                                                                                   PD-0266-15
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                Transmitted 3/30/2015 5:28:58 PM
                                                                  Accepted 3/31/2015 4:38:46 PM
                                                                                    ABEL ACOSTA
                                                                                            CLERK
                                 No. PD-0266-15

                 IN THE COURT OF CRIMINAL APPEALS

                            Dillan William Stanley
                                    Appellant

                                        V


                              rhe
                                    Iaïei:J'*"'
    On Appeal from Bexar County in Case No. 2011CR81008, from the 186th
   District Court, the Hon. Teresa Herr, Judge Presiding; and the Opinion of the
   Fourth Court of Appeals in Case Nos. 04-13-00663-CR &,04-13-00713-CR,
                            Delivered January 28, 2015.




             Petition for Discretionary Review

                                 Submitted by:

March 31, 2015               Anthony B. Cantrell
                               Attorney atLaw
                         1 1 I Sole dad, Suite #1200

                        San Antonio, Texas 78205
                              Tel. 210-490- 1207
                     e-mail : cantrelllaw@sbcglobal.net
                          State Bar No. 03763 180

                    Attorney for Dillan William Stanley




                                         1
              IDENTITY OF PARTIES AND COT]NSEL

Pursuant to Rule 38.1(a), Rules of Appellate Procedure ("Tex.R.App.Pro."),
the following is a complete list of the names and addresses of all parties to
the trial court's final judgment and their counsel in the trial court, as well as
appellate counsel, so the members of the Court may at once determine
whether they are disqualif,red to serve of should recuse themselves from
participating in the decision of the case and so the Clerk of the Court may
properly notiff the parties to the trial court's final judgment or their counsel,
if any, of the judgment and all orders of the Court of Appeals.

Appellant                         Dillan William Stanley

Attorney for Appellant
      Trial Counsel:
                                  Therese Huntzinger
                                  Patrick Hancock
                                  2068. Locust
                                  San Antonio, Texas 78254
      Appellate Counsel:
                                  Anthony B. Cantrell
                                  111 Soledad, Suite 1200
                                  San Antonio, Texas 78205

Attorneys for the State
      Trial Counsel:
                                  Todd Winslow
                                  David Martin
                                  Bexar County District Attomey's Office
                                  101 Paul Elizondo Tower
                                  San Antonio, Texas 78205
      On Direct Appeal:
                                 Crystal Chandler
                                 Assistant Criminal District Attomey
                                 101 W. Nueva, Suite 370
                                 San Antonio, Texas 78205




                                        ll
                         TABLE OF CONTENTS

Identity of Parties and Counsel                                   il

Table of Contents                                                 lll

Index of Authorities                                              v

Statement Regardìng Oral Argument                                 vll

Statemenl of the Case

Statement of Procedurul Hislory

Reasons   for Review                                               1


Facts of the Case                                                  2


Groundfor Review One                                               4
      The Court of Appeals erred in holding Appellant's first
      statement did not warrant Miranda protections since the
      interview was not custodial.

Groundfor Review Two                                               7
      The Court of Appeals erred in holding that appellant's
      invocation of counsel in his second statement was
      equivocal.

Groundfor Review Number Three                                          10
      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.

Groundfor Review Number Four                                      13
      The court of appeals erred in ruling that Off,rcer Omungo
      attempted to clariff Appellant's ambiguous request for
      counsel prior to Appellant's second statement.



                                      lll
Prayer                                  15


Cerfficate of Compliance and Delivery   T6




                                  IV
                             Index of Authorities

Ancira v. State, 5 16 S.W.2d 924, 927 (Tx.Cr.App.l974)                   4,6

Davis v. State,313 .t W.3d 3 1 7,   34   1   (Tx.Cr.App.20l 0)           7


Davis v. United States, 512 U.S. 452 (1994)                              8,10

Delao v. State, 235 SW 3d 235, 241 (Tx.Cr.App.2007)                      13


Dowthittv.State, 931 S.W. 2'd 244, 255 (Tx.Cr.App.I996)                  5,6

Fare v. Michael C., 442 U.S. 707 (1979)                                  11


In Re H.V, 252 S.t4/. 3d 319, 327 (Tu. 2008)                             1,7-9

Martinez v. State, 275 S.W.3d (Tex. App-San Antonio              2008)   12


Maryland v. Shqtzer, 559 U.S. 98 (2010)                                  10

Moran v. Burbine, 475 U.S. 412 (1986)                                    11


Lucas v. State, 791 S.W.2d 35, 46 (Tx.Cr.App.1989)                       t4

Newberry v. State, 552 S.W. 457 (1977)                                   6


Reedv. Texas,227 S.t4/.3d    Il1, ll5                                    l4

Ruthv. Texas, 645 S.W.2d 432,435 (Tx.Cr.App.1979)                        5,6

Smithv. Illinois, 469 U.S. 91, 98 (1984)                                 13


State v. Gobert, 275 S.W.3d 888, 892 (Tx.Cr.App.2009)                    7

Texas Statutes

      Code of Criminal Procedure             art.   38.22                9




                                               V
Rules

        Tex. R. App. P. 9.a(e)        1    5


        Tex. R. App. 38.1             l1



        Tex. R. App.P. 66.3           1




                                 VI
                       Statement Regarding Oral Argument

      Appellant would show the Court that oral argument would assist the
Court in its resolution of the matters presented.

                             Statement of the Casel

        The following is a general statement of the nature of the case:

        This is a case concerning an effor in the trial court's denial of
        Appellant's motion to suppress oral statements. At issue is whether
        Appellant sufficiently invoked his right to counsel during two separate
        interrogations.

                         Statement of Procedural History

       Appellant, Dillan Stanley, was charged by indictment with murder, a
first degiõe felony, in Cause No. 2011-CR-81008, in the 186th Judicial
District Court of Bexar County, Texas. While preserving his right to appeal
on the trial court's ruling on his motion to suppress oral statements,
appellant plead guilty and was sentenced to imprisonment for forty-five (45)
years. Notice of Appeal was timely given. The Court of Appeals for the
Fourth Court of Appeals District of Texas in San Antonio affirmed Mr.
Stanley's conviction in Dillan William Stanley v. State of Texas, Cause No.
04-13-00663-CR and 04-13-00713-CR. Counsel for Mr. Stanley filed a
Motion for Extension of Time to file his Petition for Discretionary Review
in the Texas Court of Criminal Appeals which was granted until March 30,
20ts.




l The clerk's recordconsists of one volume, which will be cited as "CRfvolume]" and
"[page]. The reporter's record consists of three volumes, which will be cited as
"R.R. [volume] and [page]".



                                          vll
                           Reasons for Review

1.    The court of appeals erred in holding Appellant's first statement did

not warrant Miranda protections since the interview was not custodial. Tex

R.App.Proc. 66.3(a).

2.    The court of appeals erred in holding that appellant's invocation   of

counsel was equivocal. The ruling conflicts with a previous ruling by the

Texas Supreme Court in   In Re. H.V. Tex R. App. Proc. 66.3(a)

3.    The court of appeals erred in affirming the trial court's denial of the

motion to suppress Appellant's second statement because Appellant did not

knowingly, intelligently, and voluntarily waive his rights under Article 38.22

and Miranda. Tex. R. App. Proc. 66.3(a).

4     The court of appeals erred in ruling that Officer Omungo attempted to

clariff Appellant's ambiguous request for counsel prior to Appellant's

second statement. This ruling is in conflict with another court of appeals'

decision on the same issue. Tex. R. App. Proc. 66.3(a).




                                       L
                             Facts of the Case

      On September 6,2013, Dillan William Stanley entered a plea of guilty

to the charge of murder. Prior to his plea, Stanly filed a motion to suppress

oral statements made to Detective Timm Angell and Omar Omungo. At the

hearing, both detectives testified as witnesses, and the trial court admitted

into evidence an audio recording of Stanley's interview with Detective

Angell and a DVD recording of Stanley's post-arrest interview with

Detective Omungo.

      On June 27,2071, Stanley arrived with his father the Prue Road

substation of the San Antonio Police Department to turn himself in for a

robbery and to present himself as a witness to a murder. Detective Angell

informed Stanley that he was not under arrest. When Detective Angell

proceeded to question Stanley, Stanley immediately invoked his right to

counsel by telling Detective Angell he did not want to speak until his mother

brought a lawyer. On multiple occasions during the thirty-six minute

interview, Stanley reiterated that he did not want to say any more without an

attorney present. Nevertheless, Detective Angell continued to question

Stanley and cajoled him into making a statement. After talking with

Stanley's family and after Stanley again asserted that he'd rather speak to

attomey, Detective Angell finally advised the family to leave and consult an



                                        2
attorney. Stanley and his family indicated they did not want to leave the

police station, preferring to wait until a lawyer arrived

      Detective Omungo testified he conferred with Detective Angell about

the conversation with Stanley and shortly thereafter prepared a warrant for

Stanley's arrest. At midnight, no more than six hours after speaking with

Detective Angell, Dillan Stanley was alrested before his family could

procure the services of an attorney.

      In the early hours of the morning, Detective Omungo interviewed

Stanley. Detective Omungo read Stanley his Miranda rights and asked him        if
he understood these rights. The video of this exchange was played for the

trial court and indicated that Stanley failed to respond to Detective

Omungo's question as to whether he understood these rights. Detective

Omungo continued to ask for Stanley's side of the story. Stanley responded

by saying his mother had told him to wait for a lawyer. Stanley then asked     if
he could call his mother to see   if   she was obtaining a lawyer. Detective

Omungo then gave Stanley two options. He could tell his version of the

story or let the facts stand as they had them, which included Eric Ramirez's

version of the story. After a moment of silence, Stanley began telling

Detective Omungo about the robbery and murder.




                                           3
                               ARGUMENT

1. ttre Court of Appeals erred in ruling Appellant's statement to

Detective Angell did not warrant Miranda protections since the

interview was not custodial.



      Can a suspect be in custody for Miranda purposes     if   he has been

informed before making his statement that his arrest is imminent? Has law

enforcement effectively circumvenfed Mirandaby simply           notiffing   a


suspect at the beginning of an interrogation he is not under arrest and is free

to leave, only to arrest the suspect moments after extracting a statement?



      V/hether a defendant was in custody at the time of an interrogation is

determined by a case-by-case review . Ancira v. State, 516 S.W.2d 924, 927.

When Stanley arrived at the Prue Road police substation, he clearly stated

his intention to turn himself in for a robbery and establish himself as a

witness to a murder. Stanley believed this was sufficient probably cause to

prompt his arrest, and immediately upon being questioned by Detective

Angell, Stanley clearly invoked his right to counsel by saying he did not

want to make a statement until his mom brought a lawyer. Detective Angell

proceeded to tell him that there was a problem with that because he wasn't


                                       4
under affest. Stanley expressed dismay that he wasn't going to be arrested,

and Detective Angell asked Stanley directly   if he had committed   a crime

Stanley responded affirmatively and when Detective Angell asked what

crime, Stanley said burglary. Detective Angell then notified Stanley he

would be probably be arrested, just not atthat moment.

       If no probable cause existed when Stanley first began speaking with

Detective Angell, it certainly existed when he confessed to the crime    of

burglary. It is also clear that Stanley became the focus of the investigation

by the time Detective Angell asked Stanley if he planned on killing the

victim during the robbery. Despite the nature of the interrogation and

Stanley's confession to the burglary, he was, to his own dismay, told by

Detective Angell that he was not under arrest. However, Stanley was

separated from his father, and by this point, prevented from seeing his father.

Police conduct during the encounter may escalate the interview to a

custodial interrogation. Dowthittv.state, 931 S.W. 2"d 244, 255

(Tx.Cr.App. 1996).

      In Ruth v. Texas, 645 S.W.2d 432, 435 (Tx.Cr.App.I979), the court

commented on the importance of whether the defendant is the focus of the

investigation:

      Among the other factors which may be considered, one which
      "has consistently impressed our court [is] whether or not the


                                       5
       focus of the investigation has finally centered on the defendant."
       Newberry, supra, at 461; Ancira, supra, at927 . Another factor
       which may be considered is whether there was probable cause to
       arrest. Newberry, supra, at 461,; Ancira, supra, at 926. On these
       factors, the officer's testimony is belied by the facts, It is
       impossible to believe that the officer did not have probable cause
       to arrest, or that the investigation had not focused on the
       appellant, after the appellant admitted that he shot the victim,
       explained his motive, and reenacted the offense. The appellant
       must have been in custody by that time, but the officer gave no
       Miranda warnings. lnstead, he continued to question the appellant
       about where he got the gun.


      The court of appeals failed to consider the underlyingfear by Stanley

that even though he was told that he was free to leave, immediately after

leaving the police substation, he would be arrested. His fears, ultimately,

were well-founded. Just a few hours after leaving the Prue Road substation,

Stanley was arrested.

      What law enforcement has achieved in this case, and likely in many

others, is to subvert the protections of Miranda and deny suspects due

process by allowing the defendants to make incriminating statements-even

when they are the clear focus of the investigation-and then arresting them a

short time later. The only assurance that Detective Angell made to Stanley

was that he wasn't going to arrest him right then.   If   Stanley had been

arrested upon stepping out of the police station, would this have changed the

custodial nature of the interrogation? Is it fundamentally significant that four



                                       6
hours passed before the police arrested him at his home? No new

information had come to light between the moment Stanley left the police

substation and when he was arrested.

       Appellant's Motion to Suppress his first statement should have been

granted by the trial, and the Fourth Court of Appeals compounded this error

in its opinion.

2. The court of appeals erred in holding that appellant's invocation of

counsel was equivocal.

       While the Courts have held that it is not the responsibility of the

police to   clariff ambiguous or equivocal   requests for counsel, there must be

consideration for the totality of the circumstances in determining whether a

request was unambiguous. Gobert, 275 S.W.3d 888, 893. The context to

Stanley's request is critical . Davis, 3I3 S.W.3d 317, 341

       In In Re H.V, 252 S.W. 3d 319, 327      (Tu   2008), the court provides

further clarity on this issue concerning the totality of the circumstances. The

totality of the circumstances in Stanley's situation is strikingly similar to the

facts in H.V., wherc a sixteen-year-old Bosnian juvenile's statement that he

wanted his mother to ask for an attorney was ruled to be an unambiguous

invocation of right to counsel. The court of appeals suggests Stanley's case

is different because he is an adult and not a juvenile; however, the standard



                                        7
used in H.V. is predicated on the ruling in Davis v. U.5., which asserts a

suspect "must articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances would

understand the statement to be a request for an attorney."

      Although Dillan Stanley was not a juvenile in the legal sense, he was

eighteen years old, living at home with his father, and dependent on his

parents for financial support as stated by his mother, Patricia Stanley.

(R.R.v.3, p.20) He did not arrive to the Prue Road police substation by

himself. He was accompanied by his father, William Stanley. While being

questioned by Detective Angell, he requested to speak his father, and when

denied, asked   if Detective Angell could   speak to his father. Stanley was not

a seasoned criminal well acquainted with the criminal justice system, and

from the moment he arrived at the Prue Road substation, he demonstrated

his reliance on his parents for direction and support. Stanley reported to

Detective Angell that his mother would be hiring an attomey. Additionally,

Patricia Stanley testified that on at least three occasions she informed the

detectives that she would be hiring an attorney for her son. Detective Angell

assured the family that Stanley was not going to be immediately arrested and

that they would have time to hire an attorney.




                                       I
         In the context of Stanley having already informed Detective Angell

his mother would be hiring an attorney, his statement that "My mom told me

that   I should wait until I have a lawyer   present to say anything" should

certainly imply not just any attorney, but a hired attorney. If this is construed

to be ambiguous even given the context of the situation, Stanley's second

statement requesting    if there any way Detective Omungo could call

Stanley's mom to see if she was bringing a lawyer should certainly be seen

as a clear invocation of his right to counsel. Since Stanley by this point was

in custody, it was impossible for him to hire a private attorney. As was the

case in H.V., the presence of hired counsel during his questioning depended

solely on his mother's ability to hire one. Stanley had no income.In H.V. the

court noted the following regarding the totality of the circumstances:

        But we need not decide in this case whether the court of appeals erred
        in considering H.V.'s age, as we agree with its ultimate conclusion. It
        is hard to construe H.V.'s statement that he "wanted his mother to ask
        for an attorney" as anything other than "an expression of a desire for
        the assistance of an attorney." This is not a case in which H.V. simply
        wanted to see his mother; the only reason he said he wanted her was
        for the purpose of getting him an attorney. If he wanted private
        counsel, his request would have been technically correct, as his age at
        least hindered it if it did not prevent him doing so himself.



        The trial court should have suppressed Appellant's second statement

to Detective Omungo. It is clear based on the standard applied in H.V. that

Appellant unambiguously invoked his right to counsel. The court of appeals


                                         9
compounded this elror by limiting the scope of    H.Z to juvenile

matters,when the basis of the decision was predicated on the United States

Supreme Court ruling in Davis.




3. 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.




      Incredibly, the court of appeals points to Stanley's questions about his

mother obtaining a lawyer as an acknowledgement that he understood his

rights. The court then went on to conclude that because Stanley proceeded to

offer his statement, that he implicitly waived his rights.

      The State incurs the burden to establish a suspect's waiver of rights

Marylandv. Shatzer, 175 L.Ed 2d 1045, 1052. Despite what Detective

Omungo testified, the DVD video shows no perceptible verbal or physical

indication that Stanley understood his rights as they were read to him. What

is clear in the trial court's record is that Stanley was confused as to his legal

rights when he arrived at the Prue Road police substation and began

speaking to Detective Angell. An objective review shows Stanley clearly did



                                        10
not understand why he could not invoke his right to counsel. He related that

he did not understand why he was not being arrested after admitting to

burglary. He did not understand why he could not wait at the police station

until his lawyer arrived.

       Given Stanley's youthful age, inexperience in the criminal justice

system, the fact that his previous attempts to invoke counsel were denied,

and that after attempting to invoke in the second interview, he was presented

two options by Detective Omungo, neither of which included asserting his

Miranda rights,2 it is certainly reasonable to presume Stanley understood he

had no choice but to continue the interview. The totality of these

circumstances, which include the defendant's experience, background and

conduct are relevant. See Fare v. Michael C., 442 U.S. 707, 725.In Moran

v. Burbine, 47 5 U.S. 412 (1986), the [Jnited States Supreme Court held that

the decision to wave Miranda rights must be a free choice with an awareness

of the nature of the right being abandoned.

       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

z After Stanley made his request to see if his mother had hired an attorney, Detective
replied asked Stanley his age and stated as follows: "Eighteen. Okay. So, you tell me
what you'd like to do right now. Do you want to get your story out...your version of
the story, or do you want the facts that we have, as we have them, including Eric
telling his version of the story. You want that just to be it then? That's up to you."


                                          1.1
      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.



       The court of appeals further concluded that Stanely's decision to

speak to Detective Omungo effectively waived his Miranda rights. Again,

the court of appeals failed to consider the totality of the circumstances

When Detective Omungo asked, "'What do you want to do," he was not

attempting to clarifo Stanley's request to contact his mother to see if she had

hired an attorney. It is clear from the record that immediately following this

question and before Stanley said a word, Detective Omungo presented him

with two options   as to what he wanted   to do. He could make a statement or

let the facts stand as they were, which included Eric Ramirez' statement

The presentation of these two options is what prompted Stanley to begin

speaking. For Stanley to have completely waived his rights after previously

invoking, the Courts have ruled, "[T]he impetus for the remarks must come

from the suspect, not from police interrogation or conduct that is the

functional equivalent of interrogation. " Martinez v. State, 275 S.W.3d 29 , 35

(Tex. App.-San Antonio 2008, pet. struck).

      The totality of the circumstances which include issues of age,

experience, education, maturity, etc. has been the standard for determining



                                      T2
the voluntary nature of a statement. Delao v. State, 235 SW 3d 241. An

objective review of the facts of the case shows Stanley's youth, immaturity,

reliance on his parents for support, and lack of understanding of his rights

dictated his behavior. When presented with Detective Omungo's ultimatum,

which included a belittling reference to Stanley's age but did not reference

againhis right to counsel, Stanley had no other option but to offer a

statement against his   will.

      It is important to note that Stanley's subsequent statement does not

render his prior requests ambiguous. Smith v. Illinois, 469 U.S. 9I , 98 (1984)

      The court of appeals erred in ruling that Stanley's second statement

involved an implicit waiver of his Miranda rights.


4     The court of appeals erred in ruling that OffÏcer Omungo

attempted to clarify Appellant's ambiguous request for counsel prior to

his second statement.

      In Stanley's post-arrest interview, Detective Omungo read Stanley his

Miranda rights. Stanley did not immediately waive these rights. While

Stanley answered a general question as to why he was there (the murder

charge), he immediately responded to questions about the case itself by

notifuing Detective Omungo that his mother told him not to talk until he had




                                      13
a lawyer present. He then asked to speak       if his mother could be called to see

if   she had hired an attorney.

         In Reed v. Texas, 227 S.W.3d I I I (Tex. App-Houston 2006) the court

noted the following:

         When an accused's invocation is unclear, ambiguous, or
         equivocal, the interrogating officers are not required to
         automatically stop the interview. Lucas, 791 S.W.2d at 46. They
         may continue questioning the accused, but only to ascertain
         whether he wishes to speak to an attorney or continue the
         questioning without the assistance of counsel. Police may not
         use such clarification as a guise to encourage, coerce, or
         intimidate the accused to make a statement. Jamail v. State, 787
         S,l4/,2d 372, 377 (Tex.Crim.App. 1990).



         Clearly, Detective Omungo's response to Stanley's request for

counsel was not intended to       clariff what Detective Omungo may have

deemed to be an ambiguous request. Instead, he belittled Stanley regarding

his age and presented two options for, neither of which included waiting for

an attorney to arnve.

         In light of the circumstances of the encounter, atthe very minimum,

Stanley made a request for counsel. Detective Omungo did not make an

attempt to   clariff this request but continued to question Stanley, encouraging

him into making a statement.




                                          l4
      The trial court as well as the Fourth Court of Appeals erred in failing

to consider previous rulings by the Court of Criminal Appeals regarding law

enforcement's failure to clariff ambiguous invocations for counsel.




                      CONCLUSION AND PRAYER

This Court should grant review, request additional briefing, and render the

judgment that the court of appeals should have rendered. The Court should

reverse the judgment of the lower courts and render   a   judgment of acquittal

or, alternatively, reverse and remand for fuither proceedings below.


                                       Resp   ectfully Submitted



                                       /s/Anthony B. Cantrell
                                       Anthony B. Cantrell
                                       SBN: 03763180
                                       111 Soledad, Suite 1200
                                       San Antonio, TX 78501
                                       Telephon e: 21 0-490 - 1207
                                       Facsimile : 210 -209 -I 482
                                       cantrelllaw@sbc global. net
                                       Counselfor Appellant




                                      15
      CERTIFICATE OF COMPLIANCE AND DELIVERY

This document complies with the typeface requirements of Tex. R. App. P.

9.a@) because it has been prepared in a conventional typeface no smaller

than l4-point for text and l2-point for footnotes. This document also

complies with the word-count limitations of Tex. R. App.P. 9.4(i), because

it contains 3,510 words, excluding the parts exempted by Rule 9.4. On

March 30,2015, a true and correct copy of the above and forgoing "Petition

for Discretionary Review" was transmitted via electronic mail (eMail) to

appellate counsel of record for the State of Texas and to Todd Winslow,

State' s Prosecuting Attorney




                                      /s/ Anthonv B.
                                      Anthony B. Cantrell




                                     L6
APPENDIX
                                  f   ourtb @ourt of €[ppes[ø
                                       åsn Øntonío, U,exag
                                      MEMORANDUM OPINION
                                            Nos. 04-13-00663-CR         &
                                                  04-13-oo7l3-cRr

                                          Dillan William STANLEY,
                                                  Appellant

                                                          V


                                             The STATE of Texas,
                                                  Appellee

                      From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 201 1-CR-81008
                            Honorable Maria Teresa Herr, Judge Presiding

Opinion by        Marialyn Bamard, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: January 28,2015

AFFIRMED

           After the trial court denied appellant Dillan William Stanley's motion to suppress, Stanley

pled guilty to the offense of murder. On appeal, Stanley contends the trial court erred in denying

his motion to suppress the oral statements he made to law enforcement before and after his arrest.

We affirm the trial court's judgment.


I Afterjudgment, both appellant's trial counsel and his current appellate counsel filed notices ofappeal. Based on the
separate notices ofappeal, this court inadvertently docketed this single appeal as two separate appeals, assigning the
first notice ofappeal number 04-13-00663-CR, and then assigning the second notice ofappeal number 04-13-00713-
CR. It is clear there is but one judgment and one conviction for a single offense in this case. Accordingly, we dismiss
appeal number 04-13-00'713-CR because it is merely duplicative of the f,rrst filed appeal.
                                                                    04- l 3-00663-CR   &   04- I 3-007 I 3-CR



                                         BlcxcRouno

        Stanley was arrested for the capital murder of Gilbert Femandez. Prior to trial, Stanley

filed a motion to suppress oral statements he made to San Antonio detectives, Timm Angell and

Omar Omungo. At the hearing on the motion, the State presented both detectives as witnesses.

Additionally, the trial court admitted into evidence an audio recording of Stanley's interview with

Detective Angell and a DVD recording of Stanley's post-arrest interview with Detective Omungo.

        At the hearing, Detective Angell testified he was working at the main police station when

Detective Omungo received a phone call advising him that two men, Stanley and Eric Ramirez,

were at the Prue Road police substation. Stanley and Ramirez wanted to talk about a murder.

Detective Angell stated he and Detective Omungo went to the substation to question the men.

When they arrived, the detectives questioned the men separately.

        Detective Angell testified he found Stanley seated with another officer at a desk located

behind the service counter. Stanley was not in handcufß. According to Detective Angell, he

introduced himself to Stanley and discovered Stanley, who was eighteen-years-old, was at the

substation to turn himself in for a robbery. Detective Angell stated he told Stanley he was not

under arrest and he could leave whenever he wanted. According to Detective Angell, Stanley

stated he did not understand why he was not under arrest. Detective Angell advised Stanley that

he might be arrested later, but at this time, he was not under arrest. Stanley then told Detective

Angell that he and Ramirez robbed Fernandez and during the robbery, Ramirez killed Femandez

by hitting him with abat. The conversation lasted approximately thirty-six minutes; thereafter,

Stanley left with his parents.

       Detective Omungo testified he conferred with Detective Angell about the conversation

with Stanley. Thereafter, Detective Omungo prepared     a warrant   for Stanley's arrest. The police



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affested Stanley the next moming and took him to a police substation where Detective Omungo

interviewed him.

       Detective Omungo testihed that when he arrived at the substation, Stanley was                  in    an

interview room. Detective Omungo also testified he removed Stanley's handcuffs, introduced

himself, and asked Stanley if he was "okay." Thereafter, the detective read Stanley his Miranda

rights. According to Detective Omungo, after he asked Stanley if he understood his rights, Stanley

nodded affirmatively. Detective Omungo then asked Stanley to share his side of the story. Stanley

replied, stating his mother had told him to wait for a lawyer. Detective Omungo testified he told

Stanley he could not force him to talk. Stanley then asked if he could call his mother to see if she

was obtaining a lawyer. Detective Omungo testified he told Stanley he could call his mother            if   he

wanted or he could talk to him about what happened. Stanley remained quiet for a moment and

then proceeded to tell Detective Omungo how he and Ramirez robbed Fernandez and during the

robbery, Ramirez murdered Fernandez.

       Stanley was ultimately indicted for the offense of capital murder. Before trial, Stanley

sought to suppress the statements he made to the two detectives. After the suppression hearing,

the trial court denied Stanley's motion to suppress, making oral findings of fact. The trial court

found Stanley's first statement       the statement he made to Detective Angell            was voluntary.
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The trial court further found Stanley waived his Mirqnda rights and failed to invoke his right to

counsel when he made his post-arrest statement to Detective Omungo. After the trial court denied

his motion to suppress, Stanley and the State entered into aplea agreement whereby Stanley pled

guilty to the lesser offense of murder. Stanley preserved his right to appeal the denial of his motion

to suppress. After judgment was rendered, Stanley perfected this appeal.




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                                                 ANnlvsrs

         In two issues on appeal, Stanley contends the trial court erred by ovemrling his motion to

suppress the oral statements he made during his interviews       with Detective Angell and Detective

Omungo. Specifically, Stanley argues the statement he made to Detective Angell was the product

of a custodial interrogation and he was not given Miranda wamings. As to his                   post-arrest

statement to Detective Omungo, Stanley contends the statement was involuntary and obtained                in

violation of his right to counsel.

                                            Støndard of Revíew

         We review atrial court's ruling on a motion to suppress for an abuse of discretion under a

bifurcated standard. Hernandez v. State,387 S.W.3d 881, 884 (Tex. Crim.App. 2012); Valtierua

v.   State,3l0 S.W.3d 442,447 (Tex. Crim. App. 2010). Under         a bifurcated standard, we defer to


the trial court's determination of historical facts and witnesses' credibility, but we review the      trial

court's application of the law to the facts under a de novo standard. Hodson v. State,350 S.W.3d

169, 173 (Tex. App.-San Antonio 2011, pet. ref d) (citing Carmouche v. State,10 S.V/.3d 323,

328 (Tex. Crim. App. 2000)).         If   the trial court makes express findings of fact, we view the

evidence in the light most favorable to the trial court's ruling and determine whether the evidence

supports the factual   findings. Valtierra,310 S.W.3d at 447 . Accordingly, we will uphold the trial

court's ruling if that ruling is reasonably supported by the record and is correct under any theory

of law applicable to the case. Hernandez,387 S.W.3d at 885; Valtierra,310 S.W.3d at447.

                                                Application

l. Pre-Arrest   Statement to Detective Angell

         As stated above, Stanley contends the trial court erred by overruling his motion to suppress

the statement he made to Detective Angell. He contends the statement was the product of a



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custodial interrogation and he was not given Miranda warnings. Therefore, he asserts his

statement was involuntary.

        As this court held in Hines v. State,law enforcement must, under Mirandav. Arizona,warn

suspects   of certain constitutional rights prior to a custodial interrogation. 383 S.W.3d 615,621

(Tex. App.-San Antonio 2012, pet. ref d) (citing Miranda v. Arizona,384 U.S. 436, 444, 478

(1966); Hodson State,350 S.V/.3d 169, 173 (Tex. App.-San Antonio 2011, pet. reld)).

Additionally, law enforcement must abide by the provisions of Article 38.22 of the Texas Code of

Criminal Procedure with regard to statements made during a custodial interrogation. S¿e TBx.

Cooe Cnln. PRoc. Ar.rN. art. 38.22 (West     20ll). Article 38.22 provides   that an oral statement is

admissible against a defendant   if the defendant was given certain warnings prior to making              the

statement, the warnings and the statement were electronically recorded, and the defendant

"knowingly, intelligently, and voluntarily" waived these rights . Id. art.38.22, $$ 2(a), 3(a)(1)-(2).

However, warnings pursuant to Miranda and Article 38.22 are necessary only when a suspect is

in custody. Hines,383 S.W.3d at 621(citing Miranda,384 U.S. at 444; Hodson,350 S.W.3d at

173).   "'A   person is in 'custody' only   if, under the circumstances, a reasonable person would

believe that his freedom of movement was restrained to the degree associated with a formal

arrest."' Hodson,350 S.W.3d at 173-74 (quoting Dowthitt v. State,931 S.W.2d 244,254 (Tex.

Crim. App. 1996)).

        According to the Texas Court of Criminal Appeals, four situations constitute situations in

which a defendant may be in custody: (1) when a suspect is physically deprived of his freedom               of

action in any significant way; (2) when a police officer tells a suspect he cannot leave; (3) when a

police officer creates a situation that would lead a reasonable person to believe his freedom of

movement has been signihcantly restricted; and (4) when there is probable cause to arrest and a

police ofhcer does not tell a suspect he is free to leave. Hodson, 350 S.W.3 d at 174.              It is the
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objective circumstances, not the subjective views of either the police officer or the defendant, that

determine whether the defendant was subject to custodial interrogation. Hines, 383 S.W.3            dat62l

(citing Dowthitt,93l S.W.2d at 254); Garza v. State,34 S.W.3d 591, 593 (Tex. App.-San

Antonio 2000, pet. refd).

        The State has no burden to show it complied with the mandates of Miranda or Article 38.22

"unless and until the defendant proves that the statements he wishes to exclude were the product

of custodial interrogation." Hines,383 S.W.3d at62I (quoting Herrerav. State,24l S.W.3d 520,

526 (Tex.     Crim.App.2007) (quoting Wilkersonv. State,173 S.W.3d 521,532 (Tex. Crim.App.

2005)). Accordingly, Stanley had the burden to establish he was in custody before the State was

required to show compliance with Miranda or Article 38.22. See           Ìd.   We hold tStanley failed to

meet this burden with regard to the statement made to Detective Angell.

        A determination as to whether Stanley was in custody when he made the complained of

statement to Detective Angell presents a mixed question of law and fact. See Herrera v.          State,24l

S.W.3d at 526. Therefore, as to the portion of the custody issue that turns on witness credibility,

we   will   defer to the trial court. See Hodson,350 S.V/.3d at   ll3.    However, we will review the

court's application of the law to the facts under a de novo standard. See id.

            Stanley contends the interrogation by Detective Angell was custodial because: (1) Stanley

provided the police with a damaging statement that established probable cause for his arrest, and

(2)he was not allowed to speak to his family, who were in the process of obtaining an attorney on

his behalf. We disagree and conclude the conversation between Detective Angell and Stanley did

not rise to the level of a custodial interrogation.

        Although a defendant's damaging admission with regard to a crime may be the key factor

in establishing probable cause for his arrest, merely making a damaging statement is not enough

to turn a situation into a custodial interrogation. See Saenz v. State,41 1 S.W.3d 488, 497 (Tex.

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Crim. App.2013) (holding off,rcer's knowledge of probable cause to arrest does not by itself create

situation classified as custodial interrogation); Trejos v. State,243 S.V/.3d 30,4647 (Tex.                 App.-
Houston       flst Dist.]     2007, pet.   refd) ("Although a statement made by a person is sufficient to

establish probable cause, the statement is not custodial         if the court determines based on other facts

that the person was not under arrest."). Instead, custody is established              if the manifestation of
probable cause in combination with other factors would lead a reasonable person to believe he is

under restraint to the degree associated with a formal arrest. Saenz,411 S.W.3d at 496.

       In this case, the trial court's oral findings of fact support the trial court's conclusion that

despite his admissions, Stanley was not in custody during his interview with Detective Angell.

First, the evidence establishes, and the trial court found, that Stanley voluntarily went to the police

substation to provide police with his version of the robbery and killing of Fernandez. See Estrada

v. State,313 S.V/.3d274,294-95 (Tex. Crim.App.2010) (holding that defendant was not in

custody when he went to police station voluntarily, was told he was free to leave, and stayed

willingly for five-hour interview); l(hite          v. State,395 S.W.3d 828, 836 (Tex.     App.-Fort Worth

2013,no pet.) (holding that defendant was not in custody when he voluntarily went to police station

for one-hour interview, despite making pivotal admission). Second, Detective Angell testified he

repeatedly told Stanley he was not under arrest, and the trial court subsequently found that although

Stanley may have thought his admission would cause him to be arrested, he was informed several

times he was not under arrest. See Estrada, 313 S.W.3 d at 295 (holding reasonable person would

believe he was free to leave when told by police several times he was free to leave even if defendant

states he wants to leave but         voluntarily stays); Garcia v. State,l06 S.W.3d 854, 858 (Tex.           App.-
Houston   [   1   st   Dist.] 2003 ,pet. ref d) (holding that defendant was not in custody when he voluntarily

went to police station, and after he was told he could leave, he gave damaging statement). In

addition, the record shows Stanley was questioned by Detective Angell for approximately thirty-

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six minutes in an open area, was not physically prevented from leaving the substation, was allowed

to speak with his parents when he asked to speak to them, and was permitted to leave the substation

with his parents.

        Stanley points out that Detective Angell ignored his repeated requests to speak to his      family

regarding an attorney. However, Detective Angell testified he told Stanley he was free to leave

when Stanley expressed concem about talking with an attomey. Detective Angell also testified

that when Stanley asked to speak to his father, Detective Angell took Stanley to his father, who

was seated twenty yards away.

       Applying the applicable legal standard, we must give almost total deference to the trial

court's custody determination when questions of historical fact turn on witnesses' credibility or

demeanor. Here, we hold Detective Angell's testimony provides sufftcient evidence to support

the trial court's finding that Stanley was not in custody.

       Under these circumstances, we hold a reasonable person would not believe he was under

restraint to the degree associated with an arrest. We therefore conclude Stanley failed to meet his

burden to establish he was in custody when he made his oral statement to Detective Angell.

Because Stanley was not in custody, Detective Angell was not required to give Stanley warnings

pursuant to Miranda or Article 38.22 prior to or during the interview. Accordingly, we hold the

trial court did not err in denying the motion to suppress.

2. Post Aruest Statement to Detective Omunqo

       Stanley next contends the trial court erred in denying his motion to suppress with regard to

his post-arrest statement to Detective Omungo. Stanley contends his post-arrest statement was

involuntary because he did not fully understand the Miranda warnings read to him, and he did not

waive his rights after the warnings were read. Stanley also claims he invoked his right to counsel



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before giving any statement to Detective Omungo, but Detective Omungo ignored his request for

counsel. We will address each of these arguments separately.

                                                 Waiver

       As noted above, Article 38.22 of the Code of Criminal Procedure provides that an oral

statement made by an accused as a result of custodial interrogation shall not be admissible against

him in a criminal proceeding unless the statement was recorded and, prior to the statement but

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

voluntarily waivedthose rights. Tpx. Cooe Cnttt. Pnoc. art.38.22 $ 3. The Article 38.22 warning

must inform a defendant that:

       (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;
       (a) 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[.]

Tsx. Cots   Czurr,r.   Pnoc. art. 38.22, $ 2. The State bears the burden to show by a preponderance

of the evidence that the accused knowingly, intentionally, and voluntarily waived his rights. See

Josephv. State,309 S.W.3d 20,24 (Tex. Crim.App.20l0) (citing Miranda,384 U.S. at444)

       To be valid, a waiver of rights must be made with the full awareness of not only the nature

of the rights being abandoned, but also the consequences of the decision to abandon those rights.

Joseph,309 S.W.3d at25. To be voluntary, a waiver must be the product of a free and deliberate

choice, not a result of coercion, intimidation or deception.   Id.   However, a waiver does not need

to assume a particular form and can be inferred by the actions and words of the accused. Id. at24

(citing NorthCarolinav. Butler,44l U.S. 369,373 (1979));see also Watsonv. State,762S.W.2d

591, 601 (Tex. Crim. App. 19SB) (highlighting that waiver is not required to be written or orally


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expressed). In other words, a waiver may be presumed upon a showing that an individual was

given proper wamings, acted in a manner that indicated he fully understood his rights and the

consequences of waiving such rights and made an uncoerced statement. Berghuis v. Thompkins,

560 U.S. 370,384-85 (2010); Joseph,309 S.W.2d at          25. To determine if       an accused validly

waived his rights, we must consider the totality of the circumstances surrounding the interrogation.

See Joseph, 309 S.W.2 d at   2526.

       The DVD recording of the post-arrest statement shows Detective Omungo read Stanley his

rights and asked Stanley if he understood his rights. Stanley remained silent, but appeared to nod

his head affrrmatively. Detective Omungo confirmed Stanley's action by responding,            "Yes." At

the suppression hearing, Detective Omungo testified he asked Stanley if he understood his rights,

and Stanley indicated he     did.   Furthermore, Detective Omungo testified he did not have any

concems about Stanley's mental capacity or his ability to understand the process. And,               it   is

undisputed that after the detective read the warnings      to Stanley, Stanley continued with         the

interview.

       Stanley counters, arguing he did not affirmatively nod, and therefore, he did not expressly

waive his rights. Stanley also contends he did not act in any way to show an afhrmative waiver

of his rights. The trial court found that although Stanley may not have clearly nodded, there was

no showing or indication that Stanley did not want to proceed with the interview, and therefore,

he waived his   rights. We agree. As stated above, an express waiver of rights is not required. See

Joseph,309 S.W.2d at24. It is within the trial court's discretion to rely upon an implied waiver

when the totality of the circumstances, as reflected by the DVD recording and Detective Omungo's

testimony, supports   it. Id. at25-26. There is nothing in the record to lead this court     to conclude

Stanley did not understand his rights. Although Stanley did not specifically state that he wished

to waive his rights or that he understood his rights, Stanley acted in a manner to show he
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understood his rights when he proceeded to speak to Detective Omungo and gave no indication he

wished to remain silent. We therefore conclude the totality of the circumstances supports the trial

court's reliance upon appellant's implied waiver of his rights.

                                    Invocation of Right to Counsel

          Stanley next contends that even   if he did initially waive his rights, he later invoked his right

to counsel when he asked to speak to his mother about an attomey before providing any statement

to Detective Omungo. We disagree.

          When an accused requests to speak to an attorney, a police ofhcer must stop asking the

accused questions until he is provided with an attorney. Davis v. State,313 S.W.3d 317,339 (Tex.

Crim. App. 2010); State v. Gobert,275 S.W.3d, 888, 893 (Tex. Crim. App. 2009). However, a

request for counsel must be unambiguous;          in other words, it must be suffrciently clear that a

reasonable police officer would understand the statement to be a request for an attomey. Davis v.

United States,512 U.S. 452, 459      Q99\; Davis,3           13 S.W.3d at 339; Dalton v. State,248 S.W.3d

866, 872 (Tex. Crim. App. 2008).       If   an accused makes an ambiguous or equivocal statement, a

police ofhcer is under no obligation to ask the accused questions to clarifu whether he really wants

an attorney. Davis,313 S.W.3d at3391' Dalton,248 S.W.3d at872.

          Whether an accused actually invoked his right to counsel is an objective inquiry. Davis,

3 13   S.W.3d at 339. To determine if an accused invoked his right to counsel, we look at the totality

of the circumstances sutrounding the interrogation in combination with the accused's statement.

Dalton, 248 S.W.3d at 872-73.

          The DVD recording shows Stanley told Detective Omungo that his mother told him not to

speak to anyone unless he had an    attomey. Detective Omungo informed eighteen-year-old Stanley

that it was up to him whether he wanted to discuss what happened. Stanley then asked if he could

call his mother to ask if she was bringing an attomey, and Detective Omungo told Stanley he could

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call his mother, but he was old enough to decide if he wanted to speak to the detective. Moreover,

at the suppression hearing, Detective Omungo testified he      told Stanley he was an adult and could

make the decision on his own whether to speak to the detective without an attomey. Stanley

paused, and Detective Omungo asked him what he would like to          do. Stanley then proceeded to

provide Detective Omungo with a statement regarding the robbery and murder.

          After watching the DVD recording and hearing the testimony, the trial court found that

Stanley did not clearly invoke his right to counsel. Rather, Stanley considered his options and

decided to move forward and provide Detective Omungo a statement. We agree.

          'When
                  considering the totality of the circumstances, we hold Stanley's request to speak to

his mother with regard to her obtaining an attorney for him was not a clear invocation of his right

to counsel. Texas case law holds that an invocation of the right to counsel must be clear and

unambiguous. See, e.g., Davis, 313 S.W.3 d at 341 (holding that defendant's statement "Should I

have an attorney?" was not clear request for counsel); Dalton,248 S.W.3dat873 (holding that

defendant's statement to off,rcer to tell his friends to get lawyer was not direct, unequivocal request

forattorney);Mbuguav. State,312 S.W.3d 657,665 (Tex.App.-Houston[1stDist.] 2009,pet.

ref d) (holding that "Can     I wait until my lawyer     gets here?" was not clear and unambiguous

invocation of right to counsel).

       Here, Detective Omungo attempted to clarify Stanley's statement by asking him what he

wanted to    do.    Contrary to the situation presented in In re H.V., where a Bosnian juvenile's

statement that he "wanted his mother      to ask for an attomey" was construed as an unambiguous

request   for an attome under the totality of the circumstances, this case involves an adult

requesting to ask his mother whether she hired an attorney . See 252 S.W.3d 319,327 (Tex. 2008).

Stanley's ambiguous question about calling his mother to inquire about the status of counsel was

followed by his unambiguous decision to continue to discuss the situation with Detective Omungo.

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Accordingly, considering the totality of the circumstances from an objective viewpoint, we

conclude the trial court did not err in concluding Stanley did not invoke his right to counsel.          If
anything, Stanley's request to speak to his mother about an attorney confirms Stanley understood

his rights as well as the consequences of waiving such rights, and therefore, made a valid waiver.

Consequently, we hold the trial court did not err in denying the motion to suppress Stanley's post-

arrest statement to Detective Omungo.

                                          Coxclusrox

       Based on the foregoing, we conclude the trial court did not err in denying Stanley's motion

to suppress. Accordingly, we ovemrle Stanley's complaints and affirm the trial court's judgment.


                                                 Marialyn Barnard, Justice

Do Not Publish




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