Mayes v. State

• Citation: 8 S.W.3d 354
• Parties: (Tex.App.-Amarillo 1999) DAWN MICHELLE MAYES, Appellant v. THE STATE OF TEXAS, Appellee NO. 07-98-0131-CR
• Decision Date: 16 November 1999
• Court: Texas Court of Appeals

Page 354

8 S.W.3d 354 (Tex.App.-Amarillo 1999)

DAWN MICHELLE MAYES, Appellant v. THE STATE OF TEXAS, Appellee

NO. 07-98-0131-CR

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

NOVEMBER 16, 1999

FROM THE CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY; NO. 0627460A; HON. DON LEONARD, PRESIDING

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before QUINN and REAVIS and JOHNSON, JJ.

Brian Quinn, Justice

Dawn Michelle Mayes appeals her conviction for aggravated sexual assault. Raising two points of error, she questions the admission of her written confession into evidence and the effectiveness of her counsel. We reverse.

Background

Appellant was indicted for committing aggravated sexual assault upon her six year old daughter, T. M. According to the child, appellant's live-in boyfriend, Lee, performed oral sex on her and caused her to masturbate him and to perform oral sex on him. T. M. further stated that appellant was present during these sexual exploits, that she could see what was happening, and that she had earlier instructed T. M. on how to masturbate Lee and perform fellatio on him.

Following an investigation into T. M.'s allegations, members of the Grapevine Police Department procured an arrest warrant and arrested appellant. The latter was then transported to the police station, informed of her Miranda rights, and interrogated by two detectives.

At the beginning of the interrogation, which was videotaped, appellant stated that she did not know if she wanted to talk to the police. Having said this, however, she began speaking to the officers. Appellant spent approximately 30 minutes telling them that she believed she was being framed by a friend and that neither she nor her boyfriend did anything wrong to T. M. The officers gradually became more confrontational and informed appellant of her need to tell the truth. As one officer was so admonishing her, appellant interrupted and said "I'm going to stop talking." Despite this pronouncement, the officer continued with his comments and questions. About four minutes later, appellant again declared "I'm going to shut up. I'm not going to say another goddamned thing." Yet, as before, the detectives neither paused nor ended the proceeding. Rather, they continued as if uninterrupted.

Soon, appellant became increasingly subdued as the officers impressed upon her the need to be truthful. This eventually lead to the following exchange:

Appellant: Well, first of all, you all going [sic] to have to let -- some way where I can talk to Lee so I can get some phone numbers so I can get ahold of somebody so I can get us a lawyer.

Detective: So that means you're not going to talk to us?

Appellant: I don't know what I'm going to do. I need to talk to Lee so I can get some phone numbers so I have them for me.

* * *

Detective: Now if you want to talk to a lawyer you can talk to a lawyer.

Appellant: Well I have to get one for both of us.

Detective:Well you won't be talking to Lee. We're gonna be talking to Lee and we're gonna be talking to a whole lot of other people in this investigation and we're gonna get some statements on what happened. If you don't want to give a statement then you just say so because we're doing this for your opportunity because your little girl has accused you and two other people of sexually abusing her. And if you think its just going to go away because you say it didn't happen, then you are wrong. It's not gonna go away. Now if you need some help along those lines, you better get it, and this is the place to start right here. Right here, right now, telling the truth about what happened at that house on Easy Street. This will not go away just because you say it didn't happen. It's not going to go away. When this interview is over, you're going to jail. You're on a $50,000 bond and when you leave here you'll go to Tarrant County jail until you can post a bond. And we won't be coming and asking you to tell the truth any more after this. We're gonna ask some other people. So if you want to tell your version of what happened then tell it right here, right now. But don't come back later and say 'oh they--they wouldn't let me have a chance to talk about it,' because this is your chance. But don't tell on us like Michelle Patterson didn't give you the opportunity because we're giving you opportunity. But we want to hear the truth and we need to hear the truth. For Tiffany's sake."

(emphasis added)

Thereafter, appellant admitted to being present when Lee and another man sexually assaulted T. M. and to putting her tongue against T. M.'s vagina. The detectives then asked appellant if she would "give a written statement of all the things we've just discussed." One encouraged her to do so by stating that "you're not going to be doing more than what you've done already." Appellant acquiesced, and her written confession was subsequently admitted into evidence.

Point of Error One - The Motion to Suppress Appellant's Statement

Appellant contends that the court erred in denying her motion to suppress her written confession because it was taken in violation of her right against self-incrimination under the Fifth Amendment to the United States Constitution. We agree.

a.Standard of Review

We review de novo a trial court's ruling on a motion to suppress if that ruling simply involved an application of law to undisputed fact. Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999) cert. denied 1999 U.S. Lexis 5247 (1999); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Here, credibility and demeanor were not issues, as the facts surrounding the interrogation were preserved on videotape and completely uncontroverted. In effect, we are being asked to merely apply the law to uncontroverted fact, which, in turn, enables use to review de novo the trial court's decision.

Next, it is axiomatic that prior to a custodial interrogation, one must be advised, among other things, that he has a right to remain silent, Miranda v. Arizona, 384 U.S. 436, 467-68, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 720 (1966) and to consult with an attorney. Id. at 471, 86 S. Ct. at 1602, 16 L. Ed. 2d at 722. Similarly well settled is that "[i]f the individual 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, 86 S. Ct. 1602, 16 L. Ed. 2d at 723. As has long been acknowledged, the invocation of that right by the suspect must be "'scrupulously honored.'" Maestas v. State, 987 S.W.2d at 61-62, quoting, Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975). This does not mean that no further questioning can ever occur, but rather that there must be a end to the proceeding sufficient to indicate that the police respected the suspect's request. Id. And, whether such an end occurred depends upon 1) whether the suspect was informed of his right to remain silent prior to the initial questioning, 2) whether the suspect was informed of his right to remain silent prior to the subsequent questioning, 3) the length of time between the initial and subsequent questioning, 4) whether the subsequent questioning focused on a different crime, and 5) whether the police honored the suspect's request for silence. Id. at 62. Yet, we need not consider any of these factors if the suspect's comments did not clearly manifest his desire to remain silent. Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). This is so because anything less than a clear manifestation does not obligate the officer to stop the interrogation. Id.; see Cooper v. State, 961 S.W.2d 222, 226 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd) (holding that one's declaring "'I'm not answering any questions'" sufficiently manifested an intention to remain silent).

Similarly, interrogation must immediately cease if the suspect states "that he wants an attorney . . . ." Miranda, 384 U.S. at 474, 86 S.Ct. 1602,16 L. Ed. 2d at 723; Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378, 386 (1981); Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App.), cert. denied, 516 U.S. 862 (1995). And, like the invocation of the right to remain silent, the request for counsel must also be clear and unambiguous. Davis v. United States, 512 U.S. 452, 460-61, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362, 372 (1994); Dinkins v. State, 894 S.W.2d at 350-51. In other words, the totality of circumstances inherent in the case must illustrate that the suspect "actually invoke[d] his right." Dinkins v. State, 894 S.W.2d at 351. And, whether he did depends upon whether the "suspect express[ed] a definite desire to speak to someone, and that person be an attorney." Id. at 352. For instance, comments like "I can't say more than that[,] I need to rest" and "'[m]aybe I should talk to a lawyer,'" have been found to be too ambiguous. Dowthitt v. State, 931 S.W.2d at 257; Davis v. United States, 512 U.S. at 455, 114 S. Ct. at 2355, 129 L. Ed. 2d at 368. On the other hand, the suspect uttering that he was "'not doing any [field sobriety] tests'" when coupled with "'you are trying to incriminate me and without an attorney'" do exemplify a desire for legal counsel. Stanton v. State, 953 S.W.2d 832, 834-35 (Tex. App.--Amarillo 1997, no pet.).

b.Application of Standard

i. Right to Silence

The first point at which appellant supposedly tried to terminate her interrogation was just after the officers Mirandized her. Initially, she stated that she did not know if she wanted to talk. Having said that and before the officers asked a question, she then launched into a denial of wrongdoing. By stating that she did not know if she wanted to talk, appellant, at best, expressed ambivalence toward waiving her rights. But, by following that statement with more speech, separated by little more than a breath, it is clear she resolved her dilemma; in short, she wanted to talk. Thus, we do not find...