AFFIRM; and Opinion Filed November 13, 2018.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00599-CR
KIERON ALEXANDER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F-1575823-I
MEMORANDUM OPINION Before Justices Lang, Fillmore, and Schenck Opinion by Justice Fillmore
A jury found Kieron Alexander guilty of murder and assessed punishment of fifty-five
years’ confinement. In his first issue, Alexander contends the evidence was insufficient to support
his conviction because it failed to establish beyond a reasonable doubt that he caused the victim’s
death and it failed to support the jury’s implicit rejection of his claim of self-defense. In his second
issue, Alexander contends the trial court erred by admitting into evidence video recorded
statements Alexander made while in police custody because he did not waive his Miranda rights
or his rights under article 38.22 of the Texas Code of Criminal Procedure prior to interrogation.
Miranda v. Arizona, 384 U.S. 436 (1966). We affirm the trial court’s judgment. BACKGROUND
Traylor’s Testimony and the Recorded Jailhouse Call
On the afternoon of June 22, 2015, Bertha “Ebony” Traylor1 found Kieron “Key”
Alexander, her friend of fifteen years, “standing asleep” in front of a convenience store. Traylor
testified Alexander “didn’t look good” and “like he hadn’t had sleep in a long time.” Because
Alexander did not have anywhere to go and had been “living on the streets,” Traylor told him to
go to her apartment to get some sleep.2 When Traylor returned to the apartment, Alexander was
there “walking around.” Alexander told Traylor he had not slept for “[t]oo many days to
remember,” and had been “smoking ice.” Traylor gave Alexander some pizza and recommended
that he get some sleep. Traylor’s boyfriend, Lamarcus Adams, two of Traylor’s female friends,
and Habtamu Gessese,3 were also at the apartment.
An hour or two later, Ricky Griffin, a crack cocaine user, arrived at the apartment “high
and drunk” to buy drugs from Traylor.4 Traylor had known Griffin for four years and considered
him a close friend. Traylor testified Griffin “had an addiction but . . . wasn’t a street person,” and
was not “from the hood,” so she “kept a special watch on him.” Griffin took pain medication for
a neck injury and medication to address congestive heart failure, but Traylor did not know if Griffin
had taken medication that day. Alexander was still awake when Griffin arrived at the apartment,
but the two men did not “have any conversation.”
According to Traylor, Griffin became “real paranoid,” quiet, and “g[ot] in close to people”
when he was high on drugs. At the apartment, Griffin “was walking around . . . near people . . .
1 Traylor testified she was a “crack head” and she “prostitute[d] for money to buy . . . drugs.” At the time of trial, she was serving a three year sentence for possession of less than a gram of methamphetamine. 2 Traylor was staying in the apartment, leased by her friend, while her friend was “in rehab.” At the time of the offense, the apartment complex was named Jackson Branch Apartments. 3 Traylor testified she did not know Gessese, but used his car to run errands on June 22, 2015. 4 Griffin drove himself to the apartment. Traylor told Gessese to leave the apartment when Griffin arrived.
–2– maybe getting too . . . close [to them], maybe even close to [Alexander],” so Traylor instructed
Griffin to sit down so no one would “mess with” him. According to Traylor, Griffin “[wouldn’t]
hurt a fly” and “wouldn’t do nothing to nobody.” While Traylor was in the apartment, Alexander
and Griffin were separated and did not have any disagreements or altercations.
Traylor and Adams decided to leave the apartment to, among other things, purchase crack
cocaine.5 Traylor testified that before departing the apartment, she noticed Alexander was awake
in the bedroom and “looked delusional,” and Griffin was in the living room and appeared
“paranoid.” Traylor told Alexander to go to sleep, and told Griffin to stay in the living room and
she would “bring some crack back.” When Traylor and Adams returned to the apartment complex
about two hours later, Traylor saw Griffin “laid out” on the floor with a “little[,] small fire” burning
on the carpet.6 According to Traylor, Griffin’s face was black with what “[she] thought . . . was
smut” from smoking crack cocaine.7 Traylor did not see Alexander in or around the apartment.
She called Alexander’s name but did not go further into the apartment.
Traylor extinguished the fire with her purse, and went outside to tell Adams that Griffin
was “passed out” on the floor and the apartment was on fire. After looking in the apartment,
Adams said, “back up out of here,” and closed the door. Traylor and Adams went outside, and
Traylor called 911. Traylor learned Griffin was dead when the paramedics carried him out of the
apartment. After being questioned at the scene by a Dallas police detective, Traylor and Adams
were taken to the police department where they were interviewed by Dallas Police Department
homicide Detective Eric Barnes. Traylor identified Alexander in a photograph and said he was
the last person with Griffin before his death.
5 Traylor’s two female friends left at the same time, leaving Griffin and Alexander alone in the apartment. 6 Adams was still in the parking lot when Traylor entered the apartment. 7 According to Traylor, there was no crack cocaine at the apartment when Griffin arrived.
–3– After he was arrested for the murder of Griffin, Alexander called Traylor from jail. In the
audio recorded telephone call, which was played for the jury, Traylor told Alexander she was
traumatized by the murder and she “didn’t want to be a part of this,” but felt she “opened the door
to” the murder because Alexander and Griffin met at her apartment. Traylor told Alexander, “I
was just trying to help you.” Alexander replied, “I know you was. It was self-defense.”
Alexander claimed Griffin “tried to do some gay shit” and “kept messing with me. Then like I
thought he was trying to fight me.” “He had a knife . . . then we were fighting.” Alexander said
Griffin came into the bedroom and stood over him with his shirt off when Alexander was trying to
sleep, and “that’s when I got up and started putting hands on him.” Alexander stated he did not
use a “weapon.” He told Traylor he beat up Griffin with his hands, put Griffin in a chokehold, and
“blacked-out” when they started fighting. Alexander also told Traylor he “ended up coming back
to the scene that night on accident.” Alexander denied he had been “smoking ice” the day of the
murder. On the call, Traylor responded that Alexander had told her he had been “smoking ice,”
but at trial, she stated it was out of character for Alexander to “smoke ice.” Traylor testified,
“[Alexander] doesn’t do ice. That why when he said it was kind of like, you don’t smoke ice, but
he said he did. I don’t know.” According to Traylor, “ice” is “[j]ust like crack, it just keeps you
up . . . it affects people differently.”
Firefighter Pfuhl’s Testimony
Chris Pfuhl, a fire fighter and paramedic with the Dallas Fire Department, responded to the
911 dispatch for an unconscious person at the apartment. Pfuhl testified, “we got there and there
was a black lady outside kind of frantic and saying, my friend is dead.” The apartment door was
open, and they saw Griffin on the floor. Pfuhl and his partner checked Griffin’s vital signs, and
found no signs of life. According to Pfuhl, the carpet and a sheet under Griffin’s head and next to
his face were burned. Pfuhl did not see a fire, smoldering, or smoke, and did not retrieve fire
–4– equipment to extinguish any possible hot spots. Pfuhl and his partner exited the apartment without
inspecting the other rooms.
Officer Negron’s Testimony
On the night of the murder, Dallas Police Department officer Marcus Negron responded to
a call regarding a homicide at the apartment. Officer Negron secured the crime scene with caution
tape, blocking off the apartment, the hallway leading to the apartment, and a portion of the parking
lot. Officer Negron was posted at the apartment door with Officer Griffin8 to prevent non-
authorized persons from entering the secured areas. Officer Negron testified they saw Alexander
cross under the caution tape from the parking lot into the hallway. When they asked Alexander
what he was doing, he crossed back under the caution tape into the parking lot and stood there
looking at them. Alexander did not respond to the officers’ questions.
Officer Negron knew a witness had “said something about a key.” Officer Griffin obtained
Alexander’s identification and said, “oh, your name is Kieron. Key-ron.” The officers realized
the witness may have been referring to Alexander, and Officer Griffin left to inform Detective
Barnes that Alexander was at the scene. Officer Negron remained in the parking lot with
Alexander. Officer Negron testified, “then [Alexander] just kind of made a few statements, he
said, ‘Man this stuff is crazy. My PTSD, man, I just snapped’.”9 Alexander looked “extremely
agitated,” “made a fighting stance,” “balled up his fists,” and was “punching his fist pretty hard”
like he was “amped up.” Officer Griffin returned and advised Alexander that a detective wanted
to speak with him. Alexander was handcuffed and taken to the police department.
8 Officer Griffin did not testify, and was not identified by his first name in the trial transcript. 9 Alexander served fifteen months in the U.S. Army, and was stationed stateside at various bases. During the punishment phase of trial, Craig McNeil, a twenty-two year veteran of the U.S. Army and former judge advocate, provided testimony concerning Alexander’s discharge for drug use. Alexander received a general discharge from the U.S. Army, which is neither honorable nor dishonorable.
–5– Detective Barnes’s Testimony and the Custodial Interrogation
Detective Barnes was called to the scene. Inside the apartment, Detective Barnes observed
Griffin lying on his side on the living room floor with heavy trauma to his head, and burn marks
on the carpet and a sheet next to Griffin. Detective Barnes recovered Griffin’s cellphone, wallet,
and driver’s license. Detective Barnes also recovered eyeglasses similar in appearance to
eyeglasses Griffin wore. Alexander’s fingerprint was identified on the eyeglasses. Drug
paraphernalia and several lighters, including a lighter under Griffin’s body, were also found at the
apartment. Unsure what caused the victim’s death, Detective Barnes and a team of detectives
conducted a thorough search of the apartment and other areas of the apartment complex, including
stairways, dumpsters, bushes, and the parking lot, but did not locate a weapon. Detective Barnes
testified he was unable to determine whether a weapon other than “hands and feet” was used in
connection with Griffin’s death.
Detective Barnes learned that Alexander was the last known person to be with Griffin prior
to his death, went by the nickname “Key,” had been photo-identified by Traylor, and was detained
as a suspect. At the police department, Alexander was in an interrogation room equipped with an
audio-video recording device. A time-stamped video recording began at approximately 12:17 a.m.
on June 23, 2015, and showed Alexander sitting alone with his head on a table until Detective
Barnes entered the interrogation room at approximately 1:18 a.m. At trial, Detective Barnes
confirmed, “Alexander from the beginning had his hands inside his shirt and had his shirt over his
face and he was laying his head down on the table.” Detective Barnes testified that Alexander
conversed with officers at the scene, but “by the time he got into the interrogation room he was
too tired to keep his head off the table and he was too cold to keep his shirt off his face.” Because
Alexander’s demeanor changed between being taken into custody and entering the interrogation
room, Detective Barnes believed “[covering his face with his shirt and putting his head on the –6– table] was for more of an act” because he did not want to talk about his involvement in Griffin’s
death. The recording of Alexander’s interrogation was introduced into evidence at trial over the
objection of defense counsel that Alexander had not waived his Fifth Amendment right against
self-incrimination.
Upon arriving in the interrogation room, Detective Barnes roused Alexander, offered him
a candy bar, and asked him if he needed to use the restroom. At various points during the ensuing
interrogation, Alexander did not comply with Detective Barnes’s requests to sit up and take his
head off the table. Stating he wanted to ask Alexander about what happened that day, Detective
Barnes placed a Miranda10 warning card next to Alexander and said, “But I got to read you this
first, and then with your permission, I’m going to ask you a couple of questions. If you give me
permission. All right?” Alexander sat up and glanced at the card. Detective Barnes read
Alexander his Miranda rights, and asked Alexander if he understood. Alexander responded, “Yes,
sir,” then covered his head with his shirt and placed his head back on the table. Detective Barnes
then questioned Alexander about what happened.
Alexander’s head was on the table and covered by his shirt for most of the interview.
Although he did not respond or had a delayed response to some of Detective Barnes’s questions,
he answered other questions clearly and quickly, conversing with Detective Barnes about the
events leading up to Griffin’s death. Alexander said he did not know Griffin, he “stayed to
himself” in the bedroom at the apartment because of his “nerves,” he suffered from PTSD, Griffin
made a homosexual pass at him, and he “just clicked.”
When asked how many times he hit Griffin, Alexander said his “PTSD clicked in and [he]
just . . . went blank.” Alexander said, “and that gay pass, I just felt nervous, I just felt nervous, I
didn’t feel right.” Alexander stated he “got into it” with Griffin in the living room, and “when [he]
10 Miranda v. Arizona, 384 U.S. 436 (1966).
–7– came to, it was too late.” When asked what he “hit [Griffin] with,” Alexander replied that he “used
his hands.” Detective Barnes examined both sides of Alexander’s hands, and did not comment as
to any injuries. At trial, Detective Barnes testified that photographs taken of Alexander after his
arrest showed he had “some scrapes, lacerations” on his knees “and maybe a few little ones on his
hands.” The injuries were “[n]othing major, but there were some open wounds.”
During the recorded interrogation, Alexander stated he did not burn the carpet in the
apartment. However, when asked where he “got the lighter from,” Alexander told Detective
Barnes the lighter “was available” and he “just set it on fire, man.” Alexander did not identify
what he set on fire. At trial, Detective Barnes confirmed that Alexander did not request an attorney
or ask to terminate the interrogation at any time.
Dr. Quinton’s Testimony
Dr. Reed Quinton, the Dallas County deputy chief medical examiner who performed the
autopsy on Griffin, testified Griffin sustained a small amount of thermal injury on his chin, cheeks,
and forehead, and a small amount of singed hair. Dr. Quinton believed the fire was set after
Griffin’s death because there was no evidence of smoke inhalation. Griffin’s autopsy revealed he
sustained “a lot of bruising” and lacerations on his face; sharp force injuries on his face, neck, arm,
and hands; bruising on his chest; and “defensive” injuries on his arm and fingers. Dr. Quinton
noted indicators of strangulation, including hemorrhages of the right eye and hemorrhages or
bruising within the layers of the neck musculature. There were no ligature marks on Griffin’s
neck, leading Dr. Quinton to believe Griffin was strangled by someone’s hands rather than by use
of an object. Griffin sustained “a lot of different blunt force injuries,” including blunt force trauma
to the head. A fractured bone in Griffin’s face indicated “there was a blow . . . or blunt force
trauma sustained on that side.” Dr. Quinton did not know what object caused the blunt force
injuries. According to Dr. Quinton, Griffin’s injuries were consistent with someone’s hands
–8– “being used as a deadly weapon,” and he could not “rul[e] out” the use of a foot as a deadly
weapon. The “totality of all of [Griffin’s] injuries” contributed to his death.
Griffin had cocaine, cocaine metabolites, alcohol, an antidepressant, and muscle relaxant
in his system when he died. Griffin was obese, and had coronary artery disease and high blood
pressure, but did not have blood pressure medication in his system at the time of his death. Dr.
Quinton testified Griffin’s enlarged heart and blockage in his arteries could have contributed to his
death. Dr. Quinton confirmed his autopsy report’s conclusion that Griffin died “as a result of
homicidal violence, including blunt force injuries, strangulation and sharp force injuries.”
SUFFICIENCY OF THE EVIDENCE
In his first issue, Alexander complains the evidence was insufficient to support his
conviction for murder and to support the jury’s implicit rejection of his self-defense claim.
Specifically, Alexander contends the evidence failed to establish beyond a reasonable doubt that
Alexander caused Griffin’s death.
Standard of Review
We review the sufficiency of the evidence under the standard set forth in Jackson v.
Virginia, 443 U.S. 307, 318–19 (1979). Fernandez v. State, 479 S.W.3d 835, 837 (Tex. Crim.
App. 2016). We examine all the evidence in the light most favorable to the verdict, and based on
that evidence and reasonable inferences therefrom, determine whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443
U.S. at 319; Balderas v. State, 517 S.W.3d 756, 765–66 (Tex. Crim. App. 2016), cert. denied, 137
S.Ct. 1207 (2017). It is “the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319. Although our analysis considers all evidence presented at trial,
we may not re-weigh the evidence and substitute our judgment for that of the factfinder. Id.; King
–9– v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). When there is conflicting evidence, we
presume the factfinder resolved the conflict in favor of the verdict, and defer to that resolution.
Jackson, 443 U.S. at 326; see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)
(“When the record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and therefore defer to that determination.”). The standard of
review is the same for both direct and circumstantial evidence cases. Kuciemba v. State, 310
S.W.3d 460, 462 (Tex. Crim. App. 2010).
In evaluating a sufficiency challenge, we consider all evidence presented to the jury,
regardless of whether it was properly or improperly admitted. Clayton, 235 S.W.3d at 778. In our
review, we consider both direct and circumstantial evidence, and all reasonable inferences that
may be drawn therefrom. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Each fact
need not point directly and independently to the defendant’s guilt, so long as the cumulative force
of all the evidence, when coupled with reasonable inferences to be drawn from that evidence, is
sufficient to support the conviction. Hooper, 214 S.W.3d at 13; see also Wise v. State, 364 S.W.3d
900, 902–03 (Tex. Crim. App. 2012) (evidence is sufficient if the inferences necessary to establish
guilt are “reasonable based upon the cumulative force of all the evidence when considered in the
light most favorable to the verdict.”). Circumstantial evidence is as probative as direct evidence
and, alone, can be sufficient to establish guilt. Hooper, 214 S.W.3d at 13.
When an appellant challenges the sufficiency of the evidence supporting the implicit
rejection of a self-defense claim, we determine, after viewing all the evidence in the light most
favorable to the verdict, whether any rational factfinder would have found the essential elements
of the murder beyond a reasonable doubt, and also would have found against the defendant on the
self-defense issue beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim.
App. 1991); Gaona v. State, 498 S.W.3d 706, 709 (Tex. App.—Dallas 2016, pet. ref’d). Self-
–10– defense is not an affirmative defense. It is a defense with burdens at trial that alternate between
the defendant and the State. Zulani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (self-
defense is “classified as a defense, as opposed to an affirmative defense”). The initial burden to
produce evidence supporting a self-defense claim rests with the defendant. Id. Once the defendant
produces such evidence, the State then bears the burden of persuasion to disprove the defense by
proving its case beyond a reasonable doubt. Id.
We review sufficiency challenges to the jury’s implicit rejection of a self-defense claim
under the Jackson v. Virginia standard. Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston
[1st Dist.] 2011, pet. ref’d). Whether the defendant acted in self-defense is a fact issue to be
determined by the jury, and the jury exclusively determines the weight and credibility of the
evidence in support of a self-defense claim. Id. at 146. We defer to the factfinder’s resolution of
conflicting inferences in the record. Jackson, 443 U.S. at 326. The jury implicitly rejects a
defendant’s self-defense claim if it finds the defendant guilty. Saxton, 804 S.W.2d at 914. In
assessing a self-defense claim, the jury may consider the totality of the circumstances leading up
to, during, and after the use of force. See Whipple v. State, 281 S.W.3d 482, 497–98 (Tex. App.—
El Paso 2008, pet. ref’d) (considering circumstances before and after shooting).
Applicable Law
In relevant part, a person commits the offense of murder if he (1) “intentionally or
knowingly causes the death of an individual” or (2) “intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of an individual.” TEX.
PENAL CODE ANN. § 19.02(b)(1)–(2). A person acts intentionally with respect to a result of his
conduct when “it is his conscious objective or desire to engage in the conduct or cause the result.”
Id. § 6.03(a). A person acts knowingly with respect to a result of his conduct when he is aware
that his conduct is reasonably certain to cause the result. Id. § 6.03(b).
–11– “[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 force.” Id. § 9.31(a).
A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediate necessary:
(A) to protect the actor against the other’s use or attempted use of unlawful deadly force . . .
Id. § 9.32(a). “Deadly force” is 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. Id. § 9.01(3).
Analysis
Alexander complains the evidence was insufficient to support the jury’s finding that he
caused Griffin’s death. Alexander contends there were no eyewitnesses, no DNA evidence, and
little, if any, physical evidence connecting him to Griffin’s death. Although his fingerprint was on
eyeglasses similar to Griffin’s eyeglasses, Alexander argues there was no definitive proof the
eyeglasses belonged to Griffin. Moreover, Alexander maintains his statements “allud[ing] to a
homosexual pass being made at him” and that he “just clicked” lacked sufficient detail, and “could
have been referring to anyone or some other incident.”
The jury heard testimony that Alexander was the last person seen with Griffin before he
died. Alexander had been “smoking ice,” looked delusional, and told Traylor he had not slept for
days. The State presented evidence that, prior to his death, Griffin—drunk, high, and paranoid—
was standing “too close” to people in the apartment, including Alexander. Concerned that
someone would “mess with [him],” Traylor testified she kept an eye on Griffin and separated him
from the other people in the apartment, because Griffin “[wouldn’t] hurt a fly.” Before leaving
–12– Alexander and Griffin alone in the apartment, Traylor sent Alexander to the bedroom and told
Griffin to stay in the living room.
The jury listened to a recording of the telephone call Alexander made to Traylor from jail.
The jury heard Alexander tell Traylor he acted in self-defense because Griffin was “messing with”
him, and “tried to do some gay shit.” Alexander admitted he “started putting hands on” Griffin
when he was in bed and saw Griffin standing over him with his shirt off. The jury heard Alexander
tell Traylor he beat up Griffin with his hands and put him in a chokehold. The evidence showed
that on the night of the murder, Alexander returned to the scene of the crime looking “extremely
agitated” and “amped up,” and took a fighting stance and punched his fists in the air. Officer
Negron testified that Alexander told him he had PTSD and “just snapped.”
The jury watched the video recording of Detective Barnes’s custodial interrogation of
Alexander. The jury observed Alexander telling Detective Barnes that Griffin made a homosexual
pass at him, and he “just clicked.” Alexander said he “got into it” with Griffin in the living room,
and “when [he] came to, it was too late.” The jury heard Alexander say he did not use anything
other than “his hands” to hit Griffin.
Finally, Dr. Quinton testified that Griffin’s autopsy revealed blunt force trauma to Griffin’s
head and face. Hemorrhaging and bruising of Griffin’s eye and neck indicated he had been
strangled. Griffin’s autopsy, however, revealed no ligature marks on Griffin’s neck.
Corroborating Alexander’s statements in his recorded telephone call to Traylor and during his
interrogation that he only used his hands to attack Griffin, the jury heard Dr. Quinton testify the
lack of ligature marks indicated Griffin was strangled by someone’s hands “being used as a deadly
weapon” and not an object. Dr. Quinton concluded that Griffin’s death was caused by homicidal
violence. Viewing the cumulative force of all of the evidence in the light most favorable to the
–13– verdict, we conclude a rational jury could have found, beyond a reasonable doubt, that Alexander
committed the offense of murder.
Alexander also complains the evidence was insufficient to support the jury’s implicit
rejection of his self-defense claim. In his recorded telephone call to Traylor from jail, Alexander
claimed Griffin had a knife. Detective Barnes, however, testified that he and other detectives
thoroughly searched the apartment and apartment complex, including stairways, dumpsters,
bushes, and the parking lot, and did not locate a weapon. Officer Negron testified that on the night
of the offense, Barnes said he had “PTSD” and “just snapped.” The jury heard Alexander admit
in his recorded interrogation that he “just clicked.” Finally, although Alexander claimed “it was
self-defense” in his recorded telephone call to Traylor from jail, the jury also heard Alexander tell
Traylor he “didn’t know what [Griffin] was doing” when he saw Griffin standing over him with
his shirt off, but “that’s when [he] got up and started putting hands on him,” placed Griffin in a
chokehold, and “blacked out” when they started fighting. As the sole judge of credibility and
weight to be given the testimony, the jury was entitled to reject Alexander’s statement that Griffin
threatened Alexander with a knife. On this record, a rational jury also could have found that
Alexander was not justified in using deadly force to protect himself from a homosexual pass, if
any, by Griffin. Viewing the cumulative force of all of the evidence in the light most favorable to
the verdict, we conclude a rational jury could have found against Alexander on the self-defense
issue beyond a reasonable doubt.
Accordingly, we resolve Alexander’s first issue against him.
WAIVER OF RIGHTS UNDER MIRANDA AND TEX. CODE CRIM. PROC. ANN. art. 38.22
In his second issue, Alexander argues the trial court erred by admitting the recording of his
interrogation into evidence, because he did not expressly or implicitly waive his Miranda rights or
his rights under article 38.22 of the Texas Code of Criminal Procedure prior to the interrogation. –14– At trial, Alexander objected to the admission of the recorded interrogation on the grounds he did
not waive his Fifth Amendment right against self-incrimination. The trial court overruled the
objection and admitted the recording into evidence without making findings of fact or conclusions
of law regarding the voluntariness of Alexander’s waiver. Portions of the recording were played
for the jury.
By order dated September 20, 2018, we abated this appeal and ordered the trial court to
prepare the requisite findings and conclusions concerning the voluntariness of Alexander’s waiver.
See TEX. CODE CRIM. PROC. ANN. art. 38.22 § 6. Pursuant to this Court’s order, the trial court
made findings of fact as to the voluntariness of Alexander’s waiver. Among other things, the trial
court found: “[Alexander] was advised of his Miranda warnings by Detective Barnes” and
“[Alexander] acknowledged that he understood his rights”; “[d]uring the interview, [Alexander]
was still wearing his street clothes” and “was not shackled or handcuffed”; “[Alexander] gave his
statement after an implicit waiver of his rights under Article 38[.]22 and Miranda that was done
both knowingly and voluntarily”; “[Alexander] was awake, coherent, and specific with his answers
during the interrogation”; “[Alexander] never requested an attorney or asked to terminate the
interview”; and “[Alexander] voluntarily gave his statement and there were no promises, threats,
or coercion made by Detective Barnes or any other officer.”
On appeal, Alexander complains the trial court erred in admitting the video recorded
interrogation because Detective Barnes only asked Alexander if he understood his rights, and not
whether he waived his rights. Alexander also argues he did not sign or initial any documents
indicating he wanted to waive his rights. Alexander further avers that the circumstances depicted
in the video recording, including evidence he was “extremely tired,” “could barely stay awake,”
and “was apparently under the influence of ice,” do not support a knowing, intelligent, and
voluntary waiver of his Miranda rights or his rights under article 38.22. The State responds that
–15– article 38.22 does not require a written or express oral waiver, and that waiver may be inferred
from Alexander’s actions and words. The State argues the totality of the circumstances
surrounding Alexander’s interrogation shows he implicitly waived his rights knowingly and
voluntarily, without police intimidation, coercion, or deception.
Standard of Review and Applicable Law
We review a trial court’s denial of a motion to suppress a statement provided by a defendant
during a custodial interrogation for an abuse of discretion, and apply a bifurcated standard of
review. Furr v. State, 499 S.W.3d 872, 877 (Tex. Crim. App. 2016). We afford almost complete
deference to the trial court’s determination of historical facts, especially when those determinations
are based on assessments of credibility and demeanor. Id. However, we conduct a de novo review
of mixed questions of law and fact that do not hinge on credibility or demeanor. Brodnex v. State,
485 S.W.3d 432, 436 (Tex. Crim. App. 2016). When, as here, the trial court made explicit fact
findings, we determine whether the evidence, when viewed in the light most favorable to the trial
court’s ruling, supports the fact findings. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App.
2013). We sustain the trial court’s ruling if it is correct under any applicable theory of law. Furr,
499 S.W.3d at 877.
In Miranda, the Supreme Court held that when an individual is taken into custody and
subjected to questioning, he must be warned prior to any questioning that he has the right to remain
silent, anything he says can be used against him in a court of law, he has the right to the presence
of an attorney, and if he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires. 384 U.S. at 479. An individual given these warnings may knowingly
and intelligently waive these rights and agree to answer questions or make a statement. Id.
Article 38.22 of the Texas Code of Criminal Procedure governs the admissibility of
statements made by a defendant during custodial interrogation in a criminal proceeding. Herrera
–16– v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). Article 38.22 provides no oral statement
made by an accused during a custodial interrogation is admissible as evidence against him in a
criminal proceeding unless the accused, prior to making the statement but during the recording,
was provided with warnings virtually identical to those required by Miranda and a warning that
he has the right to terminate the interview at any time, and the accused knowingly, intelligently,
and voluntarily waived the rights set out in the warning. TEX. CODE CRIM. PROC. ANN. art. 38.22
§ 3(a)(2).
The State has the burden of showing by a preponderance of the evidence that a defendant
knowingly, intelligently, and voluntarily waived his rights under Miranda and article 38.22. See
Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim. App. 2011). In evaluating whether a
defendant waived his rights, we consider: (1) whether the waiver was made voluntarily, which is
defined as being a product of a free and deliberate choice rather than intimidation, coercion, or
deception, and (2) whether the waiver was made with full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it. Joseph v. State, 309 S.W.3d
20, 25 (Tex. Crim. App. 2010). Only if the totality of the circumstances surrounding the
interrogation reveals both an un-coerced choice and the requisite level of comprehension may a
court properly conclude that rights have been waived. Id. The “totality of the circumstances”
analysis requires the consideration of all the circumstances surrounding the interrogation,
including the defendant’s experience, background, and conduct. Id.
Alexander contends he was not asked for and did not provide a written or oral waiver of
his rights. However, neither a written nor an express oral waiver is generally required. Id. at 24.
Article 38.22 does not require that the defendant expressly or explicitly waive his rights, nor does
it require that he be asked whether he wishes to waive his rights. TEX. CODE CRIM. PROC. ANN.
–17– art. 38.22. The statute requires only that the requisite warnings be given to the defendant and that
his waiver of rights be made knowingly, intelligently, and voluntarily. Id., art. 38.22 § 3(a)(2).
Nor does Miranda require a waiver to assume a particular form; at least in some cases, a
“waiver can be clearly inferred from the actions and words of the person interrogated.” North
Carolina v. Butler, 441 U.S. 369, 373 (1979). We may conclude Alexander waived his Miranda
rights if the “totality of the circumstances surrounding the interrogation” reveals an un-coerced
choice and the requisite level of comprehension. Moran v. Burbine, 475 U.S. 412, 421 (1986).
Voluntariness. Our examination of the totality of the circumstances surrounding the
interrogation shows Alexander made a free and deliberate choice to voluntarily waive his rights.
In the recording of Alexander’s interrogation, Detective Barnes said he wanted to talk to Alexander
about “what happened [that] day.” Placing a card on the table next to Alexander, Detective Barnes
explained, “[b]ut I got to read you this first, and then with your permission, I’m going to ask you
a couple of questions. If you give me permission. All right?” Alexander replied, “Yeah, man,”
and sat up. Detective Barnes then stated, “This is your Miranda warning,” and proceeded to read
Alexander his Miranda rights from the card. Detective Barnes also told Alexander he could
“terminate this interview” at any time. When asked if he understood, Alexander replied, “Yes,
sir.” Alexander remained upright for the duration of his Miranda warning.
Alexander did not request an attorney or ask Detective Barnes to terminate the interrogation
at any time. He freely chose to answer some of Detective Barnes’s questions with clarity and
detail. For example, Alexander made clear he was not comfortable with Griffin’s homosexual
pass, telling Detective Barnes, “and that gay pass, I just felt nervous, I just felt nervous, I didn’t
feel right.” He also chose to not answer some of Detective Barnes’s questions, further suggesting
the statements he did make were voluntarily provided. The recording of Alexander’s interrogation
shows no evidence of intimidation, coercion, or physical or psychological pressure to elicit
–18– statements from Alexander. In its findings of fact, the trial court noted that Detective Barnes was
conversational and polite throughout the interview, and never yelled, cursed or appeared angry.
The trial court’s findings confirmed Detective Barnes’s testimony that he took care of Alexander’s
basic needs, noting that Detective Barnes provided a candy bar to Alexander and asked him if he
was hungry or needed to use the restroom, and Alexander responded, “No, I’m good.”
Awareness. The totality of the circumstances surrounding the interrogation also shows
Alexander’s waiver was made with full awareness of both the nature of the rights he abandoned
and the consequences of his decision to abandon them. See Joseph, 309 S.W.3d at 27. The
warnings Detective Barnes read to Alexander made him fully aware of his rights under article
38.22 and Miranda, and of the consequences of waiving those rights. TEX. CODE CRIM. PROC.
ANN. art. 38.22, §§ 2(a), 3(a)(2). Alexander affirmatively acknowledged that he understood his
rights, and his conduct during the interrogation demonstrated he possessed the requisite level of
comprehension.
We are unpersuaded by Alexander’s arguments regarding the influence of his fatigue and
“ice” intoxication on the knowing, intelligent, and voluntary waiver of his rights. See, e.g., Leza,
351 S.W.3d at 352–53 (concluding waiver of Miranda rights not involuntary where heroin
intoxication, if any, was not so acute as to overcome defendant’s capacity to resist reasonable, non-
coercive tactics by police to persuade him to waive rights). The trial court—the exclusive judge
of the credibility of the witnesses and the weight to be given their testimony—found Detective
Barnes to be a credible witness. Detective Barnes testified that just before being taken into custody
and entering the interrogation room, Alexander was conversing with officers at the scene.
Detective Barnes believed Alexander put his shirt-covered head on the table as “an act” because
“he didn’t want to talk about [the] fact he was involved in [the] death of Mr. Griffin.” Moreover,
Detective Barnes testified he asked Alexander certain questions to “get a feel” for his “level of
–19– awareness” and Alexander was able to recall and provide “details about being in the military,” and
to spell his name. Alexander also answered Detective Barnes’s questions lucidly, and occasionally
with sarcasm. For example, Detective Barnes testified that when he asked Alexander “what time
[it was] when he went over to the apartment when all this happened,” Alexander said he did not
know because he did not look at his watch. Additionally, the trial court’s findings of fact indicate
Alexander “was awake, coherent, and specific with his answers during the interrogation.”
Notwithstanding any alleged “ice” intoxication, from the totality of the circumstances the
trial court could rationally conclude and did not abuse its discretion in finding that Alexander
knowingly and voluntarily waived his Miranda and article 38.22 rights. Giving proper deference
to the trial court’s findings and evaluations of witness credibility and demeanor, we conclude the
evidence supports the trial court’s finding that Alexander knowingly and voluntarily waived his
rights. We resolve Alexander’s second issue against him.
We affirm the trial court’s judgment.
/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE
Do Not Publish TEX. R. APP. P. 47
170599F.U05
–20– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KIERON ALEXANDER, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-17-00599-CR V. Trial Court Cause No. F-1575823-I. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Lang and Schenck participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 13th day of November, 2018.
–21–