Opinion
No. 05-09-01314-CR
Opinion Filed November 10, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F09-00919-N.
Before Justices MORRIS, O'NEILL, and FILLMORE.
OPINION
A jury convicted Tomas Hernandez of capital murder, and the trial court assessed punishment of life imprisonment. In two issues, Hernandez argues the evidence is insufficient to support the conviction and the trial court erred by denying a motion to suppress Hernandez's videotaped statement. We affirm the trial court's judgment. Factual Background At approximately 1:30 a.m. on August 18, 2008, Felix Aguirre was shot and killed in the kitchen of his home by an intruder. Two of Aguirre's sons, Abel and David (David A.), testified that they, their father, their mother, Maria, their sister, Banet, and their brother, Javier, were asleep in the family home. Both Abel and David A. heard a bang at the door and people shouting "police" in English and Spanish. David A. opened the door of the bedroom that was shared by the three brothers, and Abel saw flashlights. According to Abel, one of the intruders pointed a gun at David A.'s head and told him not to do anything or the intruder would kill him. David A. confirmed an intruder with a gun told him to "calm down." David A. stepped back into the bedroom. Both David A. and Abel saw two intruders in the hall. David A. also thought there were two intruders by the front door. One of the intruders in the hall had a gun and was dressed in black with a black bandanna over the lower half of his face. All Abel could see was the intruder's eyes and hair. The second intruder in the hall was bigger than the first one and was dressed in a white shirt and blue jeans with a bandanna over his face. Abel testified this intruder had either a gun or a knife. Maria came out of the master bedroom into the hall. The intruder with the gun grabbed Maria and asked for Aguirre. According to Abel, Maria told the intruder that Aguirre did not live in the house. David A. testified the intruder took Maria to the living room, grabbed her hair, and pointed a gun at her head. Abel testified that David A. objected to the intruder grabbing Maria. David A. testified he told the intruder not to "do this." According to David A., the intruder's bandanna slipped off his face, and the intruder ordered David A. not to look at him. The intruder with the gun then told the second intruder in the hall to "get" David A. The second intruder grabbed David A., forced him against the wall in the hall, and held his weapon to David A's throat. David A. testified the second intruder had a knife. The first intruder forced Maria into the brothers' bedroom and then went into the master bedroom. The intruder came out of the master bedroom with Aguirre. The intruder was holding a gun to Aguirre's head and pushed Aguirre toward the kitchen. David A. testified Aguirre was asking the intruder what he wanted, but the intruder did not answer. Abel saw David A. trying to watch what was happening in the kitchen. David A. testified he was pushing back against the second intruder to see into the kitchen. Abel heard a shot. According to Abel, the intruder in the black bandanna shot Aguirre. David A. testified the intruder was very calm and did not hesitate, but just took Aguirre into the kitchen and shot him. David A. stated the intruder "came for business." Abel and David A. testified that David A. did not attack the intruders prior to Aguirre being shot. The intruder holding David A. immediately ran out of the house. David A. went into the kitchen to check on Aguirre. David A. testified the intruder with the gun was standing at the front door with a gun pointed at him. Abel saw David A. look up and then jump into the bathroom. The intruder shot at David A. and then ran out of the house. David A. chased the intruders, and Abel called 9-1-1. Both Abel and David A. testified Aguirre was shot through the head and was dead. David A. testified that approximately ten minutes later the police took him to identify a suspect. According to David A., the suspect was the second intruder and, other than the bandanna, was still wearing the same clothes he wore during the shooting. David A. also identified the second intruder from a photographic lineup. At trial, David A. identified Hernandez as the intruder with the gun who shot Aguirre. David A. acknowledged he had seen the television show First 48's broadcast about the shooting of his father that contained pictures of Hernandez. However, he remembered Hernandez from the shooting. Tom Max Thomas II, a Dallas police officer on August 18, 2008, responded to the 9-1-1 call about the shooting. A teenage girl gave him information about at least three intruders, and he drove south to see if he could locate a suspect. He stopped a person later identified as Nestor Hernandez. Detective Randy Loboda testified he was the lead detective on the case. According to Detective Loboda, there was a fence around the house that could be a deterrent to someone who wanted to break into the house. There were also at least four vehicles parked at the house, indicating people were home. A footprint on the door of the house led him to believe there was a forced entry into the house. The footprint on the door of the house showed the shoe had a very distinctive tread. Detective Loboda testified Aguirre suffered a "through-and-through" wound. After the bullet exited Aguirre, it went through the kitchen window into the backyard. This bullet was not found. The police recovered from the bathroom wall the bullet fired at David A. Detective Loboda interviewed Nestor. Nestor was wearing the clothes he was wearing when he was arrested. The tread on Nestor's shoes was similar to the tread mark on the front door of Aguirre's house. Based on his interview with Nestor, Detective Loboda developed Hernandez and David Hernandez (David H.) as persons of interest. Nestor took Detective Loboda to the apartment where Hernandez lived, and Detective Loboda requested surveillance of the apartment. The surveillance led to the arrest of Hernandez, David H., and Israel Mendez. Detective Ramon Martinez Jr., along with several other police officers, went to the apartment where Hernandez lived. Nancy Rojas, Hernandez's girlfriend, was the lessee of the apartment. Rojas consented to a search of the apartment. Detective Bruce Chamberlain Jr. testified that, during the search, the police found a large flashlight, latex gloves, a ski mask, blue bandannas, a tee shirt cut like a ski mask, and two guns. Detective Joseph Allen testified the police found a .32-caliber gun and a .357-caliber gun in Rojas's apartment. The .357-caliber gun contained four bullets and two empty chambers. Lanny Emanuel, a firearm and toolmark examiner, testified the bullet recovered from the wall in Aguirre's house was shot from the .357-caliber gun found in Rojas's apartment. Angela Fitzwater, a forensic biologist from the Southwestern Institute of Forensic Sciences, testified Hernandez, David H., Nestor, and Mendez could not be excluded as contributors of the DNA found on the ski mask and Hernandez, David H., and Mendez could not be excluded as contributors of the DNA found on one of the bandannas. However, the statistical weight of the analysis was affected by the quantity and quality of the samples. Aguirre was not a contributor of any of the DNA found on the items seized from Rojas's apartment. Dr. Reade Guinton, a medical examiner for Dallas County, participated in the autopsy of Aguirre. Dr. Guinton testified Aguirre died from a single gunshot wound to the head. Detective Scott Sayers interviewed Hernandez. After reading Hernandez his Miranda rights, Detective Sayers asked Hernandez if it was "ok to talk to you about [the] investigation?" Hernandez responded, "Yes, sir." Hernandez also affirmed he understood his rights. Hernandez refused to sign the written Miranda warnings, but again stated he would talk to Detective Sayers. After asking Hernandez general background questions, Detective Sayers stated he had been talking to David H. and Nestor and had an idea about what happened, but was confused about why it happened. Detective Sayers indicated he was talking about the "house on Rayenell." Hernandez responded, "What?" Detective Sayers stated, "The house on Rayenell that you went to last night, understand what I'm saying?" Hernandez responded, "No, sir." Detective Sayers indicated Hernandez was at the police station for a reason, and Hernandez asked, "And that reason is?" Detective Sayers stated the police had good reason to believe Hernandez was involved in what happened last night. Hernandez asked, "And that is?" Detective Sayers stated that a man got killed, and he had no doubt Hernandez was there but, without Hernandez's side of the story, had not reached a conclusion about his involvement. Detective Sayers then made comments regarding how things seldom go according to plan and he did not think it happened like Hernandez thought it would happen. He asked Hernandez, "Can you tell me what happened last night?" Hernandez responded, "I really can't say much." Detective Sayers asked Hernandez what was the purpose of going to that house, and Hernandez stated, "Wasn't no purpose, I mean, I really can't say." Detective Sayers again asked why Hernandez was at the house. Hernandez stated, "I don't have anything to say sir, really don't." Detective Sayers then told Hernandez that he knew what Detective Sayers was talking about. Hernandez responded, "Not really, you just said something about somebody being killed." Detective Sayers stated he was talking about capital murder and again asked what was the purpose of going to the house. Hernandez responded "I don't have nothing to say on that, sir." Detective Sayers again indicated he knew Hernandez was at the house and David H. and Nestor had told Detective Sayers why they were at the house. Hernandez asked, "What was that reason?" Detective Sayers stated he needed to hear the reason from Hernandez and continued to ask Hernandez why he went to the house. Hernandez asked if Detective Sayers had talked to Rojas, and Detective Sayers said she was at the police station. Hernandez asked questions intended to confirm Detective Sayers had talked to Rojas and that she was at the police station. After answering Hernandez's questions, Detective Sayers told Hernandez the police had searched Rojas's apartment and "found everything." Hernandez asked, "What did you find?" Detective Sayers responded they found two revolvers, a bandanna, and a ski mask. Hernandez then started talking about the offense. He stated they were just going to break into the house. He first said they picked the house just by looking around. He then said he heard some people at the volley ball court talking about how the people who lived in the house were out of town. He finally stated that he was hired to break into the house by a man that Mendez's cousin knew. The man gave Hernandez a picture of Aguirre and information about the location of the house. The man wanted Hernandez to scare and beat up Aguirre and promised to pay Hernandez $15,000 and a kilo of cocaine after Hernandez completed the job. Hernandez stated he was afraid of this man because he was connected with the "cartel." Hernandez did not tell David H., Mendez, or Nestor about the $15,000. Hernandez decided to take Aguirre's appliances for extra money and told the others they were going to burglarize the house. Hernandez took a .357-caliber revolver with him. Nobody else had a gun, but Nestor took a kitchen knife. Hernandez was wearing a black shirt with a blue bandanna over his face. Nestor was wearing a white shirt with a blue bandanna over his face. David H. was wearing a black shirt with a ski mask over his face. Mendez stayed with the car. Nestor kicked in the door of the house and yelled "get on the floor." Hernandez yelled "police" in Spanish. As they went down the hallway, the son came out of one of the bedrooms. Hernandez stated he pulled back the hammer on the gun to keep the son from coming at them. He told the son to get back or he would shoot. Hernandez got Aguirre out of the master bedroom and took him toward the living room. Nestor was holding the son against the wall. Hernandez stated the son pushed Nestor, causing Nestor and the son to bump Hernandez. Hernandez said he was waving the gun around and attempting to slowly lower the hammer on the gun. But, when the son bumped him, the gun went off. Aguirre fell, and Hernandez saw he was shot. Hernandez stated that it was not supposed to happen. The son then came at Hernandez, and he shot at the son. According to Hernandez, they all ran from the house. Hernandez and David H. ran along Loop 12 and called Mendez from a pay phone. Mendez then picked them up. The State introduced a surveillance videotape from a motel on Loop 12. The videotape showed Hernandez and David H. asking for change and then shaking each other's hands. Hernandez stated that Nestor fell behind when everybody was running, and they could not find him. Hernandez was allowed to talk to Rojas several times during the interrogation. During one of those conversations, Hernandez stated that he was sorry and should have listened to Rojas. A Spanish interpreter testified Hernandez also said, "I knew this was going to happen." Rojas asked "Then why do you do it," and Hernandez responded, "I don't know." Hernandez also told Rojas the police wanted to know who sent him and he could not tell them. The State offered recordings from the jail of telephone conversations between Hernandez and an unidentified male friend. Hernandez made statements during the conversations to the effect that everybody needed to keep quiet. Hernandez indicated he would not be "the only one doing hard time." The jury convicted Hernandez of capital murder. The State did not seek the death penalty, and the trial court sentenced Hernandez to life imprisonment. See Tex. Penal Code Ann. § 12.31(a)(2) (West 2011). Sufficiency of the Evidence In his first issue, Hernandez contends the evidence is insufficient to support the conviction because it does not establish he intentionally or knowingly caused Aguirre's death. We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, No PD-1126-10, 2011 WL 4577870, at *3 (Tex. Crim. App. Oct. 5, 2011). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 2011 WL 4577870, at *4. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 2011 4577870, at *4. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute our judgment for that of the jury"). In conducting a sufficiency review, we consider all of the admitted evidence, whether it was admissible or inadmissible. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). As relevant in this case, a person commits capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit burglary. Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (West 2011). Intent is most often proven through the circumstantial evidence surrounding the crime, and the jury may infer the requisite intent from the defendant's conduct, including his acts and words. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001); Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd), cert. denied, 131 S. Ct. 156 (2010). The jury may infer intent to cause death from the use of a deadly weapon in a deadly manner. Godsey v. State, 719 S.W.2d 578, 580-81 (Tex. Crim. App. 1986) ("The specific intent to kill may be inferred from the use of a deadly weapon, unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result."); see also Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). The use of a deadly weapon in a deadly manner raises an almost conclusive inference of intent to kill. Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993); see also Tex. Penal Code Ann. § 1.07(a)(17)(A) (West 2011) ("deadly weapon" defined to include firearm). Hernandez argues his statements to Detective Sayers that the gun discharged accidently and statements made by Detective Sayers that he believed Hernandez did not go to Aguirre's house intending to shoot Aguirre establish that he did not break into Aguirre's house with the intent to kill him. During the interview, Hernandez stated he had been promised $15,000 and a kilo of cocaine to break into the house and beat up and scare Aguirre. He admitted he took a loaded .357-caliber revolver with him to the house. He claimed he cocked the revolver to stop David A. from coming at him. He stated he was waving the gun around and attempting to slowly lower the hammer when Nestor and David A. bumped him, causing the gun to discharge. He claimed the gun discharged accidently and that he did not intend to shoot Aguirre. However, David A. testified the man who shot his father was calm, did not hesitate to shoot Aguirre, and "came for business." Hernandez also fled the house after shooting Aguirre. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994) (evidence of flight is circumstance from which inference of guilt may be drawn); Gonzalez v. State, 296 S.W.3d 620, 626-27 (Tex. App.-El Paso 2009, pet. ref'd) ("The fact that A.C. shot Potts in the chest with a .22 and fled the scene with Appellant reinforces the notion that there was intent to kill."). The surveillance videotape from the motel showed that, shortly after Aguirre was killed, Hernandez and David H. were seen shaking hands and did not appear upset about what had happened at the house. Finally, Hernandez changed his story a number of times during the interview with Detective Sayers. "A rational trier of fact could also consider such untruthful statements by appellant, in connection with the other circumstances of the case, as affirmative evidence of appellant's guilt." Padilla v. State, 326 S.W.3d 195, 201 (Tex. Crim. App. 2010). Although Hernandez claimed he accidently shot Aguirre, there was evidence from which the jury could infer Hernandez intentionally caused Aguirre's death. It was the role of the jury to resolve conflicts in the evidence, and we may not substitute our judgment for that of the fact-finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). On this record, we conclude a rational jury could have found beyond a reasonable doubt that Hernandez intentionally caused Aguirre's death. See Godsey, 719 S.W.2d at 580-81; Vuong v. State, 830 S.W.2d 929, 933-34 (Tex. Crim. App. 1992) (concluding evidence was sufficient to prove intent to kill where defendant fired semi-automatic weapon in tavern filled with patrons, despite defendant's testimony that he was thinking irrationally as a result of earlier threats by certain gang members and his intent was only to "scare" persons who had threatened him). We resolve Hernandez's first issue against him. Videotaped Statement In his second issue, Hernandez contends the trial court erred by denying his motion to suppress his videotaped statement given to Detective Sayers because his right to remain silent was not scrupulously honored. The trial court held a pretrial hearing on the motion to suppress, heard Detective Sayers's testimony, and viewed Hernandez's videotaped statement. After expressly considering the context of the statements and Hernandez's demeanor when he made the statements, the trial court denied the motion to suppress and ruled Hernandez's entire conversation with Detective Sayers was admissible. We apply a bifurcated standard of review to the trial court's ruling on a motion to suppress evidence. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App. 2010); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial court is the sole trier of fact and the judge of witness credibility and the weight to be given to witness testimony. Valtierra, 310 S.W.3d at 447. Thus, we give almost total deference to the trial court's rulings on (1) questions of historical fact that the record supports, especially when the trial court's determination of those facts was based on an evaluation of credibility and demeanor, and (2) application of law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when application of law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652-53. When, as here, the trial court does not make explicit findings of fact, we must view the evidence in the light most favorable to the trial court's ruling and assume the trial court resolved any issues of historical fact or credibility consistently with its ultimate ruling. Hubert, 312 S.W.3d at 560. We must uphold the trial court's ruling if it is "reasonably supported by the record and is correct on any theory of law applicable to the case." Valtierra, 310 S.W.3d at 447-48 (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. This guarantee was made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8 (1964); Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). Consistent with this right to remain silent, law enforcement officials, before questioning a person in custody, must inform him that he has a right to remain silent and that any statement he makes may be used against him in court. Berghuis v. Thompkins, 130 S. Ct. 2250, 2259, 176 L. Ed. 2d 1098 (2010); Miranda v. Arizona, 384 U.S. 436, 444-45, 478-79 (1966). The right to remain silent requires the police to immediately cease custodial interrogation when a suspect "indicates in any manner, at any time, prior to or during questioning, that he wishes to remain silent." Ramos, 245 S.W.3d at 418 (quoting Miranda, 384 U.S. at 473-74). The suspect does not need to use any particular word or phrase to invoke the right to remain silent. Id. Any declaration of a desire to terminate the contact or inquiry should suffice. Id. The suspect need not object to further questioning in order to protect the right to remain silent. Watson v. State, 762 S.W.2d 591, 599 (Tex. Crim. App. 1988). The exercise of the right to remain silent must be "scrupulously honored." Miranda, 384 U.S. at 479. A failure to stop questioning after the suspect invokes his right to remain silent violates his constitutional rights and renders any subsequently obtained statements inadmissible. Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). But an officer is not required to ask clarifying questions, and, if the suspect's statement is not an unambiguous or unequivocal request to terminate the interview or to invoke the right to silence, the officer has no obligation to stop questioning him. Berghuis, 130 S. Ct. at 2259-60 ("If an accused makes a statement concerning the right to counsel `that is ambiguous or equivocal' or makes no statement, the police are not required to end the interrogation or ask questions to clarify whether the accused wants to invoke his or her Miranda rights" and there is no principled reason to apply different standard for invocation of right to remain silent); Marshall v. State, 210 S.W.3d 618, 628 (Tex. Crim. App. 2006) (when invocation of right to remain silent is ambiguous, officer can either continue questioning "regarding the offense" or stop questioning and clarify whether suspect wanted to remain silent); Dowthitt, 931 S.W.2d at 257. Ambiguity exists when the suspect's statement is subject to more than one reasonable interpretation under the circumstances. Luna v. State, 301 S.W.3d 322, 325 (Tex. App.-Waco 2009, no pet.); see also Dowthitt, 931 S.W.2d at 257. In determining whether the right to remain silent was unambiguously invoked, courts look to the totality of the circumstances. Watson, 762 S.W.2d at 597; Luna, 301 S.W.3d at 325. In this case, Detective Sayers read Hernandez his Miranda rights. Hernandez stated he understood his rights and agreed that Detective Sayers could question him about the investigation. Hernandez argues, however, that he later invoked his right to remain silent by responding to Detective Sayers's questions by stating he "really can't say much"; "wasn't no purpose, I mean, I really can't say"; "I don't have anything to say sir, really don't"; and "I don't have nothing to say on that, sir." Detective Sayers testified at the pretrial hearing that he did not consider these statements to be an invocation of Hernandez's right to remain silent. Rather, he interpreted Hernandez's statements as a "stall technique" and that Hernandez was saying he was not at Aguirre's house. After making these statements, Hernandez continued to ask Detective Sayers questions in an attempt to obtain information about the status of the investigation, what the other individuals had told Detective Sayers, and what was found in Rojas's apartment. We have reviewed Hernandez's entire interview with Detective Sayers. Hernandez made the relied-upon statements at a time when he was denying any knowledge of or involvement in Aguirre's murder. After making the statements, Hernandez continued to ask Detective Sayers questions in an attempt to obtain information about what Detective Sayers knew. Further, Hernandez continued to talk to Detective Sayers for almost three hours after making the statements. In the context presented, we conclude that Hernandez's statements were not an unambiguous invocation of his right to remain silent. See Dowthitt, 931 S.W.2d at 257 (statement by defendant that "I can't say more than that. I need to rest" was ambiguous and indicated only that defendant believed he was physically unable to continue); Luna, 301 S.W.3d at 325-26 (statement that "I can't" was not unambiguous invocation of right to remain silent where police officer plausibly interpreted statement as an inability to discuss source of drugs found at house); Williams v. State, 257 S.W.3d 426, 433-34 (Tex. App.-Austin 2008, pet. ref'd) (defendant's statement that "I want to terminate everything right now" was ambiguous given defendant's prior statements, his frustration at his detention, and his attempt to determine whether he had been arrested). We resolve Hernandez's second issue against him. We affirm the trial court's judgment.
Rojas married Hernandez prior to trial and changed her name to Nancy Hernandez. For consistency with the record, we will refer to her as Nancy Rojas throughout this opinion.
See Miranda v. Arizona, 384 U.S. 436 (1966).
See also Cooksey v. State, No. 05-08-01343-CR, 2009 WL 2488509, at *2 (Tex. App.-Dallas Aug. 17, 2009, pet. ref'd) (mem. op., not designated for publication) (statement that "I don't have anything to say" was ambiguous and did not require police officer to stop questioning defendant); Paredes v. State, No. 14-09-00732-CR, 2010 WL 4324395, at *4-5 (Tex. App.-Houston [14th Dist.] Nov. 2, 2010, pet. ref'd) (mem. op., not designated for publication) (defendant's statement that "I don't want to give nothing involved in that [expletive]. You know, I didn't do nothing" indicated defendant's desire to be excluded as murder suspect and was not unambiguous invocation of right to remain silent); Esquivel v. State, No. 04-08-00730-CR, 2009 WL 3222626, at *4 (Tex. App.-San Antonio Oct. 7, 2009, no pet.) (mem. op., not designated for publication) (statement that defendant did not want to talk to detective was ambiguous in light of defendant continuing to talk to detective).