not a simple violation of 38.22 § (3)(a) and potential admission under

38.22 § (3)(c); it was a violation of Appellee’s rights under the Texas and U.S.

Constitutions as well as statutory rights.” Simmons did not specify which Texas and

U.S. Constitutional rights were violated but argues the “State cannot hide behind”

                                           41
subsection (c) as a shield for the “Constitutional violation that the police committed

upon Gerard Simmons in failing to scrupulously honor his rights and thereby

coercing his confession.” The State emphasizes that law enforcement complied with

the law, law enforcement read Simmons his rights before the first interview and

again before the second interview, and that Simmons waived those rights and made

voluntary statements.

      The failure of the police to comply with the requirements in article 38.22 does

not mean that the statement was necessarily obtained as a result of any legal or

constitutional violation. Nonn v. State, 117 S.W.3d 874, 880-81 (Tex. Crim. App.

2003) (citing Davidson v. State, 25 S.W.3d 183, 185-86 (Tex. Crim. App. 2000)

(Article 38.22 is a procedural evidentiary rule.)). In Contreras, the Court of Criminal

Appeals explained that

             Miranda or article 38.22, not article 38.23, is the vehicle for
      excluding statements obtained in violation of the Miranda guidelines.
      And because Miranda claims do not fall within the ambit of article
      38.23, a defendant is not entitled to a jury instruction under that statute.
      Article 38.22, not article 38.23, is the appropriate vehicle for obtaining
      a jury instruction regarding a purported violation of Miranda, to the
      extent such a vehicle is available.

312 S.W.3d at 583; see also Williams v. State, No. 09-10-00219-CR, 2011 Tex. App.

LEXIS 9800, 2011 WL 6229164, at *17 (Tex. App.—Beaumont Dec. 14, 2011, no

pet.) (mem. op., not designated for publication).

                                          42
      In Chavez v. Martinez, 538 U.S. 760 (2003), Justice Thomas explained that

the Fifth Amendment does not support the view that using compulsive questioning

methods constitutes a violation of the Fifth Amendment. 538 U.S. at 766-67.

(Thomas, J., plurality opinion) (“The text of the Self-Incrimination Clause [in the

Fifth Amendment] simply cannot support the . . . view that the mere use of

compulsive questioning, without more, violates the Constitution.”). As explained by

Justice Thomas, there is a distinction between the assertion of one’s right against

self-incrimination and a violation of the Fifth Amendment. See id. at 770. “[A]

violation of the Constitutional [Fifth Amendment] right against self-incrimination

occurs only if one has been compelled to be a witness against himself in a criminal

case.” Id. Therefore, we reject the constitutional argument made by Simmons.

      As to the second interrogation, the trial court found that the second

interrogation was not sufficiently attenuated from the initial interrogation.

Depending upon the particular facts, a subsequent interview may constitute a

continuation of an earlier interview. See Bible v. State, 162 S.W.3d 234, 242 (Tex.

Crim. App. 2005). Facts a court may consider in determining attenuation include:

(1) the passage of time, (2) whether the interrogation was conducted by a different

person, (3) whether the interrogation related to a different offense, and (4) whether

the officer asked the defendant if he had received any earlier warnings, whether he

                                         43
remembered those warnings, and whether he wished to waive or invoke them. See

id. (citing Jones v. State, 119 S.W.3d 766, 773 n.13 (Tex. Crim. App. 2003)). Even

if one statement is made under circumstances that preclude its use, it does not

perpetually disable the confessor from making a usable confession after those

circumstances have been removed. See Griffin v. State, 765 S.W.2d 422, 428 (Tex.

Crim. App. 1989) (citing United States v. Bayer, 331 U.S. 532, 540-41 (1947));

Villarreal v. State, No. 09-14-00503-CR, 2016 Tex. App. LEXIS 1093, at **5-6

(Tex. App.—Beaumont Feb. 3, 2016, pet ref’d.) (mem. op., not designated for

publication) (statement taken by officer in second interview was not tainted by prior

statements given in violation of Miranda). When a person voluntarily makes an

inculpatory statement under circumstances that render it inadmissible under

Miranda, the dictates of Miranda and the goals of the Fifth Amendment are satisfied

by barring the use of that statement. Elstad, 470 U.S. at 318. No further purpose is

served by imputing “taint” to a subsequent statement obtained pursuant to a

voluntary and knowing waiver of the person’s Miranda rights. Id.; Williams, 257

S.W.3d at 435-36.

      It is undisputed that there was a four-hour break between the first interrogation

and the second interrogation of Simmons. Additionally, at the beginning of the

second interrogation Simmons received the required warnings under Miranda and

                                         44
article 38.22. There is no evidence on the videos or in the record indicating that

Simmons ever invoked his right to terminate during the second interrogation.

Simmons does not argue that he asked to terminate the second interrogation. The

second interrogation was conducted by Chief Broussard and Sergeant Lasko from

the Liberty County Sheriff’s Office. In the second interrogation, Simmons

confessed, “I killed Latasha Green,” and he provided the details about how, where,

and why he killed her, states why he dumped her body on Wells Cemetery Road,

and what he did with her car and her cell phone after he killed her. Based on the

totality of the circumstances, we conclude that the two interviews were sufficiently

attenuated. See Bible, 162 S.W.3d at 242. No further purpose is served by imputing

“taint” to the subsequent statement which was obtained pursuant to a voluntary and

knowing waiver. The trial court erred in concluding otherwise. 5

      To summarize, we affirm the trial court’s decision to suppress the initial

interrogation and the statement Simmons gave to the Chief in the corridor telling the



      5
         Additionally, even if the two interrogations had not been sufficiently
attenuated, the trial court’s ruling was overly broad because it also excluded “all
physical evidence” obtained from the statements Simmons made in the second
interrogation, and that would also be error for the same reasons as outlined above
with respect to the body and shovel. See United States v. Patane, 542 U.S. 630, 635-
37 (2004); Baker v. State, 956 S.W.2d 19, 23 (Tex. Crim. App. 1997). Our record is
silent on whether the police later found other physical evidence (i.e. the automobile
or the cell phone that Simmons described in his second interrogation).
                                          45
officers to search on Wells Cemetery Road because the State failed to scrupulously

honor his request to terminate the first interrogation. We reverse the trial court’s

decision to suppress the body, the shovel, and “all evidence obtained by law

enforcement and having a direct nexus to the disclosure made by the Defendant

during the course of the interrogations, together with any analysis thereof and

opinions associated therewith,” because the trial court failed to apply controlling law

and incorrectly applied the “taint” doctrine to the body, the shovel, and the other

evidence, and reverse the trial court’s ruling suppressing the second interrogation

because we conclude that it was sufficiently attenuated from the initial interrogation,

and remand for further proceedings consistent with this opinion.

      AFFIRMED IN PART; REVERSED AND REMANDED IN PART.



                                                     _________________________
                                                        LEANNE JOHNSON
                                                              Justice


Submitted on February 28, 2019
Opinion Delivered February 5, 2020
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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