      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-99-00712-CR



                                   Alejandro Ramirez, Appellant

                                                   v.

                                    The State of Texas, Appellee



      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR99-021, HONORABLE DON B. MORGAN, JUDGE PRESIDING



                Alejandro Ramirez appeals from his conviction for possession of a firearm by a felon.

See Tex. Penal Code Ann. § 46.04 (West 1994). Before a trial on the merits, Ramirez filed a motion

to suppress statements he allegedly made on the night of the offense. In a single point of error,

Ramirez argues that the trial court erred in admitting his confession by failing to determine if the

police officers scrupulously honored his right to remain silent as required by Miranda v. Arizona, 384

U.S. 436, 478-79 (1966). We overrule the point of error and affirm the trial court’s judgment.


                                   FACTUAL BACKGROUND

                On August 8, 1998, Southwest Texas State University Police Officer David Campbell

stopped a vehicle for failing to stop at a blinking red light. Ramirez was a passenger in the front seat.

As he spoke with the driver, Campbell noticed two unopened bottles of beer between the two rear

passengers and asked whether any of the occupants were twenty-one. When Ramirez answered that

he was, Campbell walked to the passenger side and asked Ramirez to step out of the vehicle and
show some identification. After Ramirez gave Campbell a prison identification card and got out of

the car, Campbell looked through the open door and saw a gun in plain view on the floorboard of

Ramirez’s seat.

                 Campbell testified that to secure the situation, he drew his service revolver, pointed

it at Ramirez and the other occupants, and instructed them not to move. Campbell and a second

officer handcuffed Ramirez and the other three individuals, read them their Miranda rights, and began

to question them regarding ownership of the gun. Initially, they all denied owning the gun, but at the

urging of the others Ramirez admitted that the gun was his. Campbell then arrested Ramirez. As the

sole witness at the hearing on the motion to suppress, Campbell testified that Ramirez never invoked

his right to silence. Ramirez did not offer controverting evidence at the hearing but did at the trial

on the merits.

                 In an indictment filed on January 6, 1999, Ramirez was charged with the offense of

intentional and knowing possession of a firearm before his five-year anniversary of release from

community supervision following the conviction of a felony. See Tex. Penal Code Ann. § 46.04.

Ramirez filed a motion to suppress oral statements before trial, alleging that any statements were (1)

products of a custodial interrogation, and (2) involuntarily made after he had asserted the right to

silence, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution

and article I, section 10 of the Texas Constitution. See U.S. Const. amends. V, VI, XIV; Tex. Const.

art. I, § 10. The trial court held a hearing before the trial and denied the motion to suppress. Ramirez

appeals that ruling.

                 In his sole point of error, Ramirez argues that the trial court erred by failing to hold

a Mosley hearing regarding the motion to suppress. See Michigan v. Mosley, 423 U.S. 96, 104


                                                    2
(1975) (reviewing all of the facts and circumstances to determine whether the suspect’s assertion of

the right to silence was respected by law enforcement officers); Maestas v. State, 987 S.W.2d 59, 62

(Tex. Crim. App.), cert. denied, 528 U.S. 834 (1999) (stating that Mosley requires courts to examine

the facts on a case-by-case basis to determine whether the police officer honored the suspect’s right

to terminate questioning).


                                    STANDARD OF REVIEW

                The appropriate standard for reviewing a trial court’s ruling on a motion to suppress

evidence has recently been clarified: as a general rule, appellate courts should give almost total

deference to the trial court’s determination of the historical facts that the record supports, especially

when the trial court’s fact findings are based on evaluations of credibility and demeanor.

Hollingsworth v. State, 15 S.W.3d 586, 591 (Tex. App.—Austin 2000, no pet.). At a hearing on a

motion to suppress, the trial court is the sole trier of fact and judge of the witnesses’ credibility and

the weight to be given their testimony. McGee v. State, 23 S.W.3d 156, 161 (Tex. App.—Houston

[14th Dist.] 2000, no pet.). The trial judge may choose to believe or disbelieve any or all of a

witness’s testimony. Id.

                In the instant case, Campbell was the sole witness at the hearing on the motion to

suppress. Ramirez presented no evidence, although in closing he argued that the questioning

constituted a custodial interrogation. Thus, Campbell’s testimony regarding the facts that led to

Ramirez’s admissions and arrest was uncontroverted.             Because the dispositive facts were

uncontroverted and there is no indication that the trial court did not believe Campbell’s testimony,

this case presents an issue of the proper application of law to the facts, which is to be reviewed de



                                                   3
novo. State v. Ross, 32 S.W.3d 853, 858 (Tex. Crim. App. 2000). We therefore review the trial

court’s decision to apply the law to the undisputed facts under a de novo standard.


                                            DISCUSSION

                Ramirez contends that the trial court erred because it failed to analyze the

circumstances that led to his admissions in the context of factors deemed relevant in Mosley.1 See

Mosley, 423 U.S. at 104-05. In that case, Mosley was arrested on charges of robbery2 and brought

to the police department where he was advised of his Miranda rights. A police detective began

questioning him regarding a robbery but stopped when Mosley refused to respond. Later in the day,

another detective questioned him about a homicide after explaining his Miranda rights. During this

questioning, Mosley incriminated himself in the murder.

                At issue before the Supreme Court was whether the later questioning of Mosley,

which occurred after he had invoked his right to silence at the first interrogation, rendered the

statement inadmissible under Miranda. The Court concluded that admissibility turns on whether,

once a suspect in custody indicates his right to remain silent, the police “scrupulously honor” his right

to terminate the interrogation. Id. at 104. The Court, after an examination of the circumstances

surrounding Mosley’s admission, concluded that the detectives had honored his right to remain silent.


   1
      As interpreted by the Texas Court of Criminal Appeals, the relevant Mosley factors are as
follows: (1) whether the suspect was informed of his right to remain silent prior to the initial
questioning, (2) whether the suspect was informed of his right to remain silent prior to the subsequent
questioning, (3) the length of time between initial questioning and subsequent questioning, (4)
whether the subsequent questioning focused on a different crime, and (5) whether police honored the
suspect’s initial invocation of the right to remain silent. Maestas v. State, 987 S.W.2d 59, 62 (Tex.
Crim. App.), cert. denied, 528 U.S. 834 (1999).
  2
     The police had received a tip that implicated Mosley and three others in several robberies and
Mosley in a murder.

                                                   4
Id. The circumstances did not indicate that the police refused to end the interrogation upon Mosley’s

request or that they persisted in trying to wear down Mosley’s resistance so that he would decide to

talk. Id. at 105-06. Rather, “the police here immediately ceased the interrogation, resumed

questioning only after the passage of a significant period of time and the provision of a fresh set of

warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier

interrogation.” Id. at 106.

                The Mosley Court’s review of all of the facts and circumstances to determine whether

a suspect’s Miranda rights have been violated has been followed by the Texas Court of Criminal

Appeals in determining the admissibility of statements made during custody. See Maestas, 987

S.W.2d at 62. Texas courts have recognized, however, that the need for a Mosley review depends

on resolution of the threshold question of whether the suspect invoked his right to silence. See

Edwards v. State, 956 S.W.2d 687, 689 (Tex. App.—Texarkana 1997, no pet.) (noting that although

Mosley dictates that once the right to silence has been invoked the interrogation must cease, the

threshold question is whether the suspect in fact invoked the right to silence); see also Watson v.

State, 762 S.W.2d 591, 597 (Tex. Crim. App. 1988) (stating that “[t]he important question herein

is whether the appellant invoked his constitutional right to remain silent”).

                In Edwards, the suspect was arrested on a warrant, read his Miranda rights, and

questioned regarding a fatal robbery. Edwards, 956 S.W.2d at 689. Edwards denied participation

in or knowledge of the incident, and the police ceased questioning him. After conferring privately

with his girlfriend, Edwards invited the police back into the interview room and having been read his

Miranda rights a second time, confessed to his involvement in the crimes. The court, citing Mosley,

agreed that police violate a suspect’s rights if they persist in questioning a suspect once he or she has


                                                   5
invoked the right to remain silent. Id. The court concluded, however, that Edwards failed to satisfy

the threshold question: did the suspect in fact assert his right to silence? Id. The suspect’s denial of

his participation in the crimes during the first interview did not constitute an assertion of the right to

silence, nor was there any other evidence in the record that the suspect had invoked his right to

silence. Id. Because the court found that Edwards had not invoked his right to silence at the first

interview, a Mosley hearing was not required.3 See id.

                Similarly, the record in the instant case does not disclose any evidence before the trial

court at the motion to suppress hearing that Ramirez invoked his right to silence. While Ramirez later

testified at trial that he had invoked the right, this testimony does not go to the admissibility of the

statements as determined at the pre-trial hearing. The uncontroverted testimony of the State’s sole

witness was that Ramirez never asserted his right to silence before admitting that he owned the gun.

As Ramirez points out, the invocation of one’s Miranda rights can be manifested informally by

anything said or done that could reasonably be interpreted as a desire to invoke one’s rights. See

Watson, 762 S.W.2d at 597. Nonetheless, Ramirez offered no evidence at the hearing that he

asserted his right to silence and thus, the trial court was under no obligation to review the Mosley

factors. 4 Therefore, we overrule Ramirez’s point of error and affirm the trial court.



   3
      The court added in dicta that even if Edwards had invoked his right to silence, the police
honored it by ceasing the interrogation after only ten minutes and by resuming it only at Edwards’s
request. Edwards v. State, 956 S.W.2d 687, 689-90 (Tex. App.—Texarkana 1997, no pet.).
   4
        As our review of the suppression hearing disposes of the threshold issue of whether Ramirez
invoked his right to silence, we need not address Ramirez’s contention that he was subjected to a
custodial interrogation or the State’s argument that Ramirez waived his objection to evidence offered
at trial regarding his admission that he owned the gun. For the same reason we do not address
Ramirez’s argument that the entire interrogation occurred after he was read his Miranda rights, as
he makes this argument in the context of the Mosley factors.

                                                    6
                                         CONCLUSION

               We hold that it was not error for the trial court to admit into evidence at trial

Ramirez’s admission of ownership made after the initial traffic stop. We overrule this point of error

and affirm the trial court’s judgment of conviction.




                                              Bea Ann Smith, Justice

Before Justices Kidd, B. A. Smith and Puryear

Affirmed

Filed: February 28, 2001

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