# Watson v. State

> Court of Criminal Appeals of Texas · December 14, 1988 · 762 S.W.2d 591

URL: https://www.frixlaw.com/law-library/cases/9779538

## Case

- **Full name:** Jimmie Davis WATSON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 14, 1988
- **Citations:** 762 S.W.2d 591; 1988 Tex. Crim. App. LEXIS 258; 1988 WL 132195
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Onion, Clinton, McCormick, Campbell, White
- **Cited by:** 147 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/9779538

## How later opinions describe it (automated extraction)

- holding that appellant’s silence and refusal to speak during repeated rounds of questioning was conduct that unambiguously communicated appellant’s desire to invoke his right to remain silent
- stating that an appearance before a magistrate under article 15.17, Code of Criminal Procedure, “is not arraignment in Texas”
- noting oral statements in issue, if admissible, were admissible under article 38.22 § 3(c) and must have been preceded by Miranda warnings
- stating that an appearance before a magistrate under article 15.17 of the Code of Criminal Procedure "is not arraignment in Texas"
- stating that "[t]he important question herein is whether the appellant invoked his constitutional right to remain silent"

## Opinion text

McCORMICK, Judge,
dissenting.
The majority holds that under the facts of this case the post arrest silence of appellant during custodial interrogation is tantamount to an invocation of his right to remain silent. As such, the majority holds that Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed2d 694 (1966), precludes use of appellant’s statements made after this implied invocation. I cannot agree.
I recognize that the language in Miranda on the scope of the right to silence and the effect of its exercise is very broad:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. [Footnote omitted.] At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” 384 U.S. at 473-74 , 86 S.Ct. at 1627-28 , 16 L.Ed.2d at 723 . (Emphasis in original).
Subsequent to Miranda , however, the United States Supreme Court has rejected literal interpretations of this passage in Miranda finding that such interpretations lead to “absurd and unintended results.” Michigan v. Mosley, 423 U.S. 96, 102 , 96 S.Ct. 321, 326 , 46 L.Ed.2d 313, 320 (1975). As the Supreme Court in Mosley pointed out:
“[A] blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogations, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.” Id. (Emphasis added).
In the Mosley decision, the Supreme Court determined that the critical safeguard identified in the Miranda passage addressing the accused’s right to silence is the accused’s “right to cut off questioning.” 423 U.S. at 103 , 96 S.Ct. at 326 , 46 L.Ed.2d at 321 . (Emphasis added). The Supreme Court explained that it is “[t]hrough the exercise of his option to terminate questioning [that the accused] can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation.” 423 U.S. at 103-104 , 96 S.Ct. at 326 , 46 L.Ed.2d at 321 . (Emphasis added). The Supreme Court has not enumerated the possible ways by which an arrestee may indicate his desire to remain silent and to cut off questioning, but no language in Miranda or its progeny provides that an accused’s silence creates a presumption that he or she desires further interrogation to cease.
The Supreme Court has determined, however, that silence by the accused following his receipt of Miranda warnings “is insolubly ambiguous.” Doyle v. Ohio, 426 U.S. 610, 617 , 96 S.Ct. 2240, 2244 , 49 L.Ed.2d 91 (1976). As Justice Marshall pointed out in United States v. Hale, 422 U.S. 171, 177 , 95 S.Ct. 2133, 2137 , 45 L.Ed.2d 99 (1975):
“At the time of arrest and during custodial interrogation, innocent and guilty alike ... may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing circumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. [Citation omitted.] ... He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention. In sum, the inherent pressures of in-custody interrogation ... compound the difficulty *610 of identifying the reason for silence. [Footnote omitted.]”
As such, depending on the circumstances of a particular case, a suspect’s act of remaining silent during custodial interrogation might be indicative of a desire to cut off questioning or it could be a failure to fully understand his right to terminate the interrogation. There are, however, other possible motives and reasons for the silence or unresponsiveness of an arrestee during police questioning — the accused may be curious to see what evidence the prosecution already has and what the prosecution might be willing to offer to lessen the severity of the possible punishment in return for cooperation or the individual may be formulating his alibi. See Mosley, 423 U.S. at 109 , 96 S.Ct. at 329 , 46 L.Ed.2d at 324, n. 1 (White, J., concurring).
Appellant and the majority fail to present any case in which an arrestee’s mere silence during questioning has been held sufficiently indicative of his desire to cut off questioning that the interrogation must be terminated. Cases in other jurisdictions that directly address this issue, however, have found that the mere silence or unresponsiveness during an interrogation of a suspect who is fully aware of his rights does not require a termination of the interrogation. For example, in Taylor v. Riddle, 563 F.2d 133, 136 (4th Cir.), cert. denied 434 U.S. 1020 , 98 S.Ct. 744 , 54 L.Ed.2d 768 (1978), the Fourth Circuit expressly rejected appellant’s argument “that an accused who remains silent, after being given his Miranda warning, signifies his election to remain silent and may not thereafter be questioned in anyway without proof of clear, intelligent and understanding waiver of his right to remain silent.” 563 F.2d at 136 . The court in Taylor based its ruling on its earlier holding in Blackmon v. Blackledge, 541 F.2d 1070, 1072 (4th Cir.1976), that “where an accused is informed and understands his Miranda rights, and then submits to questioning without objection, he has waived his rights thereunder.” Taylor, 563 F.2d at 136 .
In McClinnahan v. United States, 454 A.2d 1340 (D.C.App.1982), cert. denied, 464 U.S. 867 , 104 S.Ct. 205 , 78 L.Ed.2d 179 (1983), before making his confession, the defendant was absolutely silent during his arrest and the following two interrogation sessions, with the exception of his statement to the interrogating officer at the end of his first interview that he knew what his rights were and that he understood them. The first interrogation was 30 minutes long and was followed by an hour long investigation by a mobile crime lab technician of the blood on the defendant’s hands and clothes. The second interrogation took place immediately after the crime lab investigation and lasted 45 minutes. During the first two interrogations, while the defendant sat mutely, the police officer was mainly trying to show the defendant the strength of the case they had against him. The third interview was conducted by a different police officer who had dealt with the defendant before and was held almost immediately after the second interrogation. The defendant agreed to talk in the third interrogation and subsequently confessed. The Court of Appeals for the District of Columbia, in its ruling to admit the confession, found that “total silence here by appellant, a calculating person sophisticated in the ways of police procedures [footnote omitted], cannot be deemed to have constituted an exercise by him of his right to remain silent and to terminate questioning, some affirmative action on his part was required to indicate he was indeed exercising his option under Miranda to terminate questioning so that the police would thereby be placed on notice that their questions should cease.” 454 A.2d at 1347 .
At least two other state supreme courts have also found that an accused’s silence during custodial interrogation does not necessitate the termination of questioning. See State v. House, 54 Ohio St.2d 297 , 376 N.E.2d 588 (Ohio 1978) and State v. Perkins, 219 Neb. 491 , 364 N.W.2d 20, 23 (1985). Indeed, in order to reach their holding, the majority overrules “to the extent [it] is in conflict,” a recently decided case from this very Court. See Sawyers v. State, 724 S.W.2d 24 (Tex.Cr.App.1986).
In Sawyers , the defendant was arrested, Mirandized and, in the twenty minutes that *611 it took to transport him to jail, began answering police officer’s questions. Certainly, in Sawyers , the defendant’s silence upon initially receiving his Miranda warnings cannot, in any fashion, be recognized as an invocation of a right to remain silent. See Taylor v. Riddle, 563 F.2d 133, 136 (4th Cir.), cert. denied, 434 U.S. 1020 , 98 S.Ct. 744 , 54 L.Ed2d 768 (1977); McClinnahan v. United States, 454 A.2d 1340 (D.C.App.1982), cert. denied, 464 U.S. 867 , 104 S.Ct. 205 , 78 L.Ed.2d 179 (1983); State v. House, 54 Ohio St.2d 297 , 376 N.E.2d 588 (Ohio 1978); State v. Perkins, 219 Neb. 491 , 364 N.W.2d 20, 23 (1985). As such, this Court needlessly casts doubt on a case correctly decided and distinguishable on the facts.
Thus, an accused’s act of remaining silent during custodial interrogation may be interpreted in a variety of ways and whether an accused’s silence is indicative of his or her desire to cut off questioning will depend on the totality of circumstances apparent in each case. See North Carolina v. Butler, 441 U.S. 369, 374-375 , 99 S.Ct. 1755, 1758 , 60 L.Ed.2d 286, 293 (1979). As such, the trial court was responsible for determining precisely the significance of appellant’s silence understanding that “Miranda should not be read so strictly as to require the police to accept as conclusive any statement or act, no matter how ambiguous, as a sign that the suspect desires to cut off questioning.” State v. Woods, 374 N.W.2d 92, 99 (S.D.1985). Here the trial court found appellant’s statement to be admissible into evidence.
The implied finding, on the trial court’s part in this case, is that appellant’s silence was not an invocation of his right to remain silent. The record supports such a finding. Prior to each of the four interrogation sessions, appellant was read his Miranda warning and indicated that he understood those warnings. There is nothing in the record to indicate that appellant was incapable of understanding his rights — appellant has made no such claim either in the trial court or on appeal. Appellant is no neophyte to the criminal process; he has a prior conviction for aggravated robbery. There is nothing in the record to suggest that appellant could not have simply told the officers that he wished to remain silent. Therefore, because the record supports the trial court’s findings that appellant’s mere silence was not indicative of an invocation of his right to remain silent, I would find that the trial court did not err in allowing appellant’s statements into evidence.
Because of the foregoing I respectfully dissent.
CAMPBELL and WHITE, JJ., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9779538. Public record. Not legal advice.