Opinion
No. 05-08-01343-CR
Opinion Filed August 17, 2009. Do Not Publish. Tex. R. App. P. 47.
On Appeal from the 15th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 056630-15.
Before Justices MORRIS, RICHTER, and LANG-MIERS.
MEMORANDUM OPINION
After a jury trial, appellant was convicted of second-degree felony driving while intoxicated and sentenced to 17 years in prison and a $7,000 fine. Appellant raises two issues on appeal, arguing that the trial court erred when it denied his motion to suppress and that the judgment should be modified to delete the cumulation order. We modify the trial court's judgment to supplement the cumulation order and affirm as modified.
Appellant pleaded true to two prior convictions for offenses involving driving while intoxicated and one prior conviction for the offense of manufacturing a controlled substance.
Appellant's Motion to Suppress
In his first issue appellant argues that the trial court erred when it denied his pretrial motion to suppress. Appellant contends that his right to remain silent was not scrupulously honored because the arresting officer continued to question appellant after he invoked his right to remain silent.Background
Appellant filed a pretrial motion to suppress and the trial court held a hearing on that motion. At the hearing, Trooper J.R. Odom testified that he pulled appellant over and recorded the events of the traffic stop with his patrol vehicle's recording device. After placing appellant in the back seat of his patrol car, Trooper Odom read appellant his Miranda rights and asked him if he wanted to invoke his right to remain silent. In response to that question, appellant went "back and forth on whether he wants to decide that yes, he does want to answer the questions or, no, he doesn't." Because appellant did not tell Trooper Odom "one way or the other" whether he wanted to invoke his right to remain silent, Trooper Odom told appellant that he would read appellant questions and appellant could choose whether to respond. Trooper Odom testified that at the point on the recording time-stamped 21:20, appellant invoked his right to remain silent and Trooper Odom stopped questioning appellant. Trooper Odom testified that prior to invoking his right to remain silent at the point on the recording time-stamped 21:20, appellant did not indicate that he wanted to remain silent. Appellant also testified at the hearing on his motion to suppress. He testified that he invoked his right to remain silent at the point on the recording time-stamped 21:14-i.e., approximately six minutes earlier than the point at which Trooper Odom testified that appellant invoked his right to remain silent. On cross-examination, the State asked appellant why, if he invoked his right to remain silent, appellant continued to talk to Trooper Odom and answer questions, and appellant testified that he "was being polite." The parties agree, and the video introduced into evidence demonstrates, that most of appellant's statements to Trooper Odom, including his statements at the points in the recording time-stamped 21:14 and 21:20, are inaudible on the recording. At the conclusion of the hearing, the trial court overruled appellant's motion to suppress. When the video was introduced into evidence by the State during trial, appellant's counsel renewed his objection "that at 21:14:15 Mr. Cooksey states I don't have anything to say. At that point he has indicated that he wishes to remain silent."Applicable Law
The right to terminate questioning is among the procedural protections that Miranda established. See Miranda v. Arizona, 384 U.S. 436, 474 (1966). That right, which safeguards the Fifth Amendment 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 v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). If a statement is governed by Miranda, then a failure to cut off questioning after the suspect invokes his right to remain silent violates his rights and renders any subsequently obtained statements inadmissible. Dowthitt v. State, 931 S.W.2d 244, 256 (Tex. Crim. App. 1996). The exercise of the right to remain silent must be "scrupulously honored." Miranda, 384 U.S. at 479. But if a suspect's invocation of right to remain silent is ambiguous, an officer is not required to cease questioning of the suspect. Dowthitt, 931 S.W.2d at 257.Standard of Review
When we review a trial court's ruling on a motion to suppress, we defer almost totally to the trial court's determinations that center on historical facts and witness credibility. State v. Ross, 32 S.W .3d 853, 856 (Tex. Crim. App. 2000). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of witnesses. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). As the sole trier of fact, the trial court may choose to believe or to disbelieve all or any part of a witness's testimony. Ross, 32 S.W.3d at 855. In reviewing a trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We must affirm the trial court's ruling if it is reasonably supported by the record and is correct under any theory of the law applicable to the case. State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007).Analysis
Trooper Odom and appellant gave conflicting testimony about when appellant first invoked his right to remain silent. We have reviewed the recording introduced into evidence, and we agree with the parties that most of appellant's statements to Trooper Odom-including his statements at the points in the recording time-stamped 21:14 and 21:20-are inaudible. At the conclusion of the hearing on the motion to suppress, appellant's counsel argued that at the point on the recording time-stamped 21:14 appellant invoked his right to remain silent because he stated "I don't have anything to say." We question whether any evidence in the record supports this argument. But even if we assume that appellant stated "I don't have anything to say" at the point on the recording time-stamped 21:14, we would conclude based on the recording before us that this statement was ambiguous and did not require Trooper Odom to cease questioning appellant. See, e.g., Williams v. State, 257 S.W.3d 426, 433-34 (Tex. App.-Austin 2008, pet. ref'd) (affirming trial court's denial of motion to suppress because defendant's statement to police "that he wanted to `terminate everything'" "did not constitute unambiguous invocation of the right to silence"). Moreover, Trooper Odom testified unequivocally that appellant first invoked his right to remain silent at the point on the recording time-stamped 21:20, and that Trooper Odom stopped questioning appellant as soon as appellant invoked his right to remain silent. As a result, we conclude that the trial court's ruling denying appellant's motion to suppress is reasonably supported by the record and applicable law. We overrule appellant's first issue.The Trial Court's Cumulation Order
In his second issue, appellant argues that the cumulation order included in the trial court's judgment, which states that his sentence shall run consecutive with any other sentence, lacks sufficient specificity. Appellant concedes that the trial court had discretion to cumulate his sentence with a prior conviction for which he was on parole, but he argues that because the cumulation order lacks sufficient specificity, the judgment should be modified to order that his sentences shall run concurrently. In response, the State agrees that the cumulation order lacks sufficient specificity. It argues, however, that this Court should modify the cumulation order to include the additional information about the prior conviction with which the trial court ordered appellant's sentence in this case to run consecutively, rather than ordering the sentences to run concurrently, because the appellate record contains the necessary information to make the cumulation order sufficiently specific. The undisputed evidence in the record demonstrates that on September 9, 2005 appellant was convicted of manufacturing a controlled substance and sentenced to ten years in prison by the 27th Judicial District Court of Lampasas County, Texas. At the time of his arrest in this case, appellant had been released from prison for just over three months and was still on parole for the prior conviction. Anna Parker, a parole officer employed by the Texas Department of Criminal Justice testified that two conditions of appellant's parole were that he not commit any new offense and that he avoid excessive use of alcohol. Parker also testified that appellant faced the potential of having his parole revoked and could be required to serve the rest of his prison sentence. In assessing punishment, the trial court granted the State's motion to stack appellant's sentence and told appellant his sentence in this case "will not begin until you've completed the sentence in Cause Number 7672 out of Lampasas-27th Judicial District Court of Lampasas County." The Texas Court of Criminal Appeals has recommended that cumulation orders contain the following information: (1) the trial court number of the prior conviction, (2) the correct name of the court where the prior conviction was taken, (3) the date of the prior conviction, (4) the term of years of the prior conviction, and (5) the nature of the prior conviction. Ward v. State, 523 S.W.2d 681, 682 (Tex. Crim. App. 1975). A cumulation order in a judgment may be reformed on appeal when an appellate court "has the necessary data and evidence before it for reformation." Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986). Here, the intent of the trial court as to sentencing is ascertainable from the appellate record, and the record includes the necessary data and evidence for reformation. Accordingly, we will modify the judgment to reflect the sentence actually imposed by the trial court. See id. The portion of the trial court's judgment that reads, "THIS SENTENCE SHALL RUN CONSECUTIVE WITH ANY OTHER SENTENCE" is modified to read as follows:The sentence in this conviction shall run consecutively and shall begin only when the September 9, 2005 judgment and ten year sentence for manufacture of a controlled substance in the following case has ceased to operate: cause number 7672 in the 27th Judicial District Court of Lampasas County, Texas.