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



                      WESLEY CHARLES JOSEPH, Appellant

                                            v.

                               THE STATE OF TEXAS

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

             M EYERS, J., delivered the opinion of the Court in which P RICE,
J OHNSON, K EASLER, H ERVEY, H OLCOMB, and C OCHRAN, JJ., joined, and in which
K ELLER, P.J., joined except as to note 7, and in Parts I, II, and III of which
W OMACK, J., joined except as to note 7 and Sections A and B. K ELLER, P.J., filed a
concurring opinion. C OCHRAN, J., filed a concurring opinion in which P RICE,
J OHNSON, and H OLCOMB, JJ., joined.

                                     OPINION

       Appellant, Wesley Charles Joseph, was convicted of murder and sentenced to

twenty-five years’ confinement. A key piece of evidence was a recorded statement

produced as a result of Appellant’s interview with police. The trial court denied

Appellant’s motion to suppress evidence, finding that Appellant had waived his rights
                                                                              Joseph–Page 2

prior to and during the statement. Appellant appealed and the court of appeals affirmed.

We granted review to consider whether Appellant knowingly, intelligently, and

voluntarily waived his rights under Article 38.22 of the Code of Criminal Procedure and

Miranda v. Arizona. We will affirm.

I.     Facts

       On December 6, 2004, Appellant and his friend, Juan Martinez, went to the San

Antonio Metropolitan Ministries (SAMM) homeless shelter to confront Javier Gonzalez-

Diaz (A.K.A. “Bolillo”). Martinez’s wife, Vivian, who was also Appellant’s girlfriend,

said she had been sexually assaulted by Bolillo. A witness to the incident testified that he

saw Appellant punching Bolillo in the stomach and that Appellant put something under

his clothing as he walked away. Afterwards, Bolillo lifted up his shirt and looked toward

the witness for help.

       Appellant and Martinez were arrested and taken to the police station where they

were interviewed separately. Detective Sean Walsh interviewed Appellant for

approximately six hours. At the start of the interview, Walsh read a warning card to

Appellant and upon Walsh’s request, Appellant signed his name in the margin. The

warning card stated:

       WARNING TO ARRESTEE OR SUSPECT
       Before you are asked any questions, it is my duty as a police officer to
       advise you of your rights and to warn you of the consequences of waiving
       these rights.
       1. You have the right to remain silent.
       2. You do not have to make any statement[,] oral or written, to anyone.
                                                                                 Joseph–Page 3

       3. Any statement that you make will be used in evidence against you in a
       court of law, or at your trial.
       4. You have a right to have a lawyer present to advise you before and
       during any questioning by police officers or attorneys representing the state.
       5. You may have your own lawyer present, or if you are unable to employ a
       lawyer, the court will appoint a lawyer for you free of charge, now, or at
       any other time.
       6. If you decide to talk with anyone, you can, and you can stop talking to
       them at any time you want.
       7. The above rights are continuing rights which can be urged by you at any
       stage of the proceedings.
       DO YOU UNDERSTAND THESE RIGHTS?
       SAPD Form 66-E (Jul 99)
       [Signed] SW [Detective Sean Walsh] [Badge number] 12-06-04
       [Signed] WCJ Wesley C. Joseph, Jr. 2:05 pm 12-06-04

       At trial, Appellant sought to suppress the DVD recording of his interview. The

court held a Jackson v. Denno hearing to determine whether Appellant’s statement to

Detective Walsh was voluntary and thus admissible. See Jackson v. Denno, 378 U.S. 368

(1964). Pursuant to Article 38.22, the trial judge entered findings of fact and conclusions

of law regarding the voluntariness of the statement. C ODE C RIM. P ROC. A NN. art. 38.22, §

6. The trial court found that Appellant received notification of his rights “prior to the

statement but during the recording” and that Appellant knowingly, intelligently, and

voluntarily waived those rights. Because the statement was made under voluntary

conditions, the trial court concluded that Appellant’s statement was admissible as a matter

of law.1


       1
        As noted by the trial court’s findings of fact, the recorded statement was shortened
because there were redactions made for defense counsel and “dead time” was removed. “The
DVD was altered by agreement of all the parties and in accordance with the Texas Rules of
Evidence.”
                                                                                  Joseph–Page 4

       During the trial, the State played clips of the interview, accompanied by live

testimony from Detective Walsh. The State asked Walsh to repeat or confirm some of

Appellant’s comments from the DVD, including that he “wished he hadn’t put the knives

in his backpack,” that “he didn’t want to die in the penitentiary,” and that “he wasn’t

going to hit the wrong dude.” Walsh also relayed that Appellant had vaguely referred to a

“stab-by” at one point during the interview. The jury found Appellant guilty of murder

and assessed punishment at twenty-five years’ confinement.

       Appellant appealed to the Thirteenth Court of Appeals with four points of error,

one of which stated: The trial court erred in denying the motion to suppress Appellant’s

statement because he did not make a knowing, intelligent, and voluntary waiver of his

rights under Article 38.22 of the Code of Criminal Procedure and Miranda v. Arizona.2

C ODE C RIM. P ROC. A NN. art. 38.22; Miranda v. Arizona, 384 U.S. 436 (1966). The court

of appeals overruled all of Appellant’s four issues and affirmed the judgment of the trial

court. Joseph v. State, No. 13-06-00561-CR, 2008 Tex. App. LEXIS 5133 (Tex.




       2
         Appellant’s four points of error to the court of appeals were as follows: (1) The trial
court erred in denying the motion to suppress because Appellant was arrested without a warrant,
probable cause, or other lawful authority, in violation of the Fourth Amendment; (2) The trial
court erred in denying the motion to suppress because Appellant did not make a knowing,
intelligent, and voluntary waiver of his rights under Article 38.22 of the Code of Criminal
Procedure and Miranda v. Arizona; (3) The trial court erred in admitting the entirety of
Appellant’s lengthy and prejudicial interview when that was unnecessary to complete the jury’s
understanding of what had happened during the interview; (4) The trial court caused Appellant
egregious harm when it directed the jury to assess a general verdict without requiring a
unanimous verdict on a specific offense, contrary to Article V, Section 13 of the Texas
Constitution.
                                                                                    Joseph–Page 5

App.–Corpus Christi July 10, 2008, pet. granted) (mem. op., not designated for

publication). We granted Appellant’s petition to this Court on the following ground for

review: The court of appeals erred in affirming the trial court’s denial of the motion to

suppress Appellant’s statement because Appellant did not knowingly, intelligently, and

voluntarily waive his rights under Article 38.22 and Miranda.3

II.    Article 38.22: warning and waiver

       Article 38.22 of the Code of Criminal Procedure establishes procedural safeguards

for securing the privilege against self-incrimination. C ODE C RIM. P ROC. A NN. art. 38.22.

Among its requirements, it provides that no oral statement of an accused made as a result

of custodial interrogation shall be admissible against the accused in a criminal proceeding

unless (1) the statement was recorded and (2) prior to the statement but during the

recording, the accused was warned of his rights and knowingly, intelligently, and


       3
        Appellant filed a supplemental brief asking that we hold this case in abeyance until the
U.S. Supreme Court rules in Berghuis v. Thompkins, 547 F.3d 572 (6th Cir. 2008), cert. granted,
78 U.S.L.W. 3169 (U.S. Sept. 30, 2009) (No. 08-1470).
        Of the two questions presented in that case, one relates to Appellant’s issue: “Whether the
Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively
persuade a defendant to cooperate where the officer informed the defendant of his rights, the
defendant acknowledged that he understood them, and the defendant did not invoke them but did
not waive them.” See http://origin.www.supremecourtus.gov/qp/08-01470qp.pdf (italics added).
For two reasons, we conclude that we need not await the Berghuis decision. First, the issue to be
resolved by the U.S. Supreme Court addresses the absence of waiver, and there is evidence of a
waiver in Appellant’s case. Second, the facts in Berghuis paint a picture of a very different
interrogation than that experienced by Appellant. Unlike Appellant, Thompkins refused to sign
the warning card acknowledging that the officers had read him his Miranda rights. Berghuis,
547 F.3d at 576. Furthermore, for at least two hours and forty-five minutes during the
interrogation, Thompkins “‘consistently exercised his right to remain substantively silent.’” Id.
Such conduct is so different from Appellant’s that a significantly different waiver analysis would
be expected.
                                                                               Joseph–Page 6

voluntarily waived those rights. C ODE C RIM. P ROC. A NN. art. 38.22, § 3. The warning

must inform a defendant of the following rights:

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

C ODE C RIM. P ROC. A NN. art. 38.22, § 2. The statute contains two distinct elements

pertaining to a statement’s admissibility: the defendant’s receipt of the prescribed warning

and his waiver of the rights set out in the warning. Appellant does not assert that he was

not warned of his rights. The warning card implemented by the San Antonio Police

Department included all of the rights found in Miranda and Article 38.22. Miranda, 384

U.S. at 444; C ODE C RIM. P ROC. A NN. art. 38.22, § 2. And, by signing the card, he

acknowledged having received the requisite warning from Detective Walsh. Rather,

Appellant argues that though he “clearly understood his rights,” he “did not explicitly

waive them.”

III.   Appellant’s waiver

       The State has the burden of showing that a defendant knowingly, intelligently, and

voluntarily waived his Miranda rights. See Miranda, 384 U.S. at 444, 475; Hill v. State,

429 S.W.2d 481, 486 (Tex. Crim. App. 1968). The State must prove waiver by a
                                                                                     Joseph–Page 7

preponderance of the evidence.4 Colorado v. Connelly, 479 U.S. 157, 168 (1986).

Appellant argues that he did not “provid[e] a written waiver” or “articulate any kind of

waiver of his rights.” But Appellant’s objection to the absence of a written or articulated

waiver runs contrary to “the general rule . . . that neither a written nor an oral express

waiver is required.” Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988).

True, “a valid waiver will not be presumed simply from the silence of the accused after

warnings are given or simply from the fact that a confession was in fact eventually

obtained.” Miranda, 384 U.S. at 475. But a waiver need not assume a particular form

and, in some cases, a “waiver can be clearly inferred from the actions and words of the

person interrogated.”5 North Carolina v. Butler, 441 U.S. 369, 373 (1979).

       The question is not whether Appellant “explicitly” waived his Miranda rights, but


       4
        “Whenever the State bears the burden of proof in a motion to suppress a statement that
the defendant claims was obtained in violation of our Miranda doctrine, the State need prove
waiver only by a preponderance of the evidence.” Connelly, 479 U.S. at 168.
       5
          Appellant cites to Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1996), to support
his argument, and asks us to clarify Garcia and announce “that there must be an affirmative
acknowledgment of the waiver of the rights set out in Article 38.22.” First, to accept Appellant’s
proposal that we require an “affirmative acknowledgment” of waiver would run counter to the
established rule that waiver can be inferred and need not be express. Second, the facts of Garcia
concern a written statement and a written waiver, and therefore that case is not particularly
instructive here.
         In contrast, in a case factually similar to Appellant’s, Barefield v. State, 784 S.W.2d 38,
40 (Tex. Crim. App. 1989), the defendant presented essentially the same request to this Court as
Appellant does now: that we construe Article 38.22 Section 3 to require that electronically
recorded confessions contain an express waiver of rights. We analyzed videotaped statements in
which a defendant “was not specifically asked, nor did he specifically volunteer, that he waived
[his] rights.” Id. We declined the defendant’s suggested statutory interpretation and concluded
that the trial court properly found that the defendant had knowingly, intelligently, and voluntarily
waived his Miranda rights. Id. at 40-41.
                                                                                    Joseph–Page 8

whether he did so knowingly, intelligently, and voluntarily.6 Id. To evaluate whether

Appellant knowingly, intelligently, and voluntarily waived his Miranda rights we turn to

the standard outlined in Moran v. Burbine, 475 U.S. 412, 421 (1986).

       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 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.

Id. (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)). The “totality-of-the-

circumstances approach” requires the consideration of “all the circumstances surrounding

the interrogation,” including the defendant’s experience, background, and conduct. Fare,

442 U.S. at 725; see also Butler, 441 U.S. at 375-76. We agree with the court of appeals

that the totality of the circumstances indicates that Appellant knowingly, intelligently, and

voluntarily waived his Miranda rights.7


       6
         Presiding Judge Keller’s concurring opinion refashions Appellant’s ground for review,
stating, the “primary claim is that he did not waive his rights at all, rather than that his waiver
was involuntary.” However, Appellant’s petition for discretionary review and brief to this Court
state his sole ground for review as, “[Appellant] did not make a knowing, intelligent[,] and
voluntary waiver of his rights.”
       7
         One point not raised by Appellant concerns the requisite timing of a defendant’s waiver.
The trial court found compliance with Article 38.22, stating in its conclusions of law: “This
Court finds that the defendant, prior to and during the making of the statement, knowingly,
intelligently, and voluntarily waived the rights as set out above.” But what exactly constituted
Appellant’s waiver? The court of appeals identified the waiver in this way: “the fact that
[Appellant] acknowledged his rights in writing, combined with the fact that [he] voluntarily
continued the interview after being advised of those rights, is strong evidence that he knowingly,
voluntarily, and intelligently waived the protections afforded to him.” Joseph, 2008 Tex. App.
                                                                                      Joseph–Page 9

A.     Voluntariness

       The totality of the circumstances surrounding the interrogation shows Appellant’s

waiver was voluntary. That is, the waiver resulted from a free and deliberate choice

without intimidation, coercion, or deception. Immediately after being warned by


LEXIS 5133 at *23. Does the timing of those actions comply with statutory and Supreme Court
guidelines for waiver?
         The Code of Criminal Procedure requires waiver prior to the start of the statement. CODE
CRIM . PROC. ANN . art. 38.22. Article 38.22 Section 2 requires that for a written statement to be
admissible, the accused must waive his rights “prior to and during the making of the statement.”
CODE CRIM . PROC. ANN . art. 38.22, § 2. Section 3 addresses oral and sign language statements
and requires that “prior to the statement but during the recording the accused is given the warning
in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily
waives any rights set out in the warning.” CODE CRIM . PROC. ANN . art. 38.22, § 3.
         Butler allows waiver to be “inferred from the actions and words of the person
interrogated.” Butler, 441 U.S. at 373. In that case, the warning card given to the defendant
included a statement of waiver at the bottom. Id. at 371. The defendant refused to sign the
waiver but agreed to speak to the FBI agents who had arrested him. Id. The North Carolina
Supreme Court held that under Miranda “no statement of a person under custodial interrogation
may be admitted in evidence against him unless, at the time the statement was made, he
explicitly waived the right to the presence of a lawyer.” Id. at 370. The U.S. Supreme Court
disagreed, concluding that a defendant’s actions and words can indicate waiver and that an
express written or oral waiver is not required. Id. at 373. Thus, under Butler, a defendant’s
conduct–namely, willingly talking with investigators–can demonstrate a knowing, intelligent, and
voluntary waiver of his Miranda rights.
         Therefore the question becomes, how do you reconcile the Code’s requirement that a
defendant show waiver before giving a statement when Butler and this Court’s adoption of Butler
(see Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000); Watson, 762 S.W.2d at 601) allow
a defendant to show waiver by giving a statement? Admittedly, the facts of Butler require less
interpretation than Appellant’s case; the implicit waiver in Butler (“I will talk to you . . . .”) was
neatly separate from the defendant’s inculpatory statements. Butler, 441 U.S. at 371.
Nevertheless, Appellant’s actions, though less distinct, do show a “course of conduct indicating
waiver.” Id. at 373. The quandary concerns the timing: the waiver identified by the court of
appeals occurred contemporaneous with and not prior to Appellant’s statement.
         Perhaps the answer lies in the method by which waiver is to be analyzed. A court must
evaluate the totality of the circumstances and this “approach permits–indeed, it mandates–inquiry
into all the circumstances surrounding the interrogation.” Fare, 442 U.S. at 725. Thus, in a case
where there is no express waiver, we search not for a specific moment, but for a collective body
of facts representing the interrogation as a whole.
                                                                               Joseph–Page 10

Detective Walsh that he had the right to remain silent and that he did not have to make

any statement to anyone, Appellant willingly participated in a six-hour interview. At no

time during the statement did Appellant request an attorney and at no time did he ask that

the interview be stopped. In fact, during portions of the interview, Appellant seemed

eager to share information with the detectives. For example, when discussing Vivian’s

description of Bolillo, one of the detectives stood up to leave the interrogation room and

Appellant urged that the detective stay to listen to his explanation. Furthermore, the

record shows no evidence of intimidation or coercion. Detective Walsh testified that he

did not coerce Appellant in any way into giving information. The lack of intimidation

and coercion can be seen during the interview when Appellant felt comfortable

responding to specific questions with “no comment.” Upon hearing this response, the

detectives did not resort to “physical or psychological pressure to elicit [further]

statements.” Moran, 475 U.S. at 421. Moreover, the fact that Appellant felt free to

decline answering particular questions suggests that the information he did choose to

provide was given voluntarily. Finally, there appears to be no possibility that a promise

from police could have jeopardized the voluntariness of Appellant’s statement. Detective

Walsh testified that at no time did members of the police department promise Appellant

anything in exchange for giving a statement.8


       8
        “A promise made by a law enforcement officer may render a confession involuntary if it
was positive, made or sanctioned by someone with apparent authority, was of some benefit to the
defendant and was of such a character as would likely cause a person to speak untruthfully.”
Garcia, 919 S.W.2d at 388.
                                                                              Joseph–Page 11

B.     Awareness

       The totality of the circumstances surrounding the interrogation shows Appellant’s

waiver was made with full awareness of both the nature of the rights being abandoned

and the consequences of the decision to abandon them. At the start of the interview,

Detective Walsh asked if Appellant spoke and read English; to both inquiries Appellant

replied, “Yes, sir.” Then Walsh read the warning card aloud, which repeatedly informed

Appellant that he did not have to say anything. The warnings read to Appellant made him

fully aware of the rights set forth in Miranda and Article 38.22, as well as the

consequences of abandoning those rights. Miranda, 384 U.S. at 444; C ODE C RIM. P ROC.

A NN. art. 38.22, § 2. When asked if he understood his rights, Appellant replied, “Yes,

sir,” and signed his name in the margin of the warning card. That Appellant replied “no

comment” to certain questions not only relates to our inquiry into the voluntariness of the

statement but also shows his awareness of his rights. His conduct during those portions

of the interview demonstrated that he had the requisite level of comprehension to waive

his Miranda rights.

IV.    Conclusion

       The totality of the circumstances shows that Appellant did knowingly,

intelligently, and voluntarily waive his rights under Article 38.22 and Miranda. The court

of appeals did not err in affirming the trial court’s denial of Appellant’s motion to

suppress. Appellant was adequately advised of his rights and, as he stated to this Court,
                                                                             Joseph–Page 12

he “clearly understood his rights.” Immediately after being told that he had the right to

remain silent, that he did not have to make any statement to anyone, and that any

statement he made would be used against him, he willingly participated in a six-hour

interview with police. Not once did he ask that the interview be stopped, nor did he

request an attorney. We affirm the judgment of the court of appeals.




                                                                       Meyers, J.




Delivered: February 24, 2010

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