                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00704-CR

                                        Charlie MAYBERRY,
                                              Appellant

                                                 v.
                                             The State of
                                        The STATE of Texas,
                                              Appellee

                         From the 427th District Court, Travis County, Texas
                                 Trial Court No. D-1-DC-12-904036
                            The Honorable Jim Coronado, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: December 18, 2013

AFFIRMED

           A jury found appellant, Charlie Mayberry, guilty of capital murder for the killing of Tim

Felder during the commission or attempted commission of a robbery. In three issues on appeal,

appellant alleges (1) the trial court erred by failing to suppress the video and audio recordings of

his statements to police, and (2) his trial counsel rendered ineffective assistance of counsel. We

affirm.
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                                   MOTION TO SUPPRESS

       In his first two issues, appellant contends the trial court erred by failing to suppress the

audio and video recordings of his statements to police after he unambiguously asserted his right to

remain silent. The State responds that appellant’s invocation of his right to remain silent was

ambiguous.

A. Standard of Review

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

v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). An appellate court must view the evidence

in the light most favorable to the trial court’s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex.

Crim. App. 2006). We do not engage in our own factual review; instead, we determine only

whether the record supports the trial court’s ruling. Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim.

App. 2000). The trial court’s ruling will be upheld if it is reasonably supported by the record and

is correct under any theory of law applicable to the case. Ramos, 245 S.W.3d at 418.

B. Analysis

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

be compelled in any criminal case to be a witness against himself.” U.S. CONST. amend. V. This

guarantee is applicable to the states through the Due Process Clause of the Fourteenth Amendment.

Malloy v. Hogan, 378 U.S. 1, 8 (1964). Before questioning, law enforcement officials must inform

a person in custody that he has the right to remain silent and that any statement he makes may be

used against him in court. Miranda v. Arizona, 384 U.S. 436, 444 (1966). “If the individual [in

custody] indicates in any manner, at any time prior to or during questioning, that he wishes to

remain silent, the interrogation must cease.” Id. at 473–74. No specific word or phrase is required

to invoke this right. Watson v. State, 762 S.W.2d 591, 597 (Tex. Crim. App. 1988). However, an

interrogating officer is not required to stop questioning unless the invocation is unambiguous, and
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the officer may, but is not required to, clarify an ambiguous response. See Dowthitt v. State, 931

S.W.2d 244, 257 (Tex. Crim. App. 1996). We consider the totality of the circumstances when

determining whether the right to remain silent was unambiguously invoked. Williams v. State, 257

S.W.3d 426, 433 (Tex. App.—Austin 2008, pet. ref’d). If a person in custody invokes his Fifth

Amendment right to remain silent, the admissibility of statements obtained after the invocation

depends on whether the person’s right was “scrupulously honored.” Michigan v. Mosley, 423 U.S.

96, 104 (1975).

        On appeal, appellant contends during the interrogation, he unambiguously invoked his right

to remain silent. 1 During the recording, the interrogating officer and appellant can be heard

discussing potential outcomes if appellant is found guilty of capital murder. At approximately

thirty-eight minutes into the recording, the following exchange between the interrogating officer

and appellant takes place:

        A: (appellant): I’m going to die anyway. Even if it’s not on death row, it’s life. Anyway
           it goes, I’m going to die.

        Q: (officer): What do you mean?

        A: I’m gone. This is it. That was the last time for me to be out there in the free world.
           That’s it.

        Q: I won’t pretend to tell you what’s going to happen. I can’t promise you anything.

        A: Can we just go ahead and do what we’ve got to do?

        Q: How about this, why don’t we just start from the beginning? How, how did this all
           come about?

        A: I don’t want to talk about this no more. [emphasis added]

        Q: You don’t want to talk about this anymore?



1
  Over appellant’s objection, the trial court determined appellant was properly given Miranda warnings prior to the
interrogation. This is not an issue on appeal.

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       A: What’s done is done. It’s over with. I made a mistake. I might didn’t know what I
          was doing at the time.

       Q: That’s what I want to know, how did this all come to be?


       Appellant argues his statement—“I don’t want to talk about this no more”—was a clear

and unambiguous invocation of his right to remain silent. The State argues appellant’s statement

was ambiguous based on its language and the surrounding circumstances. In support of its position

that appellant’s statement was ambiguous, the State cites Kupferer v. State. In that case, Kupferer

was taken to police headquarters where a videotaped interview was conducted. Kupferer v. State,

408 S.W.3d 485, 487 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). At the beginning of the

interview, Kupferer was advised of his Miranda rights. Id. When asked if he wanted to tell the

interrogating officer what happened last night, Kupferer responded: “To tell you the truth, I really

don’t want to talk about it, but I mean . . . .” Id. The court determined Kupferer’s statement—“I

really don’t want to talk about it”—was not a clear and unambiguous refusal to speak with the

interrogating officer. Id. at 490. The court further concluded the words “‘but I mean’ were added

to qualify that statement” and “Kupferer clearly signaled indecision or ambivalence toward

waiving his rights, but he did not unambiguously express a desire to remain silent.” Id. Here,

appellant’s request to terminate the interview can be distinguished from Kupferer’s statement

because appellant’s request was a clear and declaratory statement indicating his desire to invoke

his right to “cut off questioning,” and did not contain such indecision or ambivalence toward

waiving his rights. See Mosley, 423 U.S. at 103 (“The critical safeguard identified in [Miranda]

. . . is a person’s right to cut off questioning.”). Nor did appellant’s invocation contain a qualifying

statement as in Kupferer.

       The State also argues appellant’s statements are akin to the statements made in Ramos v.

State. In that case, Ramos moved to suppress statements made to police shortly after he was taken
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into custody. Ramos, 245 S.W.3d at 411. The trial court held an evidentiary hearing where the

interrogating officer testified that after he informed Ramos his girlfriend had identified him as the

shooter, Ramos became upset and told the interrogating officer: “I don’t want to talk to you. I

don’t want to talk about it anymore.” Id. at 415–16. On appeal, a majority of this court concluded

Ramos did not unambiguously invoke his right to remain silent because the word “it” was

ambiguous, as it was open to more than one reasonable interpretation. Id. at 417. The Court of

Criminal Appeals reversed, holding Ramos’ statement that he did not “want to talk to you [the

interrogating officer],” was “an unambiguous, unequivocal, and unqualified assertion of his right

to remain silent.” Id. at 418–19. The Court further concluded “[a]ny ambiguity in [Ramos’] other

statement to [the interrogating officer], that he did not want to talk about ‘it’ anymore, was, in

context, entirely irrelevant.” Id. at 419.

          The State contends Ramos stands for the proposition that when a person, in custody and

being questioned by police, states he does not want to talk about “it” anymore, use of the word “it”

renders the request ambiguous. We do not believe Ramos supports the State’s contention that use

of a pronoun when a person in custody tells an interrogating officer that he no longer wants to

speak, changes an unambiguous invocation of the right to remain silent into an ambiguous one.

Prior to this point in the interrogation, appellant freely discussed the circumstances surrounding

the shooting with the interrogating officer. The focus of the interrogation was clearly about the

shooting that killed Felder. A reasonable interrogating officer would not have found appellant’s

statement ambiguous because the shooting constituted the only reason for appellant’s

interrogation. Considering the totality of the circumstances, we believe appellant’s statement—“I

don’t want to talk about this no more”—was an unambiguous invocation of his right to remain

silent.



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       Because appellant unambiguously invoked his right to remain silent, we next inquire

whether this right was “scrupulously honored.” See Mosley, 423 U.S. at 103–04. The right to

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

questioning. Id. at 102–03. Rather, “police must ‘scrupulously honor’ the defendant’s right to

remain silent by (1) immediate cessation of questioning; (2) resumption of questioning only after

the passage of a significant period of time; (3) provision of a fresh set of Miranda warnings; and

(4) restrictions of the second interrogation to a crime that was not a subject of the earlier

interrogation.” Watson, 762 S.W.2d at 596–97. There must also be an end to the questioning

sufficient to indicate that the police respected the suspect’s request. See Mayes v. State, 8 S.W.3d

354, 358 (Tex. App.—Amarillo 1999, no pet.). “The ‘scrupulously honored’ test is not met where

the police . . . resumed questioning after a short interval during which custody continued.” Ramos,

245 S.W.3d at 419 (internal citation omitted). Here, there was no immediate cessation of

questioning; instead, the interrogating officer immediately resumed questioning.            Although

appellant was informed of his right to remain silent prior to initial questioning, he was not provided

a fresh set of Miranda rights after invoking his right. On this record, we conclude appellant’s right

to remain silent was not “scrupulously honored.” However, this does not end our review.

       We must next review the record to determine if the error was harmless. We will reverse a

conviction unless we determine “beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.” TEX. R. APP. P. 44.2(a); see Snowden v. State, 353 S.W.3d 815, 822

(Tex. Crim. App. 2011) (discussing constitutional error analysis). Prior to invoking his right to

remain silent, appellant spoke freely with the interrogating officer for approximately thirty-eight

minutes. During this time, appellant gave several explanations for his whereabouts and activities

on the night Felder was shot. First, appellant admitted only to being at the house where Felder

was shot earlier in the day, and denied any involvement in the shooting, claiming he was at a
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downtown Austin club, then “went home with two strippers” thereafter.               Appellant then

acknowledged he was involved in the shooting, but claimed he was threatened into participating

in a robbery by two individuals named T.J. and “Blindside,” and although he was armed, shot only

into the air. Next, appellant admitted he shot Felder, but claimed the gun went off accidentally

when appellant was threatened by one of his accomplices. Appellant then claimed he intended to

shoot the television and accidentally shot Felder. Finally, appellant admitted he intentionally shot

Felder because he thought Felder had a gun. All of these statements occurred prior to appellant

invoking his right to remain silent. After invoking his right to remain silent, appellant indicated

he intended to rob Felder, but “didn’t mean to shoot the guy.”

       In addition to appellant’s statements to police prior to invoking his right to remain silent,

the jury also heard the testimony of Jackie Powell, an eyewitness to the shooting. Powell testified

he was staying at the house where Felder was shot on the night of the shooting, and that he was

speaking with Felder when an individual known as Blindside knocked at the front door and asked

to use the bathroom. After using the bathroom, Blindside left the house and approximately thirty

seconds later, appellant knocked at the front door and also asked to use the bathroom. When

appellant emerged from the bathroom, he was holding a rifle Powell described as an AK-47.

Appellant stood above Felder pointing the rifle downward toward Felder as Powell sat a few feet

away. Powell testified appellant told Felder to “drop out,” indicating appellant was robbing Felder.

Powell further testified Felder was not complying quickly enough with appellant’s demand for

money. Powell then witnessed appellant tell Felder, “you’re pissing me off” shortly before

shooting Felder and fleeing in a gray SUV.

       The jury also heard the testimony of appellant’s accomplice, Donald “Blindside” Vilo.

Vilo testified appellant called and told Vilo he “had a lick,” indicating appellant was planning to

commit a robbery. Vilo testified appellant offered him a portion of the proceeds from the robbery
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if Vilo would pick appellant up in his car and drive him to and from the robbery. Vilo agreed to

do so and testified that appellant carried a rifle Vilo described as an AK-47, concealed under his

jacket when Vilo picked appellant up. Vilo admitted to using the bathroom at the house where

Felder was shot and confirmed to appellant that the person appellant planned to rob was inside the

house. As he waited in the vehicle described by Powell, Vilo testified he heard a gunshot then saw

appellant running toward the vehicle. When he entered the vehicle, Vilo testified appellant said

he “shot some guy because he was going for a gun.”

       Finally, the jury heard testimony regarding the physical evidence and the medical

examiner’s results. The crime scene supervisor testified a bullet fragment and shell casing had

been recovered. The firearms and tool mark examiner testified his analysis of the fragment and

casing indicated the bullet was a 7.62 caliber round, which is consistent with the type of firearm

appellant was seen with by both Powell and Vilo. The medical examiner testified Felder suffered

three wounds consistent with a gunshot. The first wound was in Felder’s upper-right chest, the

second was in his lower-left abdomen, and the third was in his left forearm. The medical examiner

presented a diagram that tracked the trajectory of the bullet. The diagram showed that the bullet

entered through Felder’s chest; damaged his right lung, diaphragm, and liver; exited through his

lower-left abdomen; then struck his left forearm as it exited his abdomen. The bullet’s trajectory

was consistent with Powell’s description of how appellant stood over Felder before shooting him.

The medical examiner also testified that Felder’s death was caused by the gunshot wound and

ruled his death a homicide.

       Based upon appellant’s statements prior to invoking his right to remain silent, Powell’s

eyewitness testimony, Vilo’s corroborated accomplice testimony, as well as the physical evidence

and the medical examiner’s testimony, we determine beyond a reasonable doubt that the error did

not contribute to appellant’s conviction or punishment.
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                        INEFFECTIVE ASSISTANCE OF COUNSEL

       In his third issue, appellant contends he received ineffective assistance of counsel during

the guilt-innocence phase of his trial.

A. Standard of Review

       To prevail on an ineffective assistance claim, an appellant must prove (1) counsel’s

representation fell below the objective standard of reasonableness and (2) there is a reasonable

probability that, but for counsel’s deficiency, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); Thompson v. State, 9 S.W.3d

808, 812 (Tex. Crim. App. 1999). A reasonable probability is sufficient to undermine confidence

in the outcome of the proceedings. Mofatt v. State, 930 S.W.2d 823, 826 (Tex. App.—Corpus

Christi 1996, no pet.). When considering an ineffective assistance claim, there is a strong

presumption that counsel’s action fell within the wide range of reasonable professional behavior

and was motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at

813. To overcome this presumption, a claim of ineffective assistance must be firmly demonstrated

in the record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate vehicle

for raising such a claim because the record is generally undeveloped and cannot adequately reflect

the motives behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim.

App. 2003); Thompson, 9 S.W.3d at 813–14. When the record is silent regarding trial counsel’s

strategy, we will not find deficient performance unless the challenged conduct was “so outrageous

that no competent attorney would have engaged in it,” Goodspeed v. State, 187 S.W.3d 390, 392

(Tex. Crim. App. 2005), or “if any reasonably sound strategic motivation can be imagined.” Kuhn

v. State, 393 S.W.3d 519, 538 (Tex. App.—Austin 2013, pet. ref’d).




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B. Analysis

       Appellant argues his trial counsel rendered ineffective assistance of counsel by failing to

object to the testimony of the State’s psychiatric witness, Dr. Maureen Burrows. Specifically,

appellant complains Dr. Burrows testified to “extremely damaging extraneous acts of appellant . . .

without objection from appellant’s trial counsel,” including jail notes that referenced (1) appellant

threatened other inmates, (2) appellant hoarded Seroquel, (3) appellant threatened jail staff, and

(4) appellant was manipulative and had a personality disorder. Appellant contends there was no

strategic reason for allowing such testimony, and trial counsel’s failure to object to the

inadmissible testimony was so egregious that no competent attorney would have done so.

       Dr. Burrows testified she evaluated appellant and determined he was competent to stand

trial. A review of the record shows appellant’s trial counsel objected several times during

Dr. Burrows’ testimony, including multiple objections to references Dr. Burrows made to

appellant’s incarceration, even requesting outside the presence of the jury that Dr. Burrows be

instructed not to mention appellant’s incarceration. Additionally, trial counsel’s first question to

Dr. Burrows on cross-examination was related to hypoxia’s effect on mental capacity, which

appears to have been elicited in order to introduce the fact that appellant was choked as a child,

and as a result, suffered diminished cognitive abilities. We believe the complained of testimony

could have been solicited for strategic reasons. We conclude appellant has not presented sufficient

evidence to rebut the presumption that such strategy fell below the wide range of reasonable

professional behavior. As a result, appellant has not met the first prong of Strickland.




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                                        CONCLUSION

       We conclude the trial court’s error denying appellant’s motion to suppress was harmless,

and appellant has not established ineffective assistance of counsel. Therefore, we affirm the trial

court’s judgment.


                                                  Sandee Bryan Marion, Justice


Do not publish




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