Opinion
NOS. PD-0244-19 & PD-0245-19
09-15-2021
The STATE of Texas v. Erlinda LUJAN, Appellee
Gregory C. Anderson, for Appellee. Lily Stroud, for State.
Gregory C. Anderson, for Appellee.
Lily Stroud, for State.
OPINION
Keel, J., delivered the opinion of the court in which Hervey, Richardson, Newell, and Walker, JJ., joined.
The trial court suppressed two of Appellee's three recorded, custodial statements, and the State appealed those rulings. The court of appeals upheld the suppression of one of the statements. We granted the State's petition for discretionary review to decide whether the court of appeals erred in upholding the suppression of that one statement. We affirm the court of appeals’ judgment because the statement at issue was not "warned and waived."
I. Overview
El Paso Police detectives arrested Appellee in connection with their investigation into the murder of Anthony Trejo, and Appellee gave three recorded statements while she was in custody. The first and third recordings were made at the police station in an interrogation room equipped with recording equipment. The second recording was made on an iPad during and immediately after a car ride the detectives and Appellee took for the purpose of looking for Trejo's body. At issue here is the admissibility of the second recording, i.e., the in-car recording.
No warnings were given during the in-car recording, and the trial court ruled the statement inadmissible because Appellee was misled to believe that her statement in the car would not be used against her, and it was not a continuation of the first statement. The court of appeals agreed that the in-car statement was not a continuation of the first interrogation-room statement, and since it was unwarned, it held that it was inadmissible. State v. Lujan , 2018 WL 4660185 at *9, No. 08-17-00035 (Tex. App.—El Paso 2019) (not designated for publication).
The State argues that the court of appeals erred in its analysis of the continuation issue. But the continuation question is irrelevant given the trial court's supported finding that Appellee was misled about the nature of her in-car statement.
II. Custodial Statements
Article 38.22 Section 3(a)(2) prohibits the admission of an oral statement produced by custodial interrogation absent certain conditions having been met. Tex. Code Crim. P. art. 38.22 § 3(a)(2) (" Article 38.22 Section 3(a)(2)"). The two conditions pertinent here are (1) warnings given during the recording but before the statement and (2) a knowing, intelligent, and voluntary waiver of the rights they reference. The required order is to warn first, waive second, and confess third, and these three things "must appear in the recording itself." Joseph v. State , 309 S.W.3d 20, 28 (Tex. Crim. App. 2010) (Keller, P.J., concurring). Merely giving the warnings is insufficient; the defendant must waive the rights they reference. The burden of proof regarding the waiver rests with the State; it must prove by a preponderance of the evidence a knowing, intelligent, and voluntary waiver. Id. at 24. Only "warned and waived" custodial statements are admissible in evidence. Oursbourn v. State , 259 S.W.3d 159, 171 (Tex. Crim. App. 2008).
The waiver has two aspects: It must be " ‘the product of a free and deliberate choice rather than intimidation, coercion, or deception,’ and ‘made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’ " Berghuis v. Thompkins , 560 U.S. 370, 382–83, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (quoting Moran v. Burbine , 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) ). It is judged by the totality of the circumstances. Joseph , 309 S.W.3d at 25. "Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Id. (quoting Burbine , 475 U.S. at 421, 106 S.Ct. 1135 ) (emphasis deleted). The totality-of-the-circumstances approach requires "inquiry into all the circumstances surrounding the interrogation." Id. at 25 n.7 (quoting Fare v. Michael C. , 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) ). Under Article 38.22, the totality of the circumstances includes—but is not limited to—police overreach. Oursbourn , 259 S.W.3d at 172. It can also include "sweeping inquiries into the state of mind of a criminal defendant" that would not be relevant to due process claims. Id.
The waiver's validity depends on, among other things, a showing that the defendant "was aware of the State's intention to use his statements to secure a conviction[.]" Burbine , 475 U.S. at 422–23, 106 S.Ct. 1135. Deception is relevant to the waiver inquiry if the deception "deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." Id. at 424, 106 S.Ct. 1135. A waiver secured by deception is not voluntary. See Leza v. State , 351 S.W.3d 344, 350 (Tex. Crim. App. 2011).
III. Standard of Review
When a trial court suppresses a statement as involuntary, the appellate courts must view the evidence "in the light most favorable to the trial court's ruling[.]" State v. Terrazas , 4 S.W.3d 720, 725 (Tex. Crim. App. 1999). It should not "perform its own fact-finding mission, but" it should confine "its factual review to determining whether the trial court's findings were reasonable in light of the evidence presented." Hereford v. State , 339 S.W.3d 111, 118 (Tex. Crim. App. 2011) (footnote omitted). The appellate court must defer to a trial court's reasonable findings. Id. An appellate court "should afford almost total deference to a trial court's determination of historical facts that the record supports, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor." Guzman v. State , 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
The same, almost-total deference is owed "to trial courts’ rulings on ‘application of law to fact questions,’ also known as ‘mixed questions of law and fact,’ " if they depend on credibility and demeanor. Id. at 89. Determining whether the requirements of Article 38.22 were met is an application-of-law-to-fact question that commands a view of the evidence that is most favorable to the trial court's ruling. Gonzales v. State , 190 S.W.3d 125, 129 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd).
The deference owed to a trial court's ruling on a mixed question of law and fact often depends on "which judicial actor is in a better position to decide the issue." Guzman , 955 S.W.2d at 87. If the issue depends on witness credibility, "compelling reasons exist for allowing the trial court to apply the law to the facts." Id. Conflicting evidence on the circumstances surrounding a custodial interrogation—like whether the police tortured the defendant—is a classic example of an issue that depends on credibility. See Terrazas , 4 S.W.3d at 726 n.5.
A trial court's dispositive fact finding that is supported by the record forecloses a de novo review of the ruling on appeal. State v. Kelly , 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). And the trial court's ruling must be upheld on any applicable legal theory. State v. Castanedanieto , 607 S.W.3d 315, 327 (Tex. Crim. App. 2020).
The trial court here found that Appellee was misled into believing that her in-car statement would not be used against her. The finding is dispositive of the statement's admissibility because it means that the in-car statement was not a "warned and waived" statement under Article 38.22 Section 3. If that dispositive finding is supported by the evidence, then we must uphold the trial court's ruling without resort to a de novo review of it.
IV. The Evidence
At the beginning of the first recording, Appellee was sitting alone in the interrogation room handcuffed to her chair. About two minutes later Detectives Joe Ochoa and David Camacho entered the room, identified themselves, and asked her booking-type questions—e.g., name, birthdate, address. Ochoa explained that they were investigating and documenting everything under a specified case number pertaining to Anthony Trejo. He told Appellee that she was under arrest and that "this is a formal interview." He read her the warnings specified by Article 38.22, and she waived them. He asked her what she knew about Anthony Trejo, and she started talking.
Appellee knew Trejo as "Lazy." "Sean" and "Filero" wanted her to kill him, but she refused. She later heard that they had killed him. They tracked her down and told her she had to be part of it so that she would not snitch. They ordered her to tape up the bags that contained Trejo's remains in the back of an SUV. She and others caravanned to a dirt road off Railroad to dispose of Trejo's body, at which point Appellee and her companions abandoned the enterprise and left the caravan while the SUV containing Trejo's body continued on the dirt road.
Appellee offered to tell the detectives where the body was, and Ochoa asked her if she wanted to show them where it was. She clarified that she could take them to the last point where she saw the SUV containing the body; "I can take you to where I know they drove to." After checking with a supervisor, the detectives accepted her offer. As they left the interrogation room to head for the car, Ochoa told Appellee that "when we come back, we can continue, if you like, okay?" Then they left the interrogation room.
Appellee was seated in the car, and Camacho activated the recording device outside of the car before joining her in the backseat. No warnings were given or referenced during this recording, and the detectives did not tell Appellee that she was being recorded.
The car ride lasted about three hours. During the ride Appellee gave a free-wheeling narrative about Trejo's death, the kidnappings of two other people, her drug use, drug smuggling, and prostitution, the "tweaker" lifestyle, and her underworld compatriots. The recording ended at the police station after Appellee was placed into a holding cell. A couple of hours later the detectives brought Appellee back to the interrogation room, warned her again in compliance with Article 38.22, and questioned her further about the things she had told them in the car.
V. The Trial Court's Finding
The trial court found that Appellee was misled into believing that her in-car statement would not be used against her. The trial court found, in effect, that there was no valid waiver with respect to the in-car statement. That finding is supported by a most-favorable view of the evidence; specifically, (a) the differences between the in-room statements and the in-car statement, (b) the detectives’ insistence on taking the car ride, (c) Ochoa's parting comment on the way to the car, and (d) the car ride itself with its ostensible body-finding purpose.
(a) Differences between the in-room and in-car statements
The in-room interrogations were official and formal, included the Article 38.22 warnings, and were conspicuously memorialized. By contrast, the in-car recording was unceremonious and indecorous, made no reference to the Article 38.22 warnings, and was recorded surreptitiously. Although Article 38.22 does not require decorum or formality or prohibit surreptitious recordings, these differences between the interrogation-room statements, on the one hand, and the in-car statement, on the other, support a finding that Appellee was misled about the nature of her in-car statement.
The first in-room interrogation began with Detectives Ochoa and Camacho identifying themselves by name and badge number and Ochoa telling Appellee that the police department was "documenting everything" under a specified case number. He explained, "The reason I'm telling you that is because this is now a formal interview. We're taking notes and we're gonna go ahead and ask you questions pertaining to this case." The detectives are seen taking notes in the video. Ochoa identified the case under investigation and told Appellee that she was a suspect and that she was under arrest. Appellee was then advised of her Article 38.22 rights, and she agreed to waive them. The interview lasted about twelve more minutes before the detectives and Appellee decamped for the car.
But in the car the detectives did not identify themselves or announce that this was a formal interview, a continuation of an earlier interview, or any kind of an interview. They did not remind Appellee that she was under arrest, and they did not mention any Article 38.22 warnings or her earlier waiver of her rights. Unlike in the interview room, there was no mention of notetaking or documentation. It was apparent that neither detective was taking notes in the car because at one point Appellee asked, "You have a pen?" Appellee was not told she was being recorded in the car, and the recording device was started and stopped outside of her immediate presence. The recording continued even while Appellee was in the restroom after the car ride was over, underscoring its surreptitiousness and informality. As she entered the restroom, she was recorded saying, "No peeking," and minutes later the sound of a commode flushing can be heard. In addition, Appellee's volunteered and non-responsive self-incrimination in the car suggested that her guard was down.
The second in-room recording shared the same features as the first in-room recording: formal, cautious, warned, and conspicuously recorded. Since it followed the in-car interrogation, it could have had no impact on Appellee's belief about whether the in-car statement was off the record, but it is relevant to our analysis as a circumstance surrounding the in-car statement.
At the beginning of the second in-room interrogation, Camacho identified himself and Ochoa by name again and told Appellee that he had "to take thorough notes on what has transpired and what we've done, okay?" The logical—but false—implication was that he had to memorialize the car ride then because no one had done it earlier. He perpetuated the impression that the car ride had not been a real interview by explaining, "This is a continuation of our interview that we had taken before," and reminding Appellee that she was "still at 911 North Raynor" and still under arrest. In other words, it was a continuation of the interview taken in the building, not the car-ride conversation. Camacho repeated that this was "the continuation of our interview" and said he wanted to "recap." The Article 38.22 warnings were read to Appellee again, and she waived her rights again. About eleven minutes into the interview, Camacho reminded Appellee, "We're still documenting this on the same case number[,]" reinforcing the notion that the interrogation-room interview, unlike the in-car interrogation, was official and documented. As with the first interview, Camacho and Ochoa are seen taking notes in the interrogation room.
(b) Detectives insisted on the car ride
The detectives testified that Appellee insisted on the car ride, but the trial court found their testimony on this point not credible. That credibility finding is supported by the video recording of the first interview which suggests that they insisted on the car ride, but Appellee was reluctant to take it. The following excerpts, with emphasis added to the comments most relevant to the credibility finding, demonstrate why this is so:
[Appellee]: I can't snitch them out. Like why? I cannot do this. I just -- can't I just tell you where the body's at? Please.
[Ochoa redirects her attention to Sean and Filero.]
*
*
*
Q. Let's go back a little bit. If you -- I know this is hard for you to talk, okay?
A. I just -- I know where the body is. I don't care if I go to jail for it.
[Camacho]: How is the body there?
[Appellee]: ’Cause I saw them take it.
[Camacho]: Okay. Is it on the side of the road? Where is it at?
[Appellee]: I didn't see where they dropped it. I just know there's a hole where they said that they had a hole ready for it. (Unintelligible.)
[Camacho]: Okay.
[Appellee]: (Unintelligible.) I don't care. I just want it done.
Q. [Ochoa]: You want us to take you where the body is at?
A. I can take you to where I know they drove to.
[Detectives express concern that Appellee is going to throw up.]
A. No, I just want to get this over with, please. I'll take you wherever you want.
[Ochoa wants to get her a trash can and shows her some pictures]
*
*
*
Q. Hold on. It's 4:41 p.m. And then let me see if -- if our supervisor just wants us to go down there where you're saying --
A. (Unintelligible.)
Q. Okay.
*
*
*
[Ochoa]: Okay. Give us a second, okay?
(Both detectives exit the room. Detective Ochoa returns to the room and the interview resumes as follows upon his return.)
Q. [Ochoa]: Yeah, our supervisors would rather have us go right now. It's 4:42 p.m. right now, okay? Let's do it now ’cause it's --
A. Are you gonna -- (unintelligible) -- you said you found him?
Q. Yes.
A. Why?
Q. No, no, no, no. We're --
A. They're gonna know.
Q. Let’ s see what we can find out there, okay. And we'll go from there. Let's take you down there right now ’cause it's -- it's starting to get a little dark outside. We ‘d rather go out and see if you can just point out, if that's what you want to do.
We'll put them [handcuffs] in the front here.
And when we come back, we can continue, if you like, okay?
(Detective Ochoa and the witness exit the room.)
(End of video.)
To summarize, Appellee offered to "tell" the detectives where the body was, said she knew where it was, said she could take them to the location where she had seen it driven, and said she would take them wherever they wanted. But instead of eagerness to take the car ride, she expressed fearfulness. The meaning of her last comment in the interrogation room—"They're gonna know"—became apparent when she insisted on a car with tinted windows and later said, "If anybody sees me here—" By contrast with Appellee's reluctance, the detectives asked her if she wanted to take them to the body, said their supervisors wanted them to go immediately, and acted like it was urgent because of impending darkness. In short, the evidence supports the trial court's rejection of the detectives’ claim that Appellee insisted on the car ride.
(c) Ochoa's parting remark
Ochoa's parting remark at the end of the first interview—"when we come back, we can continue if you like"—marked a break from the formal interrogation and suggested a difference between the interrogation that had just transpired and what would follow in the car.
The State challenges the court of appeals’ reliance on Ochoa's remark as support for the trial court's ruling. It argues that the comment did not signify a "change in the character of the interrogation" that would compel a re-administration of the warnings and that requiring repeated warnings would render them "a formalistic ritual" instead of "a procedural safeguard to inform a suspect of her rights and to ensure a continuous opportunity to exercise them." But Ochoa's remark was only one circumstance of several that supported the trial court's ruling. The misunderstanding might have been prevented in any of several ways, including by repeating the warnings, but that does not undermine Miranda . Regardless, Article 38.22 § 3(a) arguably is a "time- and location-specific formalistic ritual" in that it prohibits the admission of a recorded custodial statement unless "prior to the statement but during the recording" the required warnings are given and waived.
The State also argues that Ochoa's remark meant that the interrogation would be ongoing—rather than suspended—in the car. But the evidence neither compels the State's interpretation of the remark nor forecloses the trial court's interpretation of it. On the contrary, the trial court's interpretation is supported by other circumstances like the differences between the in-car interrogation and the in-room interrogations, as noted above, and the car ride itself, as discussed below.
(d) The car ride
Leaving the interrogation room reified the notion that the official interrogation was suspended in the car. And the ostensible goal of the car ride—to look for the body—disguised the confessional aspect of the trip.
Thus, the totality of the circumstances supported the trial court's finding that Appellee was led to believe that her in-car statement would not be used against her. That finding is dispositive of the statement's admissibility because it means that Appellee did not knowingly waive her rights.
But the State maintains that the finding is irrelevant and that the real issue is whether the in-car statement was a continuation of the first in-room statement under Bible v. State , 162 S.W.3d 234 (Tex. Crim. App. 2005). But the supported finding that Appellee thought her in-car statement would not be used against her renders the continuation question irrelevant.
VI. Continuation Irrelevant
The continuation question was addressed by Bible , 162 S.W.3d at 241–42. But the facts of Bible are so idiosyncratic that its four-four factor analysis is largely irrelevant here, and its formula fails to accommodate the unique facts of this case.
Bible committed a capital murder in Harris County in 1979, but the case was unsolved for a long time. Id. at 238. In 1998 he was arrested in Florida and extradited to Baton Rouge, Louisiana, for an aggravated rape. Id. at 238 and n.13. There he gave a series of statements over a period of about two weeks concerning his various crimes, and four of his recorded statements were admitted at his Harris County capital murder trial. Id. at 238–39.
Bible claimed on appeal that the trial court erred to admit those four confessions because the warnings that preceded them were not worded exactly as prescribed by Article 38.22, and the warnings given in one of them, State's Exhibit 4, omitted several of the required warnings. Id. at 237. Bible held that the warnings given in Louisiana and memorialized in the other three recordings were the "fully effective equivalent" of the warnings required by Article 38.22. Id. at 240–41.
State's Exhibit 4, however, omitted a "used against" warning, did not advise that an attorney could be consulted before interrogation, and did not advise that an attorney would be appointed if Bible could not afford one. Id. at 241. But we declined to examine State's Exhibit 4 "in isolation" and considered four factors in addressing its admissibility: passage of time between the warnings given in the immediately preceding statement and the beginning of State's Exhibit 4; reminders about the warnings during State's Exhibit 4; the identities of the interrogators across recordings; and the subject matter of the interrogations. Id.
The interview that produced State's Exhibit 4 began within three hours of the beginning of the preceding recording which reflected the necessary warnings. Id. The same two officers were present for both interviews. Id. One of the officers reminded Bible of his earlier waiver of rights and briefly reminded him of his rights to remain silent, obtain counsel, and terminate the interview, and he secured Bible's consent to continue the interview; and Bible acknowledged that he had been warned earlier. Id.
Besides that, every day started with reading to Bible the Article 38.22-equivalent rights and with Bible signing a form that memorialized the reading. Id. at 239. He signed the form four times over three days before State's Exhibit 4 was recorded. Id. at 239 n.18. Under these circumstances it was apparent that Bible knew he was waiving his rights and giving a recorded confession that could be used against him when he gave the interview recorded in State's Exhibit 4. That scenario contrasts with this case.
Unlike this case, deception and waiver were not at issue in Bible , and the interviews that produced Bible's statements were more like Appellee's interrogation-room statements than her in-car statement. That is, Bible's interview sessions were characterized by Article 38.22-equivalent warnings and reminders of them. Id. But Appellee's in-car session omitted any reference to the warnings, and the other surrounding circumstances conjured an off-the-record atmosphere that played no part in Bible .
If Appellee's second statement was not warned and waived, then the four Bible factors are irrelevant. It would not matter how recent the warnings were, or whether the interrogators or the topics were the same if, as found by the trial court, Appellee was misled to believe that her in-car statement would not be used against her. It is incongruous to ask such questions in the face of a supported finding that Appellee was misled about the nature of the in-car interview.
VII. But Appellee Did Not Testify
The State argues that, because Appellee did not testify, the trial court's finding that Appellee believed that her in-car statement would not be used against her was unsupported. It suggests that Appellee's subjective state of mind could not be proven circumstantially. But a subjective state of mind—including a knowing waiver required by Article 38.22—may be and often is proven by circumstantial evidence. E.g. , Joseph , 309 S.W.3d at 25 (looking to the totality of the circumstances to determine whether defendant's waiver was "a free and deliberate choice without intimidation, coercion, or deception."); Warren v. State , 797 S.W.2d 161, 164 (Tex. App.—Houston [14th Dist.] 1990, pet. ref'd) (noting that a "culpable state of mind nearly always is proved by circumstantial evidence."). Furthermore, the trial court found, in effect, that the State failed to meet its burden of proof on the waiver. Given the competing inferences raised by the evidence, the trial court did not abuse its discretion in so finding.
VIII. Conclusion
The court of appeals correctly upheld the trial court's ruling with respect to the in-car statement. We affirm the judgment of the court of appeals and remand the case to the trial court.
Yeary and Newell, JJ., filed concurring opinions.
Keller, P.J., filed a dissenting opinion in which McClure, J., joined.
Slaughter, J., dissented. CONCURRING OPINION
Yeary, J., filed a concurring opinion.
I agree with Presiding Judge Keller that this case, at least in the posture in which it has come to us, is not about the voluntariness of Appellee's statements, or even about the voluntariness of her waiver of Miranda /Article 38.22 rights. Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; TEX. CODE CRIM. PROC. art. 38.22, § 2. It is purely a question of whether she was properly cautioned prior to the recording of the part of her statement that she made while in the car, as required both by Miranda and by Article 38.22, Section 3(a)(2). I do not disagree with Presiding Judge Keller that, for purposes of the Miranda warnings, it may be appropriate to consider what Appellee said while in the car to be the same statement as the statement she made immediately before in the station house. But the statute is another matter.
See Resendez v. State , 306 S.W.3d 308, 315 (Tex. Crim. App. 2009) ("Even if a suspect is given Miranda warnings and his constitutional rights have not been violated, an oral confession may still be inadmissible if the police fail to comply with the purely statutory requirement that they capture the Miranda warnings on the electronic recording.").
Section 3 of Article 38.22 governs admissibility of oral statements. It requires, among other things, that such statements be reduced to "an electronic recording," and on a "device ... capable of making an accurate recording[.]" Id. §§ 3(a)(1), 3(a)(3). Most importantly for present purposes, it also requires that the warnings enumerated in Section 2(a) of Article 38.22 be "given" "prior to the statement but during the recording." Id. § 3(a)(2) (emphasis added; note the definite article). As far as I am concerned, this constitutes a plain requirement that a separate warning under Section 2(a) be given, not for each statement (or part of a statement) made, but for each discrete "recording" that is made, even if it constitutes no more than a continuation of a previous statement that was independently recorded. In other words, the statute plainly mandates that a warning be conveyed "during" each separate recording that is made—regardless of whether it is a separate "statement" or the continuation of an earlier-warned statement.
Here, there were separate recordings made on discrete recording "devices." Just as each of those devices must, by statute, be shown to be "capable of making an accurate recording," under Section 3(a)(3), each of the recordings made thereon must also contain its own separate Section 2(a) warning, under Section 3(a)(2). Thus, regardless of whether Miranda requires separate warnings in this case, the statute does. For this reason, if no other, it was within the trial court's discretion to declare "the recording" that was made in the car inadmissible for failing to contain its own statutory warnings. See State v. Steelman , 93 S.W.3d 102, 107 (Tex. Crim. App. 2002) ("In considering a trial court's ruling on a motion to suppress, an appellate court must uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case.").
On that basis, I respectfully concur in the result.
Newell, J., filed a concurring opinion.
We granted review to address whether the court of appeals improperly applied the " Bible factors" before holding that the second statement in this case was not a continuation of the first statement. The Court essentially agrees with the court of appeals and upholds the trial court's ruling suppressing Appellant's second statement out of deference to the trial court's factual determinations that Appellant did not voluntarily waive her statutory rights. These findings are supported by the record, and our standard of review requires us to defer to them. I join the Court's opinion.
See State v. Terrazas , 4 S.W.3d 720, 725 (Tex. Crim. App. 1999).
162 S.W.3d 234 (Tex. Crim. App. 2005).
I write separately because I believe the focus on the voluntariness of the waiver of rights and the State's focus on statutory compliance highlight the problems with Bible v. State . It is unclear whether Bible focuses on the voluntariness of the statement, the issue of whether the second statement was a continuation of the first, or the effectiveness of a reference to warnings in an earlier statement upon a defendant's decision to make a later statement. Even though I agree with the result in Bible , I remain unsure of the controlling rationale. The Court rightly criticizes this aspect of Bible , but ultimately, the Court just distinguishes this case from that one without clarifying the rationale behind the Bible factors.
Bible v. State , 162 S.W.3d 234 (Tex. Crim. App. 2005).
Compare id. at 242 ("Under these circumstances, we find that the two sessions were part of a single interview for the purpose of Article 38.22 and Miranda .") with id. ("But even if they were not considered part of the same interview, we would find that Trooper Whitmore's conduct under the circumstances was sufficient to constitute the administration of a ‘fully effective equivalent’ to the required warnings and was sufficient to satisfy Miranda ."). Additionally, in Bible , we seemed to regard the requirements of Article 38.22 as a codification of Miranda , but similar statutory warnings—including the right to retain counsel, the right to request appointment of counsel, the right to not make a statement, and that any statement made by him may be used against him—existed as part of a magistrate's warning prior to the holding in Miranda . Tex. Code Crim. Proc. Ann. , arts. 15.17, 38.22 (1965). Compliance with Miranda does not guarantee that a oral statement is admissible under Article 38.22. See Herrera v. State , 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) ("The warnings provided in Section 2(a) of Article 38.22 are virtually identical to the Miranda warnings, with one exception—the warning that an accused ‘has the right to terminate the interview at any time’ as set out in Section 2(a)(5) is not required by Miranda ."); see also Joseph v. State , 309 S.W.3d 20, 27–28 (Tex. Crim. App. 2010) (Keller, P.J., concurring) ("Though [Appellant] combines a Miranda argument with his Article 38.22 argument, I would address the arguments separately because of the additional requirements of Article 38.22.").
If we are concerned with voluntariness generally, then I believe we should apply the same totality of the circumstances test we reserve for voluntariness inquiries rather than the balancing-of-factors test set out in Bible . To the extent that the Court does so, I agree. Under this understanding of Bible , we can consider the complete absence of warnings in the second statement as well as possible deception as additional Bible factors.
See, e.g. , Joseph , 309 S.W.3d at 26 ("The totality of the circumstances shows that Appellant did knowingly, intelligently, and voluntarily waive his rights under Article 38.22 and Miranda .").
And if the rational behind Bible is just answering whether a second statement is a continuation of a first statement under the statutory terms, we don't need a balancing-of-factors test to address what should be more discrete factual issues—such as whether the recording equipment failed—during one continuous statement rather than whether a second statement is part of a continuous interview process. After all, Article 38.22 requires a warning at the outset of any "statement" not any "interview." In fact, Article 38.22 repeatedly refers to a "statement" rather than an "interview" as it describes both the recording itself and evaluating the compliance with the warning requirements. And the statutory reference to each "recording" suggests that Article 38.22 contemplates a discrete oral recitation of a completed statement that is electronically recorded rather than a back-and-forth interrogation that takes place over multiple locations. Our decision in Bible does not come to terms with these statutory provisions or the statutory history of Article 38.22, which suggests that the statute has always been focused on a defendant's "confession" rather than an officer's "interview." But if all we are concerned with under Bible is whether statutory warnings given in a second statement are a "fully effective equivalent" of statutory warnings given in the first, then this case is, as the Court observes, easily distinguishable from Bible . In Bible , there was at least some effort to warn the defendant before a second recorded statement by the interviewing officer's reference to the statutory warnings given in a previous statement. Similarly, Franks v. State , which we relied upon in our analysis in Bible , featured at least some reference to statutory warnings given in a previous statement. But in this case, there was no "fully effective equivalent" warning because the officers did not, in the second statement, reference the warnings given during the first statement. On that basis alone, we can reach a different conclusion than the one in Bible because "no warning at all" cannot be a "fully effective equivalent" of the statutorily required warnings. Under this understanding of Bible , a re-evaluation of the Bible factors is unnecessary.
Compare Tex. Code Crim. Proc. art. 38.22, § (3), with Bible , 162 S.W.3d at 242 ("Under these circumstances, we find that the two sessions were part of a single interview for the purpose of Article 38.22 and Miranda ."); see, e.g. , Flores v. State , No. PD-1189-15, 2018 WL 2327162 (Tex. Crim. App. May 23, 2018) (not designated for publication) (Determining that two separate recordings constituted one interview for purposes of article 38.22, and holding that the absence of 30 minutes of recording, due to a technical issue, rendered the recording inaccurate and thus inadmissible under article 38.22.). Indeed, focusing on who conducted the interview and whether it was on a different subject doesn't make something any less a "statement" even if it might show how an interview process is continuous. Cf. Bible , 162 S.W.3d at 242 ("Although different officers conducted questioning during each session and each session focused on a different set of crimes, the same officers were present during both sessions.").
Tex. Code Crim. Proc. art. 38.22, § (3) ("No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless: (1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement; (2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning; (3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered; (4) all voices on the recording are identified[...]") (emphasis added). In Bible we seem to have assumed that "statement" means "interview."
Tex. Code Crim. Proc. art. 38.22, §§ (3)(a)(1), (e) ("an electronic recording, which may include motion picture, videotape, or other visual recording, is made of the statement [...] The courts of the state shall strictly construe Subsection (a) of this section and may not interpret subsection (a) as making admissible a statement unless all requirements of the subsection have been satisfied by the state.") (emphasis added).
See Tex. Code Crim. Proc. Ann. , art. 662 (1856) ("The confession shall not be used, if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless such confession be made in the voluntary statement of the accused , taken before an examining Court in accordance with law, or be made voluntarily after having been first cautioned that it may be used against him.") (emphasis added); Tex. Code Crim. Proc. Ann. , art. 810 (1907) ("When confession shall not be used.—The confession shall not be used, if, at the time it was made, the defendant was in jail or other place of confinement, nor while he is in the custody of an officer, unless made in the voluntary statement of accused , taken before an examining court in accordance with law, or be made in writing and signed by him; which written statement shall show that he has been warned by the person to whom the same is made : First, [...]") (emphasis added); Tex. Code Crim. Proc. Ann. , art. 38.22(a) (1965) ("The confession shall not be admissible if the defendant was in jail or other place of confinement or in the custody of an officer at the time it was made, unless: (1) It be shown to be the voluntary statement of the accused taken before an examining court in accordance with law, or (2) It be made in writing and signed by the accused and shows that the accused has at some time prior to the making thereof received the warning provided in Article 15.17. [...]") (emphasis added).
See Bible , 162 S.W.3d at 242.
Id. at 239–40.
Franks v. State , 712 S.W.2d 858, 860–61 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd) (holding that the second phase of an interrogation was merely a continuation of the interrogation process and that there was not such a "break" in the interrogation proceeding as to require the giving of new warnings because the appellant had been properly admonished at the beginning of the interrogation and acknowledged that he had been admonished at the time the second phase started).
With these thoughts, I join the Court's opinion.
Keller, P.J., filed a dissenting opinion in which McClure, J., joined.
In an electronically recorded interview at the police station, a murder suspect volunteered to show detectives where the victim's body was buried. The detectives continued to question the suspect in the car while traveling to find the body, and this questioning, which began six minutes or less after the video in the interview room stopped, was also electronically recorded. The issue addressed by the court of appeals and the parties was whether, under the factors articulated in Bible v. State ,1 the questioning in the car was part of the same oral interrogation under the Texas confession statute, Article 38.22 and under Miranda v. Arizona . The Court and the concurring opinions want to address different issues, and they wish to limit or overrule Bible , but the viability of Bible is not before us. Neither the parties nor the court of appeals questioned whether the Bible factors apply in this case. The dispute has been solely how the case is resolved under Bible . Bible is binding precedent and we should continue to adhere to it. But if the Court wants to question the continued scope or viability of the Bible factors, it should order briefing from the parties before resolving the issue on its own.
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
I. BACKGROUND
Focusing on the trial court's Finding 30, the court of appeals looked to Bible and discussed the four factors outlined in that case on the question of whether a subsequent interview was a continuation of a prior one. Concluding that the four factors were not a checklist, the appellate court found significant two other circumstances relied upon by the trial court: (1) that the interview was in a different setting (car versus the interview room), and (2) that one of the detectives said at the end of the first recording, "When we come back, we can continue, if you like."
State v. Lujan , Nos. 08-17-00035-CR & 08-17-00036-CR, 2018 WL 4660185 & 2018 WL 4659578, *7-8 (Tex. App.—El Paso September 28, 2018) (not designated for publication).
Id.
After analyzing this case under the Bible factors and its two additional factors, the court of appeals concluded that the trial court "did not abuse its discretion in finding that the second interview was not a continuation of the first." Pointing out that the second recording did not begin with "any sort of Miranda or Article 38.22 warnings," the court of appeals affirmed the trial court's conclusion that the second recording was excludable.
Id. at *9.
Id.
II. ANALYSIS
A. The Court and the concurrences address issues that were not addressed by the parties or by the court of appeals.
The court of appeals's holding turned solely on whether, under Bible , the questioning in the car was part of the same interrogation as the earlier questioning at the station for the purpose of Miranda and Art. 38.22. The appellate court's analysis of whether the two sessions were part of the same interrogation was designed to assess whether the warnings were given, not with whether the waiver of those warnings was effective.
In Miranda v. Arizona , the Supreme Court created a prophylactic rule designed to safeguard the right against self-incrimination in the custodial setting. Under this prophylactic rule, a statement made by a person under custodial interrogation would generally be inadmissible unless, prior to questioning, the suspect was "warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." To the extent that caselaw also requires a knowing, intelligent, and voluntary waiver of rights under Miranda , those are not implicated by the court of appeals's decision. Article 38.22 codifies and adds slightly to the Miranda warnings, and Section 3(a) of that article also imposes requirements that are not constitutionally mandated for oral confessions. Section 3(a)(2) is the only provision in dispute here, and it requires that:
J.D.B. v. North Carolina , 564 U.S. 261, 269, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011) (discussing Miranda ).
Id. (quoting Miranda , 384 U.S. at 444, 86 S.Ct. 1602 ).
Tex. Code Crim. Proc. art. 38.22, § 2(a).
(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning.
Id. art. 38.22, § 3(a)(2).
This provision encompasses two requirements: the first half of the provision requires that warnings be given before the interrogation and on the recording while the second half requires that the accused knowingly, intelligently, and voluntarily waive his rights. The court of appeals's analysis addressed only the requirement in the first half of the provision, whether the warnings were in fact given in the manner dictated by the statute. The Court concludes that an effective waiver of her rights did not occur because Appellee was misled by the police into believing that her statements in the car would not be used against her. But that issue is not before us because it was never resolved by the court of appeals. The court of appeals simply held that the warnings were not given because the questioning in the car was not a continuation of the initial interview at the stationhouse. If the court of appeals's holding is correct, there is no need to address the issue of waiver. If the court of appeals's holding is incorrect, then the issue of waiver should be addressed on remand.
Id.
The Court says that the facts of Bible are so idiosyncratic that its four-factor continuation-of-interview discussion is largely irrelevant here. But the reason the factors are irrelevant to the Court's analysis is that it resolves the case on an issue (waiver) that the four-factor test was never meant to apply to.
Judge Newell's concurrence expresses uncertainty about the controlling rationale in Bible and suggests that we should revisit the viability or scope of the continuation analysis in Bible . It is true that Bible articulated two rationales for rejecting Bible's claim:
Under these circumstances, we find that the two sessions were part of a single interview for the purpose of Article 38.22 and Miranda . But even if they were not considered part of the same interview, we would find that Trooper Whitmore's conduct under the circumstances was sufficient to constitute the administration of a "fully effective equivalent" to the required warnings and was sufficient to satisfy Miranda .
Because the continuation holding appears first, it would seem to be the primary holding of the Court, and thus be binding precedent. Or if the continuation and equivalency holdings are both alternative holdings—instead of being a primary holding and an alternative holding—then it would follow that both are binding precedent. Although this Court has previously suggested that an alternative holding "could be viewed as mere dicta ," we have never explicitly held that, and our sister court—the Texas Supreme Court—has held that alternative holdings are binding. What one cannot say is that both alternative holdings are dicta. Either the first holding is binding or both are.
Brooks v. State , 957 S.W.2d 30, 33 (Tex. Crim. App. 1997) (saying that alternative holding in an earlier case "could be viewed as mere dicta," that the prior case "cited no authority for this alternative holding" and gave sparse reasoning for it, and in any event, the alternative holding in that the prior case and other cases like it "did not survive our decisions in Sharp [v. State , 707 S.W.2d 611 (Tex. Crim. App. 1986)] and Rosales [v. State , 748 S.W.2d 451 (Tex. Crim. App. 1987)]").
See Duran v. State , 492 S.W.3d 741, 754 n.1 (Tex. Crim. App. 2016) (Yeary, J., concurring and dissenting) ("So far as I know, this Court has yet to fashion a rule—one way or the other—with respect to the precedential value of alternative holdings.").
Ross v. St. Luke's Episcopal Hospital , 462 S.W.3d 496, 502 (Tex. 2015).
As for reviewing the viability or scope of the continuation analysis in Bible , that issue is not addressed by the court of appeals or by the parties. Bible settled that issue in a reasoned opinion, after evaluating caselaw, and we should not be so quick to retreat from its holding. But if we are to consider retreating from its holding, we should obtain input from the parties.
Judge Yeary's concurrence agrees with me that waiver is not an issue in this case and concedes that the Bible factors might apply in the Miranda context. But that concurrence contends that a different rule should apply to Article 38.22. As will be explained later, the holding in Bible applied in both the Miranda and Article 38.22 contexts. To hold otherwise would require abrogating part of Bible , which is binding precedent. The only reason given by the concurrence for doing that is that the statute supports the concurrence's construction.
As outlined above, Article 38.22, § 3(a)(2) speaks to both a "statement" and a "recording." Judge Yeary's conclusion that each separate electronic recording must contain warnings might be a possible way to construe the statute, but I think it is also possible to construe "statement" as broader than "recording" so as to allow multiple recordings to attach to a single statement and warnings to be on the first of those recordings. With the issue being at least arguable, we should not revisit the holding in Bible . But if we were inclined to revisit that holding, we should obtain input from the parties. Neither the court of appeals nor the parties have suggested that Miranda and Article 38.22 should be treated differently for the purpose of determining whether two recordings could be part of the same statement, nor have they suggested that we abrogate the holding in Bible with respect to the statute.
B. A de novo and objective standard of review applies to the continuation issue.
As with suppression claims in general, a bifurcated standard of review applies to a trial court's ruling on a Miranda -violation claim: the appellate court must afford almost total deference the trial judge's rulings on questions of historical fact and on application-of-law-to-fact questions that turn upon credibility and demeanor while reviewing de novo the trial court's rulings on application-of-law-to-fact questions that do not turn upon credibility and demeanor. We have expressly held the same standard to be applicable to a section of Article 38.22 that is not at issue here, and it logically follows that the warnings aspect of the statute before us is subject to this standard of review as well.
Lopez v. State , 610 S.W.3d 487, 494 (Tex. Crim. App. 2020).
Alford v. State , 358 S.W.3d 647, 652-53 (Tex. Crim. App. 2012) (citing Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ).
Lopez , 610 S.W.3d at 494.
See Alford , 358 S.W.3d at 649, 652-53 (discussing the standard in connection with warnings claim under Article 38.22, § 3(a)(2) ).
In addition, Miranda claims "involve an objective assessment of police behavior." I would further conclude that the part of Article 38.22 before us—the first half of § 3(a)(2) —is solely directed at police overreaching and thus involves an objective Miranda -type assessment. In Oursbourn v. State , we indicated that § 6 of Article 38.22 can involve "sweeping inquiries into the state of mind of a criminal defendant who has confessed," and that § 6 can apply to the question of whether an accused knowingly, intelligently, and voluntarily waived his rights. But by singling out § 6 as allowing consideration of the accused's state of mind, Oursbourn implicitly suggested that other portions of Article 38.22 are based solely on police overreaching rather than the suspect's state of mind. Moreover, the whole point of a recording is to provide an objective record—to eliminate as much as possible any dispute about whether the police followed the proper procedures. Accordingly, whether the warnings were actually given and on the recording should be viewed from an objective standpoint.
Oursbourn v. State , 259 S.W.3d 159, 171 (Tex. Crim. App. 2008).
Id. at 172.
See id. ("Article 38.22 is aimed at protecting suspects from police overreaching. But Section 6 of that article may also be construed as protecting people from themselves because the focus is upon whether the defendant voluntarily made the statement.").
C. Under a Bible analysis, the questioning in the car was part of the same interrogation as the prior questioning at the station.
In Bible , we confronted a claim that an electronically recorded oral statement was obtained in violation of Article 38.22 because some of the required warnings were not made prior to the statement and on the recording—including some warnings that were required not just by the statute, but by Miranda itself. We addressed whether the recording could be deemed a continuation of an earlier recorded interview at which the proper warnings were made. For guidance, we looked at two of our prior cases addressing the issue in the Miranda context and a court of appeals case addressing the issue under the statute.
Id. at 241-42.
Id. (discussing Franks v. State , 712 S.W.2d 858 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd) ; Ex parte Bagley , 509 S.W.2d 332 (Tex. Crim. App. 1974) ; Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003) ).
We first considered a court of appeals case, Franks v. State , that addressed the claim that the police had failed to comply with Article 38.22, § 3(a). In that case, there were two tape recordings. Warnings appeared at the beginning of the first recording, which commenced at 11:53 a.m. and continued until 12:30 p.m. Officers then paused their interrogation to talk to other witnesses. The second recording started at 4:02 p.m. and continued until 4:23 p.m. The earlier warnings were not reiterated during this recording, but the defendant was reminded that he had been advised earlier of his constitutional rights, and he acknowledged that he had been so warned. We observed that the court of appeals held that "the second phase of the interrogation was merely a continuation of the interrogation process, and that under the circumstances presented, there was not such a ‘break’ in the interrogation proceeding as to require the giving of new warnings."
Id. at 241 (discussing Franks ).
Bible , 162 S.W.3d at 241 (citing Franks, supra at 860).
Id. (citing Franks, supra at 860-61 ).
Id. (citing Franks, supra at 860 ).
Id. (citing Franks, supra ).
Id. (citing Franks, supra at 860-61 ).
Id. (quoting Franks, supra at 861 ).
We next turned to one of our Miranda cases, Ex parte Bagley , where the defendant was given all of the required Miranda warnings before signing a written confession but was orally interrogated six to eight hours later, after the officer had talked to the co-defendant. Although he was given oral warnings, the defendant contended that they did not sufficiently comply with Miranda . We held that the oral warnings did in fact comply with Miranda , but we also found that the warning given six to eight hours earlier was sufficient to satisfy Miranda ’s requirements.
Id. at 242 (citing Bagley , 509 S.W.2d at 336-37 ).
Id. (citing Bagley, supra at 334-35 ).
Id. (citing Bagley, supra at 337-38 ).
Last, we discussed a more recent Miranda case, Jones v. State , where we addressed whether warnings given two days before the complained-of statement were sufficient. In Jones we distinguished Bagley and, in doing so, discussed the four factors that we ultimately addressed in Bible's case and that were ultimately addressed by the court of appeals in Appellee's case. The four factors in Jones all weighed against the State: (1) the passage of time (two days) was significant, (2) the interrogation was conducted by a different person, (3) the interrogation related to a different offense, and (4) the second interrogating officer never reminded the defendant of the earlier warnings (never asked if the defendant had received any earlier warnings, remembered those warnings, or wished to waive or invoke them). A review of Jones reveals that the offenses were not just "different"—they were unrelated (extraneous murders). The Court in Jones remarked that the " ‘the mere passage of time’ does not, by itself, automatically obviate prior Miranda warnings" and said that its conclusion might have been different if the interrogation had been by the same officer about the same crime.
Id. (citing Jones , 119 S.W.3d at 773 n.13 (Court's op.), 795 (Keller, P.J., concurring)).
See id. (citing Jones, supra at 773 n.13 ).
Id. (citing Jones, supra ).
Jones, supra .
Id. ("The cases cited by the concurrence are very appropriate to, and might well be dispositive of, this issue had the interrogation been by Officer Gates about Ms. Bryant's murder.").
Turning to the facts before it, the Bible court pointed out that the second recording began less than three hours after the beginning of the first recording. The Court pointed out that different officers conducted the questioning during each session but that both were present during both sessions. The Court acknowledged that each session did focus on a different set of crimes. Finally, the court pointed to the fact that the interrogator in the second session reminded the defendant of his earlier waiver of rights, secured his acknowledgment that he had previously been given warnings, briefly reminded him of some of those warnings (his right to silence, to terminate the interview, and to counsel), and secured his assent to continue the interview. Under these circumstances, we concluded that the two sessions were part of a single interview under Article 38.22 and Miranda .
Id.
Id.
Id.
Id.
In the present case, the court of appeals concluded that the passage-of-time factor heavily favored the State, but I would conclude that the court of appeals nevertheless underestimated this factor's weight. At a mere six minutes or less, this time period is far shorter than in the prior cases discussed—two days in Jones , six to eight hours in Bagley , less than four hours in Franks , and less than three hours in Bible . If one accounts for the fact that some of that six minutes or less was spent taking Appellee from the interrogation room to the car, the time period is extremely short. It is hardly a break at all. The trial court found disingenuous an explanation by one of the officers that the break was equivalent to a restroom break, but that credibility choice does not change the amount of time elapsed. The question of whether the passage of time was significant is a legal issue. I would find, as a legal matter, that the passage of time here is not significant. And this factor, by itself, is almost dispositive. Absent an express statement disclaiming the applicability of one or more of the warnings to the questioning in the car, all of the other factors discussed by the court of appeals would have to weigh heavily against the State to make the questioning in the car a separate interrogation, and even in the court of appeals's estimation, they do not.
The court of appeals estimated that the time between the end of the first recording and the beginning of the second was six minutes, but it could have been even less, because some discussion continued after the 4:42 p.m. time was mentioned.
Moreover, the court of appeals erred in characterizing the identity-of-the-interrogator and identity-of-the-offense factors as "neutral." Both factors weighed at least moderately in the State's favor. Importantly, Bible pointed out that, though different officers in its case interrogated in the different sessions, both were present in both sessions. We did not expressly say who this comment favored, but it appears to be at least somewhat favorable to the State. In any event, this factor more obviously favors the State in the present case. Not only were both officers present during the two sessions, but both participated in the questioning. The fact that one officer took the lead in the first session and the other took the lead in the second session mitigates the favorability of the factor some, but that factor still weighed at least moderately in the State's favor.
See supra at n.44 and accompanying text.
See id.
The identity-of-the-offense factor also at least moderately favored the State. For starters, the murder was the focus of both sessions. The session in the car also involved additional offenses not explored at the police station, but the focus of the second interview was still the murder. Moreover, this was not a case like Jones or Bible where the different offenses in each session were unrelated. All of the extraneous offenses admitted to by Appellee were factually related to the narrative that Appellee was telling about the murder. And most of the time, the extraneous offenses were introduced through volunteered information that was not directly responsive to the question. And when questions were specifically asked about extraneous offenses, they were follow-ups on information that she had already provided, or in one case—when Appellee was asked if they got high when they dumped the body—a reasonable surmise from the history she had already been feeding them. I do not see how an interrogated person's decision to nonresponsively volunteer her participation in an extraneous offense can somehow be a factor weighing in favor of deciding that a second session constitutes a separate interview. Nor do I see how a detective's decision to follow up on leads handed to him on a silver platter can be much, if any, evidence that a separate interview is occurring.
That leaves the warnings-reminder factor, and there was no reference to or reminder about the earlier warnings. So this factor does weigh heavily against the State. But it is the only one that does so. The court of appeals discussed two other factors, and I see them as legitimate considerations, but in the present case, they weigh only slightly against the State. The first of these factors was that the sessions occurred in different settings. The first session occurred at the police station in an interview room and the second session occurred in the car. Occurring at different locations is potentially a basis for differentiating interviews. But in this case, the different locations were related, and they were caused by Appellee herself. Appellee practically begged the detectives to let her help them find the body, so they moved her to the car to do so. This relatedness seriously undercuts the weight of this "location" factor.
The second additional factor pointed to by the court of appeals was the comment by one of the detectives at the end of the first recording that, "When we come back, we can continue, if you like." The court of appeals construed this statement to mean that the interview had been suspended, to resume only after they returned from their trip to locate the body. I agree that this inference can be drawn, but it is a weak one. The detective might simply have meant, regardless of what happens in the car, that they could continue to talk more in the interview room when they got back, which, ultimately, they did. The statement was not an affirmative indication that the questioning in the car was somehow exempt from the Article 38.22 warnings. At worst, it might have given rise to an inference of such an exemption by negative implication, and as is often the case with negative implications, that inference is weak. The detectives made no other statements that even remotely suggested that the questioning in the car was not part of the interrogation, and no effort was made to minimize the significance of the questioning in the car.
See State v. Hill , 499 S.W.3d 853, 865-66 & n.29 (Tex. Crim. App. 2016) (courts employ the negative-implication canon of statutory construction "with great caution" because the "the force of any negative implication ... depends on context.") (ellipsis in Hill ); Chase v. State , 448 S.W.3d 6, 14-15 (Tex. Crim. App. 2014) (same).
While it is true that the detectives did not tell Appellee that they were recording the interrogation in the car, "Article 38.22 permits surreptitious recording of an accused." Tigner v. State , 928 S.W.2d 540, 546 (Tex. Crim. App. 1996).
Moreover, Article 38.22 requires two warnings to be given that a statement will be used against the suspect, and Appellee was given both. A reasonable person, having been given both of these warnings, would not think that the suspension of an interview means that continuing to talk informally to the officers will somehow have no consequences.
And Appellee was given three other "right to silence" warnings in conformity with Article 38.22 ’s requirements: that she had a right (1) to remain silent, (2) to not make any statement at all, and (3) to terminate the interview at any time. A reasonable person having been given these warnings would know that he would not have to speak, even informally, to police officers.
The balance of factors, including those in Bible and those added by the court of appeals, weighs heavily in favor of construing the first and second recordings as being part of the same oral interrogation. That conclusion is almost dictated by the mere the fact that the questioning in the car began on the heels of the questioning at the station house. Add to that the fact that the sessions were essentially about the same offense and conducted by the same people. In its findings, the trial court suggested that it balanced the factors based partly on demeanor, but this is not an issue that turns on demeanor. This issue turns on what a reasonable person would think given the conduct of the detectives; it is an application-of-law-to-fact question subject to de novo review. As the court of appeals observed, Appellee made comments in the second recording that suggested her awareness that her statements were going to "fuck up [her] whole life." In the first recording, she indicated she that if she helped the officers find the body she might "go to jail for it." The court of appeals suggested that it could discount those admissions because they were within the trial court's purview to disregard based on demeanor. Even assuming that to be the case, Appellee's comments were nevertheless a good illustration of what a reasonable person would think: that divulging incriminating facts after being told that "any statement you make may be used against you" would result in those facts being used against the person. And the trial court's conclusion that the detectives were intending to circumvent the protections of Miranda are irrelevant to this analysis. Appellee was warned at the outset of initial questioning, and the only issue here is whether, from a reasonable person perspective, those warnings carried over to the questioning that occurred in the car. They did.
Given the totality of the circumstances, I would conclude that the initial recording at the station house and the recording in the car were part of the same oral interrogation under Article 38.22 and Miranda . The trial court erred in concluding otherwise, and the court of appeals erred in upholding the trial court's conclusion. Because there was not such a break in the interrogation as to require the giving of new warnings, the warnings given at the start of the first recording were still effective during the questioning that occurred in the detectives’ car. We should therefore reverse the judgment of the court of appeals with respect to its holding that affirms the trial court's order suppressing the second recording and remand the case to the court of appeals for further proceedings.
Because no one has argued that we should retreat from the continuation holding in Bible , and I see no substantial reasons for doing so on our own, I would simply resolve this case under Bible and remand to the court of appeals. But if the continued viability or scope of the continuation holding in Bible is to be reexamined, I would do so with briefing from the parties.
I respectfully dissent.