Avery Lynn Jones v. State

• Court: Court of Appeals of Texas
• Decided: August 6, 2020
• Docket: 01-18-00824-CR
• Status: Published

Opinion

Opinion issued August 6, 2020

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-18-00824-CR ——————————— AVERY LYNN JONES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court Harris County, Texas Trial Court Case No. 1495266

MEMORANDUM OPINION

A jury convicted appellant, Avery Lynn Jones, of the first-degree felony

offense of murder and assessed his punishment at sixty years’ confinement.1 In three

issues, appellant contends that the trial court erred by (1) refusing to submit his

1 See TEX. PENAL CODE ANN. § 19.02(b)(1)–(2). requested instructions on self-defense and defense of a third person; (2) failing to

suppress his oral statement to police because the statement was not voluntary; and

(3) refusing to grant his motion for mistrial made after the State violated a motion in

limine by mentioning that he made a statement to police.

We affirm.

Background

A. Factual Background

The complainant, Chevey John Leal, was married to Jessica Leal for

approximately sixteen or seventeen years, and they had a house in the southwest

Houston area. The couple had three biological children, and Jessica had a son from

a previous relationship whom Leal never formally adopted. Leal and Jessica had

marital troubles, and Leal began confiding in his sister, Mary Lou Nimmons, about

these problems around Christmas Eve 2015. Around this time, Leal and Jessica

separated. Leal and the children were predominantly living with Jessica’s parents,

while Jessica sometimes stayed with them and sometimes stayed elsewhere.

However, Leal regularly returned to his and Jessica’s house, where he worked out

of the house repairing washing machines and dryers.

In early January 2016, Nimmons accompanied Leal to a legal clinic because

Leal planned to seek a divorce from Jessica and wanted to obtain sole custody of the

children. The representative at the legal clinic told Leal that the clinic could help

2 with the three youngest children, who were Leal’s biological children, but could not

help with the oldest child, who was not. According to Nimmons, Leal still planned

to seek a divorce from Jessica, but he was trying to find a way that he could keep all

four children together and with him. Nimmons never witnessed any violent or angry

exchanges between Leal and Jessica, although she testified that, around the

beginning of 2016, Leal did not want to go to their home by himself to gather

personal belongings, so he called the police. Nimmons stated, “He didn’t want to

have any interaction with her.”

On January 12, 2016, Nimmons received a call from Leal, who was “very

excited.” Jessica had just purchased a new phone, and she had left her old phone at

their house. Nimmons testified that Leal “was very excited because there was a lot

of stuff in there [on Jessica’s old phone] that Chevey felt could help him gain custody

of the kids.” Leal and Nimmons met at Nimmons’s house that evening, and Leal

showed her the contents of Jessica’s phone. While Leal was at Nimmons’s house,

he called “Avery.”2 Leal went home that evening, but he left Jessica’s old phone

with Nimmons “[t]o keep it safe.” Nimmons later turned this phone over to police

investigators.

2 The State asked Nimmons if she knew who “Avery” was, and Nimmons stated, “Only that it was one of Jessica’s boyfriends.” After she gave this answer, defense counsel objected on hearsay grounds, and the trial court sustained the objection. Nimmons later testified that appellant was one of the men Jessica “was around” at the time she and Leal separated. 3 Jesse Lambert had been friends with Leal since they were in high school, and,

around December 2015 and January 2016, he and Leal spoke on the phone nearly

every day. Lambert was aware of Leal and Jessica’s marital troubles, and he knew

that Leal and the children were generally staying with Jessica’s parents. On January

13, 2016, Leal called Lambert around 9:00 a.m. while Lambert was at work. During

the beginning of the conversation, Leal was in a “regular mood,” talking about

dropping the children off at school and asking Lambert how his day was going, while

he was doing his own work on washing machines and dryers. During their

conversation, Leal informed Lambert that Jessica had arrived at the house, and

Leal’s mood changed to “[a] somber mood, kind of bummed-out mood.” Lambert

could hear a woman’s voice over the phone line, but he could not identify that voice.

After hearing a woman’s voice, Lambert could hear a discussion and “faint

conversation.” At this time, no one spoke with raised voices, and Lambert could not

hear any banging noises or anything “that sounded violent or physical.” Later, Leal

began speaking with Lambert again, and at that point, he sounded excited. Leal told

Lambert, “He’s got a gun,” and then he said, “I’m out of here, call 911, you got my

back.” Lambert did not know who Leal was referring to when he said “he,” but

Lambert was able to hear a male voice over the phone line.

Lambert had been speaking to Leal on his personal cell phone, but when Leal

told him to call 911, he kept the line open on his personal cell phone and used his

4 work cell phone to call 911. Lambert testified, “I’m talking to 911, I hear a shot, I

hear Chevey wailing, I’m trying to give information to 911 and then multiple shots

after that.” Lambert could hear multiple gunshots, but he could not recall how many

he heard. On the line he had open with Leal, Lambert called Leal’s name. He heard

“rustling,” or a sound as if a cell phone was placed in a pocket, and “then after that

[Lambert heard] music and then a car door and that’s it.” Lambert called Leal’s name

a few more times, hung up when he received no response, and immediately called

Leal’s phone back. That call went straight to voicemail. Lambert then drove over to

Leal’s house. When he arrived, police were already there. Lambert gave two written

statements to officers while at the scene.

Harris County Sheriff’s Department Deputy J. Coddou was the first officer to

arrive at Leal’s house. When he and other deputies entered the house, they found

Leal lying face-down on the floor in a doorway and short hallway between the master

bedroom and the master bathroom, and it was not immediately clear if he was still

alive. Leal was partially lying on his left arm, and his right arm was stretched out

above his head. Coddou could see that the back of Leal’s shirt was red and that there

were small holes in his shirt. There were bloody footprints on the carpet near Leal’s

body in both the bathroom and the bedroom. There was also a knife lying next to

Leal’s left hand, there were multiple spent cartridge casings on the floor, a chair and

vase were knocked over, and there was a broken picture frame. Coddou testified that

5 it appeared as though the master bathroom was the only place in the house where a

struggle had taken place. EMS personnel determined that Leal had passed away, and

he was not transported to the hospital.

Deputy Roy Glover, with the Harris County Sheriff’s Department’s crime

scene unit, processed the scene for evidence. He took pictures of two knife sets

located in the kitchen “because we had a knife at the scene next to the complainant.”

Ten spent cartridge casings were located near Leal’s body, in the bathroom and in

the short hallway that led to the master bedroom. Leal had injuries on his thumb and

finger that “appeared to be made with a sharp object.” Glover stated that Leal’s shirt

was “saturated” with blood, and he observed three gunshot wounds to Leal’s back.

Glover agreed that the knife found next to Leal had the “same sort of handle” as

knives found in the kitchen, and he stated that was significant because it “most

likely” showed “that the knife came from the house and that it wasn’t brought into

the house.” He tested the knife for fingerprints but “[n]o prints of value were

developed” that could be compared with prints from a known individual.

The autopsy performed on Leal revealed that he had “some sharp-force

injuries” on his hands, including incisions and punctures. Dr. Michael Condron, who

performed the autopsy, agreed that it was possible that these wounds “could have

occurred with somebody being in a defensive state.” Leal sustained nine gunshot

wounds, one to the back of the neck, three to the upper back, two to the mid back,

6 one to the lower chest, one to the right side, and one to the back of the left shoulder.

He did not have any stab wounds on his sides or back.

Two surveillance videos obtained from nearby houses reflected that, after the

shooting, Jessica walked from Leal’s house to the house of her sister, Anita Delgado,

and then Delgado drove Jessica to their mother’s house. Jessica did not seem to be

panicked or rushed while she was walking. While at her mother’s house, Jessica

called 911, and a recording of this call was entered into evidence. During her 911

call, Jessica stated that she was at her house when her husband “tried to get [her]

with a crow[bar]”3 and she then pushed him down and stabbed him in the back or

the side with a kitchen knife. She told the 911 operator that she was currently at her

mother’s house, that Leal was still at their house, and that she took his keys and left

their house on foot because she was scared that he was going to chase her. Jessica

stated that police officers were already at her and Leal’s house, but she wanted to

talk to police to explain what had happened. She also stated that they had separated,

Leal had moved out, and she was trying to obtain a restraining order. The 911 call

ended when police arrived at Jessica’s mother’s house. Jessica did not mention the

presence of another person aside from herself and Leal at their house, and she did

not mention that Leal had been shot.

3 Deputy Glover testified that he was told by investigators to search for a crowbar or a tire iron at the scene. He did not find either object at the house. 7 Deputy J. Vuong spoke with Jessica while she was at her mother’s house, and

Jessica informed him that the shooter—whom she identified as “Brion” or “Brione”

Jackson—had stolen her car, a blue BMW sedan. Vuong issued a Be-On-the-

Lookout, or “BOLO,” notice for this car and gave a physical description of the

suspect. Vuong did not see any injuries on Jessica when he spoke with her. Deputies

took Jessica from her mother’s house back to her house.

Deputy M. Jones, the primary homicide investigator assigned to this shooting,

spoke with Jessica three times on January 13. During his first conversation with her,

Jessica provided the name of “Brion Jones” as a suspect, and she later gave the

names of “Brion Jackson,” “Mike Jones,” and “Cutta Jackson” as suspects. Deputy

Jones showed her several pictures of men “obtained from different social media sites

that were under Jessica Leal’s account” in an attempt to identify the suspect. The

trial court admitted these pictures into evidence, but Jones did not identify who the

men in the pictures were. He stated, “[W]e knew we had a suspect, we just [were

not] certain if those individuals were the actual suspect.” Appellant’s name had not

been mentioned as a suspect, and Deputy Jones did not meet appellant until early the

next morning.

Humble Police Department Officer J. Cox was on patrol around 11:00 p.m.

on January 13, 2016, and was stopped behind a blue BMW sedan at an intersection.

He ran the license plate of the car and an alert from the Harris County Sheriff’s

8 Department popped up and listed the car as stolen. Cox and another officer

conducted a traffic stop and encountered appellant. Cox spoke with Jessica by phone

and informed her that appellant was driving her car. Jessica immediately informed

Cox that appellant was her friend and that she had given him permission to drive her

car. Appellant was calm and not combative during the traffic stop, and he did not

appear surprised that the car had been listed as stolen. During the traffic stop,

marijuana was discovered in appellant’s possession, and he was arrested. After

appellant was in custody, Deputy Jones and Sergeant S. Miller interviewed appellant

early on the morning of January 14, 2016.

Deputy Glover processed Jessica’s car for evidence two days after the

shooting. He took swabs of the door handles, steering wheel, seat belt buckle, gear

shift, and backrest of the driver’s seat for DNA evidence. There were dry bloodstains

in the car. In the trunk of the car, Glover photographed a trash bag that contained

three smaller bags. These smaller bags contained a backpack, a pair of boots, a red

shirt, black pants and a belt, and a pair of socks. The sole of the boots had a

bloodstain that Glover swabbed. He sent the clothing to the Harris County Institute

of Forensic Sciences for further processing.

DNA testing revealed that Leal could not be excluded as the sole contributor

to the DNA profile from the bloodstains on the knife, the backrest of driver’s seat of

Jessica’s car, and the sole of the boots found in the trunk of the car. With respect to

9 a bloodstain found on the driver’s seat near the center console, there was a mixture

of DNA profiles, and Leal could not be excluded as the possible major contributor,

but no conclusion could be reached about the minor contributor. For the black pants

recovered from Jessica’s car, there was a mixture of DNA profiles, and appellant

could not be excluded as the possible major contributor. Forensic scientists tested a

different portion of one of the boots, and that portion revealed a mixture of three or

more DNA profiles; appellant could not be excluded as a possible major contributor.

Mixtures of DNA profiles were also found on the socks and the red shirt, and

appellant could not be excluded as the possible major contributor for either of those

items. Appellant also could not be excluded as the possible major contributor to a

mixture of DNA profiles found on a swab of the gas pedals in Jessica’s car.

B. Appellant’s Custodial Statement

Deputy Jones testified that he first heard of appellant after appellant was

arrested while driving Jessica’s car. Jones met with appellant after midnight on

January 14. Appellant matched the general description of the suspect that Jessica had

provided. Jones and the State had the following exchange:

The State: Now, at any point in time did you learn the relationship between Avery Jones and Jessica Leal? Deputy Jones: Yes. The State: And what was that? Deputy Jones: Girlfriend/boyfriend relationship.

10 The State: And is this information that came from the defendant? Deputy Jones: Yes. Defense counsel: I’m going to object to that, You Honor. Can we approach? The Court: Yes. Defense counsel: It is—the answer— The Court: Okay. I’ll sustain your objection. Defense counsel: I filed a motion in limine about statements of the defendant— The Court: I sustained your objection. Would you like an instruction? Defense counsel: I would like an instruction. The Court: At this time, ladies and gentlemen, you’re instructed to disregard the previous question and the response between the prosecutor and the witness. Defense counsel: I move for a mistrial. The Court: Denied.

The State then requested a hearing on the admissibility of appellant’s statements to

Deputy Jones, stating that he “want[ed] to talk about some of the things [appellant]

said in there or didn’t say, for that matter.”

During a suppression hearing outside the presence of the jury, the trial court

expressed frustration that it was just then learning that appellant had made a

statement to police. Defense counsel stated, “So I have a lot to say, objections about

the statement coming in, whether it was voluntary or involuntary.” Deputy Jones

11 testified that he read appellant the Miranda warnings, that appellant audibly agreed

that he understood the warnings, that Jones asked appellant if he wanted to talk, and

appellant agreed to speak with Jones. Jones stated that the interview was recorded

on video, that his reading of the Miranda warnings was on video, and that appellant

never requested an attorney.

On cross-examination, defense counsel asked Jones whether appellant

requested to terminate the interview “because he was exhausted and wanted to

sleep.” Jones recalled appellant saying on multiple occasions that he was tired, but

he did not “remember him saying he wanted to terminate the interview.” At this

point, the trial court, still frustrated that it was just then hearing about appellant’s

statement, especially after it had granted defense counsel’s motion in limine, paused

the suppression hearing until the next day and directed the State to move on to

another witness. Off the record, the trial court reviewed a redacted version of the

interview.4

The suppression hearing continued the next morning, still outside the presence

of the jury. The trial court watched an unredacted recording of the interview,

frequently pausing the video to seek clarification of what appellant had said. During

the hearing, the prosecutor stated that, in addition to appellant’s statement to Deputy

4 The following day, the trial court recounted on the record that it viewed a recording of the interview after it had excused the jury for the day, and while this occurred, defense counsel noticed that they were watching a redacted interview. 12 Jones that he was in dating relationship with Jessica, the prosecutor also wanted to

ask Jones about appellant’s demeanor, appellant’s initial denial of being at Leal and

Jessica’s house, Jones’s statement to appellant that Leal was on the phone at the time

of the shooting, and appellant’s response that he “knew that,” a statement in which

appellant “puts himself at the scene.” Defense counsel then addressed her objections:

Defense counsel: I want to say that my client invoked his right to remain silent and his right to terminate the interview will be my first argument. The Court: At which point are you saying he’s terminating the interview? Defense counsel: I’ll show you. I have it written down. I have that at first he says he’s cold. The Court: We’ve already heard that, this part. Defense counsel: Right. Second, it’s 2:00 o’clock in the morning, he’s been up all night and all day. The Court: “I just want to go to sleep.” Defense counsel: He says—at 2:04 in the morning and 54 seconds, the officer says, Explain what happened today. He shakes his head no. He shakes his head no again at 2:05. The Court: Well, shaking his head no, that’s—you know, that can mean, well, I don’t know— Defense counsel: And then at 2:07, he yawns and says he wants to go to sleep. At 2:10, he again says, I just want to go to sleep. At 2:13, he’s falling asleep and he says he wants to go to sleep. In that same context, around 2:13, I want to go to sleep, I’m tired. Officer tells him he won’t have a bond. He then— he says several more times throughout the interview he wants to go home. At one point he asked, Do you 13 have a warrant for my arrest in my name? I want to—if not, I want to go to sleep and leave, in those words, but he doesn’t ever say I’m terminating the interview, which he’s not required to do. But I think a culmination of all those facts, that he’s freezing, he’s exhausted, he’s falling asleep in this interview. Also I think there’s evidence that he was arrested with marijuana in Humble while he’s driving the car. He tells the officer there that he just bought marijuana, that he’s high during this interview. I think it will be involuntary based on the culmination of all that information but you have to watch the whole interview before I can make that argument but if it helps you while you’re watching it to see where my argument is.

The trial court continued watching the recording and continued to pause the

recording occasionally to try to decipher what appellant said.

Ultimately, the trial court made a finding that the interview was voluntary up

until the point appellant stated that he knew Leal was on the phone, noting that the

State was “not interested in anything past this point.” The State also agreed that it

did not intend to play the recording of the interview for the jury and that it only

intended to introduce, through Deputy Jones, appellant’s statement about knowing

Leal was on the phone. The trial court filed handwritten findings concerning the

interview and its conclusion that the statement was voluntary.

In the presence of the jury, Deputy Jones testified that, during his interview

with appellant, Jones mentioned that Leal was on the phone when he was shot. Jones

testified that appellant responded, “I knew the dude was on the phone.”

14 C. Defensive Jury Instructions

During cross-examination, Deputy Vuong testified that he took a statement

from Anita Delgado, Jessica’s sister. Defense counsel asked Vuong if he knew the

difference between murder and justifiable homicide, and, while Vuong stated that he

did, he could not articulate that difference. Defense counsel repeatedly asked Vuong

if, based on Delgado’s statement, he could tell if the shooting of Leal was a murder

or a justifiable homicide, but the trial court sustained the State’s objections to these

questions. Vuong testified only that he conveyed Delgado’s statement to

investigators and that he thought it was important that the investigators know what

Delgado had said, but he never testified as to the contents of Delgado’s statement.

Sergeant F. Garcia, who spoke with Delgado on a separate occasion, passed on what

she said to the investigators. Defense counsel asked Garcia whether, after he spoke

with Delgado, he was concerned that the shooting “could be a justified homicide,”

and he responded, “It was possible, yes.” Garcia did not testify concerning what

Delgado told him.

Defense counsel had the following exchange with Deputy Glover, the crime

scene unit officer, on cross-examination:

Q: Were you ever presented with a scenario to see if this evidence [at Leal’s house] was consistent or not consistent with a self- defense situation? A: I wasn’t. Well, as far as the—be more specific.

15 Q: Well, you were presented with a scenario and you were asked to see if the forensic evidence lines up with the situation that you were presented, correct? A: Well— Q: Is that correct? A: I was— Q: Is that correct? A: Yes. Q: So did anybody present you with a scenario that involved self- defense? A: Yes. Q: So you knew about a self-defense claim in this situation? A: I knew about possible self-defense. Q: All right. That’s why I said “a claim,” right? A: Uh-huh. Q: And what evidence in all these pictures contradicts that? A: What contradicts that? Q: Sure. A: Well, there’s no evidence that shows as far—well, the evidence on [Leal’s] body shows that there are defensive wounds from— with a sharp object so— Q: Does that mean that the body never had a weapon in his hand? A: Well, we’re— Q: Does that— A: We assume that the defensive wounds came from him protecting himself.

16 Glover agreed with defense counsel that, based on the scene, there was no “way to

tell” whether Leal “was ever holding a weapon.” Glover also agreed that he could

not determine whether “there was another weapon at this scene other than a gun and

a knife.” Defense counsel also asked Glover questions about the positioning of the

knife relative to the sink and asked whether that evidence was “consistent with a

female and a male struggling over the knife near the sink.” Glover agreed that it was

possible. Glover also agreed that it was possible that a person could be standing in a

closet that was connected to the master bathroom and “see that struggle with a knife.”

He further stated that, based on the location of the fired cartridge casings, it was

possible that someone was inside the closet, fired a gunshot, “bust[ed] out of the

closet,” and stepped over Leal while continuing to shoot before leaving the house.

During the charge conference, that trial court stated that it intended to charge

the jury without a self-defense instruction and noted that “the defense attorney is

objecting to that charge and requesting defensive issues be included.” Defense

counsel and the trial court stated:

Defense counsel: My objection is that the language that was in the original charge given to me, which included self- defense, remain— The Court: The first draft of a charge? Defense counsel: The first draft, yes, Judge. And that’s the one that I would like to go with.

17 Defense counsel argued that self-defense had been raised by the evidence,

specifically the officers who spoke to Delgado “that they heard a version of self-

defense and that they thought it was credible enough to pass it along” to other

investigating officers, as well as Glover’s testimony that self-defense was

“consistent with the physical evidence,” and Garcia’s testimony that “it could be

self-defense in this fact scenario.” The trial court refused to submit a self-defense

instruction.

Ultimately, the jury found appellant guilty of the offense of murder and

assessed his punishment at sixty years’ confinement. This appeal followed.

Refusal to Submit Defensive Instructions

In his first issue, appellant contends that the trial court erred by failing to

submit in the jury charge his requested instructions on self-defense and defense of a

third person.

A. Standard of Review and Governing Law

We review jury charge error in a two-step process. Barrios v. State, 283

S.W.3d 348, 350 (Tex. Crim. App. 2009). The first step is to determine whether there

is error in the charge. Id.; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

If there is error and the defendant objected to the error at trial, we must reverse “if

the error ‘is calculated to injure the rights of the defendant,’ which we have defined

to mean that there is ‘some harm.’” Barrios, 283 S.W.3d at 350 (quoting Almanza v.

18 State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). We must determine whether

the defendant suffered actual harm, rather than merely theoretical harm. Reeves v.

State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In determining harm, we

consider the entire jury charge, the state of the evidence, including the contested

issues and the weight of probative evidence, the argument of counsel, “and any other

relevant information revealed by the record of the trial as a whole.” Barron v. State,

353 S.W.3d 879, 883 (Tex. Crim. App. 2011).

Code of Criminal Procedure article 36.14 provides that, in every felony case,

the trial court shall deliver to the jury “a written charge distinctly setting forth the

law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14; Beltran de la

Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019) (“The purpose of the

jury charge is to inform the jury of the applicable law and guide them in its

application to the case.”) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996)). The trial court is required to instruct the jury on statutory defenses,

affirmative defenses, and justifications when they are raised by the evidence.

Walters v. State, 247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007); see also TEX.

PENAL CODE ANN. § 2.03(c) (“The issue of the existence of a defense is not

submitted to the jury unless evidence is admitted supporting the defense.”), id.

§ 2.04(c) (stating same with respect to affirmative defenses).

19 A defendant is entitled to an instruction on every defensive issue raised by the

evidence, regardless of whether the evidence is strong, feeble, unimpeached, or

contradicted, and even when the trial court thinks that the evidence is not worthy of

belief. Walters, 247 S.W.3d at 209. When reviewing a trial court’s decision to deny

a requested defensive instruction, we view the evidence in the light most favorable

to the defendant’s requested submission. Gamino v. State, 537 S.W.3d 507, 510

(Tex. Crim. App. 2017). A trial court errs in denying a requested defensive

instruction if there is some evidence, from any source, which, when viewed in the

light most favorable to the defendant, will support the elements of the defense. Id.;

Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007) (stating that defense

is raised by evidence “if there is some evidence, from any source, on each element

of the defense that, if believed by the jury, would support a rational inference that

that element is true”).

Texas Penal Code Chapter 9 is entitled “Justification Excluding Criminal

Responsibility,” and section 9.02 provides that “[i]t is a defense to prosecution that

the conduct in question is justified under this chapter.” TEX. PENAL CODE ANN.

§ 9.02. Two of the justification defenses provided for in Chapter 9 are self-defense

and defense of a third person. A person is justified in using force against another

when and to the degree the actor reasonably believes the force is immediately

necessary to protect the actor against the other’s use or attempted use of unlawful

20 force. Id. § 9.31(a). If the actor is justified in using force against another, the actor

is also justified in using deadly force when and to the degree the actor reasonably

believes deadly force is immediately necessary to protect against the other’s use or

attempted use of unlawful deadly force. Id. § 9.32(a)(1), (a)(2)(A); id. § 9.01(3)

(defining “deadly force” as “force that is intended or known by the actor to cause,

or in the manner of its use or intended use is capable of causing, death or serious

bodily injury”). The evidence does not have to show that the complainant was

actually using or attempting to use unlawful deadly force “because a person has the

right to defend himself from apparent danger as he reasonably apprehends it.”

Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020) (citing Hamel v. State,

916 S.W.2d 491, 493 (Tex. Crim. App. 1996)).

A person is justified in using force or deadly force against another to protect

a third person if (1) under the circumstances as the actor reasonably believes them

to be, the actor would be justified under section 9.31 or 9.32 in using force or deadly

force to protect himself against the unlawful force or deadly force he reasonably

believes to be threatening the third person he seeks to protect; and (2) the actor

reasonably believes that his intervention is immediately necessary to protect the third

person. TEX. PENAL CODE ANN. § 9.33. The focus of this defense is “upon what the

actor reasonably believes concerning the situation of the third person.” Morales v.

State, 357 S.W.3d 1, 8 (Tex. Crim. App. 2011). “In other words, a defendant is

21 justified in defending a third person if, under the circumstances as the defendant

reasonably believes them to be, the third person would be justified in defending

himself.” Henley v. State, 493 S.W.3d 77, 89 (Tex. Crim. App. 2016). Both self-

defense and defense of a third person “require that there be a reasonable belief in the

immediate need to act.” Id.

Self-defense and defense of a third person are both “confession and

avoidance” defenses. See Jordan, 593 S.W.3d at 343 (self-defense); Henley v. State,

454 S.W.3d 106, 114 (Tex. App.—Fort Worth 2014) (defense of third person), rev’d

on other grounds, 493 S.W.3d 77 (Tex. Crim. App. 2016). In a case involving a

confession and avoidance defense, an instruction on the defense is appropriate only

when “the defendant’s defensive evidence essentially admits to every element of the

offense, including the culpable mental state, but interposes the justification to excuse

the otherwise criminal conduct.” Cornet v. State, 417 S.W.3d 446, 451 (Tex. Crim.

App. 2013); Shaw, 243 S.W.3d at 659. Thus, to be entitled to instructions on

confession and avoidance defenses such as self-defense and defense of a third

person, the defendant must “admit to his otherwise illegal conduct.” Jordan, 593

S.W.3d at 343; Gamino, 537 S.W.3d at 512 (“Admitting to the conduct does not

necessarily mean admitting to every element of the offense.”). A defendant “cannot

both invoke self-defense and flatly deny the charged conduct.” Jordan, 593 S.W.3d

at 343; Villa v. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013) (“If the defensive

22 evidence does no more than attempt to negate an element of the offense, a defendant

is not entitled to a defensive instruction on any defense that is subject to the doctrine

of confession and avoidance.”); Anderson v. State, 11 S.W.3d 369, 372 (Tex. App.—

Houston [1st Dist.] 2000, pet. ref’d) (“Self-defense is inconsistent with a denial of

the conduct. To raise the issue of self-defense, [a defendant] must admit the

committed offense and then offer self-defense as justification.”).

B. Analysis

Appellant argues that the record contains evidence supporting the theory that

the shooting of Leal was a justifiable homicide and that he was therefore entitled to

jury instructions on self-defense and defense of a third person. As supporting

evidence, he points to (1) Sergeant Garcia’s testimony that, after he spoke with Anita

Delgado, Jessica’s sister, he believed it was possible that the shooting was a justified

homicide; (2) Deputy Glover’s testimony that, based on the physical evidence

present in the bathroom where Leal was killed, it was “possible” that a man and

woman had been struggling over a knife in the bathroom and that a third person, who

had been hiding in the attached closet, had started shooting upon seeing this struggle;

and (3) Jessica’s 911 call, in which she stated that Leal had come at her with a

crowbar and she stabbed him with a kitchen knife to defend herself. We disagree

that this evidence entitles appellant to jury instructions on self-defense and defense

of a third person.

23 As stated above, both self-defense and defense of a third person are

“justification” defenses that justify otherwise criminal conduct. They are also both

“confession and avoidance” defenses, meaning that, to be entitled to the defense, the

defensive evidence must “essentially admit[] to every element of the offense,

including the culpable mental state, but interpose[] the justification to excuse the

otherwise criminal conduct.” Cornet, 417 S.W.3d at 451; Shaw, 243 S.W.3d at 659.

To be entitled to an instruction on a confession and avoidance defense, the defendant

must “admit to his otherwise illegal conduct.”5 Jordan, 593 S.W.3d at 343. Here,

there is no evidence in the trial record in which appellant admits to the illegal conduct

of shooting Leal.

5 We do not hold that, to be entitled to an instruction on a confession and avoidance defense, the defendant himself must testify and admit on the witness stand to the otherwise criminal conduct. Recent cases from the Court of Criminal Appeals have held that “the defensive evidence” must essentially admit every element of the offense. See, e.g., Cornet v. State, 417 S.W.3d 446, 451 (Tex. Crim. App. 2013); Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007). This evidence could take the form of, for example, statements made by the defendant during a custodial interrogation or testimony from a defensive witness who saw the defendant commit the otherwise criminal conduct. See, e.g., Davis v. State, 490 S.W.3d 268, 276 (Tex. App.—Fort Worth 2016, pet. ref’d) (considering statements made by defendant in custodial interrogation in concluding that defendant did not sufficiently admit culpability in robbery offense and therefore he was not entitled to instruction on necessity, which is also a confession and avoidance defense); see also VanBrackle v. State, 179 S.W.3d 708, 713–14 (Tex. App.—Austin 2005, no pet.) (considering, in determining whether some evidence existed in record raising issue of self-defense when defendant did not testify at trial, testimony from both State and defense witnesses concerning altercation that formed basis of underlying charge). 24 Sergeant Garcia testified that he spoke with Delgado, Jessica’s sister, after the

shooting, and that he passed on what she said to the investigators. Based on what

Delgado told him, Garcia believed that it was “possible” that the shooting of Leal

was justified. Garcia did not testify concerning the contents of Delgado’s statement

to him. Deputy Glover, with the crime scene unit, processed the scene of the shooting

for physical evidence. He agreed that, when investigating the scene, he had been

presented with a scenario involving a self-defense claim to consider. He testified that

he assumed Leal’s defensive wounds were the result of him trying to protect himself,

and he agreed that he could not tell, based on the evidence at the scene, whether Leal

had held a weapon. Defense counsel asked Glover about the positioning of the knife

found next to Leal relative to the bathroom sink and asked whether that evidence

was “consistent with a female and a male struggling over the knife near the sink.”

Glover agreed that this was possible. He also agreed that it was possible that a person

could have been standing in the closet connected to the master bathroom and could

have seen “that struggle with a knife.” He further stated that, based on the location

of the fired cartridge casings, it was possible that someone inside the closet fired a

gunshot, “bust[ed] out of the closet,” and stepped over Leal while continuing to

shoot him.

Neither Sergeant Garcia’s testimony nor Deputy Glover’s testimony

specifically mentions appellant or constitutes an admission by appellant that he

25 committed the shooting, let alone that he acted in self-defense or that he was

defending another person when he did so. This evidence amounts to nothing more

than the mere possibility that the shooting occurred in self-defense or to defend

another; it is not evidence that satisfies the elements of self-defense or defense of a

third person. See Shaw, 243 S.W.3d at 657–58 (stating that defense is raised by

evidence “if there is some evidence, from any source, on each element of the defense

that, if believed by the jury, would support a rational inference that that element is

true”).

With respect to her 911 call, Jessica told the 911 dispatcher that she had had

an argument with Leal, her husband, at their house. Leal “tried to get [her] with a

crow[bar],” or some other instrument that she did not know the name of, but she

pushed him down and stabbed him in the back or the side with a kitchen knife. She

stated that she took Leal’s keys and left their house on foot to go to her mother’s

house because she was afraid that he was going to chase her. She mentioned that

they had been having marital problems, and she stated that she had tried to get a

restraining order. Jessica did not mention that Leal had been shot, she did not

mention the presence of a third person at their house, and she did not mention

appellant in her 911 call. Jessica’s 911 call, which does not reference appellant, let

alone reference any actions that he may have taken at Leal’s house, also does not

26 constitute an admission by appellant that he committed the shooting, nor is it

evidence that even placed him at the scene of the crime.

To be entitled to jury instructions on self-defense and defense of a third

person, defensive evidence must admit to “every element of the offense, including

the culpable mental state, but interpose[] the justification to excuse the otherwise

criminal conduct.” Cornet, 417 S.W.3d at 451; Shaw, 243 S.W.3d at 659. There is

no evidence in this record in which appellant admits that he committed the criminal

conduct—the shooting of Leal. Because no such admission was presented to the jury,

we conclude that appellant was not entitled to jury instructions on self-defense and

defense of a third person, two “confession and avoidance” defenses. See Jordan, 593

S.W.3d at 343 (“Self-defense is a confession-and-avoidance defense requiring the

defendant to admit to his otherwise illegal conduct.”); Anderson, 11 S.W.3d at 372

(“Self-defense is inconsistent with a denial of the conduct. To raise the issue of self-

defense, [a defendant] must admit the committed offense and then offer self-defense

as justification.”). We hold that the trial court did not err by denying appellant’s

requested jury instructions on these two defenses.

We overrule appellant’s first issue.

Voluntariness of Defendant’s Statement

In his second issue, appellant contends that the trial court erred in denying his

motion to suppress Deputy Jones’s testimony that, during a custodial interrogation,

27 appellant stated that he “knew the dude [Leal] was on the phone” because the

custodial interrogation was involuntary and coercive under Code of Criminal

Procedure articles 38.21 and 38.22, Miranda v. Arizona, and state and federal due

process protections.

A. Standard of Review

We review a trial court’s ruling on a motion to suppress for an abuse of

discretion. State v. Cortez, 543 S.W.3d 198, 203 (Tex. Crim. App. 2018). We view

the evidence in the light most favorable to the trial court’s determination, and we

will reverse only if the ruling is arbitrary, unreasonable, or “outside the zone of

reasonable disagreement.” State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App.

2014) (quoting State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)).

Because the trial court is the sole trier of fact at a suppression hearing, we give almost

total deference to the court’s determination of historical facts, especially when those

determinations are based on assessments of credibility and demeanor. Ramirez-

Tamayo v. State, 537 S.W.3d 29, 35 (Tex. Crim. App. 2017); Story, 445 S.W.3d at

732; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010) (“The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony.”). The trial court is entitled to believe or

disbelieve all or any part of a witness’s testimony, even if that testimony is

uncontroverted, because the court has the opportunity to observe the witness’s

28 demeanor and appearance. Valtierra, 310 S.W.3d at 447. This deferential standard

of review also applies to a trial court’s determination of historical facts based on a

videotape recording admitted into evidence at a suppression hearing, although we

may review de novo “‘indisputable visual evidence’ contained in a videotape.” State

v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013) (quoting Carmouche v.

State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000)); State v. Fikes, 585 S.W.3d 636,

641 (Tex. App.—Austin 2019, no pet.).

If the trial court makes express findings of fact, we view the evidence in the

light most favorable to its ruling and determine whether evidence supports the fact

findings. Valtierra, 310 S.W.3d at 447. If the trial court does not make express

factual findings, we still view the evidence in the light most favorable to the ruling,

and we assume that the trial court made implied findings of fact that support its

ruling as long as those findings are supported by the record. Ramirez-Tamayo, 537

S.W.3d at 35–36 (quoting Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim. App.

2006)).

We review de novo the trial court’s application of the law to facts that do not

turn on credibility and demeanor. Story, 445 S.W.3d at 732; see Abney v. State, 394

S.W.3d 542, 547 (Tex. Crim. App. 2013) (“[A] question ‘turns’ on an evaluation of

credibility and demeanor ‘when the testimony of one or more witnesses, if believed,

is always enough to add up to what is needed to decide the substantive issue.’”)

29 (quoting Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998)). We will

uphold the trial court’s ruling if the decision is correct under any theory of applicable

law. Cortez, 543 S.W.3d at 203.

B. Voluntariness of Defendant’s Statement

The Fifth Amendment of the United States Constitution provides that no

person “shall be compelled in any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due process of law.” U.S. CONST.

amend. V; TEX. CONST. art. I, § 10 (providing that, in all criminal prosecutions,

accused “shall not be compelled to give evidence against himself”), § 19 (providing

that no citizen of Texas shall be deprived of liberty “except by the due course of the

law of the land”). In Miranda v. Arizona, the United States Supreme Court required

procedural safeguards to protect this right and provided that, during a custodial

interrogation, the accused must be warned prior to any questioning that, among other

things, he has the right to remain silent, anything he says can be used against him in

court, and he has the right to have an attorney present during the interrogation. 384

U.S. 436, 478–79 (1966). After the accused has received these warnings and has had

the opportunity to exercise his rights, he may knowingly and intelligently waive his

rights and agree to answer questions or make a statement. Id. at 479. Until the State

demonstrates that the warnings were given and the accused waived his rights, “no

evidence obtained as a result of interrogation can be used against him.” Id.

30 Texas has expanded on these rights by statute. Code of Criminal Procedure

article 38.21 provides that “[a] statement of an accused may be used in evidence

against him if it appears that the same was freely and voluntarily made without

compulsion or persuasion, under the rules hereafter prescribed.” TEX. CODE CRIM.

PROC. ANN. art. 38.21; Williams v. State, 402 S.W.3d 425, 433 (Tex. App.—Houston

[14th Dist.] 2013, pet. ref’d). Article 38.22 governs when written and oral statements

of an accused may be used at trial. Section 2 of that article, specifically addressing

written statements, provides:

No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that: (a) the accused, prior to making the statement, . . . received from the person to whom the statement is made a warning that: (1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial; (2) any statement he makes may be used as evidence against him in court; (3) he has the right to have a lawyer present to advise him prior to and during any questioning; (4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and (5) he has the right to terminate the interview at any time; and (b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily 31 waived the rights set out in the warning prescribed by Subsection (a) of this section.

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2. Article 38.22, section 3 governs oral

statements and provides that no oral statement of an accused, made as a result of

custodial interrogation, shall be admissible unless, among other requirements, “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.

Article 38.22 also includes procedural requirements that must be met when

the defendant raises a question about the voluntariness of the statement:

In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions. If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause. . . . Upon the finding by the judge as a matter of law and fact that the statement was voluntarily made, evidence pertaining to such matter may be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that the statement was voluntarily made, the jury shall not consider such statement for any purpose nor any evidence obtained as a result thereof. . . .

Id. § 6; Oursbourn v. State, 259 S.W.3d 159, 171 (Tex. Crim. App. 2008) (stating

that article 38.22, section 6 “applies to both an accused’s custodial and non-custodial

statements because it provides that only ‘voluntary’ statements may be admitted”). 32 A defendant may claim that his statement was not freely and voluntarily made

under several different theories: (1) “general voluntariness” under article 38.22,

section 6; (2) Miranda, as expanded by article 38.22 sections 2 and 3; or (3) the Due

Process Clause, and a statement “may be involuntary under one, two, or all three

theories.” Oursbourn, 259 S.W.3d at 169; Ramjattansingh v. State, 587 S.W.3d 141,

153 (Tex. App.—Houston [1st Dist.] 2019, no pet.). “A statement that is

‘involuntary’ as a matter of constitutional law is also ‘involuntary’ under Article

38.22, but the converse need not be true.” Oursbourn, 259 S.W.3d at 169.

The State bears the burden of establishing a valid waiver of Miranda rights

by a preponderance of the evidence. Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim.

App. 2011). The Court of Criminal Appeals has held that “[t]here are two facets to

any inquiry” regarding the adequacy of a waiver of an accused’s Miranda rights:

First, the waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Second the waiver must be made “with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.”

Id. (quoting Ripkowski v. State, 61 S.W.3d 378, 384 (Tex. Crim. App. 2001)). For a

waiver of a Miranda right to be involuntary “there must be some element of official

intimidation, coercion, or deception.” Id.; Oursbourn, 259 S.W.3d at 169–70 (stating

that confession is “voluntary” within meaning of Due Process Clause “absent some

coercive police activity” causally related to confession).

33 A waiver is knowing and intelligent if the accused “has been made aware, and

fully comprehends, that he has the right to remain silent in the face of police

interrogation and to discontinue the dialogue at any time, and that the consequence

of his waiver is that his words may be used against him later in a court of law.” Leza,

351 S.W.3d at 350. “The Due Process Clause is aimed at protecting suspects from

police overreaching, not at protecting people from themselves or other private

actors.” Oursbourn, 259 S.W.3d at 170. Claims of involuntariness under the Due

Process Clause and Miranda “do not require ‘sweeping inquiries into the state of

mind of a criminal defendant who has confessed,’” but instead involve “an objective

assessment of police behavior.” Id. at 171 (quoting Colorado v. Connelly, 479 U.S.

157, 167 (1986)).

For Fifth Amendment purposes, an accused’s waiver of the privilege against

compelled self-incrimination during custodial interrogation is involuntary “only if it

is a product of official coercion, intimidation, or deception.” Leza, 351 S.W.3d at

352. However, a claim that a waiver of the statutory rights set out in article 38.22 is

involuntary “need not be predicated on police overreaching.” Id. (quoting

Oursbourn, 259 S.W.3d at 172). Claims of involuntariness under article 38.22 can

involve police overreaching, but these claims can also involve inquiries into the

accused’s state of mind that are not relevant to due process claims. Oursbourn, 259

S.W.3d at 172. “Circumstances unattributable to the police that nevertheless

34 adversely impact an accused’s ability to resist reasonable police entreaties to waive

his statutory rights, such as intoxication, are ‘factors’ in the voluntariness inquiry,

though they ‘are usually not enough, by themselves, to render a statement

inadmissible under Article 38.22.’” Leza, 351 S.W.3d at 352 (quoting Oursbourn,

259 S.W.3d at 173); see Oursbourn, 259 S.W.3d at 172–73 (stating that while youth,

intoxication, illness, medication, and mental and intellectual disabilities are usually

not enough, by themselves, to hold that confession is involuntary, they are factors

that may be considered).

We consider the totality of the circumstances in determining whether an

accused’s statement was voluntary. Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim.

App. 2007); Allen v. State, 479 S.W.3d 341, 350 (Tex. App.—El Paso 2015, no pet.);

see also Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010) (stating that

totality-of-circumstances approach requires consideration of “all the circumstances

surrounding the interrogation,” including accused’s experience, background, and

conduct) (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)).

C. Analysis

Appellant argues that his entire interview with Deputy Jones and Sergeant

Miller was involuntary—and thus should have been suppressed—because he was

cold, the interview occurred early in the morning and he had not slept, he was

35 possibly under the influence of marijuana at the time, and he invoked his right to

remain silent and terminate the interview.

The suppression hearing in this case occurred over two days. At the beginning

of the hearing, Deputy Jones testified that he and Sergeant Miller interviewed

appellant after the Humble Police Department arrested him for possession of

marijuana. Appellant had been stopped while driving Jessica’s car, which she had

reported as stolen, although she informed the arresting officer that appellant had

permission to drive her car. Jones testified that he read appellant the Miranda

warnings, appellant responded that he understood the warnings, and appellant agreed

to talk with the detectives. The trial court viewed an unredacted recording of

appellant’s interrogation and discussed with counsel various statements that

appellant made throughout the interview.

After the suppression hearing, the trial court made the following handwritten

findings concerning the voluntariness of the interrogation:

Prelim. Finding—[Defendant’s] Statement was Voluntary Hearing Outside Presence of Jury began Wed., 8/29/18 & continued Thurs. 8/30/18 Murder offense date: morning of 1/13/16 [Defendant’s] arrest: approx. 11pm same day Interview: approx. 2am 1-14-16 Defendant was arrested driving deceased’s vehicle, which had been reported stolen from their driveway by deceased’s wife, Jessica Leal. (She was later charged as a co-defendant in the murder of her husband.)

36 HCSO Deputy [M.] Jones interviewed Defendant at the Humble Police Dept. near where he had been stopped in the vehicle that had been reported stolen and also was in possession of marihuana. Jones gave Defendant his Miranda warnings & after each Defendant indicated he understood. There was a lengthy interview. There were times when Defendant, on a particular subject matter being discussed by the interviewer(s), would say he didn’t want to talk about it (whatever the subject was) anymore, but would continue to respond. There were occasions when defendant would say he wanted to go to sleep, or would inquire about a bond, or whether there was a warrant for his arrest, but he continued to participate. He would say, as to a matter, “I got nothing else to say,” but talked fairly freely about staying at a hotel with deceased’s wife, about her kids, that his work was that he “does music,” etc. The only statement during the entire interview that the State presented before the jury was the Defendant indicating that the deceased, on the morning of 1/13/16, was on the phone.6 Defendant never asked for an attorney. Conclusion: The statement by the defendant was voluntarily made.

A review of appellant’s interrogation with Jones and Miller reflects that the

interview began around 1:48 a.m. on January 14, 2016. At the beginning of the

interview, Deputy Jones read appellant each of the Miranda warnings, appellant

verbally indicated that he understood each of the warnings, and appellant agreed to

speak with the detectives. Early in the interview, appellant stated that he was cold,

6 Because the State represented that the only statement of appellant’s that it wished to introduce into evidence was appellant’s statement that he knew Leal was on the phone, which occurred approximately one hour and four minutes into the interview, the trial court did not consider anything that happened in the interview after this point in determining whether the statement was voluntarily made. 37 and this was the only such reference to the conditions in the interview room that he

made.7 Appellant yawned several times throughout the interview; approximately

nineteen minutes into the interview he asked if he could go to sleep; and he stated

on at least three other occasions, “I just want to go to sleep.” Despite these

statements, appellant did not fall asleep while talking to Jones and Miller, and there

is no indication on the recording that he was having difficulty staying awake.

Appellant did not state, during the interview, that he had smoked or otherwise

ingested marijuana.8

Appellant occasionally answered questions during the interview. He told the

detectives that he knew Jessica, that she had been his girlfriend for around one

month, and that they had met through social media. He answered questions about his

use of Jessica’s car, at one point correcting one of the detectives and stating that

Jessica had lent her car to him “yesterday.” He informed detectives that he and

7 Appellant’s interview occurred in mid-January. He was wearing a hooded sweatshirt during his interview. Both detectives were wearing dress shirts without suit jackets. 8 It is undisputed that when Officer Cox arrested appellant at 11:14 p.m., appellant had marijuana in his possession. During the suppression hearing, defense counsel stated, “Also, I think there’s evidence that [appellant] was arrested with marijuana in Humble while he’s driving the car. He tells the officer there that he just bought marijuana, that he’s high during this interview.” Cox’s incident report, which was admitted into evidence for the purpose of the suppression hearing, included this statement: “[Appellant] stated that he was headed home to Kenswick from a friend[’]s house where he purchased marijuana.” The report did not include any indications that appellant had stated that he was under the influence of marijuana at the time of his arrest. Cox did not mention marijuana when he testified before the jury, and he did not testify during the suppression hearing. 38 Jessica had spent the night—presumably the night before the shooting—together at

a hotel, although he refused to tell the detectives which hotel because he did not

believe it was important. He answered questions about Jessica’s children and his

own daughter. He also talked about his work, which he described as “doing music.”

Appellant also participated in the interview by asking questions of the detectives. He

asked questions about the amount of his bond, several questions either clarifying or

summarizing statements that Jessica had allegedly made to the detectives, a question

about an arrest warrant, and a question about whether Jessica was at the scene when

the police arrived.

The detectives repeatedly asked appellant questions about what happened

with Leal—questions such as “explain what happened today” and questions about

who had possession of the gun and who had the knife. Appellant did not answer

these questions. He either remained silent or shook his head. Approximately fifty

minutes into the interview, at 2:38 a.m., he mentioned that he would rather go home,

and he said something like, “No matter what I say it won’t change anything.” Three

minutes later, he asked the detectives questions about Jessica’s story, and one of the

detectives asked, “So she gave you the car?” Appellant said something along the

lines of “I’m not speaking on that,” but he immediately continued talking. The

detectives asked him, “Before you left [Jessica and Leal’s house], her husband

showed up. Is that true?” Appellant did not answer. Ten minutes later, at 2:51 a.m.,

39 an hour and four minutes into the interview, Deputy Jones told appellant that they

knew Leal was on the phone at the time of the shooting, that they had the phone call

and “people in the background,” and that they “know who was there.” Appellant

responded, “I did know he was on the phone.”

To the extent appellant argues that the interview in its entirety—and his

statement that he knew that Leal was on the phone, in particular—was involuntary

because he was cold, he was extremely fatigued, and he was possibly under the

influence of marijuana at the time of the interview, we disagree that these factors

adversely impacted appellant’s ability to comprehend the Miranda warnings and to

“resist reasonable police entreaties to waive his statutory rights.” See Leza, 351

S.W.3d at 352. Although it is apparent from the recording that appellant was tired

during the interview, he did not express any confusion over his rights when Deputy

Jones read him his Miranda warnings. Instead, appellant agreed that he understood

each of the rights, and he agreed to talk with the detectives. Appellant participated

throughout the interview, occasionally answering questions and asking questions of

his own. His questions and answers, although sometimes hard to hear due to his quiet

voice and propensity to mumble, followed logically from the flow of the interview.

Appellant routinely declined to answer questions that would have placed him at the

scene of the shooting, until he stated that he knew that Leal was on the phone. We

conclude that the cold, appellant’s fatigue, and his possible use of marijuana before

40 the interview did not render his statement involuntary. See id.; Oursbourn, 259

S.W.3d at 172–73.

Appellant also argues that his statement was involuntary because he invoked

his right to remain silent and sought to terminate the interview, but the detectives

continued questioning him. If an individual in custody “indicates in any manner, at

any time prior to or during questioning, that he wishes to remain silent, the

interrogation must cease.” Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App.

2008) (quoting Miranda, 384 U.S. at 473–74); Dowthitt v. State, 931 S.W.2d 244,

257 (Tex. Crim. App. 1996) (“If a statement is governed by Miranda (i.e. the suspect

is in custody), then a failure to cut off questioning after a suspect invokes his right

to remain silent violates his rights and renders any subsequently obtained statements

inadmissible.”). A suspect is not required to use any particular language to invoke

the right to remain silent. Ramos, 245 S.W.3d at 418. However, the officer “need not

stop his questioning unless the suspect’s invocation of rights is unambiguous, and

the officer is not required to clarify ambiguous remarks.” Id. (quoting Dowthitt, 931

S.W.2d at 257); Parlin v. State, 591 S.W.3d 214, 221 (Tex. App.—Houston [1st

Dist.] 2019, no pet.) (“If the suspect’s statement is not an unambiguous or

unequivocal request to terminate the interview or to invoke the right to silence, then

the officers have no obligation to stop questioning him.”); Beham v. State, 476

S.W.3d 724, 731 (Tex. App.—Texarkana 2015, no pet.) (“The suspect’s comments

41 must ‘clearly manifest his desire to remain silent.’”) (quoting Mayes v. State, 8

S.W.3d 354, 358 (Tex. App.—Amarillo 1999, no pet.)). “[A]nything less than a clear

manifestation does not obligate the officer to stop the interrogation.” Mayes, 8

S.W.3d at 358–59.

In determining whether the defendant unambiguously invoked his right to

remain silent, we look at the totality of the circumstances. Parlin, 591 S.W.3d at

221; Williams v. State, 257 S.W.3d 426, 433 (Tex. App.—Austin 2008, pet. ref’d);

see Beham, 476 S.W.3d at 731–32 (“The totality of circumstances surrounding the

interrogation and alleged invocation must illustrate that the suspect actually invoked

his right.”). “Ambiguity exists when the suspect’s statement is subject to more than

one reasonable interpretation under the circumstances.” Parlin, 591 S.W.3d at 221;

Williams, 257 S.W.3d at 433.

As discussed above, on several occasions during the interview appellant stated

that he was tired or that he “just wants to go to sleep.” Appellant also asked questions

about whether he would get a bond and whether there was a warrant for his arrest.

Around fifty minutes into the interview, he said something that sounded like, “I’d

rather go home” and “No matter what I say it won’t change anything.” Appellant

continued participating in the interview, and he asked the detectives questions about

what Jessica had allegedly said in her interview. One of the detectives then asked

42 him, “So she gave you the car?” Appellant said, “I’m not speaking on that,” but he

immediately continued speaking, and he talked about his relationship with Jessica.

In Dowthitt, the Court of Criminal Appeals held that the defendant’s statement

that “I can’t say more than that[;] I need to rest” was not an unambiguous invocation

of his right to remain silent. See 931 S.W.2d at 257. The court reasoned that, instead,

the defendant’s statement “merely indicates that he believed he was physically

unable to continue—not that he desired to quit.” Id.; see Franks v. State, 90 S.W.3d

771, 786–87 (Tex. App.—Fort Worth 2002, no pet.) (holding that defendant’s

statement of “I don’t want to talk anymore. I’m tired” did not unambiguously invoke

right to remain silent and therefore officer did not violate defendant’s rights by

continuing interrogation); see also Hargrove v. State, 162 S.W.3d 313, 319–20 (Tex.

App.—Fort Worth 2005, pet. ref’d) (holding that defendant did not unambiguously

request to terminate interview when he said, “Let’s just terminate it” and, in response

to officer questioning him about whether he wanted to stop, he stated, “Why should

we go on because I’ll be spinning my wheels. You’re spinning your wheels,” but

defendant did not answer question about whether he wanted to stop, he continued

speaking, and he “never again requested to terminate the interview”). In contrast, the

Court of Criminal Appeals has held that the suspect’s statement that he “didn’t want

to talk to [the interrogating officer]. That he didn’t want to talk about it anymore”

was “an unambiguous, unequivocal, and unqualified assertion of his right to remain

43 silent.” Ramos, 245 S.W.3d at 413, 418–19; see Cooper v. State, 961 S.W.2d 222,

226 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (holding that defendant

unambiguously invoked his right to terminate interview when he stated, “I’m not

answering any questions,” and defendant “continued to invoke that right throughout

the remainder of the video”).

We conclude that appellant’s statements to the detectives were more like those

made by the suspects in Dowthitt, Franks, and Hargrove rather than the suspects’

statements in Ramos and Cooper, and we agree with the trial court that appellant did

not unambiguously invoke his right to remain silent or request to terminate the

interview. Appellant’s statements that he was tired and he wanted to go to sleep were

ambiguous and did not clearly express a desire to stop speaking with the officers.

See Dowthitt, 931 S.W.2d at 257; Franks, 90 S.W.3d at 786–87. Appellant’s

statements that he would “rather go home” because “no matter what I say it won’t

change anything” is similar to the defendant’s statement in Hargrove—“Let’s just

terminate it” because he believed he was “spinning [his] wheels”—which the Fort

Worth Court of Appeals held was ambiguous, especially because the defendant

continued speaking with the officer. See 162 S.W.3d at 319–20. Furthermore,

although appellant stated, “I’m not speaking on that,” in response to a question about

his use of Jessica’s car, he immediately continued speaking with the detectives and

gave them further information about his relationship with Jessica. See Mayes, 8

44 S.W.3d at 359 (“By stating that she did not know if she wanted to talk, [the

defendant], at best, expressed ambivalence toward waiving her rights. But, by

following that statement with more speech, separated by little more than a breath, it

is clear she resolved her dilemma; in short, she wanted to talk.”).

As the trial court noted in its written findings, appellant participated in the

interview, spoke “fairly freely” about certain topics, and, with respect to other topics,

would state that he did not want to talk about that topic, or he would not answer the

detectives’ questions on that topic. Considering the totality of the circumstances, we

conclude that appellant did not unambiguously invoke his right to remain silent or

his right to terminate the interview prior to his statement to the detectives that he

knew Leal was on the phone. See Parlin, 591 S.W.3d at 221; Williams, 257 S.W.3d

at 433. We therefore hold that the trial court did not abuse its discretion when it

concluded that appellant’s statement was voluntary and refused to suppress the

statement. See Cortez, 543 S.W.3d at 203 (stating that we review rulings on motions

to suppress for abuse of discretion); Delao, 235 S.W.3d at 239 (stating that we

consider totality of circumstances in determining whether statement was voluntary).

We overrule appellant’s second issue.

Motion for Mistrial

In his third issue, appellant contends that the trial court erred by denying his

motion for mistrial made after the State violated a motion in limine. Specifically,

45 defense counsel had requested that the State not mention that appellant had made a

statement to police until after a motion to suppress could be heard outside the

presence of the jury. Appellant contends that the State violated this motion by asking

Deputy Jones if the information that appellant and Jessica were in a dating

relationship came from appellant. The trial court sustained appellant’s objection and

instructed the jury to disregard Jones’s answer, but it denied appellant’s motion for

mistrial.

A mistrial “is a device used to halt trial proceedings when error is so

prejudicial that expenditure of further time and expense would be wasteful and

futile.” Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009). A mistrial is

an appropriate remedy “in extreme cases for a narrow class of highly prejudicial and

incurable errors.” Turner v. State, 570 S.W.3d 250, 268 (Tex. Crim. App. 2018);

Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Ordinarily, a prompt

instruction to disregard is sufficient to cure error associated with an improper

question and answer. Pena v. State, 554 S.W.3d 242, 250 (Tex. App.—Houston

[14th Dist.] 2018, pet. ref’d); Perez v. State, 187 S.W.3d 110, 113 (Tex. App.—

Waco 2006, pet. ref’d) (“An instruction to disregard is presumptively inadequate

only in the most blatant cases; only offensive or flagrant improper conduct warrants

reversal when there has been an instruction to disregard . . . .”). “We generally

46 presume the jury follows the trial court’s instructions in the manner presented.”

Garcia v. State, —S.W.3d—, No. PD-0035-18, 2019 WL 6167834, at *7 (Tex. Crim.

App. Nov. 20, 2019) (quoting Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim.

App. 1998)). Mistrials should only be granted in cases where the error “was clearly

calculated to inflame the minds of the jury or was of such damning character as to

suggest it would be impossible to remove the harmful impression from the jurors’

minds.” Young, 283 S.W.3d at 878.

We review a trial court’s ruling denying a motion for mistrial for an abuse of

discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We view

the evidence in the light most favorable to the trial court’s ruling, and we consider

only those arguments that were before the court at the time of the ruling. Turner, 570

S.W.3d at 268. We must uphold the trial court’s ruling if it was within the zone of

reasonable disagreement. Id. Whether an error requires a mistrial must be

determined by the particular facts of the case. Ocon, 284 S.W.3d at 884. Because a

mistrial is an extreme remedy, mistrials should be granted “‘only when residual

prejudice remains’ after less drastic alternatives are explored.” Id. at 884–85

(quoting Barnett v. State, 161 S.W.3d 128, 134 (Tex. App.—Fort Worth 2005), aff’d,

189 S.W.3d 272 (Tex. Crim. App. 2006)); see Jenkins v. State, 493 S.W.3d 583, 612

(Tex. Crim. App. 2016).

47 B. Analysis

Deputy Jones testified that he first learned of appellant after he was stopped

by Officer Cox while driving Jessica’s car. Appellant had not previously been

mentioned during the investigation. Deputy Jones and the State had the following

exchange:

The State: Now, at any point in time did you learn the relationship between Avery Jones and Jessica Leal? Deputy Jones: Yes. The State: And what was that? Deputy Jones: Girlfriend/boyfriend relationship. The State: And is this information that came from the defendant? Deputy Jones: Yes. Defense counsel: I’m going to object to that, Your Honor. Can we approach? The Court: Yes. Defense counsel: It is—the answer— The Court: Okay. I’ll sustain your objection. Defense counsel: I filed a motion in limine about statements of the defendant— The Court: I sustained your objection. Would you like an instruction? Defense counsel: I would like an instruction. The Court: At this time, ladies and gentlemen, you’re instructed to disregard the previous question and the response between the prosecutor and the witness. Defense counsel: I move for a mistrial.

48 The Court: Denied.

The State then requested that the trial court hold a hearing on the admissibility of

appellant’s statements to the detectives, and the trial court began the suppression

hearing.

It is well established that motions in limine do not preserve error, regardless

of whether the motion is granted or denied. Webb v. State, 760 S.W.2d 263, 275

(Tex. Crim. App. 1988); Wert v. State, 383 S.W.3d 747, 757 (Tex. App.—Houston

[14th Dist.] 2012, no pet.). A ruling on a motion in limine is, therefore, not a ruling

on the merits, but is instead a ruling regarding the administration of the trial. Lusk v.

State, 82 S.W.3d 57, 60 (Tex. App.—Amarillo 2002, pet. ref’d); Harnett v. State, 38

S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref’d). As such, the remedy for a

violation of a ruling on a motion in limine rests with the trial court. Lusk, 82 S.W.3d

at 60 (citing Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972)). The

remedy of instructing the jury to disregard testimony elicited in violation of a motion

in limine is “one of the broad range of remedies available to the trial court in

exercising its discretion as to conduct of the trial.” Id. at 61–63 (assuming that

testimony concerning extraneous offenses, elicited in violation of motion in limine,

was inadmissible, but holding that testimony was not such that prejudicial effect of

evidence could not have been cured by instruction to disregard and, therefore, trial

court did not abuse its discretion in denying motion for mistrial).

49 The State acknowledges that, by asking Deputy Jones if the information that

appellant and Jessica were in a dating relationship came from appellant, it violated

the trial court’s ruling on appellant’s motion in limine, which required the State to

approach the bench before eliciting testimony concerning any recorded statements

that appellant made to the detectives. It argues, however, that the trial court did not

abuse its discretion by denying appellant’s motion for mistrial. We agree.

In questioning Deputy Jones, the State elicited testimony that appellant and

Jessica were in a dating relationship, and Jones testified that this information came

from appellant. The trial court sustained appellant’s objection to this testimony and

instructed the jury to disregard the State’s previous question and Deputy Jones’s

response. The information elicited by the State is not so “offensive or flagrant” that

the trial court’s instruction to disregard could not cure any prejudicial effect arising

from the testimony. See Perez, 187 S.W.3d at 113; see also Pena, 554 S.W.3d at 250

(stating that, ordinarily, prompt instruction to disregard is sufficient to cure any error

arising out of improper question and answer). Moreover, Mary Lou Nimmons,

Leal’s sister, had already testified that “Avery” was “one of Jessica’s boyfriends”

and that appellant was one of the men Jessica “was around” during the time she and

Leal were separated. Thus, the substance of the testimony elicited from Deputy Jones

was already properly before the jury. See Harris v. State, 164 S.W.3d 775, 783 (Tex.

App.—Houston [14th Dist.] 2005, pet. ref’d) (“[I]nadmissible evidence can be

50 rendered harmless if other evidence is admitted at trial without objection and it

proves the same fact that the inadmissible evidence sought to prove.”) (quoting

Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991)); see also Rogers v. State,

200 S.W.3d 233, 238 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (“[E]ven

assuming that the trial court erred in refusing the mistrial, such error would be

harmless because other evidence that [the defendant] violated a protective order was

admitted without objection.”).

The trial court had before it a broad range of remedies available to address the

State’s violation of its motion in limine ruling, including instructing the jury to

disregard the testimony elicited in violation of the ruling. See Lusk, 82 S.W.3d at 63.

We conclude that the objected-to question and answer in this case does not fall

within the “narrow class of highly prejudicial and incurable errors” such that a

mistrial was required. See Turner, 570 S.W.3d at 268; Ocon, 284 S.W.3d at 884–85

(stating that mistrial is “extreme remedy” that should be granted “‘only when

residual prejudice remains’ after less drastic alternatives are explored”). We hold

that the trial court did not abuse its discretion in denying appellant’s motion for

We overrule appellant’s third issue.9

9 We further note that, ultimately, after the suppression hearing, the trial court ruled that appellant’s statement to the detectives was voluntary up until appellant’s statement that he knew Leal was on the phone, which occurred roughly one hour 51 Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes Justice

Panel consists of Justices Keyes, Lloyd, and Hightower.

Do not publish. TEX. R. APP. P. 47.2(b).

into the recording of his interrogation. Appellant first acknowledged that he and Jessica had a dating relationship approximately two minutes after the detectives read him his Miranda warnings. 52