                                                                                            ACCEPTED
                                                                                       03-14-00408-CR
                                                                                              4520685
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                  3/16/2015 7:27:42 PM
                                                                                     JEFFREY D. KYLE
                                                                                                CLERK
                            No. 03—14—00088—CR
                            No. 03—14—00408—CR
                                                                    FILED IN
                                                             3rd COURT OF APPEALS
                       IN THE TEXAS COURT OF          APPEALS AUSTIN, TEXAS
                              THIRD DISTRICT                 3/18/2015 12:02:00 PM
                                AT AUSTIN                        JEFFREY D. KYLE
                                                                      Clerk


          DARIUS DONTAE LOVINGS v. THE STATE OF TEXAS

Appeal from Cause Numbers D-1-DC—12—301231 and D-1-DC—12—203247
          390th Judicial District Court, Austin, Travis County, Texas
                  Honorable Julie Kocurek, Judge Presiding


                             APPELLANT’S BRIEF


TO THE HONORABLE THIRD COURT OF APPEALS:

      Comes now Appellant Darius Dontae Lovings, by and through his
appointed counsel Paul M. Evans, and files this, his Appellant’s Brief, in
compliance with the Texas Rules of Appellate Procedure.
APPELLANT HEREBY REQUESTS ORAL ARGUMENT.


                                             Respectfully submitted,


                                             ___/s/ Paul M. Evans_____________
                                       Paul M. Evans
                                             Attorney for Appellant
                                             811 Nueces Street
                                             Austin, Texas 78701
                                             (512) 569-1418
                                             (512) 692-8002 FAX
                                             paulmatthewevans@hotmail.com
                                          SBN 24038885




                                                                                   1
                     Identities of the Parties and Counsel


Presiding Judge:                    Honorable Julie Kocurek


Appellant:                          Darius Dontae Lovings


Trial Counsel:                     Jon T. Evans
                              806 W. 11th Street
                                   Austin, Texas 78701
                                    Paul M. Evans
                                    811 Nueces Street
                              Austin, Texas 78701



Appellate Counsel:                  Paul M. Evans
                                    811 Nueces Street
                                    Austin, Texas 78701


Appellee:                           State of Texas

Trial Counsel:                      Steven Brand
                                    Monica Flores
                                    Christopher Baugh
                                    Assistant District Attorneys
                                    Travis County District Attorney
                                    P.O. Box 1748
                                    Austin, Texas 78767


Lead Appellate Counsel:             Rosemary Lehmberg
                                    District Attorney
                                    c/o Appellate Division
                                    Travis County District Attorney



                                                                      2
                                  Table of Contents

Identity of Parties and Counsel                                            2

Table of Contents                                                          3

Index of Authorities                                                       4

Statement of the Case                                                      7

Issues Presented                                                           9

Statement of Facts                                                         10

Summary of Arguments                                                       32

Issue Number One—The trial court erred by admitting statements             33
made in the course of a custodial interrogation after Appellant asserted
his Fifth Amendment right to remain silent.

Issue Number Two—The trial court erred by finding that prior to            52
custodial interrogation, Appellant voluntarily, intelligently, and
knowingly waived his rights under Miranda and Tex. Code Crim.Proc.
§ 38.22.

Issue Number Three—The trial court erred by admitting speculative          58
testimony about how an “innocent person” would respond to a
custodial interrogation.

Issue Number Four—The trial court erred by admitting speculative           60
opinion testimony about whether Appellant understood his Miranda
rights.

Issue Number Five— The trial court erred by denying a special              61
requested instruction in the jury charge on guilt-innocence.

Prayer                                                                     64

Certificate of Service                                                     65

                                                                                3
Certificate of Compliance                                    66


                            Index of Authorities

Federal Constitution

Fifth Amendment……………………….3, 9-10, 22, 24-6, 28, 31, 33-4, 38-45,
                                           47-8, 51-3, 55, 61-4

Fourteenth Amendment……………………………………………………...34



Federal Cases

Anderson v. Terhune, 516 F.3d 781 (9th Cir. 2008)…………………….…42-6

Connecticut v. Barrett, 479 U.S. 523 (1987)…………………………….….45

Berghuis v. Thompkins, 560 U.S. 380 (2010)………………………34-5, 53-4

Bruton v. United States, 391 U.S. 123 (1968)………………………….…..50

North Carolina v. Butler, 441 U.S. 369 (1979)………………………..…...54

Carter v. Kentucky, 450 U.S. 288 (1981)…………………………………..63

Cate v. Anderson, 555 U.S. 818 (2008)………………………………..…..42

Edwards v. Arizona, 451 U.S. 477 (1981)…………………………………46

Fare v. Michael C., 442 U.S. 707 (1979)……………………………...…..54

Arizona v. Fulminante, 499 U.S. 279 (1991)……………………………...50

Griffin v. California 380 U.S. 609 (1965)………………………………....63

Jackson v. Denno, 378 U.S. 368 (1964)……………………………..…….22


                                                                   4
Miranda v. Arizona, 384 U.S. 436 (1966)………3, 9, 21, 23, 27, 32-7, 42-4,
                                                 46-7, 51-4, 57, 60-1

Moran v. Burbine, 475 U.S. 412 (1986)………………………………54, 56

Michigan v. Mosley, 423 U.S. 96 (1975)……………….………35, 43, 45-7

Quinn v. United States, 349 U.S. 155 (1955)…………………………….42

Satterwhite v. Texas, 486 U.S. 249 (1988)…………………………...…..52

Smith v. Illinois, 469 U.S. 91 (1984)………………………………...…45-6



Texas State Statutes

Code of Criminal Procedure § 38.22…………………3, 9, 32, 34, 47, 52-3

Penal Code § 19.02…………………………………………………..……7

Penal Code § 29.03……………………………………………………..…7

Rule of Appellate Procedure § 21.8………………………………………8

Rule of Appellate Procedure § 44.2………………….………48, 57, 59-61

Rule of Evidence § 602…………………………………..………33, 59-60

Rule of Evidence § 701…………………………………………..……58-9



Texas Cases

Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985)……………62-3

Blue v. State, 41 S.W.3d 129 (Tex.Crim.App. 2000)………………...….60



                                                                          5
Brooks v. State, 132 S.W.3d 702 (Tex.App.—Dallas 2004,
pet.ref’d)……………………………………………………………….…52

Brown v. State, 92 S.W.3d 655 (Tex.App.—Dallas 2002), aff’d
122 S.W.3d 794 (Tex.Crim.App. 2003)………………………………....59

Clay v. State, 240 S.W.3d 895 (Tex.Crim.App. 2007)……………….…48

Cornet v. State, 417 S.W.3d 446 (Tex.Crim.App. 2013)……………….62

Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim.App. 1996)…………..…35

Fairow v. State, 943 S.W.2d 895 (Tex.Crim.App. 1997)……………58-9

Garcia v. State, 919 S.W.2d 370 (Tex.Crim.App. 1994)………...…….56

Harris v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989)……………….48

Jones v. State, 944 S.W.2d 642 (Tex.Crim.App. 1996)…………….….34

Joseph v. State, 309 S.W.3d 20 (Tex.Crim.App. 2010)………….…..53-7

Lewis v. State, 402 S.W.3d 852 (Tex.App.—Amarillo 2013), aff’d
428 S.W.3d 860 (Tex.Crim.App. 2014)…………………………….59, 61

Leza v. State, 351 S.W.3d 344 (Tex.Crim.App. 2011)…………...36, 53-4

Luna v. State, 301 S.W.3d 322 (Tex.App—Waco 2009, no pet.)………35

McDonald v. State, 179 S.W.3d 571 (Tex.Crim.App. 2005)…………...36

Maestas v. State, 987 S.W.2d 59 (Tex.Crim.App. 1999)…………….…47

Marshall v. State, 210 S.W.3d 618 (Tex.Crim.App. 2006)…………..…35

Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990)………....36

Ngo v. State, 175 S.W.3d 738 (Tex.Crim.App. 2005)………………..…62

Osbourn v. State, 92 S.W.3d 531 (Tex.Crim.App. 2002)……………….58

                                                                    6
Ramos v. State, 245 S.W.3d 410 (Tex.Crim.App. 2008)……..….34-6, 48

Russell v. State, 155 S.W.3d 176 (Tex.Crim.App. 2005)……………....59

Vasquez v. State, 919 S.W.2d 433 (Tex.Crim.App. 1996)…….……….62

Watson v. State, 762 S.W.2d 591 (Tex.Crim.App. 1988)…...…35, 46, 54

Wesbrook v. State, 29 S.W.3d 103 (Tex.Crim.App. 2000)……...…49, 52

Williams v. State, 257 S.W.3d 426 (Tex.App.—Austin 2008,
pet. ref’d)………………………………………………………………35


                                   Statement of the Case

       Appellant Darius Dontae Lovings was charged by indictment with the first

degree felony offense of Murder, in cause D-1-DC-12-301231. Appellant was also

charged with two counts of the first degree felony offense of Aggravated Robbery

with a Deadly Weapon, in cause D-1-DC-12-203247. CR1 34; (*CR1) 28-9.1 See

Tex. Penal Code §§ 19.02(b)(1); 29.03(a)(2-3). At an initial arraignment, Appellant

entered pleas of not guilty to both offenses. RR3 4-5. Thereafter, the trial court

entertained contested pretrial hearings on issues common to both alleged offenses.

RR4 4-8; RR5 4-25; RR6 6-70; RR7 4-26; RR8 4-8; RR9 4-6; RR10 4-19;



1
 A twenty-one volume Reporter’s Record has been filed in trial court cause D-1-DC-12—
301231 (Murder). A seven volume Reporter’s Record has been filed in trial court cause D-1-DC-
12-203247 (Aggravated Robbery). A single volume Clerk’s Record has been filed in each cause.
The present brief will almost exclusively refer to the record from the former cause. To avoid
confusion, any references to the record from the latter cause will be distinguished by the use of
an asterisk and parentheses [e.g., “RR2” versus “(*RR2),” or “CR1” versus “(*CR1).”].


                                                                                                7
(*RR3) 4-14; (*RR6) 11-16; CR1 31-3, 126-8, 146-52; (*CR1) 12-14, 71-2, 78-

80.

      First, the State proceeded to trial on cause D-1-DC-12-301231. Trial was

held before a jury. See generally RR11 thru RR21. Appellant entered a plea of not

guilty. RR12 21. The jury found Appellant guilty as alleged in the indictment.

RR16 163-6; CR1 184, 198, 200-1. Appellant elected to have the jury assess

punishment. CR1 167. The jury assessed a term of seventy-five (75) years in the

Institutional Division of the Texas Department of Criminal Justice. The trial court

sentenced Appellant accordingly. RR18 47-52; CR1 195, 198, 200-1. Appellant

filed timely notice of appeal. CR1 203-4. Appellant also filed a Motion for New

Trial, which was deemed denied by operation of law without a hearing. CR1 205-

7. See Tex.R.App.Proc. § 21.8(a),(c). The matter was assigned cause number 03-

14-00088-CR on appeal.

      The parties later reached a plea bargain agreement on the remaining alleged

offense of Aggravated Robbery. In exchange for a plea of guilty to Count I,

Appellant was sentenced by the trial court to a term of twenty (20) years, to be

served concurrently with the sentence previously assessed by the jury. The State

waived Count II of the indictment. (*RR6) 4-16; (*CR1) 82-6, 92-4. Appellant

filed timely notice of appeal. (*RR6) 11-16; (*CR1) 108. The trial court certified

Appellant’s right to appeal in both causes. CR1 210; (*CR1) 88. The cause was



                                                                                      8
assigned cause number 03-14-00408-CR on appeal. On Appellant’s request, this

Court ordered the appeals in 03-14-00088-CR and 03-14-00408-CR to be

consolidated, for briefing and submission purposes only. This appeal followed.


                                 Issues Presented

Issue Number One: The trial court erred by admitting statements obtained
from Appellant in violation of his Fifth Amendment right to silence:
During custodial interrogation, Appellant invoked the right to remain silent at four
different junctures with the phrase, “I plead the Fifth.” Nonetheless, questioning
continued, and Appellant made inculpatory statements. The trial court should have
suppressed any statements made after the initial invocation of the right to remain
silent. The judgment in each cause should be reversed and remanded for a new
trial.

Issue Number Two: The trial court erred by finding that prior to custodial
interrogation, Appellant voluntarily, intelligently, and knowingly waived his
rights under Miranda and Tex. Code Crim.Proc. § 38.22: The State failed to
establish by a preponderance of the evidence that Appellant made a voluntary,
intelligent, and knowing waiver of his rights, whether express or implied. The trial
court should have excluded Appellant’s custodial interrogation from evidence. The
judgment in each cause should be reversed and remanded for a new trial.

Issue Number Three: The trial court erred by admitting speculative testimony
about how an “innocent person” would act during a custodial interrogation:
Over objection by trial counsel, the lead detective was asked to describe how an
“innocent person” would react to custodial interrogation. This called for pure
speculation on his part. The trial court abused its discretion by admitting the
evidence. The judgment in cause D-1-DC-12-301231 should be reversed and the
cause remanded for a new trial.

Issue Number Four: The trial court abused its discretion by admitting
speculative opinion testimony about whether Appellant understood his
Miranda rights: Over objection by trial counsel, a psychologist testified that based
upon her review of the recording of Appellant’s custodial interrogation, she
concluded that Appellant understood his Miranda rights. This called for pure
speculation on her part. The trial court abused its discretion by admitting the

                                                                                   9
evidence. The judgment in cause D-1-DC-12-301231 should be reversed and the
cause remanded for a new trial.

Issue Number Five: The trial court erred by denying a special requested
instruction in the jury charge on guilt-innocence: Trial counsel requested an
instruction be included in the jury charge on guilt-innocence, to the effect that
Appellant’s repeated invocations of “I plead the Fifth” should not be considered as
evidence of his guilt. The trial court erred by refusing to grant the requested
charge, causing some harm to the Appellant. The judgment in cause D-1-DC-12-
301231 should be reversed and the cause remanded for a new trial.


                                Statement of Facts

        At almost midnight on June 26, 2012, Austin Police Officer Joshua Euhus

was parked on San Antonio Street near the Travis County courthouse. Suddenly, a

white Nissan Maxima passed in front of his car, stopped, and then reversed,

ramming Euhus’s patrol car. Euhus jumped out of his car and drew his firearm.

After a brief pursuit, the man was subdued and handcuffed with the assistance of a

Taser. Euhus identified this man in court as Appellant. Appellant gave Euhus his

name and “said he had done a stick of PCP.” Appellant seemed disoriented, so he

was sent to the hospital for an evaluation. RR13 52-79; RR19 SX #36-45. Officer

Christopher Wille testified he was assigned to help guard Appellant while he was

at the hospital. Later, Wille transported Appellant to the Travis County Jail, where

he took possession of Appellant’s clothing and personal effects. The clothing

included black cargo shorts, red Nike tennis shoes, and a white muscle shirt. RR13

117-28; RR19 SX #91-4.



                                                                                   10
        Crime scene specialist Jeremiah Sullivan responded to the scene on San

Antonio Street to document the collision and gather evidence. Sullivan took swabs

from various components of the white Nissan Maxima for potential DNA

evidence. Sullivan processed the front passenger door for fingerprints. On the the

front passenger seat, Sullivan found a multi-colored, “Bob Marley” drawstring bag,

containing a newspaper dated June 25, 2012, a red T-shirt with graphics on it, a .38

special revolver, and a Ruger 9mm semi-automatic pistol. At a later date, Sullivan

processed the firearms and their components for potential DNA evidence. Sullivan

was unable to lift any fingerprints from these items. The revolver contained five

fired casings and one live unfired cartridge. RR13 82-116; RR19 SX #46-70.

        Around the same time as Appellant’s arrest, Detective Jason Cumins was

speaking to brothers Danny and Block’o Wilford—cousins to Appellant—at an

interview room at the Austin Police homicide unit. They came forward to share

information after seeing a press release earlier that evening. RR14 139-43. During

the daytime on June 24, Danny saw Appellant in the parking lot of Appellant’s

grandmother’s house, where he stayed. Appellant, who “seemed a little stressed,”

was wearing shorts and a red shirt. The next day, as Danny watched the news, he

saw a description of an individual and a purple Honda Accord. Danny called

Block’o and told him he needed to find Appellant and speak to him. Later that day,




                                                                                     11
the Wilfords went to the police department to give statements. RR12 243-66; see

also RR15 59-65 (testimony of Appellant’s grandmother, Susan Smith).

        Also on June 24, Appellant had called Block’o Wilford and asked him to

pay a visit. At around 6:45 or 7:00 PM, Block’o drove his purple 1997 Honda

Accord to meet him. Appellant wore a white tank top shirt, dark cargo shorts, and

Nike shoes. He had a red shirt thrown over his shoulder. According to Block’o,

Appellant “seemed a little distraught” and “a little disturbed.” Appellant had

Block’o drive him to a friend’s house. When Appellant wanted another ride

elsewhere, Block’o told him he could not continue driving him around. Asking if

he could borrow the car, Appellant said he needed it for about forty-five minutes.

Block’o reluctantly lent the car at around 8:00 PM. Block’o also lent Appellant his

phone in case he needed to contact him. Eventually, as Block’o realized Appellant

had not returned with the car, he began calling the phone repeatedly. After

speaking with his brother Danny and to Appellant’s grandmother about the missing

car, Block’o got a call from Appellant, close to 10:45 or 11:00 PM. Appellant

assured him the car was fine and that he was on the way to return it. Appellant

finally returned the car at about 12:45 PM, and Block’o drove him back to his

grandmother’s house. RR13 7-31, 39-44, 47-8; RR19 SX #29-35.

        The following afternoon, when Danny called Block’o, Block’o learned that

police were looking for a car matching the description of his Accord. Block’o



                                                                                     12
contacted a friend, Detective Lawrence Davis, who confirmed that police were

looking for a purple Accord dating from 1997 to 2000. Danny and Block’o then

went to police headquarters to give statements. Block’o told them about his Accord

and what had happened with his cousin Appellant the night before, while Danny

described Appellant’s appearance for the officers. RR13 32-8, 46-7.

        Around 11:00 PM on June 24, while mechanic Jonathan Verzi was driving

on Sprinkle Cutoff Road, he saw a set of headlights flashing at him from the side

of the road. Verzi pulled over. A man approached his window, said “he was having

car problems.” As Verzi removed his seat belt, the man took a step back. Verzi

testified he heard a click. When Verzi turned around, “there is a gun in my face.”

Verzi described the gun as “Glock style,” “mostly black” with a “silver barrel.”

Verzi assumed the click came from the trigger being pulled. Verzi put his car into

gear and sped off. Pulling over at a dance studio down the street, Verzi called 911.

There, two officers met with Verzi. The next day, Verzi gave officers a sworn

written statement. Verzi described the man as a black male in his late 20’s or early

30’s, about 5’5” to 5’9” and between 160 and 190 pounds, wearing dark shorts and

a red shirt with graphics on it, and driving a purple, four-door, late 90’s model

Honda Accord. Verzi also went with detectives to show them where the incident

occured. Verzi was not able to pick anyone out of a sequential or “double-blind”

photo lineup conducted by Detective Robert Holsonback. RR12 32-60, 228-42.



                                                                                     13
        Dr. Charles Weaver, a cognitive psychologist and professor of psychology

and neuroscience at Baylor University, testified as an expert witness for the State

on the topic of eyewitness identification. Weaver had been asked to evaluate

Verzi’s statements and his failure to make an identification. Weaver explained the

significance of a “double-blind” or sequential lineup, as opposed to the outdated

method of the “six-pack” lineup. Weaver discussed variables that may have

affected Verzi’s ability to identify a suspect. Weaver testified he was not surprised

that Verzi did not pick a suspect out of the lineup. Generally speaking, Weaver

opined that “[e]yewitness identification is just much harder than most people think

it is.” RR16 53-77.

        Austin Police Officer Randy DeLuna and another officer met Verzi at

around 11:20 PM on June 24. Verzi “appeared to be real nervous.” Their six-

minute videotaped conversation was introduced into evidence. Ten minutes later,

DeLuna drove down the stretch of Sprinkle Cutoff Road that Verzi described.

DeLuna saw nothing out of the ordinary. DeLuna later responded to a crash on the

same road that involved a deceased person. RR12 61-82; RR19 SX #2.

        Close to midnight on the same night, Eric Tharps was returning home to

Austin from a trip with his wife and kids. On Sprinkle Cutoff Road, they saw a

dark Mustang “that was on the side of the road up against a fence post,” in a way

that “kind of looked questionable.” The lights were on and the engine was running.



                                                                                      14
Tharps’s wife called 911. As Tharps approached the car, he saw “a gentleman

slumped over to the right” and “lots of blood.” The man was unresponsive. The

driver’s window was down. Tharps described what he saw to his wife, who relayed

the information to the 911 operator. Tharps detected a burning smell. He did not

try to turn the car off due to the amount of blood. Tharps waited for police and

firemen to arrive. RR12 82-98. Austin firefighter Jeremy Copus testified he

responded to the scene. The driver was unresponsive, with no pulse. Copus

described the unsuccessful efforts to revive the man. Copus was not able to remove

the keys, which led him to believe the car was not in park. Copus felt that the

amount of blood he saw was not commensurate with the relatively light amount of

damage to the car. Copus noticed a potential gunshot wound on man’s left temple.

RR12 98-109.

        Steve Martinez was the first Austin Police officer to arrive at the crash.

EMS and firefighters were already present. They had extracted the driver from the

car, and they informed Officer Martinez “that he didn’t make it.” Martinez notified

the vehicular homicide unit and secured the scene. Martinez began to survey the

area and take photos, following the path where the car had left the roadway.

Martinez saw that the car had gone in reverse the whole way. The amount of blood

Martinez saw did not make sense to him. There was only slight damage suffered by

the vehicle, and the blood spatter pattern inside the vehicle was not consistent with



                                                                                     15
a crash. While photographing the deceased, Martinez noticed what appeared to be

a bullet hole in his cheek. Martinez did not see an exit wound. The homicide unit

was notified. Martinez found a Department of Public Safety ID card on the body,

bearing the name William Ervin. Detectives began to arrive at the scene. Rachel

Ervin, the wife of the deceased, also showed up. Martinez spoke with her and later

transported her to headquarters. There, Martinez spoke to lead Detective Jason

Cumins and described what he saw at the scene. RR12 110-50; RR19 SX #3-16.

        Rachel Ervin last heard from her husband William about 11:00 PM on

June 24, when he called to ask if she needed anything. Both worked at the

Department of Public Safety headquarters in Austin. Rachel grew concerned when

William had not arrived home by 12:30 AM. She called his workplace, and a co-

worker told her William had left at the normal time. Rachel went looking for

William and came across the crime scene at Sprinkle Cutoff Road. RR16 101-7;

RR19 SX #1.

        Detective Anthony Nelson was assigned to assist Cumins in the

investigation of Ervin’s death. Nelson reported to the scene, where he directed

crime scene specialists and assisted in processing potential evidence. Nelson

observed the body. He concluded the injury close to the left ear was consistent with

a gunshot wound, apparently at close range due to the presence of nearby tattooing

or stippling. Nelson did not see an exit wound. Once the sun rose, Nelson was able



                                                                                    16
to discern the skid marks. Nelson estimated the car had gone about fifty feet in

reverse before coming to a stop. When Nelson learned of the other report from

earlier that evening—i.e., the call regarding the attempted shooting of Verzi, less

than a mile further north on Sprinkle Cutoff Road—the crime scene was expanded

accordingly. Nelson described the survey of the area and potential evidence that

was found. Crime scene specialist Juanita Vasquez took photographs, while her

supervisor Charles Dean made a video recording. Medical examiner personnel

arrived to begin their forensic analysis and transport the body to their office for an

autopsy. Nelson testified that Texas Rangers arrived to lend assistance to the

investigation, and Nelson and a Ranger were able to survey the scene from

overhead in a DPS helicopter. Detective Cumins also arrived on scene,

accompanied by Jonathan Verzi. RR12 151-84, 187-212, 214-17, 225-7; RR13

131-61; RR19 SX #17-27, 107-70.

        Detective Nelson testified the victim’s Ford Mustang was impounded and

transported to a secure facility for evidentiary processing—e.g., photographs, DNA

swabbing, and searching for potential fingerprint evidence—on June 26. A purple

Honda Accord was also processed for potential evidence at that time, with the

assistance of crime scene specialist Stacey Boatright. RR12 184-6, 212-14.

Boatright photographed and helped process the Mustang and the Accord. The

exterior driver’s door handle of the Mustang was swabbed for DNA, and a black



                                                                                      17
IPhone was found inside the car. Boatright processed the exterior door for latent

prints, but none were found. Boatright saw “reddish brown stains throughout” the

inside of the car. As for the Accord, Boatright gathered swabs from a number of

components inside the car. She gathered seven latent print lift cards from the

driver’s side. Boatright also took photographs of Appellant at the jail on June 26, at

the request of Detective Cumins. RR14 94-123; RR19 SX #192-215.

        Pursuant to a search warrant, Detective Rory Sullivan collected a buccal

swab from Appellant for the purposes of DNA testing and analysis. RR13 197-

201; RR19 SX #216. Using William Ervin’s blood sample and Appellant’s buccal

swabs as the basis for comparisons, Austin Police senior DNA analyst Elizabeth

Morris tested a variety of materials. In sum, Morris did not match Appellant’s

DNA to any of the evidentiary items she analyzed. RR14 23-69; RR19 SX #85-90,

164, 166, 169-70, 175, 211-13, 216. Morris’s colleague Clair McKenna tested

swabs taken from the revolver and the Ruger pistol that were recovered from the

white Nissan. McKenna found a profile with a mixture of DNA on a swab taken

from the grips of the revolver. Whereas McKenna could not exclude Appellant as a

contributor to this profile, she also could not definitively state that Appellant was a

contributor. McKenna testified that “the probability of selecting an unrelated

person at random who could be a contributor to this profile is approximately * * *

1 in 57 for blacks.” RR14 67-8, 70-94.



                                                                                     18
        Austin Police latent print examiner Sharon Cook could not find any

identifiable latent prints on lift cards taken from a cellphone and cellphone case

found in the Ford Mustang. Cook did find four identifiable prints on lift cards

taken from the exterior driver’s window of the Honda Accord, as well as a palm

print taken from the rear driver’s side window, but none matched the known

fingerprints of Appellant or William Ervin. RR13 202-23; RR19 SX #214-15.

Cook’s colleague Toby Cross examined latent prints found on the exterior of the

white Nissan Maxima. The prints did not match the known fingerprints of

Appellant. RR14 14-22; RR19 SX #84.

        Dr. Satish Chundru performed an autopsy on William Ervin on June 25.

On the left side of Ervin’s face, Chundru observed a fatal gunshot wound

surrounded by “stippling,” caused by flakes of gunpowder. Chundru testified the

presence of stippling indicated the gunshot was from close range, “[a]nywhere

from two inches to two feet.” The bullet traveled from “left to right, front to back,

and then downwards.” Chundru retrieved the bullet and submitted it for evidence.

RR16 78-100; RR19 SX #224-32. Crime scene specialist Jennifer Mezei attended

the autopsy and took photographs. Mezei also collected the decedent’s clothing,

personal effects, a sample of his blood standard, swabs for gunshot residue, and the

projectile recovered from his neck. RR13 162-73; RR19 SX #171-7.




                                                                                     19
        Greg Karim, a firearm and tool mark examiner for Austin Police, analyzed

the 9mm Ruger and the .38 Special revolver and ammunition found in the white

Nissan, as well as the projectile recovered from Ervin’s neck at his autopsy. By

examining bullets fired from the revolver and comparing them to the projectile

recovered at Ervin’s autopsy, Karim concluded they were fired from the same gun.

RR15 47-58, 65-91; RR16 6-27; RR19 SX #72, 75, 163, 168, 176, 233-312. The

Ruger 9mm bore a serial number of 307-44442. The State introduced business

records from McBride’s Guns, indicating a Ruger 9mm with the same serial

number was sold to a Jimmy Brown on February 22, 2010. See RR15 70-1; RR16

100, 108-9; RR19 SX #240, 313.

        At trial, Sergeant Jason Cumins testified that early in the morning hours of

June 25, he was assigned as the lead detective in the Ervin homicide. Cumins

reported to the homicide unit office and began to communicate with colleagues

already at the scene, including Detective Anthony Nelson. Cumins gathered more

information from officers as they returned to the office, and he interviewed Rachel

Ervin. Cumins then visited the scene at Sprinkle Cutoff Road, where he surveyed

the area and spoke to Nelson. Cumins returned to the office when he learned about

the other incident involving Verzi. Cumins had other officers pick Verzi up and

bring him to the office to be interviewed at around 8:00 AM on June 25. They

spoke for over an hour and a half before going out to Sprinkle Cutoff Road, so that



                                                                                   20
Verzi could point out where it happened. Cumins drove Verzi home before

returning to the office. Based on the information Cumins and his colleagues had

gathered so far, a press release was issued later that day, seeking information and

relaying a particular description. RR14 126-40; RR15 19-20.

        Cumins interviewed Block’o and Danny Wilford after they came forward

in response to the press release. The Wilfords were cooperative, and they provided

Cumins with Appellant’s name. Block’o allowed officers to process his car and

cell phone for potential evidence. Right as their conversation ended at around

midnight on June 25, Cumins learned Appellant had just been arrested for the

episode on San Antonio Street. Cumins also learned there was a bag containing

two handguns found inside the car Appellant was driving. Patrol officers brought

Appellant to Cumins’s office for an interview. Because he felt he was intoxicated,

Cumins decided not to interview Appellant at that time, but he did have

photographs taken of him. Cumins identified Appellant in court. RR14 139-53;

RR15 20-1, 23-4; RR19 SX #184-5, 187, 217-221.

         After allowing a period of approximately eleven hours to pass, Cumins

and Texas Ranger Gary Phillips picked Appellant up from the jail to interview him

at the homicide office. Cumins informed Appellant of his Miranda rights before

the interview began. It lasted approximately six hours. At the tail end of the

interview, detectives from the robbery unit also participated and asked questions



                                                                                      21
about the theft of the car Appellant used to drive downtown prior to his arrest. The

recording of the interview was introduced at guilt-innocence at Appellant’s murder

trial, subject to redactions that had been ruled upon prior to trial. RR14 154-72;

RR15 10-46; RR19 SX #223; RR21 CX #9-10,2 CX #12 (= transcript of redacted

statement); see also RR10 5-19; RR11 7-8, 180-6; RR12 7-9, 267; RR13 232-3;

RR14 123; RR21 CX #2 (= transcript of statement without redactions).

         Prior to the trial of either cause, trial counsel had sought by written motion

to suppress the custodial interview of Appellant. RR4 4-8; RR5 4-5; RR21 CX #1-

2; CR1 31-3; (*CR1) 12-14. The trial court held a Jackson v. Denno hearing to

determine if Appellant’s statements were admissible. See Jackson v. Denno, 378

U.S. 368 (1964). Cumins testified at this pretrial hearing. RR5 10-24; RR6 6-35.

Ranger Phillips also testified at the hearing, although he did not later testify at trial.

RR6 35-52. At the close of the hearing, trial counsel argued the statement should

be suppressed in its entirety, because Appellant had not knowingly, intelligently,

and voluntarily waived his rights. In the alternative, trial counsel argued the

remainder of the interrogation should have been suppressed once Appellant

asserted his Fifth Amendment right to silence. RR6 54-63. The trial court denied

the motion to suppress Appellant’s statement and entered written findings of fact

2
 The Court intended to have an email regarding redactions to Appellant’s statements marked and
included in the record as CX #10, while a State’s Proffer of Evidence was intended to be marked
as CX #9. The numbers were switched and erroneously marked on the exhibits themselves.
RR12 7; RR21 CX #9-10.


                                                                                            22
and conclusions of law accordingly. RR9 4; RR10 5; CR1 146-52. Trial counsel

timely renewed his objections at appropriate moments over the course of the trial.

RR14 165, 171 (guilt-innocence phase); RR17 10, 179 (punishment phase).

          The portions of the custodial interrogation that were introduced at guilt-

innocence may be summarized as follows. See RR19 SX #223. Before the

interview began, Cumins read the Miranda rights aloud to Appellant from a

standard blue card. Appellant did not expressly waive his rights. Cumins started by

asking Appellant basic information about who he was, where he lived, and what

sort of family he had. See RR21 CX #12 at pp. 3-9.3 First, Appellant said he did

not know why he was there or why he had been arrested. Then, Appellant said it

was for “reckless driving.” Id. at 9-16. As Cumins tried to pinpoint what Appellant

had done the day before, Appellant remembered leaving his grandmother’s house

around the time when it became dark. Appellant had visited friends, and he

recalled being in the area of Martin Luther King Boulevard and Springdale Road,

but he was vague on details. Id. at 14-25.

         Appellant then described backing into a police car and getting Tased at the

time of his arrest. RR21 CX #12 at pp. 25-6, 29-32. Appellant discussed ongoing

difficulties with his grandmother and having a place to stay. He mentioned he had

3
 The recording itself should be consulted for the accuracy of the contents thereof. It was
admitted as evidence, whereas the transcript was not. However, for ease of reference, and as a
matter of convenience, the present Brief will refer to page numbers in the same transcript
provided as an aid to the jury. See RR14 165-71; RR19 SX #223; RR21 CX #12.


                                                                                                 23
worn the same clothes for “days now.” Id. at 32-8, 58, 62-3. Appellant then

abruptly asked Cumins and Phillips, “You guys hear that?” Appellant told them he

was hearing “[v]oices” and described how he had been on antidepressants. Id. at

39-44. Appellant added that “[t]he voices told [him] to do * * * all kind of crazy

stuff.” Id. at 47-9. When asked why he had crashed into the patrol car near the jail,

Appellant said he was “[t]rying to get some help.” Id. at 54-5.

        Appellant acknowledged there were two guns in the bag found in the car.

Appellant said he feared for his life because of the voices. He said the voices led

him to wreck the car downtown. Appellant borrowed he guns, but he could not

remember who lent them to him. At first he could not remember how long he had

them. Then, he said he borrowed them the day before. Appellant could not recall

what kind of guns they were. RR21 CX #12 at pp. 55-66. Eventually, Appellant

offered the name of Jimmy Brown, Jr., as the friend who may have lent him the

guns. Id. at 66-9. At one point, Appellant asked, “The voices got me tripping

yesterday, right?” Id. at 69-70.

        Appellant continued to maintain he had the guns since the prior evening.

As Phillips tried to pin down the circumstances of his visit to Jimmy Brown, Jr.’s

house, Appellant stated, “I plead the Fifth.” Cumins asked, “When you say you

plead the Fifth, you mean you just don’t want to answer that question? Is that what

you’re saying?” Appellant replied, “That damn right.” Appellant was again asked



                                                                                      24
if the guns were stolen before Cumins and Phillips left the room for a break. RR21

CX #12 at pp. 71-4. When Cumins and Phillips returned, they resumed questioning

Appellant about his whereabouts and activities in the days leading up to his arrest.

Id. at 74-96. As they tried to pinpoint when Appellant returned to his

grandmother’s house the night before, Appellant again twice stated, “I plead the

Fifth.” Id. at 95-6. The questioning continued without pause. Appellant

acknowledged he knew where he was. Appellant was asked if he borrowed

“anybody’s car this weekend,” and he described how he had borrowed a Honda

Accord from his cousin “Blanco” [sic]4 in order to use it to get some clothes.

Cumins told Appellant they had already spoken to “Blanco.” Appellant

acknowledged he also borrowed “Blanco’s” phone. Id. at 96-104.

            Appellant could not recall where he went in “Blanco’s” car, other than

visiting a woman named Ashley. Appellant denied having the guns or his bag with

him at the time. RR21 CX #12 at pp. 104-6. Eventually, Cumins mentioned that

someone fitting Appellant’s description, in a car matching the description of his

cousin’s car, had “scared the hell out of [a] kid” on Sprinkle Cutoff Road. At first,

Appellant denied involvement. Id. at 106-11. Appellant then relented, saying that

he was “[j]ust trying to scare him.” Appellant got him to stop when he “[j]ust

flagged him down.” Initially, Appellant denied he had a gun at the time. Then, he

said it was unloaded. Cumins tried to pinpoint when Appellant had unloaded the
4
    From the context, “Blanco” clearly refers to Appellant’s cousin, Block’o Wilford.


                                                                                        25
guns. Again, Appellant stated, “I plead the Fifth.” Without pause, Cumins

continued to ask why Appellant had scared the man. Id. at 111-19.

        Appellant could not recall when he returned “Blanco’s” car to him, but he

remembered that “Blanco” gave him a ride back to his grandmother’s house.

Appellant denied trying to flag anyone else down that night. When told that

someone had been shot on the same road, Appellant denied being involved. RR21

CX #12 at pp. at 119-27. Eventually, Appellant said his “life was on the line,”

because of “[t]he voices.” Appellant said he “had to do it or I was going to die.”

Appellant said the voices told him to “[f]ind a victim.” Appellant said the first man

was still alive because “[t]here weren’t no bullets in the gun.” Id. at 128-36.

Cumins and Phillips pressed Appellant for details, but he did not directly reply to

their questions. Appellant did mention he “was on PCP.” When asked if he

regretted “taking that man’s life,” Appellant answered, “Fuck yeah, I regret it and

this shit ain’t right. My life was on the line, man.” Id. at 136-41. Appellant was

asked how he flagged the man down. Eventually, after another digression about

hearing the “voices,” Appellant said he flagged him down by flashing his

headlights at him. Id. at 141-56. When asked if he had used the semiautomatic or

the revolver, Appellant said he used the “black revolver” because he “had to,”

because he “thought I was going to die.” When asked what happened after he shot

the man, Appellant said “[t]he car went back in reverse” into the woods, and he



                                                                                      26
left. Upon request, Appellant demonstrated with body language how the car

reversed into the woods. Appellant maintained there were no bullets in the gun

when he flagged down “that first kid.” Id. at 156-72.

         Psychologist Marisa Mauro,5 Ph.D., testified as an expert for the State.

Mauro reviewed Appellant’s recorded interview, related offense reports, and

Appellant’s medical records from Shoal Creek Hospital prior to trial. Over

objection as to speculation, Mauro gave the opinion that Appellant understood his

Miranda rights, based on her review of the interview. With reference to portions of

the interview where Appellant claimed to be hearing “voices,” Mauro testified that

in her opinion, there were no signs that Appellant “was having auditory

hallucinations or hearing voices.” Instead, Mauro saw “many indications to the

contrary,” which she described. Mauro testified Appellant had been admitted to

Shoal Creek in March 2012 because he was “experiencing symptoms consistent

with PCP-induced psychosis.” RR16 30-47. The medical records from Shoal

Creek were also introduced into evidence, subject to agreed redactions concerning

matters apart from PCP abuse. RR16 27-30, 108-110, 113, 131-5; RR19 SX #316;

see also RR10 7-9; RR11 180-2; RR12 259-65; RR13 48-50, 64-5, 78.

         During the charge conference, trial counsel requested an instruction that if

the jury were to find that Appellant’s statement was given freely and voluntarily,

5
 The Reporter’s Records refer to Dr. Mauro as “Melissa,” but her correct given name is
“Marisa.” Cf. “Additional Notice of State’s Expert Witnesses,” CR1 78.


                                                                                         27
they were not to consider his statements of “I plead the Fifth” as evidence against

him. The trial court denied the request. RR15 92-5; RR16 122-4; RR21 CX #14.

At guilt-innocence, Appellant chose not to testify. Apart from brief testimony by

Appellant’s grandmother Susan Smith, the defense did not introduce evidence.

RR15 59-65; RR16 111-13, 139-40. After hearing the argument of counsel, the

jury retired to deliberate. Appellant was found guilty. RR16 140-67.

         At the punishment phase, the State introduced testimony regarding the

events immediately preceding Appellant’s arrest, including the theft of a car from

Elizabeth Pantoja.6 Tammy Robinson testified that a little after 11:00 PM on June

25, 2012, she and her husband were at a gas station near the intersection of MLK

and Springdale Road when she heard “[m]aybe three” gunshots. Robinson looked

and saw a man approaching cars. Robinson identified the man in court as

Appellant. Robinson testified he went to a black truck and tried to get in, but the

driver panicked and hit a white car in front of him. Appellant then went to the

white car, made the passengers get out, and drove away in the car. Robinson did

not see a gun in Appellant’s hands. RR17 31-6, 49-59.

         Elizabeth Pantoja testified that on June 25, 2012, a little after 11:00 PM,

she was a passenger in a white Nissan Maxima stopped at a light at MLK and

Springdale Road. Suddenly, the car was hit from behind. A black male got in the

6
 This constituted the underlying offense of Aggravated Robbery in cause D-1-DC-12-203247.
See (*CR1) 28-9.


                                                                                            28
car on the passenger side and told Pantoja and her boyfriend, the driver, to get out.

The man took a “U-turn” and drove off in the direction of Interstate 35. The man

had a bag that “was like Jamaican color,” or “green and yellow and red.” RR17 37-

48; RR19 SX #36, 40-2, 47-8. Detective Christopher Leleux showed Pantoja a

sequential lineup on June 26, but she was unable to pick out Appellant. Leleux also

retrieved a surveillance video from the gas station that was introduced into

evidence. RR17 80-101; RR20 SX #339-40.

        Austin Police Officer Nicolas Draper reported to the scene after receiving

a “shots fired call”—later updated as a “robbery urgent”—at 11:21 PM. Draper

met with Pantoja and her boyfriend, Jesus Martinez Delgado, and learned their

four-door white car had been stolen. Pantoja told officers what had happened.

Officers also spoke to her boyfriend, as well as to Robinson and her husband.

Draper transported Pantoja and her boyfriend to headquarters to speak to

detectives. In the meantime, Draper learned that Appellant had crashed Pantoja’s

car into Officer Euhus’s patrol unit. Draper helped Officer Wille take Appellant to

the Travis County Jail. Draper recalled that about an hour or two before the theft of

the car, he had seen Appellant walking in the roadway, carrying a “Rastafarian” or

“Jamaican” backpack. Draper asked him to move onto the sidewalk, and he did.

RR17 59-79; RR20 SX #338.




                                                                                   29
        The State called Sergeant Roger Dean with the Travis County District

Attorney’s Office to testify regarding records from Appellant’s various prior

convictions, which Dean was able to identify as Appellant’s by way of fingerprint

comparison. RR17 102-12, 141-58; RR20 SX #325, 327-37.

        Dr. Mauro returned to testify at the punishment phase. In addition to

consulting Appellant’s Shoal Creek records and his criminal history, Mauro had

reviewed Appellant’s medical records from the Travis County Jail, which were

also introduced into evidence. Mauro found indications in the jail records that

Appellant had been malingering in terms of purporting to hear voices. RR17 22-6;

RR20 SX #326. Essentially, Mauro gave an opinion that there was no available

treatment for someone “exhibiting all of th[e] traits” that she found to be associated

with Appellant. RR17 162-77.

        Detective Cumins also testified at the punishment phase. The State

admitted the portions of Appellant’s statement that had been redacted during the

guilt-innocence phase, i.e. those portions that covered the events leading up to

Appellant crashing the white Nissan into Officer Euhus’s patrol unit. Trial counsel

renewed his prior objections to Appellant’s statement. RR17 177-90; RR20 SX

#342; RR21 CX #2. Sergeant Tom Eaton with the Travis County District

Attorney’s Office testified that he obtained a telephone call made by Appellant

from jail on July 28, 2012, which was then introduced into evidence. RR17 190-6;



                                                                                   30
RR20 SX #343. The State rested its case on punishment after the jury heard the

testimony of Ishon Rison, older brother of the deceased, and of Rachel Ervin, who

had also testified at guilt-innocence. RR17 197-213.

      The defense introduced testimony from Latrice Wilson, Appellant’s cousin;

Luciana Lovings, Appellant’s wife; and Sonfa Lovings, his mother. RR17 214-28;

RR18 7-22. Appellant chose not to testify in his own behalf. RR18 5-7. After

hearing argument of counsel and retiring to deliberate, the jury returned a verdict

and assessed a term of seventy-five (75) years in the Institutional Division. The

trial court sentenced Appellant accordingly. RR17 25-52; CR1 195, 198, 200-1.

      The State then proceeded on the remaining offense of Aggravated Robbery

in cause D-1-DC-12-203247. An effort to try the case before a jury ended in a

mistrial after the trial court sustained a Batson challenge lodged by the defense.

(*RR2) 4-9; (*RR3) 4-14; (*RR4) 4-170; (*RR5) 4-21. Ultimately, the parties

entered into a plea bargain agreement. In exchange for a plea of guilty to Count I,

Appellant was sentenced by the trial court to a term of twenty (20) years, to be

served concurrently with the sentence previously assessed by the jury. The State

waived Count II of the indictment. (*RR6) 4-16; (*CR1) 82-6, 92-4. Appellant

filed timely notice of appeal and reserved the right to appeal any Fifth Amendment

issues raised by written motion prior to trial. All applicable rulings from the other

cause were carried over to the Aggravated Robbery cause. (*RR3) 4-14; (*RR6)



                                                                                      31
11-16; (*CR1) 108. The trial court certified Appellant’s right to appeal in both

causes. CR1 210; (*CR1) 88. This appeal followed.


                              Summary of Arguments

        The trial court erred by overruling trial counsel’s motion to suppress and

admitting statements made by Appellant after he invoked the right to remain silent.

Appellant’s invocation of the right to remain silent was unequivocal, unambiguous,

and unqualified. The trial court abused its discretion by finding to the contrary.

Any statements made by Appellant after the invocation of the right to remain silent

should have been suppressed. Additionally, Appellant made no express waiver of

his rights under Miranda and Tex. Code Crim.Proc. § 38.22. The State failed to

establish by a preponderance of the evidence that there was an implied waiver of

his rights that was voluntary, intelligent, and knowing. Appellant believes de novo

review of the custodial interrogation will confirm his position that there was no

waiver of rights, and that the trial court erred by admitting his custodial

interrogation into evidence. The nature of these errors is such that reversal is

required in both causes pending on appeal.

        The remaining issues affect only the judgment of conviction for Murder in

trial court cause D-1-DC-12-301231. The trial court erred by admitting testimony

from Detective Cumins on how an “innocent person” would act in response to

custodial interrogation. In a similar vein, the trial court erred by admitting the

                                                                                     32
conclusion of Dr. Mauro that Appellant understood his Miranda rights. The

testimony in question amounted to pure speculation, in violation of Tex. Rule Evid.

§ 602, and the error was injurious to Appellant’s substantial rights. The trial court

also erred by refusing to grant a requested instruction in the jury charge on guilt-

innocence which would have admonished the jury not to consider Appellant’s

invocations of “I plead the Fifth” as evidence of guilt. The error caused some harm

to Appellant, and he is entitled to a new trial in trial court cause D-1-DC-12-

301231.

                             Issue Number One
 The trial court erred by denying the motion to suppress statements made by
  Appellant after he invoked his Fifth Amendment right to remain silent.

          On four separate occasions during the course of the videotaped recording

of the custodial interrogation of Appellant, he responded to questioning by stating

the words, “I plead the Fifth.” Yet, the interrogation continued. Thereafter,

Appellant made inculpatory statements. Trial counsel urged the suppression of any

statements made after Appellant had initially invoked the right to remain silent.

RR6 55-59, 62. The trial court abused its discretion by overruling trial counsel’s

motion to suppress and by admitting the portions of the interview that followed

Appellant’s invocation of his right to remain silent. The judgment of conviction in

each cause should be reversed and remanded for a new trial.




                                                                                       33
      The Fifth Amendment to the United States Constitution provides that no

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

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). Consistent with this right to remain silent, law enforcement officials, before

questioning a person in custody, must inform him that he has a right to remain

silent and that any statement he makes may be used against him in court. Berghuis

v. Thompkins, 560 U.S. 380-1, 387-8 (2010); Miranda v. Arizona, 384 U.S. 436,

444-5, 478-9 (1966). Article 38.22 of the Texas Code of Criminal Procedure

codifies the holding of Miranda and sets out rules governing the admissibility of an

accused’s written and oral statements. See Tex. Code Crim.Proc. § 38.22; Jones v.

State, 944 S.W.2d 642, 650 n.11 (Tex.Crim.App. 1996).

      The right to remain silent requires the police to immediately cease custodial

interrogation when a suspect “indicates in any manner, at any time, prior to or

during questioning, that he wishes to remain silent.” Ramos, 245 S.W.3d at 418,

quoting Miranda, 384 U.S. at 473-4. The suspect does not need to use any

particular word or phrase to invoke the right to remain silent. Any declaration of a

desire to terminate the contact or inquiry should suffice. No magic words are

required. Ramos, 245 S.W.3d at 418. The suspect need not object to further

questioning in order to protect the right to remain silent. Watson v. State, 762



                                                                                    34
S.W.3d 591, 599 (Tex.Crim.App. 1988). A failure to stop questioning after the

suspect unequivocally invokes his right to remain silent violates his constitutional

rights and renders any subsequently obtained statements inadmissible. Berghuis,

560 U.S. at 381-2; Dowthitt v. State, 931 S.W.2d 244, 257 (Tex.Crim.App. 1996).

The exercise of the right to remain silent must be “scrupulously honored.”

Miranda, 384 U.S. at 479; Michigan v. Mosley, 423 U.S. 96, 104 (1975); Ramos,

245 S.W.3d at 418.

      Granted, when the invocation of right to remain silent is ambiguous, an

officer can either continue questioning “regarding the offense” or stop questioning

and clarify whether suspect wanted to remain silent. Marshall v. State, 210 S.W.3d

618, 628 (Tex.Crim.App. 2006); Dowthitt, 931 S.W.2d at 257. Ambiguity exists

when the suspect’s statement is subject to more than one reasonable interpretation

under the circumstances. Luna v. State, 301 S.W.3d 322, 325 (Tex.App.—Waco

2009, no pet.); see also Dowthitt, 931 S.W.2d at 257. In 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; Luna, 301 S.W.3d at 325; Williams v.

State, 257 S.W.3d 426, 433 (Tex.App.—Austin 2008, pet. ref’d).

      A trial court’s ruling at a suppression hearing is reviewed for an abuse of

discretion, and it will be upheld so long as the ruling is reasonably supported by

the record—i.e., within the zone of reasonable disagreement—and is correct under



                                                                                     35
any theory of law applicable to the case. Ramos, 245 S.W.3d at 417-18;

Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh’g).

The trial court’s ruling with respect to alleged Miranda violations should be

analyzed under the totality of the circumstances, with deference to the trial court

on questions of historical fact and credibility, but with a review de novo on all

questions of law and mixed questions of law and fact that do not turn on credibility

determinations. Leza v. State, 351 S.W.3d 344, 349 (Tex.Crim.App. 2011). The

test for abuse of discretion is whether the trial court acted arbitrarily or

unreasonably, without reference to any guiding rules or principles. Montgomery,

810 S.W.2d at 380. A trial court abuses its discretion only when its decision “is so

clearly wrong as to lie outside that zone within which reasonable persons might

disagree.” McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005).

       The following summary of Appellant’s custodial interrogation is adopted

without modification from the trial court’s “Findings of Fact,” aside from omitting

the internal enumeration of items therein. Appellant does not take issue with the

accuracy of the trial court’s findings of fact as reproduced below, other than to add

select supplementation as noted, and with references to the transcript7 for the sake

of convenience:

7
 The undersigned counsel is mindful of the fact that the transcript was not admitted as evidence.
Only the video recording itself was admitted. At any rate, whether one consults the transcript or
the recording itself, the end result of the present analysis is the same. RR 19 SX #223; RR21 CX
#1-2, CX #12.


                                                                                              36
At 12:15 p.m. Detective Cumins read aloud to Darius Lovings the
Standard Miranda Warnings.

The following exchange occurred:

Detective Cumins: “All right, were going to start talking to you,
Darius, just going to go ahead and proceed. I need to read you these
Miranda rights. Have you ever heard them before, the little blue card?
All right, just bear with me. I know it’s redundant. You have the right
to remain silent, not make any statement at all and that any statements
you make may be used against you and probably will be used against
you at your trial. Any statement you make may be used as evidence
against you in court. You have the right to have a lawyer present to
advise you prior to and during any questioning. If you’re unable to
employ a lawyer, you have the right to have a lawyer appointed to
advise you prior to and during any questioning.”

Defendant responded: “Uh-huh.”

Detective Cumins: “You have the right to terminate this interview at
any time. Do you understand all those?”

Defendant responded: “Uh-huh.”

Detective Cumins responded: “All right, good.” [See RR21 CX #2 at
p. 5]

After the above exchange, Detective Cumins and Ranger Phillips
proceeded to question the defendant for approximately 1 hour and 25
minutes. [See RR21 CX #2 at pp. 5-73]

The defendant did not expressly waive his Miranda rights.

After about an hour and 20 minutes, Detective Cumins asked if the
defendant wanted to “keep talking,” to which the defendant
responded, “Keep talking.” [See RR21 CX #2 at p. 70]

At 1:39 p.m.- 1:40 p.m. the following exchange occurs:

Ranger Phillips: “Do you remember how you got over there? Were
you driving or did somebody else drive you over there to Jimmy’s

                                                                       37
            house, Jimmy Jr.’s? Maybe that would help you remember whether it
            was during the week or the weekend.”

            Defendant: “I plead the fifth.”

            Detective Cumins: “When you say you plead the fifth, you mean you
            just don’t want to answer that question? Is that what you’re saying?”

            Defendant: “That damn right.”

            Detective Cumins: “Okay. You got any questions for us?”

            Defendant: “'No.”

            Detective Cumins: “Okay. You don't wonder like what your charges
            are or how long you’re going to be here or anything like that?”

            Defendant: “What's my charges?” [See RR21 CX #2 at pp. 72-3]

See CR1 146-7. The trial court’s “Findings of Fact” omits the rest of the exchange,

which continued as follows:

            DETECTIVE CUMINS: Well, I’m trying to talk to you and I was
            ready to explain everything to you, but you’re not really talking to us.
            Right now you’re in charge—you’re being charged for taking that car.

            APPELLANT: Right.

            DETECTIVE CUMINS: So—and I think you already knew that.

            APPELLANT: Uh-huh.

            DETECTIVE CUMINS: But the reason we’re asking about weapons
            is, you know, are they stolen? That’s a different charge. We just need
            to know did you steal them from somewhere?

            APELLANT: No.

            DETECTIVE CUMINS: Okay.



                                                                                  38
            RANGER PHILLIPS: Okay.

            DETECTIVE CUMINS: All right. We’ll give you a few minutes, all
            right? Drink some water, take a break. We’ll come back in in just a
            minute.

Cumins and Phillips then left the room. See RR21 CX #2 at pp. 73-4. The trial

court’s “Findings of Fact” resumes as follows:

            At 1:40 the detectives took a 20 minute lunch and/or water break and
            resumed questioning of the defendant at 1:57 and continued for
            another hour and 20 minutes. [See RR21 CX #2 at pp. 74-147]

            At 2:21 p.m.-2:22p.m. the following exchange occurs:

            Detective Cumins: “So at what point did you go back to your
            grandmother’s? You told me earlier like 1:30 in the morning you go
            back to your grandmother’s house? Is that right, you stayed at your
            grandmother’s Sunday night?”

            Defendant: “I plead the fifth.”

            Detective Cumins: “Okay. Can you tell me anything else you did on
            Sunday, so anybody can say you were with them, anybody can verify
            where you were?”

            Defendant: “I plead the fifth.”

            Detective Cumins: “All right. Do you know where you're at now?”

            Defendant: “Uh-huh.”

            Detective Cumins: “Where are you?”

            Defendant: “Seventh Street.” [See RR21 CX #2 at pp. 95-6]

See CR1 147-8. The trial court’s “Findings of Fact” again omits the rest of the

related exchange, which continued as follows:



                                                                                  39
            DETECTIVE CUMINS: That’s right. Police department. Did you
            borrow anybody’s car this weekend?

            APPELLANT: Yeah, I had my cousin’s car.

            DETECTIVE CUMINS: What's your cousin’s name?

            APPELLANT: Let me think. Blanco.

See RR21 CX #2 at p. 96. Cumins and Phillips proceeded to question Appellant

about his cousin “Blanco,” borrowing his cousin’s Honda Accord, and Appellant’s

whereabouts and activities while he was driving the Accord. RR21 CX #2 at pp.

96-119.

      The trial court’s “Findings of Fact” resumes as follows:

            At approximately 2:51 p.m. the following exchange occurred:

            Detective Cumins: “... So my question is, when did you take the
            bullets out of the gun to scare this kid, if the gun was unloaded?
            Before you left in Blanco’s car or after you were on that country
            road?”

            Defendant: “I plead the fifth.”

            Detective Cumins: “Okay. That’s fine. So you can tell me why you
            scared him, what made you decide to scare this kid? Were you
            frustrated? Had you been arguing with your grandmother again?
            Because Blanco was mad at you for having his car so long you got
            frustrated?”

            Defendant: “Just going through it.”

            Detective Cumins: “Just going through it? Just upset? Okay. So after
            this kid rolled off scared to death, where did you go then? Do you
            remember where you went?”'



                                                                                 40
            Defendant: “'To Walnut Creek.” [See RR21 CX #2 at pp. 118-9]

CR1 148. The trial court’s “Conclusions of Law” recites the following with respect

to the decision to overrule Appellant’s motion to suppress on Fifth Amendment

grounds:

            [T]he Court finds that the defendant’s responses that he “plead the
            fifth” to four different questions by the officers and throughout the
            interview was not an unambiguous and unequivocal invocation of his
            right to remain silent. The basis of this finding includes but is not
            limited to the following evidence:

            (a)When the officers asked a question that the defendant did not want
            to answer, the defendant stated, “I plead the fifth.” Detective Cumins
            immediately attempted to clarify as to whether the defendant did not
            want to answer that particular question, to which Lovings answered,
            “Damn right.” Detective Cumins asked the defendant a different
            question, to which the defendant answered and continued his
            interaction without any indication that he wanted to remain silent. Mr.
            Lovings’ conduct indicates a willingness to answer some questions
            while reserving his right to not answer others. The right not to answer
            one question exists just as the right not to answer any questions at all.

            (b) Before and after the defendant asserted that he “Plead the fifth,” he
            continued to answer without any resistance or concern many questions
            posed by the officers. The Court finds that these assertions by the
            defendant were question specific and none of them were an
            unambiguous invocation of his right to remain silent. The phrase
            “plead the fifth” has also entered common vernacular and used today
            to mean that a person does not want to answer a question because it
            will put him in a bad light.

CR1 151. See also RR15 122-3.

      “Surely, in popular parlance and even in legal literature, the term ‘Fifth

Amendment’ in the context of our time is commonly regarded as being



                                                                                   41
synonymous with the privilege against self-incrimination.” Such was the

observation of the United States Supreme Court sixty years ago. The same holds

no less true today. See Quinn v. United States, 349 U.S. 155, 163 (1955), cited by

Anderson v. Terhune, 516 F.3d 781, 783 (9th Cir. 2008), cert. denied sub nom. Cate

v. Anderson, 555 U.S. 818 (2008). “It is likely that few Americans can profess

fluency in the Bill of Rights, but the Fifth Amendment is surely an exception.

From television shows like ‘Law & Order’ to movies such as ‘Guys and Dolls,’ we

are steeped in a culture that knows a person in custody has ‘the right to remain

silent.’ Miranda is practically a household word. And surely, when a criminal

defendant says, ‘I plead the Fifth,’ it doesn’t take a trained linguist, a Ph.D., or a

lawyer to know what he means.” Anderson, 516 F.3d at 783.

      “It is rare for the courts to see such a pristine invocation of the Fifth

Amendment” as, “I plead the Fifth.” Anderson, 516 F.3d at 784. If one were to

assume arguendo that there is some ambiguity inherent in this particular

invocation, the clarifying phrase “[t]hat damn right” tends to resolve the issue.

Granted, the phrase “I plead the Fifth” could be intended as a generalized, blanket

invocation of the right to remain silent. Or, with or without elaboration, the phrase

could be intended to address a specific question or line of inquiry. Either way, the

phrase serves to unambiguously invoke the right to remain silent. Appellant did not




                                                                                         42
say, e.g., “Maybe I will plead the Fifth.” Appellant did not ask, e.g., “Do you think

I should perhaps plead the Fifth?”

      Nor did Appellant ever qualify his invocations as being specific to the

particular question being asked. That qualification was based solely on

assumptions made by Detective Cumins. “Using ‘context’ to transform an

unambiguous invocation into open-ended ambiguity defies both common sense and

established Supreme Court law. It is not that context is unimportant, but it simply

cannot be manufactured by straining to raise a question regarding the intended

scope of a facially unambiguous invocation of the right to silence. * * * Nothing

was ambiguous about the statement ‘I plead the Fifth.’ * * * ‘I plead the Fifth’ left

no room for doubt. * * * ‘Taking the Fifth’ is as unequivocal as one can get in

invoking the right to remain silent.” Anderson, 516 F.3d at 787-8.

      “If the individual indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the interrogation must cease. At this

point, he has shown that he intends to exercise his Fifth Amendment privilege; any

statement taken after the person invokes his privilege cannot be other than the

product of compulsion, subtle or otherwise.” Miranda, 384 U.S. at 473-4; Mosley,

423 U.S. at 103. Apparently, Cumins and Phillips were not aware of these essential

Miranda requirements. See the testimony of Detective Cumins: “If he says he

pleads the Fifth, I respect that, and I change the question.” RR6 27; see also RR15



                                                                                      43
15-18, “Pleading the Fifth simply means they don’t want to answer that question;”

also see the testimony of Ranger Phillips: “I have no training that specifically tells

me to stop questioning someone when they plead the Fifth.” RR6 43.

        After Appellant first uttered the phrase, “I plead the Fifth,” Detective

Cumins arguably “clarified that he just didn’t want to answer that one question.”

However, Cumins made no effort to clarify whether Appellant wished to decline

the questions that followed. Cumins himself admitted he made no such effort,

“[n]ot at that point.” RR6 24; see also testimony of Ranger Phillips, RR5 47-8.

Cumins then asked Appellant, “You got any questions for us?” Appellant gave

another unambiguous, unequivocal reply: “No.” Yet, the questioning continued.

See RR5 22; RR21 CX #2 at pp. 72-3. The trial court concluded that “Detective

Cumins immediately attempted to clarify as to whether the defendant did not want

to answer that particular question.” This was an unreasonable determination of the

facts, insofar as the purported “clarification” was meaningless in terms of

addressing whether or not Appellant intended his invocation as a general wish to

end all questioning and not just the specific question at hand. Cf. Anderson, 516

F.3d at 789-90.

        “Interpretation is only required where the defendant’s words, understood

as ordinary people would understand them, are ambiguous.” Connecticut v.

Barrett, 479 U.S. 523, 529 (1987). “When the initial request to stop the



                                                                                    44
questioning is clear, ‘the police may not create ambiguity in a defendant’s desire

by continuing to question him or her about it.” Anderson, 516 F.3d at 790, quoting

Barrett, 479 U.S. at 535 n. 5 (Brennan, J., concurring). “By parsing [Appellant’s]

invocation into specific subjects, ‘the police failed to honor a decision of a person

in custody to cut off questioning, either by refusing to discontinue the interrogation

upon request or by persisting in repeated efforts to wear down his resistance and

make him change his mind.’” Anderson, 516 F.3d at 790, quoting Mosley, 423 U.S.

at 105-6. “The net result is that such follow-up questions allowed the officer to

avoid honoring the Fifth Amendment and, as in a right to counsel situation,

enabled ‘the authorities through ‘badger[ing]’ or ‘overreaching’—explicit or

subtle, deliberate or unintentional—[to] wear down the accused and persuade him

to incriminate himself.’” Anderson, 516 F.3d at 790, quoting Smith v. Illinois, 469

U.S. 91, 98 (1984).

      The trial court’s “Conclusions of Law” relies on the fact that after Appellant

elected to “plead the Fifth, “he continued to answer without any resistance or

concern many questions posed by the officers.” CR1 151. “[U]nder the clear

logical force of settled precedent, an accused’s postrequest responses to further

interrogation may not be used to cast retrospective doubt on the clarity of the initial

request itself.” Anderson, 516 F.3d at 791, quoting Smith, 469 U.S. at 100

(emphasis in original). “Invocation and waiver are entirely distinct inquiries, and



                                                                                      45
the two must not be blurred by merging them together. * * * With respect to the

waiver inquiry, we accordingly have emphasized that a valid waiver ‘cannot be

established by showing only that [the accused] responded to further police-initiated

custodial interrogation.’” Smith, 469 U.S. at 98, quoting Edwards v. Arizona, 451

U.S. at 484. “Using an accused’s subsequent responses to cast doubt on the

adequacy of the initial request itself is even more intolerable. No authority, and no

logic, permits the interrogator to proceed . . . on his own terms and as if the

defendant had requested nothing, in the hope that the defendant might be induced

to say something casting retrospective doubt on his initial statement.” Smith, 469

U.S. at 98-9 (internal quotation omitted, emphasis in original); Anderson, 516 F.3d

at 791. It is immaterial that Appellant did not voice further objection when his

invocation of the right to remain silence was afforded no deference. Watson, 762

S.W.3d at 599.

      “[T]he admissibility of statements obtained after the person in custody has

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

questioning’ was ‘scrupulously honored.’” Mosley, 423 U.S. at 104. The factors

relevant to the Mosley analysis are (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



                                                                                     46
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.

This analysis will hinge upon the unique facts and circumstances of each case.

Maestas v. State, 987 S.W.2d 59, 62-3 (Tex.Crim.App. 1999). With regards to the

five Mosley factors, only the first weighs in favor of the State: prior to any

questioning, Appellant was initially warned of his right to remain silent, along with

his other rights under Miranda and Tex. Code Crim.Proc. § 38.22. Incidentally,

Appellant was not asked to waive his rights, nor did he make any express waiver of

those rights. RR5 19-21; RR6 16-19, 34-5; RR21 CX #2 at p. 5.

      As for the remaining Mosley factors, Appellant was not again informed of

his right to remain silent at any of the four instances when he stated, “I plead the

Fifth.” The length of time between initial questioning and subsequent questioning

after each waiver was negligible. Upon the first utterance of “I plead the Fifth,”

there was limited questioning that followed before Cumins and Phillips left the

room for almost twenty minutes. On their return, questioning promptly resumed

without any additional warnings regarding Appellant’s rights. In the other three

instances, questioning continued without any delay or pause whatsoever, with the

focus still on the same offense. RR21 CX #2 at pp. 72-3, 95-6, 118-19. Clearly,

there was little in the way of any sort of honoring of Appellant’s repeated

invocations. To borrow a phrase from Cumins, no amount of “Monday morning



                                                                                       47
quarterbacking the transcript” can change the fact that Appellant’s Fifth

Amendment right to remain silent was violated, and any statements made after his

unambiguous, unequivocal, and unqualified invocation of that right were

inadmissible. See RR6 26.

      Admission of evidence in violation of the Fifth Amendment right to remain

silent is subject to harm analysis under Tex.R.App.Proc. § 44.2(a). Ramos, 245

S.W.3d at 419. Factors to be considered include: the source and nature of the error;

the importance of the evidence to the State’s case, as well as the emphasis placed

upon the evidence by the State; whether the evidence was cumulative of other

evidence; the presence or absence of other evidence corroborating or contradicting

the evidence on material points; the overall strength of the State’s case; whether

finding the error harmless would encourage the State to repeat the conduct; and

any other factor, as revealed by the record, that may shed light on the probable

impact of the error on the mind of the average juror. Clay v. State, 240 S.W.3d

895, 904 (Tex.Crim.App. 2007); Harris v. State, 790 S.W.2d 568, 587

(Tex.Crim.App. 1989).

      In gauging whether the error is harmless in the context of the totality of the

State’s evidence, “[a]n appellate court should not focus on the propriety of the

outcome of the trial. Instead, the appellate court should calculate as much as

possible the probable impact of the error on the jury in light of the existence of



                                                                                     48
other evidence. While the most significant concern must be the error and its

effects, the presence of overwhelming evidence supporting the finding in question

can be a factor in the evaluation of harmless error. If an appellate court rules that

an error is harmless, it is in essence asserting that the nature of the error is such

that it could not have affected the jury. Stated in an interrogatory context, a

reviewing court asks if there was a reasonable possibility that the error, either

alone or in context, moved the jury from a state of nonpersuasion to one of

persuasion as to the issue in question.” Wesbrook v. State, 29 S.W.3d 103, 119

(Tex.Crim.App. 2000) (citations omitted).

      Turning to the instant cause, “[a] confession is like no other evidence.

Indeed, ‘the defendant’s own confession is probably the most probative and

damaging evidence that can be admitted against him. * * * [T]he admissions of a

defendant come from the actor himself, the most knowledgeable and

unimpeachable source of information about his past conduct. Certainly,

confessions have profound impact on the jury, so much so that we may justifiably

doubt its ability to put them out of mind even if told to do so.” Arizona v.

Fulminante, 499 U.S. 279, 296 (1991), quoting Bruton v. United States, 391 U.S.

123, 139-40 (1968) (White, J., dissenting). In the portions of the interview that

followed Appellant’s invocation of the right to remain silent, Appellant made a

number of inculpatory statements: he discussed borrowing his cousin’s car; he



                                                                                        49
admitted participating in the Verzi incident and gave corroborating details; and he

admitted to the murder, again with corroborating details. See RR21 CX #2 at pp.

72-190.

      The State heavily relied upon and emphasized Appellant’s inadmissible

statements during closing argument. During initial closing remarks, the State noted

that Appellant said he left Sprinkle Cutoff Road after the Verzi incident, which

explained why officers investigating the Verzi report did not see Appellant when

they checked. RR16 142. The State also discussed how Appellant’s inadmissible

statements corroborated Verzi’s testimony, and more importantly, how his

statements were consistent with the manner and means of the complainant’s death.

RR16 144-5. During further closing remarks after trial counsel’s argument, the

State continued to discuss Appellant’s inadmissible statements. The jury was

invited to re-examine the recording and parse Appellant’s replies to questioning.

During argument, the State even published a snippet of the recording where, in

response to questioning after the invocation of the right to remain silent, Appellant

demonstrated through his body language “how that car went through the woods in

reverse.” The State suggested that Appellant’s explanation constituted the most

damning piece of evidence of all of Appellant’s guilt. RR16 154-60; RR19 SX

#223; see RR21 CX #12 at pp. 163-4.




                                                                                    50
      There were apparently no witnesses to the homicide. There was no

surveillance footage of the incident. There was no fingerprint evidence tying

Appellant to the instant offenses. RR13 202-23; RR14 14-22. Verzi could not

identify Appellant. RR12 43, 51. Pantoja could not identify Appellant. RR17 46,

83-6, 90. There was DNA evidence linking Appellant to one firearm, but it was far

from conclusive. RR14 23-94. Appellant’s statements were not cumulative of

other evidence adduced at trial. Without Appellant’s recorded statement, the

evidence in support of his guilt was far from overwhelming.

      There is a great risk that finding the error harmless would encourage the

State to repeat such conduct in the future. Both Detective Cumins and Ranger

Phillips demonstrated an acute lack of awareness of basic Miranda protocol with

respect to the invocation of the right to remain silent. RR6 27, 43; RR15 15-18. A

week prior to trial, Cumins sent a text message to Assistant District Attorney

Steven Brand, the lead prosecutor at trial, asking if he “needed to know some more

about [the Fifth Amendment] or a tutorial on the Fifth Amendment.” RR15 33-4.

During closing remarks, on one hand, the State seemingly tried to downplay the

importance of the phrase, “I plead the Fifth,” by noting that the Fifth Amendment

is not explicitly mentioned in the recital of Miranda rights. On the other hand, the

State suggested that the invocation of “I plead the Fifth” was but one of many




                                                                                   51
indicators that Appellant was “in control” of the interrogation, not the officers

conducting the questioning. RR16 155.

      Harm analysis in the present context is not a simple matter of judging

whether there was sufficient evidence—absent the erroneously admitted statements

—for a rational juror to declare guilt. Satterwhite v. Texas, 486 U.S. 249, 258-9

(1988); Brooks v. State, 132 S.W.3d 702, 708 (Tex.App.—Dallas 2004, pet.ref’d).

The question is whether the erroneously admitted evidence could have affected the

jury’s decision. Wesbrook, 29 S.W.3d at 119. It cannot be said beyond reasonable

doubt that these erroneously admitted statements, in Appellant’s own words, did

not contribute to his conviction in each cause. The judgment of the trial court in

each cause should be reversed and remanded for a new trial.

                             Issue Number Two
 The trial court erred by denying the motion to suppress statements made by
Appellant because the State failed to establish he made a knowing, intelligent,
and voluntary waiver of his Miranda rights pursuant to Tex. Code Crim.Proc.
                                   § 38.22.

        Trial counsel also urged the suppression of Appellant’s statements on the

basis that he had not knowingly, intelligently, and voluntarily waived his rights

under Miranda and Tex. Code Crim.Proc. § 38.22. RR6 54-5, 58-9, 62. The trial

court abused its discretion by overruling trial counsel’s motion to suppress and by

finding that Appellant made an implied waiver of his rights. The judgment of

conviction in each cause should be reversed and remanded for a new trial.



                                                                                     52
      In its “Findings of Fact,” the trial court acknowledged that Appellant “did

not expressly waive his Miranda rights.” The trial court’s “Conclusions of Law”

further recites the following with respect to the waiver of rights:

             Based upon the totality of the circumstances of the interview and
             relevant evidence presented in the live hearing, this Court finds that
             the Defendant impliedly waived his Miranda rights. These
             circumstances include but are not limited to the demeanor of the
             defendant throughout the video, the response of “uh-huh” by the
             Defendant indicating that he heard/understood his rights, the
             Defendant’s willingness to answer questions by the officers, his
             interaction with the officers throughout the interview, his sometimes
             pausing thoughtfulness and reflection before answering some
             questions, his assertion that he wanted to “keep talking,” his statement
             that he “Plead the fifth,” that was an hour and twenty minutes into his
             questioning and his subsequent “pleading the fifth” to specific
             questions that he chose not to answer. All of these factors show that
             the defendant clearly understood the consequences of answering
             questions posed by the officer and thus establishes an implied waiver
             of his rights.

CR1 151.

      The State bears the burden of establishing a knowing, intelligent, and

voluntary waiver of one’s rights under Miranda and Tex. Code Crim.Proc. § 38.22.

Leza, 351 S.W.3d at 349, 351; Joseph v. State, 309 S.W.3d 20, 24 (Tex.Crim.App.

2010). Waiver must be proven by a preponderance of the evidence. Leza, 351

S.W.3d at 349, 351; Joseph, 309 S.W.3d at 24. A waiver can be expressly made or

implied by the accused’s conduct. Berghuis, 560 U.S. at 383; Joseph, 309 S.W.3d

at 24. An implied waiver of one’s rights is established upon a showing that the

accused: (1) was given the proper warnings; (2) understood the warnings and their

                                                                                    53
consequences; and (3) made an uncoerced statement. Berghuis, 560 U.S. at 381-4;

see Moran v. Burbine, 475 U.S. 412, 422-3 (1986); Leza, 351 S.W.3d at 349.

     “[T]he general rule is that neither a written nor an oral express waiver is

required.” However, a waiver cannot be presumed from an accused’s silence or the

fact that a confession was made after warnings were provided, Watson, 762

S.W.2d at 601. The determination of whether there was a valid waiver of rights

involves and analysis of the totality of the circumstances, “including the

background, experience, and conduct of the accused.” North Carolina v. Butler,

441 U.S. 369, 374-5 (1979); Leza, 351 S.W.3d at 349, 352-3; Joseph, 309 S.W.3d

at 25. “First, 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 a 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.” Moran, 475 U.S. at 421, quoting Fare v. Michael C., 442 U.S. 707, 725

(1979); Joseph, 309 S.W.3d at 25.

      In the instant cause, Appellant cannot point to any intimidation, coercion, or

deception on the part of the officers. But if “voluntariness” amounts to willing



                                                                                     54
participation, as Joseph seems to suggest, such is not to found on the recording in

evidence. See Joseph, 309 S.W.3d at 25-6; RR19 SX #223; RR21 CX#1. As

argued above in Issue Number One, Appellant did try to terminate the interview by

stating, unequivocally and unambiguously, on four occasions, “I plead the Fifth.”

RR21 CX #2 at pp. 72-3, 95-6, 118-19. Cf. Joseph, 309 S.W.3d at 26: “[A]t no

time did [Appellant] ask that the interview be stopped.” An examination of the

recording itself does not reflect that Appellant willingly participated in the

conversation. Appellant’s answers to questions were generally vague and evasive.

At no point does Appellant seem “eager to share information.” Cf. Joseph, 309

S.W.3d at 26. Appellant appears distracted and disinterested throughout the

recording, even when he is not purporting to hear “voices.” RR19 SX #223; RR21

CX#1.

      Over the course of the interview, Cumins made several offers to “help”

Appellant, including promises to steer him into mental health assistance, e.g. “We

can try to get you some medical help and to see some doctors and things like that

for sure.” There was also the repeated implication that Appellant would receive

this help only if he continued to answer questions truthfully. RR21 CX#2 at pp. 32,

41, 46-8, 53-5, 59-60, 69, 107-8, 118, 123-4, 128, 138, 143-4, 146-7, 152, 157-8,

160. “A promise made by a law enforcement officer may render a confession

involuntary if it was positive, made or sanctioned by someone with apparent



                                                                                    55
authority, was of some benefit to the defendant and was of such a character as

would likely cause a person to speak untruthfully.” Garcia v. State, 919 S.W.2d

370, 388 (Tex.Crim.App. 1994) (op. on reh’g), cited by Joseph, 309 S.W.3d at 26

n. 8. Cumins’s promises were of such a character, especially since Cumins made

the overwhelming majority of these promises of help subsequent to Appellant’s

initial complaints about hearing voices. RR21 CX#2 at p. 39.

      A greater issue is presented by the question of whether or not Appellant’s

alleged “implied waiver” reflected the “requisite level of comprehension,” such

that would demonstrate “full awareness of both the nature of the rights being

abandoned and the consequences of the decision to abandon them.” Moran, 475

U.S. at 421; Joseph, 309 S.W.3d at 27. Appellant was never asked to waive his

rights, nor did he make any express waiver of rights. RR5 19-21; RR6 16-19, 34-

5; RR21 CX #2 at p.5. The trial court’s determination that Appellant understood

his rights rests on the thin basis of two utterances of the phrase, “uh-huh,” spoken

by Appellant in response to Cumins’s recital of the applicable rights. CR1 151; see

RR19 SX #223; R21 CX #1, CX #2 at p.5. Over the course of approximately five

minutes following this exchange, Cumins developed enough concern over

Appellant “[s]eem[ing] kind of sleepy” that he insisted on getting him some coffee:

“That will wake you up so you’re coherent.” During this intervening period of five

minutes, it is important to note that the questions directed at Appellant were of



                                                                                    56
little consequence to the instant alleged offenses. A review of the recording itself

calls into question the extent of Appellant’s actual awareness and comprehension

of his rights. RR19 SX #223; R21 CX #1, CX #2 at pp.5-12. There were no

subsequent warnings given to Appellant after he arguably regained his coherence

with the help of coffee, and it was after this juncture that the interrogation began to

turn to more pertinent matters. Additionally, there is nothing in the record to

support the argument that Appellant was aware of the consequences of waiving his

rights.

          In Joseph, the defendant went so far as to sign his name on a standard

Miranda card enumerating his rights. 309 S.W.3d at 22. Yet, four members of the

Court of Criminal Appeals joined the majority opinion only after noting that the

totality of the circumstances presented a “very close case” in terms of whether the

record supported a valid implied waiver of rights. Joseph, 309 S.W.3d at 30

(Cochran, J., concurring, joined by Price, Johnson, and Holcomb, J.J,.). In the

instant cause, the State failed to meet its burden by a preponderance of the

evidence. The trial court abused its discretion by overruling Appellant’s motion to

suppress and by admitting his statements into evidence. The error was not harmless

pursuant to Tex.R.App.Proc. § 44.2(a), for the same essential reasons advanced

with regards to Issue Number One, above. The judgment of the trial court in each

cause should be reversed and remanded for a new trial.



                                                                                       57
                             Issue Number Three
The trial court erred by admitting testimony about how an “innocent person”
                  would act during a custodial interrogation.

      During his testimony on redirect examination, while on the topic of false

confessions, Cumins responded affirmatively when asked, “Are there certain ways

you think from your training and experience you would expect somebody to act if

they are being accused of a particular crime that they didn’t do?” The State then

asked, “What would that be that you are looking out for?” Trial counsel objected,

on the basis that this was “speculative,” as well as on the basis that Cumins was

“not an expert of any type in the area.” The trial court overruled the objection.

Cumins answered, “We’re taught that someone that’s innocent is going to argue up

one side and down the other nonstop and demand that they are innocent. That

wasn’t the case in this interview.” RR15 41-3. The trial court abused its discretion

by allowing this testimony.

      Tex. Rule Evid. § 701 “allows witnesses to give opinion or inference

testimony provided that the opinion is rationally based on perception of the witness

and helpful to a clear understanding of the witness’s testimony or the

determination of a fact in issue.” Fairow v. State, 943 S.W.2d 895, 897

(Tex.Crim.App. 1997); Osbourn v. State, 92 S.W.3d 531, 539 (Tex.Crim.App.

2002). Tex. Rule Evid. § 602 provides that a witness may not testify to a matter

unless “evidence is introduced sufficient to support a finding that he has personal



                                                                                      58
knowledge of the matter.” “The perception requirement of Rule 701 is consistent

with the personal knowledge requirement of Rule 602. It requires the proponent of

lay-opinion testimony to establish that the witness has personal knowledge of the

events upon which his opinion is based.” Fairow, 943 S.W.2d at 897-8, 898 nn.6-

7. An opinion is rationally based upon perception if a reasonable person could

draw the opinion based upon personal knowledge or experience. Fairow, 943

S.W.2d at 899-900.

      The testimony in question failed to satisfy the personal knowledge

requirement as well as the perception requirement for admissibility under Rules §§

602 and 701. Cumins’s opinion on the matter amounted to “nothing more than pure

speculation on his part” and should have been excluded. Lewis v. State, 402

S.W.3d 852, 865 (Tex.App.—Amarillo 2013), aff’d 428 S.W.3d 860

(Tex.Crim.App. 2014). The trial court abused its discretion by admitting the

testimony. Error in the admission of testimony of this nature is non-constitutional

error subject to review under Tex. R.App.Proc. § 44.2(b). Russell v. State, 155

S.W.3d 176, 181 (Tex.Crim.App. 2005). Pursuant to rule 44.2(b), any non-

constitutional error that does not affect appellant’s substantial rights must be

disregarded. The presumption of innocence is clearly a substantial right. Brown v.

State, 92 S.W.3d 655, 662-3 (Tex.App.—Dallas 2002), aff’d 122 S.W.3d 794

(Tex.Crim.App. 2003), citing Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App.



                                                                                    59
2000). The record provides no assurance that this testimony did not influence the

jury, or that the testimony in question had only a slight effect, and that Appellant

would have been convicted without this testimony. The judgment of conviction for

the offense of Murder in cause D-1-DC-12-301231 should be reversed and the

cause remanded for a new trial pursuant to Tex. R.App.Proc. § 44.2(b).

                              Issue Number Four
   The trial court erred by admitting evidence of an opinion that Appellant
                        understood his Miranda rights.

      During her testimony on direct examination at guilt-innocence, Dr. Mauro

testified she had reviewed the recording of the custodial interrogation of Appellant.

RR16 33. The State asked, “Did you feel [Appellant] based on the totality of the

circumstances of watching the interview was able to understand his Miranda

rights?” Trial counsel objected that this was “improper” and “call[ed] for

speculation on her part.” The trial court overruled the objection, and Mauro

answered in the affirmative. RR16 33-4. The trial court abused its discretion by

allowing this testimony.

      Much like the testimony in question above in Issue Number Three, this

testimony failed to satisfy the personal knowledge requirement as well as the

perception requirement for admissibility under Rules § 602. Mauro’s opinion on

Appellant’s ability to comprehend his Miranda rights amounted to pure

speculation and should have been excluded. Lewis, 402 S.W.3d at 865. The trial



                                                                                       60
court abused its discretion by admitting the testimony. Mauro’s testimony

manifestly impinged upon Appellant’s substantial rights, i.e., the basic rights

afforded by Miranda and its progeny. Again, as in Issue Number Three, above, the

record provides no assurance that this testimony did not influence the jury, or that

the testimony in question had only a slight effect, and that Appellant would have

been convicted even without Mauro’s testimony. The judgment of conviction for

the offense of Murder in cause D-1-DC-12-301231 should be reversed and the

cause remanded for a new trial pursuant to Tex. R.App.Proc. § 44.2(b).

                              Issue Number Five
  The trial court erred by denying a special requested instruction in the jury
                          charge on guilt-innocence.

      During the charge conference at guilt-innocence, trial counsel submitted the

following special requested instruction for inclusion in the jury charge, in light of

Appellant’s repeated assertions of, “I plead the Fifth:”

             During the course of his statement to law enforcement the Defendant
             has said “I plead the Fifth” on multiple occasions. If you have found
             that the Defendant’s statement was given freely and voluntarily, you
             are instructed by the Court that you cannot consider the Defendant’s
             statements of “I plead the Fifth” as any evidence of guilt against him.

The trial court denied the requested instruction, RR15 92-5; RR16 122-4; RR21

CX #14.

      Jury charge error is evaluated under the two-pronged test set out in Almanza

v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh’g). First, there is



                                                                                        61
an initial determination as to whether error exists. Ngo v. State, 175 S.W.3d 738,

743 (Tex.Crim.App. 2005). If there is error, there follows the evaluation of

potential harm caused by the error. Ngo, 175 S.W.3d at 743. In the instant cause,

because trial counsel preserved error by timely requesting the specific instruction,

Appellant need only demonstrate “some harm.” Almanza, 686 S.W.2d at 171;

Vasquez v. State, 919 S.W.2d 433, 435 (Tex.Crim.App. 1996). Reversal is required

if the error is calculated to injure the rights of the defendant. Cornet v. State, 417

S.W.3d 446, 449 (Tex.Crim.App. 2013).

      The Supreme Court has “repeatedly recognized that ‘instructing a jury in the

basic constitutional principles that govern the administration of criminal justice,’ is

often necessary:”

             Jurors are not experts in legal principles; to function effectively and
             justly, they must be accurately instructed in the law. Such instructions
             are perhaps nowhere more important than in the context of the Fifth
             Amendment privilege against compulsory self-incrimination, since

             ‘[t]oo many, even those who should be better advised, view this
             privilege as a shelter for wrongdoers. They too readily assume that
             those who invoke it are . . . guilty of crime. . . .’

             And, as the Court has stated,

             ‘we have not yet attained that certitude about the human mind which
             would justify us in . . . a dogmatic assumption that jurors, if properly
             admonished, neither could nor would heed the instructions of the trial
             court. . . .’

             A trial judge has a powerful tool at his disposal to protect the
             constitutional privilege—the jury instruction—and he has an

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             affirmative constitutional obligation to use that tool when a defendant
             seeks its employment. No judge can prevent jurors from speculating
             about why a defendant stands mute in the face of a criminal
             accusation, but a judge can, and must, if requested to do so, use the
             unique power of the jury instruction to reduce that speculation to a
             minimum.

Carter v. Kentucky, 450 U.S. 288, 302-3 (1981) (internal citations and footnotes

omitted, ellipses in original). No adverse inferences are to be drawn from the

exercise of the Fifth Amendment right to remain silent. Griffin v. California 380

U.S. 609, 614-15 (1965); Carter, 450 U.S. at 305. In the absence of the requested

instruction, “the failure to limit the jurors’ speculation on the meaning of that

silence, when the defendant makes a timely request that a prophylactic instruction

be given, exacts an impermissible toll on the full and free exercise of the

privilege.” Carter, 450 U.S. at 305. The trial court erred by refusing to include the

proposed instruction as part of the charge.

     Factors to consider in conducting a harm analysis include analysis of (1) the

entire jury charge; (2) the state of the evidence, including the contested issues and

weight of probative evidence; (3) the arguments of counsel, and (4) any other

relevant information revealed by the record of the trial as a whole. Almanza, 686

S.W.2d at 171. The trial court’s charge did include instructions on the

voluntariness of Appellant’s statement. CR1 179-80. However, trial counsel’s

proposed “no adverse inference” instruction addressed a separate and distinct

matter, and the charge that was ultimately submitted failed to offer adequate

                                                                                    63
guidance on this matter. As argued above in Issue Number One, the evidence of

Appellant’s guilt was not overwhelming, apart from his custodial interrogation.

Moreover, the State’s remarks during closing arguments seemingly sought to

penalize Appellant for his invocation of the right to remain silent. RR16 155.

      The trial court should have granted the requested instruction, and its failure

to do so constituted error. Without such guidance, the jury was free to infer that

repeated invocations of “I plead the Fifth” were an indication of Appellant’s guilt.

Because it cannot be said beyond a reasonable doubt that the lack of the requested

“no adverse inference” instruction did not in some way contribute to the jury’s

verdict, the judgment of conviction for the offense of Murder in cause D-1-DC-12-

301231 should be reversed and the cause remanded for a new trial.



                                      PRAYER

        WHEREFORE, PREMISES CONSIDERED, for the reasons stated above,

Appellant prays that this Court find both of his convictions to be in error, and that

this Court reverse the judgment of each conviction and remand the causes to the

trial court for a new trial; or, in the alternative, reverse the judgment of conviction

in cause D-1-DC-12-301231 and remand the cause for a new trial. Appellant prays

for any and all other general relief to which he may be entitled.




                                                                                      64
                                                  Respectfully submitted,



                                                  __/s/ Paul M. Evans__________
                                                  Paul M. Evans
                                                  811 Nueces Street
                                                  Austin, Texas 78701
                                                  (512) 569-1418
                                                  (512) 692-8002 FAX
                                                  SBN 24038885
                                                  paulmatthewevans@hotmail.com



                         CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the above and foregoing

Appellant’s Brief was delivered by e-service facsimile to the office of the District

Attorney of Travis County, on the 16th day of March, 2015.



                                          ___/s/ Paul M. Evans_____________

                                          Paul M. Evans




                      CERTIFICATE OF COMPLIANCE

      Relying on the Microsoft Word 97-2003 Document word count utility, I

hereby certify that the present document contains 13,737 words, counting all



                                                                                   65
contents specifically delineated for inclusion in the applicable word count under

Tex. Rule App. Proc. § 9.4(i)(1).


                                         ___/s/ Paul M. Evans_____________

                                         Paul M. Evans




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