# Abel Abraham Rueda v. the State of Texas

> Texas Court of Appeals, 3rd District (Austin) · August 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10569513

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** August 28, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10569513

## How later opinions describe it (automated extraction)

- noting that invocation of right to counsel insulates defendant from further police-initiated interrogation but that defendant may initiate communication with police following invocation of right
- explaining that questioning must cease when suspect invokes right to counsel
- noting that on matters of historical fact, trial judge is in better position than appellate court to settle disputes
- concluding that comment “I should have an attorney” was not clear request, in part, because defendant kept talking and asking police questions

## Opinion text

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00252-CR

Abel Abraham Rueda, Appellant

v.

The State of Texas, Appellee

FROM THE 340TH DISTRICT COURT OF TOM GREEN COUNTY
NO. C-20-1105-SB, THE HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING

ME MO RAN DU M O PI N I O N

Abel Abraham Rueda was convicted of murdering Juan Victorio Quintana and was

sentenced to life imprisonment. See Tex. Penal Code §§ 12.32, 19.02. On appeal, Rueda argues

that the trial court erred by denying his motion to suppress a recording of his interview by the

police. We will affirm the trial court’s judgment of conviction.

BACKGROUND

On October 24, 2020, around 5:30 a.m., a woman walked out of her house in San

Angelo, Texas, in Tom Green County. On the way to her car, she saw a car parked on the roadway

in front of her house and then heard a gunshot and saw sparks from the discharge. After observing

the gunshot, the woman went back inside her home, called 911, and later talked with the police

when they responded to the call.
When the police arrived, they found a deceased man in the woman’s yard, and the

police later identified the man as Quintana. An autopsy performed on Quintana two days later

revealed that Quintana died from a shotgun wound fired at his chest from two to three feet away.

The shotgun shrapnel severed Quintana’s heart in half and travelled through his lungs and stomach,

resulting in massive blood loss.

While examining the scene, the officers noticed a bag filled with breakfast tacos

from a nearby convenience store. After reviewing surveillance footage from the convenience store,

obtaining a warrant for the credit card transactions conducted at the store shortly before the

shooting, and reviewing surveillance footage from other locations for the hours leading up to the

shooting, the police identified Rueda as a suspect in the case. Once the San Angelo police officers

obtained an arrest warrant for Rueda, they discovered that he was being held in jail in Big Spring,

Texas, in Howard County on another charge. While in jail in Big Spring, Rueda was interviewed

by police officers from Big Spring and later by police officers from San Angelo.

Before trial, Rueda filed a motion to suppress the following recordings of

interviews conducted while he was in jail in Big Spring: two interviews with police officers from

Big Spring and two interviews with police officers from San Angelo. The first recording was from

November 12, 2020. The interview was approximately eleven minutes long and was conducted

by police officers from Big Spring in an interrogation room. Rueda was wearing jail attire, but he

was not shackled. On the recording, one of the officers read Rueda his Miranda and article 38.22

rights, and Rueda placed his initials next to each right listed on the card and signed the portion of

the document stating that he was waiving his rights. After Rueda signed the document, one of the

officers questioned him about an aggravated robbery for which Rueda had been arrested. During

the interview, Rueda denied doing anything wrong, and the officer eventually started yelling.

2
Rueda asked for a lawyer approximately seven minutes after signing the waiver document and then

repeated the request two more times. The police officers terminated the interview approximately

one minute after Rueda first said that he wanted a lawyer.

The second recording was from November 17, 2020, and was one hour and twenty

minutes long. The interview was conducted in an interrogation room by one of the Big Spring

police officers from the first interview. As with the first interview, Rueda was wearing jail clothes

but was not shackled. On the recording, Rueda explained that he asked to talk with the officer

because he wanted to talk about several things, including his having learned that he had been

charged with a murder that he claimed he did not know anything about. Rueda asked the officer

if the officer would reach out to the police in San Angelo and tell them that he wanted to talk

about the murder charge, and the officer agreed to contact the San Angelo Police Department. The

officer and Rueda then discussed the aggravated-robbery case and the evidence the police had

obtained. When Rueda referenced the San Angelo murder charge again, the officer informed

Rueda that his “best bet” was to obtain a lawyer for that case. After Rueda said that he did not

have any money to hire a lawyer, the officer pulled out the Miranda card that Rueda had signed a

few days earlier, pointed to the portion about appointed attorneys, and reminded Rueda that he

could have an attorney appointed if he requested one. The officer ended the interview to do other

duties, and Rueda expressed the desire to talk with the officer again.

The third recording was from November 18, 2020, and was conducted by two

officers from the San Angelo Police Department in an interrogation room in Big Spring. The

interview is approximately two hours and twenty minutes long. Like the previous two interviews,

Rueda wore jail clothing but was not shackled. On the recording, one of the officers explained

that they were there because they had been told that Rueda wanted to talk to them. The officer

3
then explained that he would be reading Rueda his rights, and Rueda explained that he had been

read his rights in other cases. When the officer read each right, Rueda stated that he understood

each right. The officer informed Rueda that he had the right to an appointed attorney if he could

not afford to hire an attorney, and Rueda asked how long that would take. The officer explained

that an attorney would be appointed by a court. Rueda stated that he had not been given an

appointed attorney yet. The officer also explained that because Rueda was facing charges in

Howard County and Tom Green County, he would have to go through the procedure for obtaining

an appointed attorney in each county and could begin the procedure for the Tom Green County

charges when he was transferred to a jail in that county. The officer then reminded Rueda that if

he wanted to seek legal counsel, he did not have to talk with the officers. Rueda informed the

officers that he would like to continue the interview. The officer then continued reading Rueda his

rights, and Rueda stated that he understood that he had the right to terminate the interview at any

time. After referencing the rights, the officer asked if Rueda wanted to talk with the officers, and

Rueda said that he did. The officer instructed Rueda to place his initials next to each right on the

form listing his rights to show that he understood the rights and then showed Rueda where to sign

if he wanted to waive the rights. Rueda initialed and signed the form.

Next, Rueda discussed how he had been dating someone named Wendy McCluskey

and how McCluskey had issues with two other men with whom she had been involved, including

Quintana who was recently shot. However, Rueda denied having any interaction with Quintana

and claimed not to know him. After further discussion and the officer’s asking when Rueda last

saw Quintana, Rueda stated that he wanted a lawyer because the police were now talking about

a murder. The officer said “okay” in response but then asked Rueda about his association with

Quintana. Rueda denied having any issue with Quintana. The officer told Rueda that he had

4
planned to show Rueda the information that they had but then Rueda asked for an attorney. Rueda

told the officer twice that they could continue with the interview because he had changed his

mind about wanting an attorney. The officer informed Rueda that a witness identified Rueda

and McCluskey and recognized his vehicle. Soon thereafter, the audio portion of the recording

becomes garbled for the next hour of the interview.

The final recording was from November 23, 2020, and was one hour and fifteen

minutes in length. The interview was held in an interrogation room in Big Spring, and Rueda was

handcuffed and wore a jail-issued garment that was thick and padded and covered his chest and

legs. At the beginning of the recording, one of the San Angelo police officers stated to Rueda that

he heard that Rueda wanted to talk to the police again. Rueda responded by saying that he had

been trying to get ahold of the officers for a while and confirmed multiple times that he wanted to

talk with the officers. He also said that he had to do something “stupid” to get the attention of the

police and that he was wearing the protective clothing and handcuffs due to his misbehavior.

The officer explained that before they can talk, he will need to read Rueda his rights.

Shortly thereafter and before the officers had an opportunity to read Rueda his rights, Rueda

interrupted to ask to use the restroom, and one of the officers left the room to find where the

restroom was located. After the second officer left, Rueda initiated communication with the first

officer and asked if the police had found the murder weapon yet. The officer said no, and Rueda

related that he could take the police to the weapon, which was outside the city. The officer stated

that would be helpful. Rueda also told the officer that he wanted to report his car as being stolen

and asked if McCluskey was wanted for murder. The officer said McCluskey was not wanted for

murder but said the police were wanting to talk with her. Rueda told the officer that he could help

5
the police find her and asked if he could talk to the officer now. The officer said that they needed

to wait until his partner returns.

When the second officer returned, the officers took Rueda to the restroom. After

the bathroom break, the first officer explained that he was going to read Rueda his rights and that

the interview could begin if he decided to waive his rights. After the officer went through the first

rights (the right to remain silent and the warning that anything he said could be used against him),

Rueda stated that he understood each of those rights. When the officer read to Rueda his right to

an attorney, the following exchange occurred:

[Rueda]: But I don’t have a lawyer. And, uh, I was trying. I wrote to them already
in San Angelo that I would have liked a lawyer but it was alright because the more
time you take the less there will be.

[Officer]: Okay.

[Rueda]: She is going to get rid of that shit man.

[Officer]: Alright. So do you want to speak without a lawyer?

[Rueda]: Yes.

[Officer]: Okay.

The officer then advised Rueda about his right to the appointment of an attorney,

and the officer explained that the language meant “that one will be appointed to you. But that’s

gonna go through the process.” Rueda responded, “alright.” The officer informed Rueda that he

had the right to terminate the interview at any time, and Rueda said he understood. Rueda again

stated that having heard these rights, he wanted to continue the interview. Rueda also stated that

he was knowingly, intelligently, and voluntarily proceeding with the interview, and he initialed

6
next to each right listed on the card the officer was reading from and signed the portion indicating

that he was knowingly, intelligently, and voluntarily waiving the rights.

Next, Rueda proceeded to confirm that he was present when Quintana died but

claimed McCluskey shot and killed him. Although Rueda admitted that he had a 12-gauge shotgun

in his car on the night of the murder, he said the weapon was on McCluskey’s side of the car.

Regarding the events leading up to the shooting, Rueda related that McCluskey and he saw two

men going inside a convenience store and that McCluskey said that one of the men, Quintana,

disrespected her in the past and had uploaded to the internet a video of her engaging in a sexual

act. Next, Rueda stated that McCluskey asked him to kill Quintana when she came back to the car

after going inside the store, that McCluskey said Quintana was evil and deserved to die, that

McCluskey loaded the weapon, and that McCluskey then said that she would shoot Quintana

herself. Rueda told the officers that he drove out of the parking lot, pulled up to the two men,

rolled his window down, and warned Quintana to be careful because McCluskey had a gun. Then

Rueda related that McCluskey pointed the weapon at Quintana, asked him if he remembered her,

and shot the weapon. Rueda stated that he did not know that McCluskey was going to shoot the

weapon and did not think McCluskey hit Quintana because he thought he saw the two men running

off. Rueda told the officers that he drove off after the shooting.

In this interview, Rueda stated that he learned Quintana had died when

McCluskey’s friend called her and told her. Next, Rueda recalled that two days later, McCluskey

and he drove somewhere outside of San Angelo and threw the weapon and its ammunition out of

the car window. Rueda also told the officer that McCluskey had his black Cadillac and that he

wanted to report it as stolen because she would not return it. Further, Rueda offered to help the

7
police find the weapon but suggested that they needed to look soon because he thought McCluskey

might find and destroy the weapon.

During the suppression hearing, the officer who went over Rueda’s rights during

the third and fourth interviews testified. In his testimony, the officer explained that the Big Spring

police officers conducted the first two interviews, that one of them reached out to him to tell him

that Rueda wanted to talk, that the officer did not mention that Rueda had asked for an attorney in

the first interview, and that had he known Rueda had asked for an attorney, he would not have

talked with him. However, the officer also clarified that if a suspect asks for an attorney, he will

talk with the suspect again if the suspect later communicates that he wants to talk.

Regarding the third interview, the officer testified that Rueda wanted to talk and

that Rueda waived his rights orally and in writing. The officer agreed that at the beginning of the

interview he told Rueda that once he was transferred from Big Spring to San Angelo, he would

have to go through the process of obtaining a court-appointed attorney in San Angelo, but the

officer explained that he never told Rueda how long it would take to get the appointment and,

instead, told Rueda that he did not know how long it would take. Further, the officer acknowledged

that later in the interview Rueda asked for a lawyer but stated that Rueda continued to talk to the

officer and asked to see the evidence that the officer had. Additionally, the officer testified that he

confirmed twice that Rueda wanted to continue the interview after mentioning wanting a lawyer.

Moreover, the officer stated that he continued asking Rueda questions and did not state to Rueda

that the interview could stop right now if he wanted an attorney. But the officer explained that he

did not talk Rueda into anything and that Rueda voluntarily continued the interview.

Concerning the fourth interview, the officer testified that Rueda initiated the

interview and asked to talk with the officer. The officer admitted that he talked with Rueda for

8
several minutes before he was able to read Rueda his rights again. Further, the officer stated that

although Rueda mentioned having written to someone in San Angelo stating that he would like to

have an attorney, Rueda did not inform the officer that he wanted an attorney at that point, and

Rueda confirmed that he wanted to speak without a lawyer. Additionally, the officer testified

that Rueda waived his rights and, consistent with that intent, signed the portion of the Miranda

card stating that he was voluntarily waiving his rights. Next, the officer stated that Rueda

confirmed that he wanted to speak with officers and said that he had been trying to reach them

for several days.

After admitting the recordings into evidence at the suppression hearing and

considering the testimony and arguments made by the parties, the trial court denied Rueda’s motion

to suppress as it pertained to the first interview and the fourth interview. The trial court granted

the motion with respect to the second interview after concluding that Rueda did not voluntarily

waive his rights prior to the interview. And the trial court denied in part and granted in part the

motion with respect to the third interview by suppressing the second half of the interview after

Rueda invoked his right to counsel. The trial court also issued the following findings of fact and

conclusions of law pertaining to the fourth interview:

State’s Exhibit 4 - Interview of Defendant on 11-23-2020

Findings of Fact:

...

4. Prior to beginning the interview, Detective Chavarria gave the Defendant the
verbal and written warnings required by 38.22, Sec. 2 (a), Tex. Code Crim. Proc.;

5. The Defendant, prior to and during the making of any statement during this
interview, knowingly, intelligently, and voluntarily waived the rights set out in the
warnings given to him by Detective Chavarria;

9
Conclusions of Law:

6. The State has proved by clear and convincing evidence that any statement made
by the Defendant during this interview was voluntary[.]

During Rueda’s subsequent trial, the following witnesses testified: the woman who

observed the gun shot and called 911, multiple police officers involved in the investigation,

employees for the convenience store and a Walmart, McCluskey, McCluskey’s mother, and the

forensic pathologist who performed an autopsy on Quintana. The fourth interview summarized

above was admitted into evidence and played for the jury, but none of the other interviews were.

After considering the evidence presented at trial, the jury found Rueda guilty of

murder. Rueda appeals the trial court’s judgment of conviction by asserting that the trial court

erred by denying his motion to suppress the fourth interview.

STANDARD OF REVIEW AND GOVERNING LAW

Appellate courts review a trial court’s ruling on a motion to suppress for an abuse

of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). Under that

standard, the record is “viewed in the light most favorable to the trial court’s determination, and

the judgment will be reversed only if it 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)). In general, appellate courts apply a

bifurcated standard, Martin v. State, 620 S.W.3d 749, 759 (Tex. Crim. App. 2021), in which they

give almost total deference to the trial court’s findings of fact and review de novo the application

of the law to the facts, State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019). That same

deferential standard applies to the trial court’s determination of historical facts, even if that

10
determination is based on a video recording admitted into evidence at a suppression hearing. State

v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013); see State v. Garcia, 569 S.W.3d 142, 149

(Tex. Crim. App. 2018) (noting that on matters of historical fact, trial judge is in better position

than appellate court to settle disputes).

Moreover, courts “consider only the evidence adduced at the suppression hearing

because the ruling was based on that evidence rather than evidence introduced later” unless “the

suppression issue has been consensually relitigated by the parties during trial.” Herrera v. State,

80 S.W.3d 283, 290-91 (Tex. App.—Texarkana 2002, pet. ref’d) (op. on reh’g). In addition, a trial

court’s ruling on the motion will be upheld if it is correct under any theory of law applicable to the

case regardless of whether the trial court based its ruling on that theory, but “a trial court’s ruling

will not be reversed based on a legal theory that the complaining party did not present to it.” Story,

445 S.W.3d at 732.

The Fifth Amendment prohibits the government from compelling a criminal suspect

to bear witness against himself. U.S. Const. amend. V; Pecina v. State, 361 S.W.3d 68, 74-75 (Tex.

Crim. App. 2012). To protect that privilege, the Supreme Court established safeguards against

self-incrimination in the inherently coercive atmosphere of custodial interrogations. Pecina, 361

S.W.3d at 75. Specifically, the Supreme Court has explained that a person who is questioned by

the police after he is “taken into custody or otherwise deprived of his freedom of action in any

significant way” must first “be warned that he has a right to remain silent, that any statement he

does make may be used as evidence against him, and that he has a right to the presence of an

attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). “The

defendant may waive effectuation of these rights, provided the waiver is made voluntarily,

knowingly and intelligently.” Id. Only if the person voluntarily and intelligently waives his

11
Miranda rights may his statement be introduced into evidence against him at trial. Pecina,

361 S.W.3d at 75. If an accused expressed “his desire to deal with the police only through

counsel,” he “is not subject to further interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates further communication, exchanges, or

conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Similar to the

Miranda warnings listed above, article 38.22 of the Code of Criminal Procedure sets out warnings

that must be provided before custodial interrogation begins as well as other requirements, see Tex.

Code Crim. Proc. art. 38.22, and “precludes the use of statements that result from custodial

interrogation absent compliance with [those] additional procedural safeguards,” Henson v. State,

440 S.W.3d 732, 742 (Tex. App.—Austin 2013, no pet.).

Regarding the dictates of Miranda and article 38.22, 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.”

Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011) (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. However, a claim that a

waiver of the article 38.22 statutory rights is involuntary “need not be predicated on police

overreaching.” Id. at 352 (quoting Oursbourn v. State, 259 S.W.3d 159, 172 (Tex. Crim. App.

2008)). Such a claim of involuntariness can involve police overreaching but can also involve

12
inquiries into the accused’s state of mind. Oursbourn, 259 S.W.3d at 172; see Leza, 351 S.W.3d

at 352 (“Circumstances unattributable to the police that nevertheless adversely impact an

accused’s ability to resist reasonable police entreaties to waive his statutory rights . . . are ‘factors’

in the voluntariness inquiry, though they ‘are usually not enough, by themselves, to render a

statement inadmissible under Article 38.22.’” (quoting Oursbourn, 259 S.W.3d at 173)).

The determination as to whether a statement was voluntarily made must be

analyzed by examining the totality of the circumstances. Arizona v. Fulminante, 499 U.S. 279,

285-86 (1991); Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007); see Joseph v. State,

309 S.W.3d 20, 25 (Tex. Crim. App. 2010) (explaining that evaluation of whether appellant

knowingly, intelligently, and voluntarily waived rights before giving statement utilizes “[t]he

‘totality-of-the-circumstances approach’ [that] requires the consideration of ‘all the circumstances

surrounding the interrogation,’ including the defendant’s experience, background, and conduct”

(quoting Fare v. Michael C., 442 U.S. 707, 725 (1979))). “Only if the ‘totality of the circumstances

surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of

comprehension may a court properly conclude” that the accused waived his rights. Joseph,

309 S.W.3d at 25 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Stated differently, if it

is determined that a suspect’s decision to waive his rights was uncoerced, that he always knew that

he could request a lawyer and stand mute, and that he was aware that the State could use his

statements to secure a conviction, the analysis is complete, and the waiver is valid as a matter of

law. Moran, 475 U.S. at 422-23; Cobb v. State, 85 S.W.3d 258, 263 n.7 (Tex. Crim. App. 2002).

Relevant factors to consider when determining whether a statement is voluntary

include: whether the defendant was advised of his constitutional rights (given Miranda warnings

or statutory warnings); the defendant’s age, intelligence level, and education; the conditions

13
under which the defendant was questioned—i.e., length of detention, duration of questioning,

environment, and access to restroom facilities and food; physical or mental impairment of the

defendant, such as intoxication, illness, the influence of medication or drugs, and mental

impairment or other disabilities; and whether physical punishment for the failure to provide a

statement, such as the deprivation of food or sleep, was used. Work v. State, No. 03-18-00815-CR,

2020 WL 7776389, at *19 (Tex. App.—Austin Dec. 31, 2020, no pet.) (mem. op., not designated

for publication); see Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); Lopez v. State, 610

S.W.3d 487, 496-97 (Tex. Crim. App. 2020); Oursbourn, 259 S.W.3d at 172-73. “[A] defendant’s

conduct—namely, willingly talking with investigators—can demonstrate a knowing, intelligent,

and voluntary waiver” of his rights. Joseph, 309 S.W.3d at 25 n.7.

DISCUSSION

When arguing on appeal that the recording of the fourth interview should have been

suppressed, Rueda relies on the circumstances surrounding that interview as well as the first three.

Specifically, he notes that he had been held in continuous pretrial custody during all four

interviews. Regarding his first interview with the Big Spring police officers, he notes that it was

hostile and that although he initially waived his rights after being read them, he quickly invoked

his right to counsel because of the angry way he was being questioned. Further, Rueda emphasizes

that although he invoked his right to counsel, the police continued the interview and that the

interview did not end until he again asked for counsel. Rueda contends that his invocation of the

right to counsel was charged to all law-enforcement personnel attempting to later question him,

including the police officers from San Angelo, regardless of whether the officers were personally

aware of the invocation. In support of this assertion, Rueda references the testimony from the

14
police officer at the suppression hearing suggesting that he would not have attempted to talk with

Rueda if he had known that Rueda had invoked his right to counsel.

Next, Rueda notes that during the second interview, no warnings regarding his

rights were given. Regarding the third interview, he acknowledges that one of the officers went

over his rights; however, Rueda contends that when the right to appointed counsel was discussed,

the officer incorrectly told him that he would have to wait to seek the appointment of counsel in

the San Angelo case until he was transferred to a jail in Tom Green County and go through the

process of obtaining counsel there. Rueda contends that informing him that he had to wait to

obtain an attorney forced him to choose between talking then without an attorney or waiting

until he was transferred to San Angelo and obtaining counsel. Further, he notes that during that

interview, he unequivocally invoked his right to counsel, as found by the trial court, but that

the officers continued to ask him questions in violation of his rights. Moreover, he notes that the

third interview occurred just a few days after his first combative interview with the Big Spring

police officers.

In light of the above, Rueda contends that by the time of the fourth interview, he

had been subjected to “a calculated, ongoing assault on his right” to an attorney “perpetrated by

detectives using deception and intentionally disregarding his constitutional rights.” Further, he

argues that out of desperation to tell his side of the story and to stop McCluskey from destroying

evidence and while believing that he could not obtain appointed counsel for the murder case until

he was transferred, he reached out to the San Angelo police for another interview. Additionally,

he highlights that he was wearing protective clothing and was shackled during the interview.

Moreover, he emphasizes that when the officer informed him that he had the right to appointed

counsel, he interrupted the officer to say that he did not have a lawyer but had written to someone

15
in San Angelo because he “would have liked a lawyer” but that it was “alright” to continue because

he was concerned that McCluskey was “gonna get rid of” the evidence.1 Further, he contends that

the officer again continued his misleading statement from the third interview suggesting he could

not obtain the appointment of counsel until he was transferred by stating that he had the right to

appointed counsel but would still have to go through the process of obtaining it. Although Rueda

acknowledges that he told the officers that he wanted to proceed and that he was knowingly,

intelligently, and voluntarily waiving his rights, he contends that he did so out of desperation and

while resigned to the fact that he could not have an attorney present during the interrogation in

Big Spring.2 Accordingly, Rueda contends that his purported waiver “was not made with full

awareness of the nature of the rights being abandoned.”

1
On appeal, Rueda concedes that this “mention of a lawyer, his desire for one expressed
in past tense and qualified by, ‘but it’s alright . . . ,’ likely did not constitute an unambiguous request
for counsel,” and he does not argue that the recording should have been suppressed due to his
invocation of the right to counsel and instead relies on these statements as support for his assertion
that his waiver was not voluntary. See Davis v. United States, 512 U.S. 452, 459, 462 (1994)
(explaining that accused “must unambiguously request counsel,” stating that accused “must
articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in
the circumstances would understand the statement to be a request for an attorney,” and determining
that statement “‘Maybe I should talk to a lawyer’” was not unambiguous request for counsel);
State v. Gobert, 275 S.W.3d 888, 892 (Tex. Crim. App. 2009) (“An ambiguous or equivocal
statement with respect to counsel does not even require officers to seek clarification, much less
halt their interrogation”); Davis v. State, 313 S.W.3d 317, 338, 341 (Tex. Crim. App. 2010)
(concluding that comment “I should have an attorney” was not clear request, in part, because
defendant kept talking and asking police questions).

2
In his brief, Rueda suggests that near the end of the fourth interview, he informed the
officer that he had been appointed an attorney for the Howard County charges, but the referenced
sections of the interview do not reflect that. Moreover, no evidence was presented at the
suppression hearing indicating that Rueda had been appointed counsel by the time of the fourth
interview. In any event, Rueda does not claim that he had conferred with the attorney before the
interview or otherwise suggest that an attorney-client relationship existed or that the police were
aware of the appointment of an attorney, and his purported statement did not occur until after

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Rueda characterizes the police officers’ actions in this case as part of a “strategy of

subterfuge and enticement . . . to mislead and dissuade Appellant from making a clear invocation

and sticking with it, while keeping him talking,” and he concludes that “but for” the “strategy of

deceit and misdirection,” he would have invoked his right to counsel. Further, Rueda argues that

“the accumulated taint of deception . . . permeated everything about [his] reinitiation of contact

with” the police and his “purported waiver of his Miranda rights” during the fourth interview. For

these reasons, Rueda contends that he did not voluntarily, knowingly, and intelligently waive his

rights in the fourth interview and that, therefore, the trial court abused its discretion by denying

his motion to suppress the recording of that interview.

Initially, we note that Rueda stated in the first interview that he was born in 1989,

which meant that he was thirty-one years old at the time of the interviews. In addition, the

interviews show that Rueda was able to understand what the officers told him and was able to

articulate the information he wanted to convey to the officers. Moreover, Rueda did not appear to

be intoxicated or otherwise impaired during any of the interviews. Furthermore, nothing in any of

the recordings or the testimony from the suppression hearing indicates that any of the officers

employed or threatened to employ any type of physical punishment to induce Rueda to speak.

See Work, 2020 WL 7776389, at *19.

Regarding the first interview, Rueda correctly points out that the officers from

Big Spring did not immediately stop the interview when he first invoked his right to an attorney;

Rueda waived his rights in this case and chose to talk with the police. Cf. Plattenburg v. State,
972 S.W.2d 913, 916-17 (Tex. App.—Beaumont 1998, pet. ref’d) (determining that defendant’s
waiver of rights was effective and that trial court properly admitted written statements he made
taken outside presence of counsel even though he claimed on appeal that his mother had hired
lawyer to represent him where he did not mention to police that he had lawyer, where he had not
met with lawyer, and where officer was unaware that any lawyer had been hired).

17
however, the officers did terminate the interview approximately one minute later following a

subsequent invocation of the right to counsel. Although a portion of the interview was

unquestionably hostile, that portion was about one or two minutes of the approximately eleven-

minute interaction. Cf. Lopez, 610 S.W.3d at 497 (concluding that statement was voluntarily made

in part because “[t]he complained-of interview . . . lasted only about 2 hours and 15 minutes”).

During the interview, Rueda was not handcuffed, and he was told that he could stop the interview

at any time. Moreover, after Rueda asked for a lawyer and after the interview stopped, Rueda was

immediately taken out of the interview room. In light of the preceding, including the short duration

of the continued interrogation and the officers’ actions terminating the interview approximately

one minute after Rueda invoked the right to an attorney, we believe that the trial court could

have reasonably concluded that the short delay in termination and the brief exposure to hostile

questioning did not undermine Rueda’s understanding of the nature of his rights that he later

waived in the fourth interview or contribute to any false impression of those rights.

Turning to the second interview, the recording demonstrates that Rueda initiated

the contact with the Big Spring police officer because he wanted to talk with the officer about a

few topics. See Cross v. State, 144 S.W.3d 521, 529 (Tex. Crim. App. 2004) (noting that invocation

of right to counsel insulates defendant from further police-initiated interrogation but that

defendant may initiate communication with police following invocation of right). The interview

was only one hour and twenty minutes long. Cf. Lopez, 610 S.W.3d at 497. As with the first

interview, Rueda was not handcuffed. Rueda informed the officer that he had recently been

charged with murder and had been trying to contact the San Angelo police to talk about that case,

and the officer communicated that he was not involved in that case but agreed to reach out to the

San Angelo Police Department and let the officers know that Rueda wanted to talk about that case.

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Although the police officer did not go over Rueda’s rights during this interview or

ask him if he wanted to waive his rights, there is nothing illegal about questioning someone without

having provided those warnings first. See State v. Pena, 581 S.W.3d 467, 475 (Tex. App.—Austin

2019, pet. ref’d). On the contrary, the requirement of reading someone his Miranda rights is a

judicially imposed rule of evidence, meaning that statements taken in violation of Miranda are not

obtained in violation of the law but simply may not be admitted at trial. Id. Similarly, article 38.22

sets out the statutory warnings that must be provided before custodial interrogation begins if the

statement will be used as evidence at trial. Id. In this case, that exclusionary principle was applied,

and the recording of the second interview was suppressed.

Furthermore, despite being given his statutory warnings five days earlier, invoking

his right to counsel during the first interview, and successfully terminating that interview, Rueda

did not mention wanting an attorney in the second interview or wanting to terminate the interview.

Although Rueda did not make the statement until the third interview, he did relate that he was

familiar with his rights because he had been read his rights in other cases. Further, the officer was

the person who terminated the interview after stating that he had other work to do, and Rueda

expressed a desire to talk with the officer again later. Moreover, during the second interview, the

officer from Big Spring told Rueda that his “best bet” in the San Angelo case was to get an attorney.

When Rueda said that he was indigent and could not pay for an attorney, the officer referenced the

warning card that Rueda previously signed and explained that if he was indigent, an attorney would

be appointed if he requested one. Given these circumstances, the trial court could have reasonably

concluded that the events of the second interview did not undermine Rueda’s understanding of his

rights or his later waiver of his rights during the fourth interview.

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Concerning the third interview, the beginning of the recording documents that

Rueda initiated this conversation with the police. See Cross, 144 S.W.3d at 529; see also Joesph,

309 S.W.3d at 25 n.7 (noting that defendant’s willingness to talk to police can demonstrate

knowing, voluntary, and intelligent waiver). The interview was civil. Although one of the

San Angelo officers testified in the suppression hearing that he had not been told that Rueda had

invoked his right to counsel during the first interview and would not have talked with Rueda had

he known Rueda had invoked his right, the officer clarified that he will talk with a suspect again

after the suspect invokes his right to counsel when, as here, the suspect initiates the conversation.

See Orgeon v. Bradshaw, 462 U.S. 1039, 1044-45 (1983) (plurality op.) (noting that law-

enforcement officers may talk with suspect who asked for attorney if suspect later initiates further

communication about case). Further, the interview in total is approximately two hours and twenty

minutes in length. See Lopez, 610 S.W.3d at 497.

Within a few minutes of the San Angelo police officers and Rueda entering the

room, one officer states that he is going to read Rueda his rights before starting the interview, and

Rueda explains that he had been read his rights in other cases. Rueda stated that he understood his

rights after the officer read each one. When the officer mentioned the right to an appointed counsel

and when Rueda asked how long that would take because he did not have an attorney, one of the

officers did assert that Rueda would have to initiate the procedure in Tom Green County when he

was transferred there. Although that may not have been correct because there are circumstances

in which counsel may be appointed to a defendant arrested in another county, see Tex. Code

Crim. Proc. art. 1.051(c-1), the officer’s statement was correct in that Rueda would have to initiate

the process to obtain the appointment of counsel and that the process would take time, see id.

arts. 1.051(c) (setting out time by which appointment of counsel should be performed after request

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is made), 26.04(j) (specifying when appointed attorney should first communicate with defendant).

Moreover, consistent with the recording, the officer testified at the suppression hearing that he

never provided Rueda with any type of time estimate regarding how long the process would take

and did not indicate that the process would be a lengthy one. Additionally, nothing on the recording

indicates that the officer conveyed the information in an attempt to deceive Rueda regarding his

ability to seek the aid of counsel or to compel him to talk; on the contrary, after discussing the

possibility of Rueda needing to seek appointment of counsel in two counties, the officer

emphasized that Rueda could seek the appointment of counsel and could terminate the interview

at any time by stating that if Rueda “wish[ed] to seek legal counsel, you can do so and you don’t

have to talk to me or anything like that.”

After the officer explained to Rueda that he could seek legal advice and could stop

the interview, Rueda communicated that he wanted to continue. Once the officer continued reading

Rueda his rights, Rueda stated that he understood that he could stop the interview at any time, said

again that he wanted to talk with the officers, and initialed and signed the Miranda card. Cf.

Ashcraft v. State, 934 S.W.2d 727, 737 (Tex. App.—Corpus Christi 1996, pet. ref’d) (noting that

although “defendant’s signing of a prepared statement which included pre-printed averments

indicating that the signer understood his rights and freely waived them is not determinative of the

question of affirmative waiver, it is significant evidence”).

Rueda correctly points out that he did later invoke his right to an attorney during

the third interview and that the officers did not stop the interview. For that reason, the trial court

suppressed the portion of the recording following his invocation of his right to an attorney. See

Miranda, 384 U.S. at 474 (explaining that questioning must cease when suspect invokes right to

counsel). Following Rueda’s invocation, the officer did continue to question Rueda and did not

21
terminate the interview, but Rueda informed the officers twice that they could continue the

interview because he had changed his mind about wanting an attorney. Even though the trial court

reasonably determined that these subsequent statements expressing a desire to continue did not

affect the admissibility of that portion of the recording, see Pecina, 361 S.W.3d at 75, the court

could have reasonably inferred that those statements were indicative of Rueda’s continued desire

to talk with the officers while also being aware of his rights. As with the previous two interviews,

the trial court could have reasonably concluded that the interactions with the police during the third

interview did not undermine Rueda’s understanding of his rights or affect his subsequent waiver

of those rights during the fourth interview.

Finally, turning to the fourth interview, the interview, including a bathroom break,

was only one hour and fifteen minutes long. Cf. Lopez, 610 S.W.3d at 497. This interview was

civil in tone. Further, the recording shows that Rueda again requested to talk with the police

officers from San Angelo. See Joseph, 309 S.W.3d at 25 n.7. In fact, Rueda stated on the recording

that he had been trying to talk with the officers for some time and confirmed several times that he

wanted to talk with them, and he confirms in his brief that he initiated the contact with the officers.

See Edwards, 451 U.S. at 484-85. Although he was shackled and placed in protective clothing,

Rueda explained at the start of the interview that those restrictions had been imposed on him due

to his behavior before the interview. At the beginning of the interview, one of the officers informed

Rueda that before he could talk with the officers, they needed to go over his rights. At that point,

Rueda interrupted to ask if he could use the restroom first. One of the officers left the room to find

where the restrooms were in the Big Spring police station. When that officer left, Rueda asked the

remaining officer if the police had found the murder weapon yet, told the officer that he could take

the police to the weapon, stated that he wanted to report his car stolen, and asked if McCluskey

22
was wanted for murder. Although the officer made brief responses to Rueda’s comments, the

officer also informed Rueda that they could not proceed with the interview until the other officer

returned. In addition, Rueda’s statements before his waiver were not prompted by police

questioning, and voluntary statements not made in response to police questioning even by someone

in police custody are not the product of custodial interrogation and need not be excluded even

though the person had not been informed of and waived his rights. See Jordy v. State, 969 S.W.2d

528, 531 (Tex. App.—Fort Worth 1998, no pet.).

When the other officer located the bathroom and returned to the interview room,

the officers took Rueda to the restroom. Once the restroom break was over, the three men returned

to the room, and the first officer read Rueda his rights. See Work, 2020 WL 7776389, at *19.

Rueda stated that he understood his rights, and after listening to the officer discuss his right to

appointed counsel, he told the officer that he did not have a lawyer but did write to someone in

San Angelo because he “would have liked a lawyer.” However, he confirmed that he was “alright”

with continuing the interview and that he wanted to speak without a lawyer. The officer then

explained that the right to the appointment of counsel for indigent people means that a lawyer

would be provided to him after “go[ing] through the process.”

As set out above, Rueda argues on appeal that this “process” statement was

incorrect and contributed to the problems stemming from the purportedly inaccurate statement

from the third interview in which the officer related that Rueda would have to wait until he was

transferred to get an attorney appointed for the San Angelo case. However, the officer did not

mention in this interview any need to wait or the need to be transferred first; instead, the officer

simply stated that there would be a process for appointing an attorney. Moreover, based on Rueda’s

statement to the officer that he did not have an attorney, the trial court could have reasonably

23
concluded that the officer’s statement that there would be a process to go through for the

appointment was correct. See Tex. Code Crim. Proc. art. 1.051. The officer did not communicate

that Rueda’s ability to terminate the interview was in any way dependent on the presence of an

attorney or his having initiated the process. Cf. Waldron v. State, No. 03-17-00065-CR, 2018 WL

700047, at *6 (Tex. App.—Austin Feb. 1, 2018, pet. ref’d) (mem. op., not designated for

publication) (overruling argument that officer misinformed defendant about right to attorney and

noting that officer did not indicate that defendant’s ability to invoke his right to attorney “was in

any way dependent on the immediate availability of his attorney”).

Rueda responded “alright” after the officer finished explaining his right to be

appointed counsel, said he understood that he had the right to terminate the interview at any time,

and confirmed that he wanted to proceed with the interview without an attorney after having been

read his rights and that he was choosing to do so knowingly, intelligently, and voluntarily. On the

Miranda card, Rueda placed his initials next to where each right was listed and signed the portion

of the card stating that he was knowingly, voluntarily, and intelligently waiving his rights. See

Ashcraft, 934 S.W.2d at 737. Nothing on the recording indicated that Rueda did not understand

the nature of the rights that he was waiving. See Joseph, 309 S.W.3d at 25; Work, 2020 WL

7776389, at *19. After that, Rueda told the police that he was present when Quintana was killed

and went over the events leading up to and following the shooting. Rueda did not invoke his right

to an attorney or otherwise seek to terminate the interview.

Given the totality of the circumstances, we conclude that the trial court did not

abuse its discretion by determining that Rueda knowingly, intelligently, and voluntarily waived

his rights before talking with the police during the fourth interview and, therefore, by denying

his motion to suppress the recording of the fourth interview. Cf. Lopez, 610 S.W.3d at 497

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(determining that defendant voluntarily waived his rights where interview only lasted two hours

and fifteen minutes, where officers offered defendant water, and where he agreed to give statement,

was Mirandized, waived his rights, and did not ask for attorney or seek to leave interview).

For these reasons, we overrule Rueda’s sole issue on appeal.

CONCLUSION

Having overruled Rueda’s issue on appeal, we affirm the trial court’s judgment of

conviction.

__________________________________________
Thomas J. Baker, Justice

Before Justices Baker, Smith, and Theofanis

Affirmed

Filed: August 28, 2024

Do Not Publish

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10569513. Public record. Not legal advice.