Opinion
No. 04-04-00784-CR
Delivered and Filed: May 10, 2006. DO NOT PUBLISH.
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-0984-C, Honorable Sharon MacRae, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Mark Ramos appeals the trial court's judgment convicting him of murder and sentencing him to ninety-nine years in the Texas Department of Criminal Justice — Institutional Division. We affirm the trial court's judgment.
Factual and Procedural Background
Approximately four days after Tracy Ortiz was killed in a drive-by shooting, Ramos was taken into custody because police suspected he was the person responsible for her death. Having had his Miranda rights read to him, Ramos initially denied any involvement and provided an alibi. Forty-five minutes after the interview began, Detective Tim Angell took a break during which he conferred with Detective John Slaughter, the investigator interviewing Ramos's girlfriend, Carmelle Gallegos. Slaughter told Angell that Gallegos had identified Ramos as the shooter. Angell returned to the interview room and informed Ramos of this fact. Initially laughing, Ramos responded that Gallegos would never say such a thing. Angell then told Ramos "that with the information that Detective Slaughter had, [Slaughter] would probably be able to get an arrest warrant." Visibly upset, Ramos "told [Angell] that he didn't want to talk to [him]. That he didn't want to talk about it anymore." Angell told Ramos "that was fine. He didn't have to." Angell left to use the restroom. Five minutes later, Angell, accompanied by Slaughter, returned to the interview room. Slaughter informed Ramos that Gallegos had implicated him and that it would be better for Ramos to tell them what happened. Ramos resumed talking, asking Angell if Gallegos was going to be arrested. After Angell told Ramos that the decision was Slaughter's to make, Ramos stated that Gallegos had nothing to do with the drive-by shooting. When Angell asked Ramos whether he was the person who fired the weapon, Ramos said he was. His confession was subsequently reduced to writing. Before trial, Ramos moved to suppress his statement on the ground that, because he was subject to custodial interrogation, the detectives had to honor his request to terminate the interview. The trial court denied Ramos's motion, finding that although Ramos was in custody, his statement that he did not "want to talk about that anymore" was in and of itself sufficiently ambiguous that "[Angell] was not obliged under the case law to stop [the] questioning."Discussion
1. Ramos first argues the trial court erred in denying the motion to suppress his written statement because the investigating officers continued to question him after he had unambiguously invoked his Fifth Amendment right to remain silent. We disagree.Standard of Review
When the dispositive facts are uncontroverted and there is no indication that the trial court did not believe the testimony establishing these facts, we review the trial court's order denying a motion to suppress under a de novo standard. State v. Ross, 32 S.W.3d 853, 858 (Tex.Crim.App. 2000). In this case, because only Angell testified as to what transpired during Ramos's interrogation and there is no indication the trial court did not believe his testimony, we review the trial court's order under a de novo standard.Ambiguous Invocation of the Right to Remain Silent
Under the Fifth Amendment to the United States Constitution, a person subjected to custodial interrogation has the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 445, 86 S. Ct. 1602, 1612, 16 L. Ed.2d 694 (1966). No formal invocation of this right is necessary. Watson v. State, 762 S.W.2d 591, 597 (Tex.Crim.App. 1988). "If [a suspect in custody] indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, 384 U.S. at 473-74. However, the invocation of this right must be unambiguous; and the interrogating officer has no duty to clarify ambiguous remarks. Dowthitt v. State, 931 S.W.2d 244, 257 (Tex.Crim.App. 1996). Whether the right to remain silent has been unambiguously invoked is based on the totality of circumstances present when the invocation is made. See Watson, 762 S.W.2d at 597. An ambiguous statement is one "capable of being understood in two or more possible senses or ways." Webster's Ninth New Collegiate Dictionary 77 (Merriam Webster, Inc. 1984). In context, Ramos's statement to Angell that he no longer wanted to talk to him about "it" is open to interpretation. For example, because Ramos's statement immediately followed Angell's comment that the information Gallegos was providing Detective Slaughter was likely sufficient to obtain an arrest warrant, the statement could reasonably be understood as Ramos's refusal to talk about the idea that he might be arrested. Likewise, because Ramos's statement also immediately followed Angell's comment that Gallegos had identified Ramos as the shooter, the statement could reasonably be understood as Ramos's refusal to talk about Gallegos's role in identifying him as the shooter. Similarly, because Ramos had spent the previous forty-five minutes denying his involvement in the drive-by shooting, his statement to Angell could also reasonably be understood as his refusal to talk about that subject any further. A reasonable officer in Angell's position could have interpreted Ramos's statements in numerous ways and not solely as an unmistakable and unequivocal insistence on terminating the interview. Because Ramos failed to articulate a desire to cut off questioning with sufficient clarity to invoke his constitutional right to remain silent, we hold the trial court did not abuse its discretion in denying the motion to suppress. See Owen v. State, 862 So. 2d 687, 696-698 (Fla. 2003) (holding appellant's statements "I don't want to talk about it" and "I'd rather not talk about it" were ambiguous in the context of police officer's specific questioning related to details of a homicide), cert. denied, 543 U.S. 986 (2004); see also Dowthitt, 931 S.W.2d at 257 (holding that appellant's statement, "I can't say more than that. I need to rest," was ambiguous and indicated only that appellant believed that he was physically unable to continue); Hargrove v. State, 162 S.W.3d 313, 319-20 (Tex.App.-Fort Worth 2005, pet. ref'd) (holding that the following response made by the appellant to an officer's question whether the appellant wanted to stop the interview was ambiguous because it did not answer the question posed but rather expressed an opinion: "Why should we go on because I'll be spinning my wheels. You're spinning your wheels."); cf. Cooper v. State, 961 S.W.2d 222, 226-27 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (holding that "I'm not answering any questions" was an unambiguous invocation of the right to remain silent). 2. Ramos next argues the court erred in denying his motion to suppress his written statement because it was the result of custodial interrogation following an illegal, warrantless arrest. Although Ramos included an assertion in his written motion that he was illegally seized, he did not argue to the trial court, either at the hearing on the motion to suppress or at trial, that his statement was inadmissible because it was the "fruit" of an illegal arrest. Accordingly, he has waived his complaint. See Tex.R.App.P. 33.1; State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App. 1998) (holding points not raised during a hearing on a motion to suppress are deemed waived); see also Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim.App. 2005) ("Appellant's global statements in his pretrial motion to suppress were not sufficiently specific to preserve the arguments he now makes on appeal."). The judgment of the trial court is affirmed.CONCURRING OPINION
I believe Mark Ramos unambiguously invoked his right to remain silent and this right was not "scrupulously honored." Therefore, I respectfully disagree with the majority's conclusion that the trial court did not err in denying Ramos's motion to suppress. However, I do not believe the trial court's error contributed to Ramos's conviction; therefore, I concur in the result. "Anything said or done by the defendant that could reasonably be interpreted as a desire to invoke [the right to remain silent] should be sufficient to halt questioning. Watson v. State, 762 S.W.2d 591, 598 (Tex.Crim.App. 1988). Whether the right to remain silent has been unambiguously invoked is based on the totality of circumstances present when the invocation is made. See id. at 597. When Detective Angell first spoke with Ramos, Angell told Ramos he was assisting in the investigation of a drive-by shooting. Ramos denied any involvement in the shooting, and provided Angell with an alibi and he said his father would verify the alibi. Throughout this initial interrogation Ramos continued to deny any knowledge of the shooting. After about forty-five minutes, Angell left the interview room to speak with Detective Slaughter, who was interviewing Camelle Gallegos. Slaughter told Angell that Gallegos identified Ramos as the shooter. Angell went back into the room with Ramos, and told him that Gallegos had indicated he was the shooter "to see what he [Ramos] would say." Ramos laughed and said Gallegos would never say that. Angell then told Ramos that with the information obtained by Detective Slaughter, Slaughter "would probably be able to obtain an arrest warrant." At this point, according to Detective Angell's testimony, Ramos "got upset" and said "he didn't want to talk to me. That he didn't want to talk about it anymore." Angell told Ramos "that was fine. He didn't have to." Angell left the room, but returned after five minutes with Slaughter. Ramos eventually admitted he was the shooter. I believe these circumstances indicate Ramos unambiguously indicated he desired to invoke his right to "cut off questioning." See Michigan v. Mosley, 423 U.S. 96, 103 (1975) ("The critical safeguard identified in [ Miranda] . . . is a person's `right to cut off questioning'."). Ramos spoke freely with Angell until Angell stated Slaughter had enough information to obtain an arrest warrant. Up to that point in time, Angell and Ramos were discussing the shooting, Ramos's alleged alibi, and Gallegos's statement to Slaughter. The focus of the interrogation was the shooting; therefore, Ramos's statement that he did not "want to talk about it" encompassed the only reason for the interrogation, which was the shooting. Also, Ramos did not qualify his statement by indicating he was physically unable to continue. See Dowthitt v. State, 931 S.W.2d 244, 257 (Tex.Crim.App. 1996) (finding statement "I can't say more than that. I need to rest." was not an unambiguous invocation of the right to remain silent, but merely an indication that defendant believed he was physically unable to continue); Franks v. State, 90 S.W.3d 771, 786-87 (Tex.App.-Fort Worth 2002, no pet.) (holding defendant's statement "I don't want to talk anymore. I'm tired." was ambiguous). Because Ramos invoked his right to "cut off questioning," the next inquiry is whether this right was "scrupulously honored." See Mosley, 423 U.S. at 103-04; Mayes v. State, 8 S.W.3d 354, 358 (Tex.App.-Amarillo 1999, no pet.) (questioning may resume but "there must be an end to the proceeding sufficient to indicate that the police respected the suspect's request."). The Mosley Court determined that Miranda did not create "a per se proscription of indefinite duration" against further questioning after a defendant's invocation of his right to remain silent. Mosley, 423 U.S. at 102-03. Instead, " Miranda did not require that all interrogation cease indefinitely, merely that the police must `scrupulously honor' the defendant's right to remain silent by (1) immediate cessation of questioning; (2) resumption of questioning only after the passage of a significant period of time, (3) provision of a fresh set of Miranda warnings, and (4) restrictions of the second interrogation to a crime that was not a subject of the earlier interrogation. Watson, 762 S.W.2d at 596-97; see also Maestas v. State, 987 S.W.2d 59, 62 (Tex.Crim.App. 1999) (quoting Mosley factors). Here, Ramos received his Miranda warnings before the initial interrogation began; therefore, the first factor weighs in favor of a finding that Ramos's right was "scrupulously honored." However, all other factors weigh in favor of a contrary finding. Ramos was not informed of his right to remain silent prior to the subsequent questioning. No more than five minutes elapsed between the initial questioning and the subsequent questioning. See Maestras, 987 S.W.2d at 63, n. 9 (examples of cases where resumption of questioning began hours or weeks later). The subsequent questioning focused on the drive-by shooting and not a different crime. Finally, although Angell told Ramos he did not have to "talk about it anymore," Angell did not honor Ramos's statement when he returned to the room five minutes later to resume the interrogation. Instead, Angell, along with Slaughter, continued to interrogate Ramos. Slaughter told Ramos that Gallegos indicated he was the shooter and that "it would probably be better if he [Ramos] told us what really happened." Ramos asked if Gallegos would be arrested, and Angell told him that was Slaughter's decision. Ramos then said Gallegos had nothing to do with the crime. When asked if he was the shooter, Ramos admitted that he was. At this point, Angell again read Ramos the Miranda warnings. Based on these circumstances, I believe Ramos's right to remain silent was not "scrupulously honored." Because Ramos invoked his right to remain silent and that right was not "scrupulously honored," I believe the trial court erred in denying Ramos's motion to suppress. However, that is not the end of the inquiry. Next, it must be determined if, beyond a reasonable doubt, the error contributed to Ramos's conviction. See Tex.R.App.P. 44.2(a); see also McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Crim.App. 2001) (stating standard of review under rule 44.2(a)); Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000) (same). I do not believe it did. The record reveals that the prosecutor mentioned Ramos's statement in his opening argument and again in his closing argument. Defense counsel also mentioned the statement in his closing argument. During trial, Angell read Ramos's statement to the jury. In his statement, Ramos admits he did the shooting, but he stated he did not know whose idea it was and he did not remember who handed him the gun. He claimed he was "wasted" and, as he and others drove past the victim's house, "somebody told me to shoot the car up." Ramos said he was trying to shoot only the car and he did not realize he had shot the house. Although the jury heard Ramos's statement, the focus of the trial and of the prosecutor's arguments to the jury, was the testimony of various State witnesses who told the jury about the events of the evening that began when a car drove by a house outside of which Ramos, Gallegos, and others were eating and drinking. As the car drove by, the people inside the car fired four or five shots. One of the women present at the house, Roxanne Garcia, testified that Ramos, angered by the shooting, wanted to go "hit them up, blast them, I don't know how to say it. He wanted to shoot at them." She said Ramos, Gallegos, and another individual named Gerardo, then got into Gallegos's car and drove away. Ramos had a gun when he left. According to Garcia, when Ramos, Gallegos, and Gerardo returned, Ramos said "he had blasted the people that had went to go shoot us up." Later, on their way to a party at another house, Garcia said Ramos again mentioned "that he went to go shoot the people who shot at us." Garcia's boyfriend, Jonathan Rodriguez, also testified. Rodriguez confirmed that Ramos was upset after the shooting and left in the car with Gallegos and Gerardo. Rodriguez said Ramos wanted to "go shoot up some older gang member, back in the days." The evidence later established that the man Ramos talked about shooting lived next door to the victim, Tracy Ortiz. Rodriguez testified that, on the drive to the party, Ramos said "he got them good or something like that. That he got them good, that he shot them up good, that he think [sic] he got them good and this and that." Other witnesses, who were present at the party, testified that Ramos bragged about his shooting. Based upon the entire record, I do not believe there is a reasonable likelihood that the error materially affected the jury's deliberations, and therefore, the error was harmless beyond a reasonable doubt. Accordingly, I concur in the judgment.