The State of Texas v. David Wade Brady Jr.

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-25-00055-CR
________________

THE STATE OF TEXAS, Appellant

V.

DAVID WADE BRADY JR., Appellee
________________________________________________________________________

On Appeal from the 258th District Court
Polk County, Texas
Trial Cause No. 28,266
________________________________________________________________________

MEMORANDUM OPINION

A grand jury indicted Appellee David Wade Brady Jr. for the first-degree

felony offense of continuous sexual abuse of a child. See Tex. Penal Code Ann. §

21.02(b). Brady filed a Motion to Suppress his video-recorded confession. After two

hearings, the trial court granted the Motion and suppressed the “recording of Brady’s

interview after minute 32:44 of elapsed time on the recording[.]” In this accelerated

appeal, the State challenges the trial court’s Order granting Brady’s Motion to

1
Suppress. 1 In two issues, the State argues that the trial court erred by: (1) suppressing

portions of Appellee’s statements because he was not in custody; and (2) concluding

that Appellee’s statement was involuntary. For the reasons discussed below, we

reverse and remand.

BACKGROUND AND SUPPRESSION HEARINGS

Procedural Posture

The April 2021 grand jury indictment alleges that Brady committed acts of

sexual abuse against “Violet,” who the record establishes is his stepdaughter. In

January 2024, Brady moved to suppress his recorded statement made to law

enforcement. As relevant to this appeal, in the Motion to Suppress Brady complains

that his statement was involuntary. 2 Brady asserts, “The interrogation of Brady was

not officially ‘custodial,’ but it involved a blend or overreaching, delayed warnings,

and absence of waiver.” In support of this, Brady claims “several factors worked

together[,]” including, among other things, that he did not sign the waiver portion of

the Miranda warnings, and he “indicated that he wanted to pause the interrogation.”

1
The State may appeal an order granting a defendant’s motion to suppress if
jeopardy has not attached, and the prosecuting attorney certifies that (1) the appeal
is not for delay and (2) the suppressed material is of substantial importance to the
case. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5); State v. Wachtendorf, 475
S.W.3d 895, 899 (Tex. Crim. App. 2015). The district attorney did so in this case.
2
In the Motion to Suppress, Brady also complains of “inaudibility” in the
original recording; however, the State provided enhanced audio addressing that issue
at the suppression hearing, and the trial court did not grant the Motion to Suppress
on that basis.
2
In February 2025, the trial court conducted two hearings on Brady’s Motion

to Suppress, with evidence taken only at the first hearing. The trial court conducted

the initial suppression hearing on February 3, 2025. Detective David Mitchell was

the sole witness who testified at the first suppression hearing. Additional evidence

admitted at the first suppression hearing included: a transcript of Brady’s recorded

interview; a “Statement of Miranda Warnings” signed by Brady indicating he

understood his rights with the waiver portion unsigned; and a copy of Brady’s

February 17, 2020, recorded interview with Detective Mitchell.

Between the first and second suppression hearing, on February 7, 2025, Brady

filed a “Memorandum of Law in Support of Defendant’s Motion to Suppress

Statement to Law Enforcement.” Among other things, Brady contends that his desire

to terminate the interview but Mitchell’s failure to stop immediately was problematic.

In conjunction with this, Brady notes the “setting was sufficiently similar to that

involved in custody.” Thus, he argues that the questions should have stopped when

he first invoked his right to stop questioning, and anything he said after that should

be excluded. He complains that pressure existed here that made him feel like he was

in custody, thus his statement was involuntary. Brady asserts that certain factors

indicated voluntariness issues existed, including, among other things: a complete

absence of waivers; a setting controlled by law enforcement; the suggestion that an

indictment for a very serious crime was inevitable; the suggestion that confessing

3
might help Brady, presented against the backdrop of a wide range of punishment;

shaming Brady by indicating that he could save a child from testifying; and a refusal

to stop the interrogation when he expressed a desire to do so.

Detective David Mitchell’s Testimony

Brady called Detective Mitchell to testify at the suppression hearing. He

explained that he worked for the Polk County Sheriff’s Office as an investigator, and

he interviewed Brady in an interview room at the Polk County Sheriff’s Office.

Mitchell relayed that he was assigned the case in January 2020, as an

aggravated assault of a child, which was what he was investigating. He explained

that he first spoke with the victim’s mother about the accusations and attended the

child’s forensic interview. Based on those things, instead of immediately issuing an

arrest warrant, Mitchell wanted to hear from Brady. Mitchell testified that on

February 13, 2020, he called Brady and asked him to come in for an interview, which

Brady did on February 17, 2020. When Mitchell called Brady, he asked Brady if he

wanted to come and talk to Mitchell about the case in which Brady was named as

the offender.

Mitchell explained he wanted to investigate the case, the circumstances, and

the information he had. He wanted Brady to provide his side of the story regarding

the allegations against him. According to Mitchell, based on what various people

4
told him, he believed they were dealing with sexual assault of a child, which he

agreed “was a very serious charge.”

According to Mitchell, Brady came in voluntarily, and Mitchell did not harass,

threaten, force, or place him under duress. Brady did not bring a lawyer with him.

Mitchell said that Brady had four days to decide whether he wanted an attorney, and

Mitchell was not obligated as a police officer to tell Brady he needed one. Mitchell

testified that he used his normal, calm tone with Brady, which he described as

“conversational” and never raised his voice at Brady. Mitchell denied threatening

him and said Brady did not appear to be under duress but was upset, because he had

a hard time discussing the case.

Mitchell testified that Brady came into the station, went to the window, and

let them know he was there, so Mitchell could come greet him. Mitchell then walked

Brady to an interview room. Mitchell agreed Brady could have left before he got to

the interview room. Mitchell said he did not lock Brady in the interview room, and

he told Brady he was free to leave. Mitchell explained he reiterated to Brady that he

did not promise him anything, and at any time Brady could walk out of the interview

room. Mitchell believed Brady understood he could leave.

Mitchell claimed the interview was noncustodial and asserted that because of

this, he did not have to read Brady his Miranda warnings. Mitchell said he read the

Miranda warnings anyway, because of the severity of the case, and he wanted to let

5
Brady know what his rights were and that he could ask for an attorney at any time.

Mitchell testified that several minutes into the interview, he read Brady his rights

and gave Brady the paper with the rights listed. According to Mitchell, Brady signed

the document confirming he understood his rights, but he did not sign the portion of

the form containing the waiver of those rights. Mitchell testified that Brady kept

talking to him, indicating Brady waived those rights. He explained that the form

contains the rights that he gave Brady and what he read comports with article 38.22.

Mitchell testified that he gave the Miranda warnings after Brady said something

about committing seven offenses. At that point in Mitchell’s testimony, the State

stipulated that Brady said it all started within the last year and happened seven times

at 8:37 minutes into the interview, and the Miranda warnings happened at 13:57

minutes.

Mitchell denied that someone saying they wanted to terminate an interview

was a separate right from conferring with counsel and that “when they say that they

want their attorney, they don’t want to talk no more, then I finish and stop my

interview at that point.” Mitchell also denied that he was supposed to stop the

interview if someone says they just do not want to talk anymore. Mitchell agreed he

told Brady that Brady could help himself by giving a statement.

Mitchell testified that he was investigating a possible aggravated sexual

assault of a child, but after the interview, the charge changed to continuous sexual

6
abuse of a child. Mitchell explained until the time Brady said he wanted to stop,

there was not enough to make a continuous sexual abuse charge, but Brady

continued talking after what you’re saying [] that he wanted to stop. He
chose to keep talking. As I asked him questions, he answered the
questions. He never said that he wanted his attorney, nor did he ever
leave out of the interview room like he was instructed he could at any
time on his own free will.

Mitchell denied that Brady was under arrest or that there was any coerciveness from

him. Although Mitchell agreed that Brady indicated he did not want to talk anymore,

he insisted that Brady never asked for an attorney nor exited the interview, which he

was free to do. Mitchell testified that he did not arrest Brady that day, instead he let

Brady go and did not obtain the arrest warrant until March 10.

Other Evidence

A copy of the recorded interview and a transcript from the recorded interview

were admitted into evidence. The recorded interview shows that from the beginning

until about 7:31 minutes, Mitchell obtained background information from Brady,

including that Violet was seven years old. Between 7:33 minutes to 8:03 minutes,

Mitchell tells Brady he is not under arrest, does not have an arrest warrant, and Brady

is free to leave. Brady then expresses that he misses his family, and at 8:37 minutes

into the recording says that “all I really want to tell you . . .is that it all started within

the last year . . . 7 times and I never physically hurt her but it did happen.” He does

not say what “it” is at this point in the interview.

7
After this, for the next several minutes of the interview, Mitchell encourages

Brady to “give your side of the story” and “get it off your chest.” He also restates

his understanding of what Brady told him and the allegations Violet’s mother

brought forward. Between 12:48 and 13:25 minutes into the interview, Mitchell

reads Brady his Miranda rights, asks him if he understands, and instructs him to sign

that he understands and that Mitchell read them. Brady begins to ask Mitchell, “So

everything I told you so far . . .” Mitchell then tells Brady that “ . . . with the Miranda

warning, it’s something I don’t have to do because you are not under arrest, you

come in here, for a noncustodial interview, just us sitting down and talking, uh so,

that’s just something I like to do just to read people their rights just to so, say they

know what their rights are.” Mitchell then repeats that “I want to be able to get your

side,” and “[w]ith you just signing that just saying that I read you your rights and

you know what your rights are, what your Miranda warning is.” Brady signs the

document at 15:34 minutes into the interview, indicating he understood his rights

but did not sign the portion indicating he waived his rights.

Mitchell proceeds to tell Brady that he can choose what questions he answers.

Mitchell then says that people tend to be “more lenient” “the more that you’re honest

and you’re truthful about stuff that went wrong,” and “sometimes honesty is the best

thing to get you out of stuff[.]” Brady responds, “[T]hat’s really all I need to say, is

that it did happen, 7 times, and I never physically hurt her.”

8
After denying specific sexual acts, including sexually assaulting Violet with

his penis, the transcript and recording show the following exchange occurs:

[28:05 MITCHELL:] Okay, so what went on between y’all? What did
you do to her? Did you touch her butt? Did you touch her vagina?

[28:34 BRADY:] It was touching.

[28:39 MITCHELL:] What did you touch? I know it’s hard for you to
say, I understand that, so just take your time. [29:35] Let’s start with
this, the 7 times that we’re talking, that you’ve admitted did happen,
did it all happen at the house?

[29:42 BRADY:] Yes.

[MITCHELL:] Was [Mother] there or was [Mother] at work?

[29:48 BRADY:] She wasn’t there.

[BRADY:] So she wasn’t there. So when it was just you, was it just you
and Violet there? Or was it just you and Violet and the other two kids
there?

[29:57 BRADY:] [Inaudible]

[MITCHELL:] Sometimes they were all there or sometimes it was just
you and her, or?

[30:14 BRADY:] [inaudible] be playing outside or they weren’t there,
they didn’t see anything.

[MITCHELL:] They didn’t observe anything? So kinda tell me how it
happened, how it started, I mean, the first time, do you remember the
first time that it happened?

[31:04 BRADY:] It’s really hard to talk about.

[MITCHELL:] David, I know it’s hard to talk about. Like I said, I’m
not sitting in here judging you or nothing like that, I’m just wanting to
9
get your side of the story. But something you gotta understand [] David,
is we’re talking about, you know, something that happened, it
happened, we’ve got to get to the point where, we gotta move forward.
You see what I’m saying? As much as it’s hard to talk about, I’m just
sitting here talking to you, something that happened, we just got to, we
gotta just get it out in the open, you know, get it off of the, get the
burden of[f] your chest, and you know it’s just a hurdle, you know, a
bridge we got to cross.

[32:05 BRADY:] The day this all came to surface, I want to say it was
January 30th, and it did come off my chest. I miss them a lot.

[32:28 MITCHELL:] Is that when, January 30th, is that when you told
[Mother] about it? When she asked you about it?

[32:33 BRADY:] That’s whenever she talked to y’all.

[32:40 MITCHELL:] Right. And what did you tell [Mother]?

[32:44 BRADY:] That I’m sorry, there’s not a word to describe the
remorse and regret that I have. The disgust. You know that was my
family, that was my family. [33:25] I’m really sorry but I don’t think I
can talk anymore. Like if you can give me a couple days.

The interview continues for approximately fourteen more minutes with Mitchell

asking Brady for more details about how the incidents occurred. Brady does not

leave and makes more incriminating statements yet again, then indicates he does not

want to talk anymore.

During one subsequent exchange beginning at 39:33 minutes, the following

transpires:

[BRADY:] Over the last year.

[MITCHELL:] So over the last year this happened from time to time, 7
times? Did you ever make her put your penis in her mouth?
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[BRADY:] Yeah.

[MITCHELL:] In the bathroom?

[BRADY:] That’s correct.

[MITCHELL:] So you’re in the bathroom and what, you just told her
open her mouth or you forcefully put it in her mouth or?

[BRADY:] I don’t want to talk anymore.

[MITCHELL:] You don’t want to talk? Okay.

[BRADY:] I’m sorry.

[MITCHELL:] I’ve got enough anyhow[.]

The interview continues after this for over six minutes, with Brady saying it was

“hard to talk about” and “hard to relive[.]” It concludes when he asks Mitchell to

give him “a couple of days” until he felt “a little bit better to talk about it.” At that

point, Brady left the station.

TRIAL COURT’S RULINGS AND
FINDINGS OF FACT AND CONCLUSIONS OF LAW

On February 24, 2025, the trial court signed an Order granting Brady’s Motion

to Suppress his recorded statement after 32:44 minutes. 3 In an email to the parties,

the trial court explains that Brady invoked his right to remain silent when he stated,

3
The record reflects that the trial court initially ruled that he would only
suppress the statement beginning at 40:06 but changed the ruling to include a
suppression of the statement starting at 32:44 and going forward.
11
“I’m really sorry but I don’t think I can talk anymore. Like if you can give me a

couple of days.”

The trial court entered written “Findings of Fact and Conclusions of Law

Regarding Voluntariness of Confession.” The trial court states therein that its

findings of fact are based on Deputy Mitchell’s suppression hearing testimony. As

relevant here, the trial court issued the following findings of fact:

1. Brady is charged by indictment with a very serious felony offense, namely
Continuous Sexual Abuse of a Child Under the Age of 14.
2. The alleged victim is Brady’s stepdaughter.
3. Brady originally was contacted by Deputy Mitchell and was urged to come
to the Sheriff’s Office in Livingston, Texas. Deputy Mitchell indicated on
the telephone call that he wanted to hear Brady’s account of what happened.
4. Deputy Mitchell did not tell Brady that Brady should bring an attorney
with him.
5. Brady appeared for the interview on February 18, 2020. A recording was
made of the interview, but the sound quality is poor. The only microphone
used to capture the sound was not placed close to where Brady was located
in the room, and Brady was soft-spoken.
6. Deputy Mitchell told Brady that Brady could stop the interview at any time
and walk out the door.
7. Deputy Mitchell did not provide warnings required by Tex. Code Crim.
Proc. Art. 38.22 and by Miranda v. Arizona, 384 U.S. 436 (1966) before the
interview commenced. The statutory rights and the Miranda rights are
virtually identical. Deputy Mitchell did not administer the warnings at the
beginning of the interview.
8. At approximately 15:26 minutes into the interview, Brady signed his name
to indicate that he understood the Miranda warnings.
9. At that time Brady did not sign his name or otherwise indicate that he
waived the rights covered by the Miranda warnings. In fact, Brady never did
so.
10. At approximately 31:08 minutes into the interview, Brady stated that he
did not think he could talk about what happened. At approximately 33:27
Brady asked if he could have “a couple of days” before talking to Mitchell.
At 40:08 into the interview, Brady definitively stated that he wanted to
terminate the interview.

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11. When Brady asked for a couple of days, Brady did not specify that he
wanted to spend the time seeking legal advice. The Court takes judicial notice
that Livingston, where the interview occurred, has several attorneys who
have experience in criminal law and who maintain offices in close proximity
to the courthouse and to the building where the interview was conducted.
12. Brady made several statements which were self-incriminating after he
had requested the right to terminate the interview.
13. Deputy Mitchell conducted the interview alone, without another officer
present to use the “Good cop, bad cop” interview technique (called the “Mutt
and Jeff” technique in Miranda), to persuade Brady to confess. Mitchell
suggested that Brady would be doing a good thing for his stepdaughter by
confessing, and that could be viewed favorably by prosecutors or by a judge
or jury in a trial. Deputy Mitchell juxtaposed that with an indication that he,
Deputy Mitchell, already knew what type of criminal conduct happened
between Brady and his stepdaughter.
14. Although the quality of the recording is poor, it does not appear that
Deputy Mitchell told Brady about the severity of the punishment for the
offense which was likely to be alleged in an indictment.
15. Deputy Mitchell never told Brady that it would be beneficial to Brady to
talk to a lawyer.

The trial court also issued the following conclusions of law:

1. Brady did not receive any advice from a lawyer about whether or not
to confess or what specifically to say.
2. Brady was told at the outset of the interview that Brady was free to
leave. Many minutes later, written Miranda warnings were given to
Brady and read verbally to Brady by Mitchell. Brady signed the waiver
form indicating that he understood the warnings.
3. Brady never signed the portion of the written form indicating that he
waived his rights under Art. 38.22 and Miranda v. Arizona.
4. In order for a statement to be voluntary, it is not enough for a suspect
to merely indicate that he understood his rights. The suspect also must
affirmatively waive his Miranda rights. Mere acquiescence by
participating in an interview does not constitute an adequate waiver.
5. Miranda specifically state[s]: “If the individual indicates in any
manner, at any time prior to or during questioning, that he wished to
remain silent, the interrogation must cease.”
6. When an interview continues in violation of the foregoing portion of
Miranda, any self-incriminating statement made after that point is not
voluntary.

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7. The recording of Brady’s interview which continued after he invoked
his right to terminate the interview shall be excluded from the State’s
case in chief.
8. It is arguable that the involuntary portion may still be admissible to
impeach Brady, under Harris v. New York, 401 U.S. 222 (1971). But
Harris itself may not be applicable. In Harris, there was no issue of the
voluntariness of his statement which was offered for impeachment.
Later Mincey v. Arizona, 437 U.S. 385 (1978) distinguished Harris and
held that Mincey’s self-incriminating statement was not voluntary.
Mincey also was suffering from an injury for which he was receiving
hospital treatment, but the injury was not the only reason for finding a
statement to be involuntary in Mincey. Mincey repeatedly asked to stop
the interview, but a nurse stepped in and, playing the “good cop” role,
suggested that it would be better if Mincey answered. This case seems
more like Mincey than like Harris.
9. Before the State is permitted to play the recording for impeachment
purposes, the State first must give Brady the chance to admit or deny
that he made a prior statement that is inconsistent with his testimony
before a jury.

SUPPRESSION STANDARD OF REVIEW

We review a trial court’s ruling on a motion to suppress under a bifurcated

standard. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016); Valtierra

v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We give almost total

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

trial court’s fact findings turn on the witnesses’ credibility and demeanor. See

Brodnex, 485 S.W.3d at 436 (quoting Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim.

App. 2010)). We afford the same deference to the trial court’s rulings on applying

the law to questions of fact and to mixed questions of law and fact, if resolution of

those questions depends on an evaluation of the credibility and demeanor of

14
witnesses. See Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). We

review de novo mixed questions of law and fact that do not depend on credibility

and demeanor. Id.

At a suppression hearing, the trial court is the exclusive trier of fact and judge

of the witnesses’ credibility and weight to give their testimony. St. George v. State,

237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002). At the hearing, a trial court may choose to believe or to

disbelieve some, all, or part of a witness’s testimony. See Baird v. State, 398 S.W.3d

220, 226 (Tex. Crim. App. 2013) (citing State v. Ross, 32 S.W.3d 853, 855 (Tex.

Crim. App. 2000)).

We view the evidence in a light most favorable to the trial court’s rulings and

uphold the trial court’s ruling on a motion to suppress if that ruling is supported by

the record and is correct under any theory of law applicable to the case, even if the

trial court gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401,

404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004); see Arguellez, 409

S.W.3d at 662–63. When the trial court grants a motion to suppress accompanied by

findings of fact and conclusions of law, and the State does not contest the trial court’s

findings of fact, the only question before us is whether the trial court properly applied

the law to the facts it found. See State v. Gray, 158 S.W.3d 465, 467, 469 (Tex. Crim.

App. 2005); Guzman v. State, 955 S.W.2d 85, 86–87, 89 (Tex. Crim. App. 1997).

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ISSUE ONE: CUSTODY AND
INVOCATION OF RIGHT TO REMAIN SILENT

In issue one, the State argues that the trial court erred because Brady was not

in custody during his interview. Thus, it asserts that the Miranda and article 38.22

warnings were not required. The trial court suppressed Brady’s recorded interview

after minute 32:44, having determined that Brady’s Miranda rights were violated

since he invoked his right to remain silent by stating that he wished to terminate the

interview. Since Miranda and 38.22 apply only to custodial interrogations, implicit

in the trial court’s determination that Brady’s Miranda rights were violated is the

trial court’s conclusion that Brady was in custody for some portion of the interview.

The State contends no evidence supports that a reasonable person, in Brady’s

position, would have believed that his freedom of movement was restricted to the

degree associated with a formal arrest. 4 We find it is necessary to our resolution of

4
Brady responds that the State has not shown harm by the trial court’s
suppression ruling. The statute allowing for an interlocutory appeal of a trial court’s
granting of defendant’s motion to suppress only requires the prosecuting attorney to
certify the evidence suppressed has “substantial importance” to the State’s case. See
Tex. Code Crim. Proc. Ann. art. 44.01(a)(5). Erroneously suppressing evidence of
“substantial importance” to the State’s case is harmful. “Courts do not go behind the
certification to examine the importance of the suppressed evidence precisely because
they rely upon the elected prosecutor’s certification[.]” State v. Redus, 445 S.W.3d
151, 158 (Tex. Crim. App. 2014) (citations omitted) (stating same in context of
jurisdictional analysis).
16
issue one to address two questions: (1) when custody attached, if at all; and if so, (2)

whether Brady invoked his right to remain silent.

Custody

Whether a defendant was in custody for purposes of Miranda is a mixed

question of law and fact, so “we apply (1) a deferential standard of review to the trial

court’s factual assessment of the circumstances surrounding the interrogation, and

(2) a de novo review to its ultimate legal determination that appellee was in custody.”

State v. Saenz, 411 S.W.3d 488, 494 (Tex. Crim. App. 2013) (citations omitted); see

also Thompson v. Keohane, 516 U.S. 99, 112–13 (1995) (explaining that appellate

court conducts a factual review surrounding interrogation circumstances and legal

determination about whether a person would not have felt at liberty to leave).

Generally, Miranda warnings are required if the police have taken a defendant

into custody. See Miranda v. Arizona, 384 U.S. 436, 444, 478–79 (1966); Herrera

v. State, 241 S.W.3d 520, 525–26 (Tex. Crim. App. 2007). That said, Miranda and

article 38.22 warnings are required only when there is a custodial interrogation. See

Herrera, 241 S.W.3d at 526. A defendant bears the initial burden to show his

statement was the product of a custodial interrogation. Id. The State has no burden

to show compliance with Miranda unless the record as a whole “clearly establishes”

that the defendant’s statement was the product of a custodial interrogation. Id.;

Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005). Custodial

17
interrogation means “questioning initiated by law enforcement officers after a person

has been taken into custody or otherwise deprived of his freedom of action in any

significant way.” Miranda, 384 U.S. at 444. “A person is in ‘custody’ only if, under

the circumstances, a reasonable person would believe that his freedom of movement

was restrained to the degree associated with a formal arrest.” See Dowthitt v. State,

931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511

U.S. 318, 323–25 (1994)); see also Herrera, 241 S.W.3d at 525.

The Court of Criminal Appeals has outlined at least four general situations

which may constitute “custody:” (1) when the suspect is physically deprived of his

freedom of action in any significant way; (2) when a law enforcement officer tells

the suspect that he cannot leave; (3) when law enforcement officers create a situation

that would lead a reasonable person to believe that his freedom of movement has

been significantly restricted; and (4) when there is probable cause to arrest and law

enforcement officers do not tell the suspect that he is free to leave. Wexler v. State,

625 S.W.3d 162, 167–68 (Tex. Crim. App. 2021); Dowthitt, 931 S.W.2d at 255. In

the first three situations, the restriction upon freedom of movement must amount to

the degree associated with an arrest as opposed to an investigative detention. Wexler,

625 S.W.3d at 168; Dowthitt, 931 S.W.2d at 255. In the fourth custodial situation,

Dowthitt explains,

Stansbury dictates that the officers’ knowledge of probable cause be
manifested to the suspect. Such manifestation could occur if
18
information substantiating probable cause is related by the officers to
the suspect or by the suspect to the officers. Moreover, given our
emphasis on probable cause as a “factor” in other cases, situation four
does not automatically establish custody; rather, custody is established
if the manifestation of probable cause, combined with other
circumstances, would lead a reasonable person to believe that he is
under restraint to the degree associated with an arrest.

Dowthitt, 931 S.W.2d at 255 (citations omitted). “Stationhouse questioning does not,

in and of itself, constitute custody.” Id. “However, the mere fact that an interrogation

begins as noncustodial does not prevent custody from arising later; police conduct

during the encounter may cause a consensual inquiry to escalate into custodial

interrogation.” Id. (citation omitted). Factors to consider in determining whether a

noncustodial interrogation escalated into a custodial interrogation include: “(1) the

length of the interrogation; (2) the level of control police exercised over the

defendant; and (3) whether the defendant made statements providing probable cause

for arrest that a reasonable person would have known to be incriminating.” Morales

v. State, 371 S.W.3d 576, 590 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)

(citing Dowthitt, 931 S.W.2d at 255, 257).

In this case, Brady came to the police station voluntarily, Mitchell told him

that he was not under arrest, and Brady was told more than once he could leave at

any time. It is undisputed that this encounter began as a noncustodial interrogation,

and Brady was allowed to leave. We conclude based on this record that the first three

Dowthitt custody situations clearly would not apply because the record does not

19
show the officers restricted Brady’s freedom of movement to the degree associated

with an arrest. As to the fourth situation and whether this interrogation transformed

into a custodial interrogation we examine whether there was probable cause to arrest,

and law enforcement officers did not tell the suspect that he is free to leave. See id.;

see also Wexler, 625 S.W.3d at 167–68.

As outlined above, between 28:39 minutes and 32:44 minutes on the video of

the interview, Brady admits to “touching” Violet’s vagina seven times and said that

he told his wife, “I’m sorry, there’s not a word to describe the remorse and regret

that I have. The disgust.” At this point, there is a manifestation of probable cause as

Brady conveys “information substantiating probable cause” to Mitchell. See

Dowthitt, 931 S.W.2d at 255 (explaining that manifestation of probable cause can

occur if officers relate information substantiating probable cause to the suspect or

the suspect relays such information to the officers). We look at this manifestation

“combined with other circumstances” to determine if they would lead a reasonable

person to believe he is under restraint to the degree associated with an arrest. See id.;

see also Stansbury, 511 U.S. at 325. These other circumstances include things like

the interview’s duration, exercise of police control, location of questioning, whether

the suspect arrived voluntarily, whether he was denied access to family, whether the

person was in restraints and whether he was allowed to leave after the interview. See

Saenz, 411 S.W.3d at 496 (noting duration and exercise of police control); Gardner

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v. State, 306 S.W.3d 274, 294–95 (Tex Crim. App. 2009) (noting lack of arrest

warrant of which appellant was told and that he left the police station after being

questioned, among other things); Dowthitt, 931 S.W.2d at 255–57 (noting duration

and exercise of police control); see also Howes v. Fields, 565 U.S. 499, 509 (2012)

(noting location, duration, statements made during interview, physical restraints, and

release of interviewee after questioning).

The evidence here supports the trial court’s finding that Brady came

voluntarily to the police station for his interview. The record shows that the total

time of this interrogation was a little over forty-five minutes. Mitchell also tells

Brady at the beginning of the interview that he is not under arrest, he does not have

an arrest warrant, and he is free to leave. Approximately one-third of the way through

the interview, Mitchell reads Brady his Miranda warnings, which Brady signs

indicating he understands his rights. Mitchell, however, makes it clear to Brady they

are talking about a crime, and “we need to process everything because I’ve got to go

over everything before this thing because I have to know on my part what I’m

working with[.]” The video of the interview shows no evidence that Brady ever

asked for an attorney, or to speak with or call his family, and he never asked for food

or drink, nor is there any indication that he was sleep deprived. There is no allegation

of and no evidence showing that he was physically restrained during the interview;

in fact, the only evidence indicates he was not restrained. Although Brady says a

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couple of times that what happened is hard to talk about, and that he does not want

to talk about it any further, he does not get up and leave at that point. The video

indicates that Mitchell tells Brady, “I have enough[,]” but he then allows Brady to

leave the police station. Mitchell did not obtain an arrest warrant until March 10,

which was weeks after the interview occurred.

Using a de novo standard of review for the trial court’s legal conclusion that

this was a custodial interrogation to which Miranda applied, we conclude, based on

the consideration of “other circumstances” that no reasonable person would believe

he was under restraint to the degree associated with an arrest. See Saenz, 411 S.W.3d

at 496; Gardner, 306 S.W.3d at 294–95; Dowthitt, 931 S.W.2d at 255; see also

Howes, 565 U.S. at 509; Stansbury, 511 U.S. at 325. We hold Brady failed to meet

his burden at the suppression hearing of establishing that this was a custodial

interrogation. See Herrera, 241 S.W.3d at 526. Having determined that this was a

noncustodial interrogation, the State had no obligation to instruct Brady and obtain

waivers as to Miranda or 38.22. See Herrera, 241 S.W.3d at 526.

Invocation of Right to Remain Silent

Under Miranda, police officers must respect a suspect’s unambiguous

invocation of his right to remain silent by terminating questioning; such a request

must be “scrupulously honored” and all questioning must cease. See Sandoval v.

State, 665 S.W.3d 496, 520 (Tex. Crim. App. 2022) (quoting Michigan v. Mosley,

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423 U.S. 96, 103–04 (1975)). “If a statement is governed by Miranda (i.e., the

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

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

statements inadmissible.” Dowthitt, 931 S.W.2d at 257 (citation omitted). “However,

if a suspect’s invocation of this right is not unambiguous, a law enforcement officer

is not required to cease questioning or to clarify an ambiguous remark, although the

latter is good practice.” State v. Robles, 720 S.W.3d 546, 555 (Tex. App.—El Paso

2025, pet. ref’d) (citing Davis v. United States, 512 U.S. 452, 461

(1994) (recognizing that although not required, “it will often be good police practice

for the interviewing officers to clarify whether or not he actually wants an attorney”

“when a suspect makes an ambiguous or equivocal statement”); Sandoval, 665

S.W.3d at 520 (recognizing that “a suspect’s invocation of this right must be

unambiguous, and there is no requirement that law enforcement clarify ambiguous

remarks”)). We look at the totality of the circumstances to determine whether the

defendant unambiguously invoked his right to remain silent. Id. (quoting Watson v.

State, 762 S.W.2d 591, 597 (Tex. Crim. App. 1988)).

The Court of Criminal Appeals has said,

If the individual [in custody] indicates in any manner, at any time prior
to or during questioning, that he wishes to remain silent, the
interrogation must cease. As this language [in Miranda ] suggests, the
suspect need not use any particular phraseology to invoke the right [to
remain silent]. [A]ny declaration of a desire to terminate the contact or
inquiry ... should suffice. The same is true of silence in the face of
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repeated questioning, or an effort to end the contact with the
interrogator. But, an [interrogating] officer need not stop his
questioning unless the suspect’s invocation of rights is unambiguous,
and the officer is not required to clarify ambiguous remarks. If a person
in custody does invoke his Fifth Amendment right to remain silent, then
the admissibility in court of statements obtained thereafter depends on
whether the person’s right was “scrupulously honored.”

Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008) (internal quotations

and citations omitted); see also Robles, 720 S.W.3d at 555 (citations omitted).

When an appellant is not in custody, however, law enforcement officials have

no obligation under Miranda to scrupulously honor a request to terminate

questioning in a non-custodial encounter. Estrada v. State, 313 S.W.3d 274, 296

(Tex. Crim. App. 2010) (citations omitted). When Miranda warnings were

unnecessarily given, it does not change that fact. See id. A defendant’s remedy in a

noncustodial setting where the police continue questioning him after he “has

unambiguously invoked his right to silence is simply to get up and leave.” See id. at

296 n.26 (citations omitted).

We have already concluded that Brady failed to establish that his interview

was custodial, and his remedy if he wanted to stop talking was simply to get up and

leave which he eventually did. Therefore, we hold that Mitchell had no obligation to

“scrupulously honor” Brady’s request to stop talking or to remain silent despite the

gratuitous reading of the Miranda warning. See id. at 296 (citations omitted). The

trial court’s conclusion that Brady indicated he wanted to terminate the interview

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and that he had invoked his right to remain silent which the officers did not

“scrupulously follow,” was erroneous, and the trial court’s suppression of the portion

of that interview following that invocation was also erroneous.

Having determined that Brady failed to establish his interview was custodial

and that Mitchell had no obligation to “scrupulously honor” Brady’s desire to

terminate the interview, we sustain issue one.

ISSUE TWO: VOLUNTARINESS

In issue two, the State contends the trial court erred by concluding Brady’s

statement was involuntary. We focus our discussion in this issue on the arguments

Brady made at trial wherein he asserted that the aggressive interrogation and

psychological tactics made the statements involuntary. Specifically, Brady argues:

(1) Mitchell’s suggestion that confessing might help if Brady “got it off his chest,”

presented against the backdrop of a wide range of punishment and might “earn the

right to see his family;” and (2) Mitchell shaming Brady by suggesting that he could

save a child from testifying.

Consent issues are “necessarily fact intensive” thus, “a trial court’s finding of

voluntariness must be accepted on appeal unless it is clearly erroneous.” Meekins v.

State, 340 S.W.3d 454, 460 (Tex. Crim. App. 2011). We afford the prevailing party

in the trial court “‘the strongest legitimate view of the evidence and all reasonable

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inferences that may be drawn from that evidence.’” Id. (quoting State v. Garcia-

Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008)).

A statement can be deemed “involuntary” under three separate theories: (1)

failure to comply with code of criminal procedure article 38.22; (2) failure to comply

with the dictates of Miranda; or “(3) it was taken in violation of due process or due

course of law because the statement was not freely given due to coercion, force, or

improper influence.” State v. Howard, 378 S.W.3d 535, 541 (Tex. App.—Fort

Worth 2012, pet. ref’d) (citing Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App.

1996)) (other citations omitted). We addressed Miranda in issue one above, and in

that analysis noted that article 38.22 likewise applies only to custodial interrogations.

See id.; see also Tex. Code Crim. Proc. Ann. art. 38.22; Gardner, 306 S.W.3d at 294.

Therefore, for us to affirm the trial court’s ruling based on Brady’s claims that his

statements were involuntary, the record must reasonably support the conclusion that

Brady’s statements were not freely given due to coercion, force, or improper

influence. See Howard, 378 S.W.3d at 541; see also Wolfe, 917 S.W.2d at 282

(explaining that in the absence of custody, due process is violated only by

confessions that are not freely given rather than by mere noncompliance with

prophylactic rules). “To prevail on a due process ‘involuntary confession’ claim, a

defendant must show (1) that police engaged in activity that was objectively coercive,

(2) that the statement is causally related to the coercive government misconduct, and

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(3) that the coercion overbore the defendant’s will.” Lopez v. State, 610 S.W.3d 487,

494 (Tex. Crim. App. 2020) (citing Colorado v. Connelly, 479 U.S. 157, 170 (1986);

Contreras v. State, 312 S.W.3d 566, 574 (Tex. Crim. App. 2010); Oursbourn v. State,

259 S.W.3d 159, 170–71 (Tex. Crim. App. 2008)). To determine whether a

confession was voluntary we examine the totality of the circumstances. See id.;

Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007).

“A promise made by a law enforcement officer may render a confession

involuntary if it was positive, made or sanctioned by someone with apparent

authority, was of some benefit to the defendant and was of such a character as would

likely cause a person to speak untruthfully.” Joseph v. State, 309 S.W.3d 20, 26 n.8

(Tex. Crim. App. 2010) (citing Garcia v. State, 919 S.W.2d 370, 388 (Tex. Crim.

App. 1994)). “General promises of leniency, such as the officer’s statement that an

appellant’s cooperation by giving a statement would ‘help’ the accused do not reach

the required level for improper inducement.” Coleman v. State, 440 S.W.3d 218, 225

(Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Dykes v. State, 657 S.W.2d

796, 797 (Tex. Crim. App. 1983)).

Amorphous references in the recorded statement that it might help Brady if he

“got things off his chest” or that a jury or prosecutor might be more lenient if he

were honest, does not rise to the level of improper inducement. See id. Likewise, any

appeals to Brady’s concern for the victim and sparing her the ordeal of testifying did

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not rise to this level of coerciveness. As explained in our discussion of issue one:

Brady came to the police station voluntarily; the interview lasted less than an hour;

he was told more than once he was free to leave; despite not signing a waiver of his

Miranda rights, he signed a statement indicating he understood them and did not get

up to leave the noncustodial interrogation until it ended; he was not under arrest; he

was allowed to leave the police station; and an arrest warrant was not obtained for

weeks after the interview. Based on the totality of the circumstances, we conclude

the record does not reflect that Brady’s will was overborne as a result of Mitchell’s

comments so as to render Brady’s statements involuntary. See Lopez, 610 S.W.3d at

494; Contreras, 312 S.W.3d at 574; Oursbourn, 259 S.W.3d at 170–77. We sustain

issue two.

CONCLUSION

We conclude the trial court erred in granting the Motion to Suppress and have

sustained the State’s issues. Accordingly, we reverse the trial court’s order and

remand the case to the trial court for further proceedings.

REVERSED AND REMANDED.

W. SCOTT GOLEMON
Chief Justice

Submitted on August 25, 2025
Opinion Delivered February 18, 2026
Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.

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