author: KEASLER, J.,

text:
    Joseph Denver SMITH, Appellant, v. The STATE of Texas.
    No. PD-1805-08.
    Court of Criminal Appeals of Texas.
    Feb. 24, 2010.

    Rehearing Denied May 5, 2010.

      Melissa Martin, Houston, for Appellant.
    Alan Curry, Asst. District Attorney, Houston, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   OPINION

KEASLER, J.,

delivered the unanimous opinion of the Court.

A jury found Joseph Denver Smith guilty of indecent exposure. Before trial, the judge denied Smith’s motion to quash, which alleged that the information was fundamentally defective for failing to allege the act or acts relied on to constitute recklessness. We hold that the First Court of Appeals erred in affirming the trial judge’s denial and conclude that the defect in the information was a substance defect. We therefore reverse and remand the case to the court of appeals to determine what, if any, harm analysis applies.

Facts

Houston Police Department Officer Shannon Farquhar testified that on August 12, 2007, he was working in an undercover capacity in Houston’s Memorial Park. He was conducting a sting operation in response to “reports of individuals engaging in sexual behavior, masturbation and stuff.” A particular area of the park was “[v]ery well known” for this type of behavior, according to Farquhar.

While Farquhar was sitting in his unmarked city vehicle in a parking lot, Smith pulled into the lot. Initially, the two engaged in “[j]ust some glances and stares. That’s it. No verbal contact.” Farquhar testified that this went on for two to three minutes. The two exchanged glances and head nods, which Farquhar stated is a signal that “the individual is open or engaged in taking part in what’s going on in that area of the bathroom or the wooded area portions of the park.”

Farquhar exited his vehicle and walked down a path toward a bathroom building about thirty to forty yards away. Smith also exited his vehicle, following Farquhar down the path. When Smith arrived outside the bathroom, Farquhar began touching himself in a “mock masturbation;” he had his fly unzipped and his hand inside his pants. The two were standing “[v]ery, very close.” Smith reacted by staring at Farquhar and looking around the area to make sure that they were alone. Smith then began to “gratify himself’ from the outside of his pants and proceeded to unzip his fly and place his hands in his shorts. Farquhar stated that Smith removed his penis from his shorts for thirty to forty-five seconds. In doing so, Smith exposed the shaft area of his penis while masturbating.

Once Smith had exposed himself, Farqu-har displayed his badge and identified himself as a police officer and told Smith that he was under arrest for indecent exposure. Smith became “very startled” and tried to walk away from him. Farquhar pulled his gun on Smith, directed him to comply, handcuffed him, and placed him into custody.

Procedural History

Smith was charged by information with indecent exposure under Texas Penal Code Section 21.08, which provides in relevant part:

(a) A person commits an offense if he exposes his anus or any part of his genitals with intent to arouse or gratify the sexual desire of any person, and he is reckless about whether another is present who will be offended or alarmed by his act.

The information charging Smith alleged:

JOSEPH DENVER SMITH, hereafter styled the Defendant, heretofore on or about APRIL 12, 2007, did then and there unlawfully expose his GENITALS to S. FARQUHAR with intent to arouse and gratify the sexual desire of THE DEFENDANT, and the Defendant was reckless about whether another person was present who would be offended and alarmed by the act, to-wit: THE DEFENDANT EXPOSED HIS PENIS AND MASTURBATED.

Smith moved to quash the information because the State failed to allege what act or acts constituted recklessness as required by Article 21.15 of the Texas Code of Criminal Procedure. Article 21.15 provides:

Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.

In his motion, Smith argued that the information was fundamentally defective because it was insufficient under Article 21.15, Section 6.03(c) of the Penal Code, and our caselaw. Smith cited our 1988 decision in Gengnagel v. State in which we recognized that the State must allege “the circumstances of the act which indicate that the defendant acted in a reckless manner.” The trial judge overruled Smith’s motion without a hearing. The jury later found Smith guilty, and the judge sentenced Smith to 180 days’ confinement in the Harris County Jail, probated for eighteen months. Smith appealed the denial of his pretrial motion to quash.

Court of Appeals

On appeal, Smith relied on our opinion in Gengnagel and argued that the information was fundamentally defective for failing to allege with reasonable certainty the acts relied upon to constitute recklessness, an element of the offense.

The court of appeals held that the information sufficiently described the acts relied upon to constitute recklessness. The court determined that Gengnagel’s requirement that the State allege “the circumstances of the act which indicate that the defendant acted in a reckless manner” was “met by the assertion that appellant ‘exposed his penis and masturbated’ while he was ‘reckless about whether another person was present who would be offended and alarmed by the act.’ ”

We granted Smith’s petition for discretionary review to address whether the court of appeals erred in concluding that the information alleged with reasonable certainty the act or acts relied upon to constitute recklessness as required by Article 21.15.

Analysis

A.

It should first be noted that the court of appeals, relying on its own decision in State v. Goldsberry, erroneously applied an abuse-of-discretion standard. The sufficiency of a charging instrument presents a question of law. An appellate court therefore reviews a trial judge’s ruling on a motion to quash a charging instrument de novo.

In State v. Mays, we stated that “[s]ub-ject to rare exceptions, an indictment tracking the language of the statute will satisfy constitutional and statutory requirements.” “The State need not allege facts that are merely evidentiary in nature.” Notwithstanding Mays, whenever recklessness “enters into or is a part or element of any offense, or it is charged that the accused acted recklessly ... in the commission of an offense,” Article 21.15 establishes an additional requirement: “in order to be sufficient [the charging instrument] in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness.” Indecent exposure, the crime with which Smith was charged, is such a crime. Thus, the information must allege the act or acts relied on to constitute recklessness.

Professors Dix and Dawson have commented that the terms of Article 21.15 present “some conceptual difficulty.” The problem arises from the 1974 Penal Code’s distinction between culpable mental states and acts. Section 1.07(a)(10) of the Penal Code defines “conduct” as “an act or omission and its accompanying mental state.” An “act” is defined as “a bodily movement, whether voluntary or involuntary.” And Section 6.03(c) of the Penal Code states, “A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” The language of Article 21.15 assumes that the culpable mental state of recklessness can be “constituted” by some “act.” However, the definition of “act,” added in 1974, made this a “conceptual impossibility.”

As part of the enacting legislation of the 1974 Penal Code, the Legislature amended Article 21.15 to accommodate the Penal Code’s inclusion of the culpable mental state of recklessness. Since the Legislature modified Article 21.15 as part of the same legislation that enacted the 1974 Penal Code, it must have been aware of the terms of Section 6.03(c) of the Penal Code and intended for Article 21.15 to be given effect.

Since an “act,” as defined by the Penal Code, cannot logically “constitute recklessness,” in Gengnagel we interpreted the provision in Article 21.15 to mean that “the State must allege circumstances which indicate that appellant was aware of the risk that another person was present who would be offended by his act of exposing himself and ... acted in conscious disregard of that risk.” In reaching this conclusion, we relied on our holding in Townsley v. State. Townsley was convicted of involuntary manslaughter. On appeal, he complained that the trial judge erred in overruling his motion to quash the indictment, arguing that it did not comply with the requirements of Article 21.15. The indictment alleged that Townsley:

did then and there recklessly cause the death of Luther Eugene Stark by driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer and recklessly causing said vehicle to run off the roadway and roll over, thereby fatally injuring the said Luther Eugene Stark, who was a passenger in said vehicle....

We concluded that the indictment “sufficiently alleged with reasonable certainty the act or acts relied upon to constitute recklessness,” and affirmed the conviction. The indictment alleging that the offense was committed “by driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer, and recklessly causing said vehicle to roll over .... ” alleged “acts” from which a trier of fact could infer the culpable mental state of recklessness.

In Gengnagel, Gengnagel was charged by information with indecent exposure. The indictment alleged that Gengnagel

did then and there expose to Kenneth Gore, his genitals with intent to arouse and gratify the sexual desire of the defendant, and the said defendant did so recklessly and in conscious disregard of whether another person was present who would be offended and alarmed by such act, to-wit: exposition of his genitals by the defendant to complainant.

We noted that the information in Gengna-gel did “not allege any act or circumstances which would show that this exposition was done in a reckless manner, as required by Article 21.15.” Although the word “circumstances” does not appear in Article 21.15, we used it to explain what Article 21.15 requires. Article 21.15 addresses the “act” or “acts” — not as defined by the Penal Code — from which the State will ask the trier of fact to infer that the accused acted with the required recklessness. The “act” or “acts” relied on to prove the mental state do not need to be the same “act” constituting the prohibited conduct.

With respect to the recklessness element in Gengnagel, the information alleged only “exposition of his genitals by the defendant to the complainant.” Though constituting part of the forbidden conduct, this “act” was not something from which a trier of fact could infer recklessness because exposing one’s genitals is not by itself reckless. We therefore held that the charging instrument was inadequate.

Though the information charging Smith with indecent exposure was sufficient to satisfy due-process notice requirements, based on Gengnagel, the information did not comply with the requirements of Article 21.15. As noted above, the information alleged that Smith,

did then and there unlawfully expose his GENITALS to S. FARQUHAR with intent to arouse and gratify the sexual desire of THE DEFENDANT, and the Defendant was reckless about whether another person was present who would be offended and alarmed by the act, to-wit: THE DEFENDANT EXPOSED HIS PENIS AND MASTURBATED.

Similar to the deficient pleading in Geng-nagel, the allegation that Smith “exposed his penis and masturbated,” is not sufficient to meet the requirements of Article 21.15. For a person to commit the offense of indecent exposure, the person must be “reckless about whether another person was present who would be offended and alarmed by the act.” In this case, a trier of fact could not infer recklessness from the information because there is nothing inherently reckless about either exposing oneself or masturbating. Consequently, the trial judge erred by denying Smith’s motion to quash.

In its review of the case, the court of appeals misinterpreted our holding in Gengnagel and the requirements of Article 21.15. Its determination that Article 21.15 was satisfied “by the assertion that appellant ‘exposed his penis and masturbated’ while he was ‘reckless about whether another person was present who would be offended and alarmed by the act’ ” is flawed. The information in this case differed from the one in Gengnagel only in that it added “and masturbated,” as opposed to only alleging exposure. The additional language here did not cure the defect we recognized in Gengnagel. The information would have sufficiently apprised Smith of the act or acts constituting recklessness if the State had alleged that Smith exposed his penis and masturbated in a public place. Indeed, that is what the State ultimately showed at trial.

B.

We now discuss the principle of fundamental error. Smith has continuously asserted that the information is fundamentally defective for failing to allege with reasonable certainty the act or acts relied upon to constitute recklessness. Smith has cited Gengnagel in support of this proposition. But this approach was abrogated twenty years ago. Until our decision in Studer v. State, we used the terms “substance defect,” “fundamental error,” and “fatally defective” interchangeably when addressing unpreserved errors in charging instruments that could be raised for the first time on appeal. We called substance defects “fundamental error” because a charging instrument with a substance defect deprived the trial court of jurisdiction. A conviction based on such a charging instrument defect was void. A defendant could therefore challenge even unpreserved substance errors in the charging instrument for the first time on direct appeal or on habeas.

In 1985, the Legislature proposed, and voters approved, an amendment to Section 12 of Article V of the Texas Constitution. The amendment provided, for the first time, a constitutional definition of “indictment” and “information.” The constitution was amended to read:

An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and in-formations, including their contents, amendment, sufficiency and requisites, are provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

At the same time, the Legislature amended Article 1.14 of the Code of Criminal Procedure to provide for the procedural default of claims based on defects in the charging instrument absent a pretrial objection:

If the defendant does not object to a defect, error, or irregularity of form or substance in the indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and may not raise the objection on appeal or in any other postconviction proceeding.

We noted in Studer that “the amendment to Article 1.14 did not change what constitutes a substance defect, but rather only its effect.” We further observed, “If omitting an element from an indictment is still a defect of substance in an indictment, it naturally follows that the indictment is still an indictment despite the omission of that element.” A trial court therefore has jurisdiction despite a substance defect, and the conviction is not void.

There are limited situations in which a judgment is void. In Nix v. State, we noted:

A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged, such as when a misdemeanor involving official misconduct is tried in a county court at law, (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwright [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ]. While we hesitate to call this an exclusive list, it is very nearly so.

With respect to the first circumstance, we noted in Nix that “[ejxcept for certain circumstances outlined by Duron and Cook, ‘fundamental’ indictment errors have been eliminated by constitutional and statutory amendment.” In Duron v. State, we held that a charging instrument, to confer jurisdiction, must charge “the commission of an offense.” In Cook, we held that the purported charging instrument failed to charge “a person,” was not a charging instrument, and rendered the conviction void. To be consistent with our error-preservation jurisprudence, where a purported charging instrument does not satisfy constitutional requirements, the resulting lack of jurisdiction over the defendant should be characterized as the absence of a nonforfeitable, systemic requirement under Marin v. State, not as a “fundamental error.”

If a charging instrument meets the constitutional requirements, under Studer, a defendant must make a pretrial objection to a substance defect in the information or indictment or forfeit the right to complain about it on appeal. Smith properly preserved his complaint by timely moving to quash and receiving an adverse ruling. The court of appeals correctly recognized that fundamental error did not apply, but it mischaracterized Smith’s complaint as a notice problem. Smith’s complaint is that under Article 21.15 and Gengnagel, the information failed to describe an element of the offense.

C.

Having dispelled the notion that the error is of a fundamental nature, we must still determine whether the defect in the information was a form or a substance defect. We conclude that it was a substance defect. Substance defects are defined by Article 27.08 of the Code of Criminal Procedure. One such defect is, “[t]hat it does not appear therefrom that an offense against the law was committed by defendant.” We have interpreted this provision to include situations in which the charging instrument fails to describe an element of the offense. In Gengnagel, we noted, “Since recklessness is an element of the offense of indecent exposure, and the allegation of the acts relied upon to constitute recklessness is necessary for a valid charging instrument, appellant challenges the substance of the information because it does not meet these requirements.” Similarly, in Studer, another indecent exposure case, we stated that the information contained a defect of substance because it did not allege an act or acts constituting recklessness. As in Gengnagel and Stu-der, the information in this case failed to allege the act or acts constituting recklessness. Therefore, the information suffered from a substance defect.

D.

Next, we turn to the issue of harm and observe that the parties have not briefed this issue. Since our holding in Studer, we have not considered what, if any, harm analysis is required when a defendant makes a pretrial objection to a defect of substance. A defect of form is reviewed under Article 21.19 of the Code of Criminal Procedure. We held in Adams v. State that reversal is necessary only if the reviewing court finds that the substantial rights of the defendant were prejudiced by the trial judge’s failure to grant a motion to quash and instituted a three-part test to determine whether reversal is required. Before Studer, we stated that an Adams analysis under Arti-ele 21.19 of the Code of Criminal Procedure does not apply to substance defects.

Though we have intimated that a harm analysis would apply to substance defects, we have never squarely addressed the issue. We note that various courts of appeals have considered what harm analysis would apply. Because the parties have not briefed the issue and the court of appeals has not yet addressed it, we remand this case to the court of appeals to determine what, if any, harm analysis applies.

Conclusion

We reverse the judgment of the court of appeals and hold that the information in this case contained a substance defect. We remand the case to the court of appeals to determine what harm analysis, if any, should apply.

      . Smith v. State, No. 01-07-00860-CR, 2008 WL 4965322, at *2, 2008 Tex.App. LEXIS
        8776, at *6 (Tex.App.-Houston 2008) (not designated for publication).

      . Tex. Penal Code Ann § 21.08 (Vernon 2003), last amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.

      . Tex Code Crim. Proc. Ann art. 21.15 (Vernon 2009).

      . 748 S.W.2d 227 (Tex.Crim.App.1988).

      . Id. at 229.

      . Smith v. State, 2008 WL 4965322, at *1, 2008 Tex.App. LEXIS 8776, at *1.

      . Id. 2008 WL 4965322, at *2, 2008 Tex.App. LEXIS 8776, at *5.

      . Id.

        . 14 S.W.3d 770, 772 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d).

      . State v. Barbernell, 257 S.W.3d 248, 251 (Tex.Crim.App.2008) (citing State v. Moff, 154 S.W.3d 599, 601 (2004)).

      . Id. at 251-52.

      . 967 S.W.2d 404, 406 (Tex.Crim.App.1998).

      . Id.

      . Tex.Code Crim Prog. Ann. art. 21.15 (Vernon 2009), last amended by Acts 1973, 63rd Leg., p. 968, ch. 399, § 2(A), eff. Jan. 1, 1974.

      . Tex. Penal Code Ann. § 21.08 (Vernon 2003).

      . George E. Dix & Robert O. Dawson, 41 Texas Practice: Criminal Practice and Procedure § 20.171 (2d ed. 2001), at 624.

      . See id.

      . Tex. Penal Code Ann. § 1.07(a)(10) (Vernon 2003).

      . Id. at § 1.07(a)(1).

      . Id. at § 6.03(c).

      . George E. Dix & Robert O. Dawson, 41 Texas Practice. Criminal Practice and Procedure § 20.171 (2d ed. 2001), at 624.

      . Id.

      . Acts 1973, 63rd Leg., p. 883, ch. 399, § 2(A), eff. Jan. 1, 1974; see also Townsley v. State, 538 S.W.2d 411, 412 (Tex.Crim.App.1976).

      . Dowthitt v. State, 931 S.W.2d 244, 258 (Tex.Crim.App.1996); see also Tex. Gov't Code Ann. § 311.021(2) (Vernon 2005).

      . Gengnagel, 748 S.W.2d at 229.

      . 538 S.W.2d 411 (Tex.Crim.App.1976).

      . Id. at 411.

      . Id.

      . Id.

      . Id. at 412-13.

      .Mat 412.

      . 748 S.W.2d at 228.

      . Id.

      . Id. at 230.

      . George E. Dix & Robert O. Dawson, 41 Texas Practice Criminal Practice and Procedure § 20.171 (2d ed. 2001), at 624.

      . 748 S.W.2d at 228.

      . Id. at 230.

      . Mays, 967 S.W.2d at 406.

      . Tex. Penal Code Ann. § 21.08 (Vernon 2003).

      . Studer v. State, 799 S.W.2d 263, 271 (Tex.Crim.App.1990).

      . Id. at 267.

      . Id.

      . Id.

      . Id.

      . Cook v. State, 902 S.W.2d 471, 476 (Tex.Crim.App.1995).

      . Id. at 477.

      . Tex. Const, art. V, § 12.

      . Acts 1985, 69th Leg., ch. 577, § 1, eff. Dec. 1, 1985.

      . 799 S.W.2d at 268; see also Teal v. State, 230 S.W.3d 172, 177 (Tex.Crim.App.2007) (“The legislature’s purpose in amending the constitution and the statutes was to change the focus from 'whether a defect is fundamental [i.e., a defect of substance or not]’ to 'whether the defendant brought the defect to the court’s attention.’ ”)

      . Id.

      . Cook, 902 S.W.2d at 477.

      . 65 S.W.3d 664, 668 (Tex.Crim.App.2001) (internal citations omitted).

      . Id. at n. 11.

      . Duron v. State, 956 S.W.2d 547, 551 (Tex.Crim.App.1997).

      . 902 S.W.2d at 480.

      . See Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App.1993).

      . 799 S.W.2d at 271.

      . Smith, 2008 WL 4965322, 2008 Tex.App. LEXIS 8776 at *2.

      . Tf.x.Code Crim. Proc. Ann. art. 27.08 (Vernon 2006).

      . Gengnagel, 748 S.W.2d at 229.

      . Studer, 799 S.W.2d at 267.

      . Tex.Code Crim. Proc Ann art. 21.19 (Vernon 2009).

      . 707 S.W.2d 900, 902-03 (Tex.Crim.App.1986); see also Tex.Code Crim. Proc. Ann. art. 21.19 (Vernon 2009).

      . Jackson v. State, 718 S.W.2d 724, 725 n. 1 (Tex.Crim.App.1986), overruled in part by Studer, 799 S.W.2d 263, 271.

      . See Tita v. State, 267 S.W.3d 33, 39 (Tex.Crim.App.2008).

      . Compare Tollett v. State, 219 S.W.3d 593, 600 (Tex.App.-Texarkana 2007, pet. ref'd) (citing Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997)) (assuming that a harm analysis under Cain v. State is required); and Flores v. State, 102 S.W.3d 328, 333 (Tex.App.-Eastland 2003, pet. ref'd) (stating in dicta that substance defects would be reviewed for harmless error under Texas Rule of Appellate Procedure 44.2(b)); with Sanchez v. State, 32 S.W.3d 687, 700 (Tex.App.-San Antonio 2000), rev’d on other grounds, 120 S.W.3d 359 (Tex.Crim.App.2003) (holding that if any harm analysis applied, the error would be harmful under any standard of review); and Thompson v. State, 44 S.W.3d 171, 183 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (same).

      . See Stringer v. State, 241 S.W.3d 52, 59 (2007).


source: Caselaw Access Project

author: MEYERS, J., KELLER, P.J., COCHRAN, J.,

license: Public Domain

text:
    Wesley Charles JOSEPH, Appellant, v. The STATE of Texas.
    No. PD-1111-08.
    Court of Criminal Appeals of Texas.
    Feb. 24, 2010.
    Rehearing Denied May 5, 2010.

      Angela Moore, San Antonio, for Appellant.
    J. Barrett Shipp, Asst. Criminal District Atty., San Antonio, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   OPINION

MEYERS, J.,

delivered the opinion of the Court

in which PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined, and in which KELLER, P.J., joined except as to note 7, and in Parts I, II, and III of which WOMACK, J., joined except as to note 7 and Sections A and B.

Appellant, Wesley Charles Joseph, was convicted of murder and sentenced to twenty-five years’ confinement. A key piece of evidence was a recorded statement produced as a result of Appellant’s interview with police. The trial court denied Appellant’s motion to suppress evidence, finding that Appellant had waived his rights prior to and during the statement. Appellant appealed and the court of appeals affirmed. We granted review to consider whether Appellant knowingly, intelligently, and voluntarily waived his rights under Article 38.22 of the Code of Criminal Procedure and Miranda v. Arizona. We will affirm.

I. Facts

On December 6, 2004, Appellant and his friend, Juan Martinez, went to the San Antonio Metropolitan Ministries (SAMM) homeless shelter to confront Javier Gonzalez-Diaz (A.K.A. “Bolillo”). Martinez’s wife, Vivian, who was also Appellant’s girlfriend, said she had been sexually assaulted by Bolillo. A witness to the incident testified that he saw Appellant punching Bolillo in the stomach and that Appellant put something under his clothing as he walked away. Afterwards, Bolillo lifted up his shirt and looked toward the witness for help.

Appellant and Martinez were arrested and taken to the police station where they were interviewed separately. Detective Sean Walsh interviewed Appellant for approximately six hours. At the start of the interview, Walsh read a warning card to Appellant and upon Walsh’s request, Appellant signed his name in the margin. The warning card stated:

WARNING TO ARRESTEE OR SUSPECT
Before you are asked any questions, it is my duty as a police officer to advise you of your rights and to warn you of the consequences of waiving these rights.
1. You have the right to remain silent.
2. You do not have to make any statement[,] oral or written, to anyone.
3. Any statement that you make will be used in evidence against you in a court of law, or at your trial.
4. You have a right to have a lawyer present to advise you before and during any questioning by police officers or attorneys representing the state.
5. You may have your own lawyer present, or if you are unable to employ a lawyer, the court will appoint a lawyer for you free of charge, now, or at any other time.
6. If you decide to talk with anyone, you can, and you can stop talking to them at any time you want.
7. The above rights are continuing rights which can be urged by you at any stage of the proceedings.
DO YOU UNDERSTAND THESE RIGHTS?
SAPD Form 66-E (Jul 99)
[Signed] SW [Detective Sean Walsh]
[Badge number] 12-06-04
[Signed] WCJ Wesley C. Joseph, Jr.
2:05 pm 12-06-04

At trial, Appellant sought to suppress the DVD recording of his interview. The court held a Jackson v. Denno hearing to determine whether Appellant’s statement to Detective Walsh was voluntary and thus admissible. See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Pursuant to Article 38.22, the trial judge entered findings of fact and conclusions of law regarding the voluntariness of the statement. Code Crim. PROG. Ann. art. 38.22, § 6. The trial court found that Appellant received notification of his rights “prior to the statement but during the recording” and that Appellant knowingly, intelligently, and voluntarily waived those rights. Because the statement was made under voluntary conditions, the trial court concluded that Appellant’s statement was admissible as a matter of law.

During the trial, the State played clips of the interview, accompanied by live testimony from Detective Walsh. The State asked Walsh to repeat or confirm some of Appellant’s comments from the DVD, including that he “wished he hadn’t put the knives in his backpack,” that “he didn’t want to die in the penitentiary,” and that “he wasn’t going to hit the wrong dude.” Walsh also relayed that Appellant had vaguely referred to a “stab-by” at one point during the interview. The jury found Appellant guilty of murder and assessed punishment at twenty-five years’ confinement.

Appellant appealed to the Thirteenth Court of Appeals with four points of error, one of which stated: The trial court erred in denying the motion to suppress Appellant’s statement because he did not make a knowing, intelligent, and voluntary waiver of his rights under Article 38.22 of the Code of Criminal Procedure and Miranda v. Arizona. Code Crim. Prog. Ann. art. 38.22; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court of appeals overruled all of Appellant’s four issues and affirmed the judgment of the trial court. Joseph v. State, No. 13-06-00561-CR, 2008 WL 5575063, 2008 Tex.App. LEXIS 5133 (Tex.App.-Corpus Christi July 10, 2008, pet. granted) (mem. op., not designated for publication). We granted Appellant’s petition to this Court on the following ground for review: The court of appeals erred in affirming the trial court’s denial of the motion to suppress Appellant’s statement because Appellant did not knowingly, intelligently, and voluntarily waive his rights under Article 38.22 and Miranda.

II. Article 38.22: warning and waiver

Article 38.22 of the Code of Criminal Procedure establishes procedural safeguards for securing the privilege against self-incrimination. Code Crim. Proc. Ann. art. 38.22. Among its requirements, it provides that no oral statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless (1) the statement was recorded and (2) prior to the statement but during the recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily waived those rights. Code Crim. Proc. Ann. art. 38.22, § 3. The warning must inform a defendant of the following rights:

(1) [H]e has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in court;
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time[.]

Code Crim. Proc. Ann. art. 38.22, § 2. The statute contains two distinct elements pertaining to a statement’s admissibility: the defendant’s receipt of the prescribed warning and his waiver of the rights set out in the warning. Appellant does not assert that he was not warned of his rights. The warning card implemented by the San Antonio Police Department included all of the rights found in Miranda and Article 38.22. Miranda, 384 U.S. at 444, 86 S.Ct. 1602; Code Crim. Proc. Ann. art. 38.22, § 2. And, by signing the card, he acknowledged having received the requisite warning from Detective Walsh. Rather, Appellant argues that though he “clearly understood his rights,” he “did not explicitly waive them.”

III. Appellant’s waiver

The State has the burden of showing that a defendant knowingly, intelligently, and voluntarily waived his Miranda rights. See Miranda, 384 U.S. at 444, 475, 86 S.Ct. 1602; Hill v. State, 429 S.W.2d 481, 486 (Tex.Crim.App.1968). The State must prove waiver by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Appellant argues that he did not “provid[e] a written waiver” or “articulate any kind of waiver of his rights.” But Appellant’s objection to the absence of a written or articulated waiver runs contrary to “the general rule ... that neither a written nor an oral express waiver is required.” Watson v. State, 762 S.W.2d 591, 601 (Tex.Crim.App.1988). True, “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” Miranda, 384 U.S. at 475, 86 S.Ct. 1602. But a waiver need not assume a particular form and, in some cases, a “waiver can be clearly inferred from the actions and words of the person interrogated.” North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

The question is not whether Appellant “explicitly” waived his Miranda rights, but whether he did so knowingly, intelligently, and voluntarily. Id. To evaluate whether Appellant knowingly, intelligently, and voluntarily waived his Miranda rights we turn to the standard outlined in Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

First, the relinquishment of the right must have been 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 have been made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. 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 Miranda rights have been waived.

Id. (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)). The “totality-of-the-circumstances approach” requires the consideration of “all the circumstances surrounding the interrogation,” including the defendant’s experience, background, and conduct. Fare, 442 U.S. at 725, 99 S.Ct. 2560; see also Butler, 441 U.S. at 375-76, 99 S.Ct. 1755. We agree with the court of appeals that the totality of the circumstances indicates that Appellant knowingly, intelligently, and voluntarily waived his Miranda rights.

A. Voluntariness

The totality of the circumstances surrounding the interrogation shows Appellant’s waiver was voluntary. That is, the waiver resulted from a free and deliberate choice without intimidation, coercion, or deception. Immediately after being warned by Detective Walsh that he had the right to remain silent and that he did not have to make any statement to anyone, Appellant willingly participated in a six-hour interview. At no time during the statement did Appellant request an attorney and at no time did he ask that the interview be stopped. In fact, during portions of the interview, Appellant seemed eager to share information with the detectives. For example, when discussing Vivian’s description of Bolillo, one of the detectives stood up to leave the interrogation room and Appellant urged that the detective stay to listen to his explanation. Furthermore, the record shows no evidence of intimidation or coercion. Detective Walsh testified that he did not coerce Appellant in any way into giving information. The lack of intimidation and coercion can be seen during the interview when Appellant felt comfortable responding to specific questions with “no comment.” Upon hearing this response, the detectives did not resort to “physical or psychological pressure to elicit [further] statements.” Moran, 475 U.S. at 421, 106 S.Ct. 1135. Moreover, the fact that Appellant felt free to decline answering particular questions suggests that the information he did choose to provide was given voluntarily. Finally, there appears to be no possibility that a promise from police could have jeopardized the voluntariness of Appellant’s statement. Detective Walsh testified that at no time did members of the police department promise Appellant anything in exchange for giving a statement.

B. Awareness

The totality of the circumstances surrounding the interrogation shows Appellant’s waiver was made with full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon them. At the start of the interview, Detective Walsh asked if Appellant spoke and read English; to both inquiries Appellant replied, ‘Tes, sir.” Then Walsh read the warning card aloud, which repeatedly informed Appellant that he did not have to say anything. The warnings read to Appellant made him fully aware of the rights set forth in Miranda and Article 38.22, as well as the consequences of abandoning those rights. Miranda, 384 U.S. at 444, 86 S.Ct. 1602; Code Crim. Proc. Ann. art. 38.22, § 2. When asked if he understood his rights, Appellant replied, ‘Tes, sir,” and signed his name in the margin of the warning card. That Appellant replied “no comment” to certain questions not only relates to our inquiry into the voluntariness of the statement but also shows his awareness of his rights. His conduct during those portions of the interview demonstrated that he had the requisite level of comprehension to waive his Miranda rights.

IV. Conclusion

The totality of the circumstances shows that Appellant did knowingly, intelligently, and voluntarily waive his rights under Article 38.22 and Miranda. The court of appeals did not err in affirming the trial court’s denial of Appellant’s motion to suppress. Appellant was adequately advised of his rights and, as he stated to this Court, he “clearly understood his rights.” Immediately after being told that he had the right to remain silent, that he did not have to make any statement to anyone, and that any statement he made would be used against him, he willingly participated in a six-hour interview with police. Not once did he ask that the interview be stopped, nor did he request an attorney. We affirm the judgment of the court of appeals.

KELLER, P.J., filed a concurring opinion.

COCHRAN, J., fded a concurring opinion in which PRICE, JOHNSON, and HOLCOMB, JJ., joined.

KELLER, P.J.,

concurring.

I think that appellant’s primary claim is that he did not waive his rights at all, rather than that his waiver was involuntary. Though he combines a Miranda argument with his Article 38.22 argument, I would address the arguments separately because of the additional requirements of Article 38.22.

The Court asks in footnote seven how to reconcile the timing requirements of Article 38.22 with Butler and our cases that follow Butler. In answering that question, the Court discusses both the oral-confession statute and the written-confession statute, so I shall as well.

Under Article 38.22, § 3(a)(2), an oral statement like appellant’s is not admissible unless “prior to the statement but during the recording the accused is given [the statutory warnings] and the accused knowingly, intelligently, and voluntarily waives” them. The order of proceedings is that the warnings are given, the rights are waived, and the confession is made. Moreover, these three proceedings must appear in the recording itself.

Under Article 38.22, § 2, a written statement is not admissible unless prior to the statement, the accused is given the statutory warnings, and “prior to and during the making of the statement” the accused waives them. “[P]rior to” the statement means that the rights must be waived before the written statement is signed. I think that, comparable to the requirement for oral statements that the waiver appear in the recording, “during the statement” simply means that the waiver must appear on the written statement itself. In other words, the timing is to be the same for written and oral statements: warnings given, rights waived, and statement made; and the record (in whatever form) must document all three proceedings.

We held in Barefield that Article 38.22 § 3 did not require an express waiver of rights. We also held that the record in that case supported the trial court’s findings that Barefield implicitly waived his statutory rights before he confessed. The same is true here. What appellant did and what he said, including the fact that he continued talking after being advised of his rights, is not the waiver itself; it is instead evidence of a prior waiver.

I join the Court’s opinion, except for footnote seven.

COCHRAN, J.,

concurring in which PRICE, JOHNSON and HOLCOMB, JJ., joined.

I join the opinion of the Court because I agree that the trial could conclude that the State proved, by a preponderance of the evidence, that appellant knowingly, intelligently, and voluntarily waived his Miranda rights before making a recorded statement. I write separately to note a rising trend in which Texas law-enforcement officers fail to explicitly ask a suspect if he is -willing to give up his Miranda rights and speak to them. This question, if answered affirmatively, results in an express waiver. The failure to ask one additional, simple question has dramatically increased trial and appellate litigation and needlessly jeopardizes the admissibility of a suspect’s subsequently obtained statement.

Although it is well established that a suspect may validly waive his Miranda rights, the State must prove that the required warnings have been given and that the suspect knowingly, intelligently, and voluntarily waived those rights. The State must prove that waiver by a preponderance of the evidence. When police obtain an express waiver — either written or oral — from the suspect, the State’s task is not so difficult, but “the prosecution’s burden is great” when the waiver is not express.

In North Carolina v. Butler, the Supreme Court stated that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”

Merely asking the accused whether he understood his rights does not satisfy the duties of an interrogating officer or make any statement the accused might then make admissible. Miranda requires the interrogating officer to go further and make sure that the accused, knowing his rights, voluntarily relinquishes them.

However, “an express statement is not invariably necessary to support a finding that the defendant waived either the right to remain silent or the right to counsel.” Under some circumstances, if a suspect has been fully warned of his rights and has indicated that he understands those rights, a course of conduct consistent with waiver “may” support the conclusion that the suspect has waived his Miranda rights. However,

[t]he courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but at least in some cases waiver can be clearly inferred from the actions and words of the person interrogated.

That is, the deck is stacked against the finding of an implicit waiver, but the State may, at least in some cases, show that a waiver can be clearly inferred from the suspect’s words and actions after having been warned. With an express waiver, the situation is reversed: the deck is stacked in favor of a finding of waiver, but the suspect may, at least in some cases, show that he did not knowingly, intelligently, or voluntarily waive his Miranda rights.

While the majority is correct in stating that an explicit waiver is not invariably necessary, I do not read North Carolina v. Butler to hold that it is never necessary. The fact that a police officer failed to ask the suspect if he was willing to waive his rights and give a statement does not augur well for a later judicial finding that the suspect did knowingly, intelligently, and voluntarily waive his Miranda rights. There may be many reasons why an officer failed to ask that question: in some instances, the suspect may be in such a rush to tell his side of the story that he begins to speak before the officer can ask that question; in some instances, however, that failure may be the result of poor training, inexperience, or fear that the suspect — if asked — will decline to waive his rights. These latter reasons might well cast doubt upon the existence of an implied waiver, and they call for close judicial scrutiny.

The determination made by the trial judge in this case — that appellant made an implied waiver of his Miranda rights before giving his statement to Detective Walsh — depended upon the “totality of the circumstances,” and here those circumstances support a finding (if only just barely) that a valid waiver did occur. This is a veiy close case, and had the trial judge found that appellant did not knowingly, intelligently, and voluntarily waive his Miranda rights before speaking with Detective Walsh, we would have undoubtedly upheld that determination as well. Thus, law-enforcement officers are well advised to expressly ask a suspect to waive his Miranda rights so as to avoid later, protracted litigation and the very real possibility that a suspect’s statement must be excluded because the totality of the circumstances are insufficient to meet the State’s “heavy burden” to show an implied waiver.

With these comments, I join the majority opinion.

      . As noted by the trial court's findings of fact, the recorded statement was shortened because there were redactions made for defense counsel and "dead time” was removed. "The DVD was altered by agreement of all the parties and in accordance with the Texas Rules of Evidence.”

      . Appellant's four points of error to the court of appeals were as follows: (1) The trial court erred in denying the motion to suppress because Appellant was arrested without a warrant, probable cause, or other lawful authority, in violation of the Fourth Amendment; (2) The trial court erred in denying the motion to suppress because Appellant did not make a knowing, intelligent, and voluntary waiver of his rights under Article 38.22 of the Code of Criminal Procedure and Miranda v. Arizona; (3) The trial court erred in admitting the entirety of Appellant's lengthy and prejudicial interview when that was unnecessary to complete the jury’s understanding of what had happened during the interview; (4) The trial court caused Appellant egregious harm when it directed the jury to assess a general verdict without requiring a unanimous verdict on a specific offense, contrary to Article V, Section 13 of the Texas Constitution.

      . Appellant filed a supplemental brief asking that we hold this case in abeyance until the U.S. Supreme Court rules in Thompkins v. Berghuis, 547 F.3d 572 (6th Cir.2008), cert. granted, - U.S. -, 130 S.Ct. 48, 174 L.Ed.2d 632 (2009).
      Of the two questions presented in that case, one relates to Appellant’s issue: "Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.” See http://origin.www.supremecourtus.gov/qp/ 08-01470qp.pdf (italics added). For two reasons, we conclude that we need not await the Berghuis decision. First, the issue to be resolved by die U.S. Supreme Court addresses the absence of waiver, and there is evidence of a waiver in Appellant's case. Second, the facts in Berghuis paint a picture of a very different interrogation than that experienced by Appellant. Unlike Appellant, Thompkins refused to sign the warning card acknowledging that the officers had read him his Miranda rights. Berghuis, 547 F.3d at 576. Furthermore, for at least two hours and forty-five minutes during the interrogation, Thomp-kins " 'consistently exercised his right to remain substantively silent.' " Id. Such conduct is so different from Appellant's that a significantly different waiver analysis would be expected.

      . "Whenever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence.” Connelly, 479 U.S. at 168, 107 S.Ct. 515.

      . Appellant cites to Garcia v. State, 919 S.W.2d 370 (Tex.Crim.App.1996), to support his argument, and asks us to clarify Garcia and announce "that there must be an affirma-live acknowledgment of the waiver of the rights set out in Article 38.22.” First, to accept Appellant's proposal that we require an "affirmative acknowledgment” of waiver would run counter to the established rule that waiver can be inferred and need not be express. Second, the facts of Garcia concern a written statement and a written waiver, and therefore that case is not particularly instructive here.

        In contrast, in a case factually similar to Appellant's, Barefield v. State, 784 S.W.2d 38, 40 (Tex.Crim.App.1989), the defendant presented essentially the same request to this Court as Appellant does now: that we construe Article 38.22 Section 3 to require that electronically recorded confessions contain an express waiver of rights. We analyzed videotaped statements in which a defendant “was not specifically asked, nor did he specifically volunteer, that he waived [his] rights.” Id. We declined the defendant's suggested statutory interpretation and concluded that the trial court properly found that the defendant had knowingly, intelligently, and voluntarily waived his Miranda rights. Id. at 40-41.

      . Presiding Judge Keller’s concurring opinion refashions Appellant’s ground for review, stating, the "primary claim is that he did not waive his rights at all, rather than that his waiver was involuntary.” However, Appellant’s petition for discretionary review and brief to this Court state his sole ground for review as, "[Appellant] did not make a knowing, intelligent[,] and voluntary waiver of his rights.”

      . One point not raised by Appellant concerns the requisite timing of a defendant’s waiver. The trial court found compliance with Article 38.22, stating in its conclusions of law: "This Court finds that the defendant, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights as set out above.” But what exactly constituted Appellant’s waiver? The court of appeals identified the waiver in this way: "the fact that [Appellant] acknowledged his rights in writing, combined with the fact that [he] voluntarily continued the interview after being advised of those rights, is strong evidence that he knowingly, voluntarily, and intelligently waived the protections afforded to him.” Joseph, 2008 WL 5575063, at *7, 2008 Tex.App. LEXIS 5133 at *23. Does the timing of those actions comply with statutory and Supreme Court guidelines for waiver?
      The Code of Criminal Procedure requires waiver prior to the start of the statement. Code Crim. Proc. Ann. art. 38.22. Article 38.22 Section 2 requires that for a written statement to be admissible, the accused must waive his rights "prior to and during the making of the statement.” Code Crim. Proc. Ann. art. 38.22, § 2. Section 3 addresses oral and sign language statements and requires that "prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning.” Code Crim. Proc. Ann art. 38.22, § 3.

        Butler allows waiver to be "inferred from the actions and words of the person interrogated.” Butler, 441 U.S. at 373, 99 S.Ct. 1755. In that case, the warning card given to the defendant included a statement of waiver at the bottom. Id. at 371. The defendant refused to sign the waiver but agreed to speak to the FBI agents who had arrested him. Id. The North Carolina Supreme Court held that under Miranda "no statement of a person under custodial interrogation may be admitted in evidence against him unless, at the time the statement was made, he explicitly waived the right to the presence of a lawyer.” Id. at 370. The U.S. Supreme Court disagreed, concluding that a defendant’s actions and words can indicate waiver and that an express written or oral waiver is not required. Id. at 373. Thus, under Butler, a defendant’s conduct — namely, willingly talking with investigators — can demonstrate a knowing, intelligent, and voluntary waiver of his Miranda rights.
      Therefore the question becomes, how do you reconcile the Code's requirement that a defendant show waiver before giving a statement when Butler and this Court’s adoption of Butler (see Rocha v. Stale, 16 S.W.3d 1, 12 (Tex.Crim.App.2000); Watson, 762 S.W.2d at 601) allow a defendant to show waiver by giving a statement? Admittedly, the facts of Butler require less interpretation than Appellant’s case; the implicit waiver in Butler ("I will talk to you ....”) was neatly separate from the defendant's inculpatory statements. Butler, 441 U.S. at 371, 99 S.Ct. 1755. Nevertheless, Appellant’s actions, though less distinct, do show a "course of conduct indicating waiver.” Id. at 373, 99 S.Ct. 1755. The quandary concerns the timing: the waiver identified by the court of appeals occurred contemporaneous with and not prior to Appellant's statement.
      Perhaps the answer lies in the method by which waiver is to be analyzed. A court must evaluate the totality of tire circumstances and this "approach permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation.” Fare, 442 U.S. at 725, 99 S.Ct. 2560. Thus, in a case where there is no express waiver, we search not for a specific moment, but for a collective body of facts representing the interrogation as a whole.

      . "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.” Garcia, 919 S.W.2d at 388.

      . The Court believes that I am mistaken in this regard and that appellant’s claim is that he did not make an "effective” waiver, "not that he did not waive his rights at all." Court's op. at 8 n. 6. In his petition’s "Summary of Argument,” appellant says, "The mere fact that Mr. Joseph signed and initialed a rights card does not demonstrate waiver, when Mr. Joseph signed at the express request of the interviewing officer who made no inquiry as to his intention to waive his constitutional and statutory protections.” In his argument on page seven of his petition, appellant says, "[NJolhing in the record before the trial court when it ruled indicated that Mr. Joseph had in fact made such a waiver.” The first subheading contained in the argument section reads: "The Burden is on the State to Prove a Waiver of Constitutional Rights.” On pages eight and nine, appellant says, "Rather than having Mr. Joseph articulate any kind of waiver of his rights, or providing a written waiver, Detective Walsh simply established that Mr. Joseph read and spoke English and had never been arrested in Bexar County... Further on page nine, appellant says, "At no time was there any effort to secure a waiver from Mr. Joseph....” On page ten, applicant says, ”[T]he document signed by Mr. Joseph was a mere iteration of his rights, not a waiver of them.” On page eleven, appellant states, "On appeal, Mr. Joseph argued that even if he was properly advised of his rights, he never actually waived those rights.” Finally, on page thirteen, appellant says, "Mr. Joseph [asks] this Honorable Court to clarify Garcia, that there must be an affirmative acknowledgment of the waiver of the rights set out in Article 38.22.” Both the language appellant uses and the substance of his argument indicate that appellant is claiming that no waiver occurred because he did not make an express statement that he waived his rights.

      . North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

      . A written confession is not considered to have been obtained until it is signed. Dowthitt v. State, 931 S.W.2d 244 (Tex.Crim.App.1996).

      . Barefield v. State, 784 S.W.2d 38, 40 (Tex.Crim.App.1989).

      . Id. at p. 41.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Id. at 479, 86 S.Ct. 1602; Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

      . Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

      . North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

      . Id. at 373, 99 S.Ct. 1755 (quoting Miranda, 384 U.S. at 475, 86 S.Ct. 1602).

      . United States v. Porter, 764 F.2d 1, 7 (1st Cir.1985) (citing United States v. Christian, 571 F.2d 64, 68 (1st Cir.1978)).

      . Bui v. DiPaolo, 170 F.3d 232, 240 (1st Cir.1999).

      . Butler, 441 U.S. at 373, 99 S.Ct. 1755.

      . Id.

      . See id. at 375-76, 99 S.Ct. 1755 (explicit waiver not necessary to show defendant waived right to remain silent because defendant volunteered incriminating statements); Bui v. DiPaolo, 170 F.3d at 238 (valid waiver properly inferred because defendant responded selectively to questions, asking, "Who said I did this?” after answering "no” to prior question); United States v. Ramirez, 79 F.3d 298, 305 (2d Cir.1996) (valid waiver properly inferred because, after receiving Miranda warnings and agreeing to speak with officers, defendant answered some questions and not others); Flamer v. Delaware, 68 F.3d 710, 719-20 (3d Cir.1995) (waiver of Miranda valid because defendant never invoked his rights, told police he knew his rights, and answered questions); Burket v. Angelone, 208 F.3d 172, 198 (4th Cir.2000) (valid waiver properly inferred because defendant was given Miranda rights a second time, said he understood rights, and initiated conversation with detective); Soffar v. Cockrell, 300 F.3d 588, 592 (5th Cir.2002) (en banc) (valid waiver properly inferred because defendant, understanding the consequences, continued to volunteer information after repeated Miranda warnings); Seymour v. Walker, 224 F.3d 542, 554 (6th Cir.2000) (waiver valid because defendant “acknowledged she would talk with” sheriff and told him that she did not want counsel, even though sheriff failed to obtain express written or oral waiver and waiver forms were available); United States v. Jackson, 300 F.3d 740, 748 (7th Cir.2002) (waiver valid despite loss of waiver form); Owens v. Bowersox, 290 F.3d 960, 963-64 (8th Cir.2002) (waiver valid because defendant instructed mother to tell police he wished to speak with them and later confirmed his wish to police); United States v. Duque, 62 F.3d 1146, 1148, 1152 (9th Cir.1995) (valid waiver properly inferred because, after defendant received Miranda rights and was asked if he was "of a mind” to speak with officers, he made incriminating statements); United States v. Yazzie, 188 F.3d 1178, 1192 (10th Cir.1999) (valid waiver properly inferred because defendant refused to sign waiver, but indicated willingness to tell his side of the story); Mincey v. Head, 206 F.3d 1106, 1131-32 (11th Cir.2000) (valid waiver properly inferred even though defendant refused to sign waiver because he "drew a sharp distinction between what he was willing to say and what he was willing to sign”).


author: COCHRAN, J.,

text:
    Carl Allen CARTER, Appellant, v. The STATE of Texas.
    No. PD-0606-09.
    Court of Criminal Appeals of Texas.
    March 24, 2010.
    Rehearing Denied May 5, 2010.

      James C. Fling, Shamrock, for Appellant.
    Charles Campbell, Asst. State’s Atty., Jeffrey L. VanHorn, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the unanimous Court.

This case involves the distinction between “inadvertent” pre-Miranda questioning and “deliberate” two-step questioning to avoid Miranda protections. At trial, the judge admitted appellant’s post-Miranda statements to the arresting officer even though the officer had asked three questions before reading appellant his Miranda rights. The court of appeals reversed, holding that the trial judge improperly admitted appellant’s statements because they were elicited during an illegal two-step interrogation. The State contends that the court of appeals erred in substituting its assessment of the facts for that of the trial judge in holding that the officer had engaged in an illegal two-step interrogation technique. Because we find that the record supports the trial judge’s findings that (1) the trooper did not deliberately employ a two-step interrogation technique calculated to undermine appellant’s rights, and (2) appellant’s post-warning statements were voluntarily made, we reverse the court of appeals.

I. Background

A. Trial Proceedings

On March 31, 2003, DPS Trooper James Henderson stopped a rental car driven by Craig Wills for traffic violations. Appellant was in the passenger seat. The stop was captured by the patrol car’s onboard video camera. Trooper Henderson requested Wills’s driver’s license and registration. Wills admitted that he did not have a driver’s license, and appellant produced a rental contract showing that he had leased the car. Wills and appellant gave the trooper inconsistent stories as to the origin and nature of their trip. Trooper Henderson asked if there were weapons or narcotics in the car. Appellant responded that he didn’t think so, but that it was a rental car, so “you never know.”

Appellant gave Trooper Henderson consent to search the car. While searching the trunk, Trooper Henderson saw that laundry detergent, which is commonly used to mask the odor of narcotics, had been sprinkled across the trunk’s floor. He lifted the back seat and discovered two packages of cocaine hidden underneath. The trooper then arrested both Wills and appellant, and he put appellant in his patrol car. On the way to the police station, appellant made incriminating statements about the offense in response to Trooper Henderson’s questioning.

Appellant filed a motion to suppress, alleging that the statements were obtained in violation of his Miranda rights. Trooper Henderson was the only witness at the suppression hearing. In addition to the above facts, he testified that, once appellant was in his patrol car, appellant was “advised of [his] Miranda rights. He, at that point in time on audio video, waived his rights. I asked him if the cocaine was his, he did advise that the cocaine was both his and Mr. Wills. They had paid $8000 cash to purchase the drugs and were trying to make some money off it.” Based on Trooper Henderson’s testimony, the trial court denied appellant’s motion.

At trial, the State offered the onboard videotape of appellant’s arrest into evidence. The videotape showed that appellant was arrested, handcuffed, and placed in Trooper Henderson’s patrol car where he could see deputies searching the car. Approximately nine minutes later, the trooper returned to the patrol car, and, as he began driving appellant to the police department, he asked the following:

Henderson: Y’all know what you are under arrest for, right?
Appellant: Yes, sir.
Henderson: Is that cocaine or crack cocaine?
Appellant: Cocaine.
Henderson: It’s cocaine?
Appellant: Yes sir.

Appellant objected to these statements on the ground that he was in custody and had not yet been Mirandized. After initially overruling the objection, the trial court sustained it and instructed the jury to disregard those statements, but denied appellant’s motion for mistrial. Appellant then objected to the admission of any further statements made after he had been given his Miranda warnings, but the judge overruled that objection. The prosecutor resumed playing the onboard videotape, which continued with Trooper Henderson’s warnings. The trooper testified that appellant acknowledged that he understood and waived his rights. The videotape confirmed the facts to which Trooper Henderson had testified at the suppression hearing: In response to questioning, appellant admitted that (1) there were eighteen ounces of cocaine; (2) it belonged to both him and Wills; (3) they had picked it up in Phoenix; (4) they had paid $8,000 for it; and (5) they expected to turn a big profit selling it. A Department of Public Safety chemist then testified that the cocaine found in the rental car weighed 491.64 grams with a 67 percent purity. The jury convicted appellant of possession with intent to deliver a controlled substance and sentenced him to twenty-five years in prison.

B. Proceedings in the Court of Appeals

Appellant raised seven issues on appeal, two of which related to his statements to Trooper Henderson. The key issue was whether the trial judge erred in admitting appellant’s post-Miranda statements. The court of appeals abated the case for the trial judge to make findings regarding the voluntariness of appellant’s statements. The trial court entered numerous findings in support of his ruling, including the following:

(13) The Court finds beyond a reasonable doubt that Carter did then knowingly waive those rights and did then and there freely and voluntarily without being induced by any compulsion, threats, promises, or persuasion, confess orally on videotape ...
(14) The Court finds that there was no deliberate attempt to avoid the requirements of Miranda and Article 38.22 by Trooper Henderson when he asked the two questions that he did of Carter after Carter’s arrest but before he was warned ... and the Court further finds that the failure of Trooper Henderson to warn Carter before those two questions were asked was simply an oversight on the part of Trooper Henderson.
(15) The Court finds that Trooper Henderson did not deliberately employ a two-step questioning technique in violation of Miranda and Article 38.22, and the Court further finds that Trooper Henderson’s initial failure to warn Carter before obtaining the two incriminating responses that he did was inadvertent on his part.
(16) The Court finds that the Miranda and Article 38.22 warnings given by Trooper Henderson after Carter’s two inculpatory pre-warning admissions were effective, there was no carryover taint beyond the two unwarned admissions, and the warnings came at a time when Carter could still make a knowing, free, and voluntary choice to make the further admissions that he did....

On review after remand, the court of appeals concluded that the facts were “un-controverted;” thus, it reviewed the trial court’s ruling de novo. Based on its assessment of the facts, the court of appeals held that “Trooper Henderson’s two-step approach was a conscious choice, calculated to undermine Appellant’s Miranda rights.” It then noted that the trooper did not administer any curative measures and that the unwarned and warned statements were made “during an undifferentiated single event.” Thus, the court of appeals held that the trial court erred in denying appellant’s motion to suppress, and it found that the error was not harmless beyond a reasonable doubt.

On discretionary review, the State argues that the historical facts are not “un-controverted.” It contends that, although the videotape was helpful to resolve the factual issues, the trial court had an opportunity to view the witness and was “uniquely qualified” to determine Henderson’s demeanor and credibility. That credibility issue, according to the State, is critical to this “question first, warn later” issue.

II. “Question First, Warn Later” Legal Principles

A. Oregon v. Elstad

In Miranda, the United States Supreme Court explained that the issue of voluntariness “encompasses all interrogation practices which are likely to exert such pressure upon an individual as to disable him from making a free and rational choice.” More recently, that Court stated that “the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk” that the privilege against self-incrimination will not be observed. To minimize that risk, the Miranda Court conditioned the admissibility of any custodial confession on warning a suspect of his rights. Failure to provide the warnings and obtain a waiver prior to custodial questioning generally requires exclusion of statements obtained.

But Oregon v. Elstad governs the admissibility of post-warning confessions made after inadvertent, minimal Miranda violations. In that case, the Supreme Court explained that “there is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary.” Thus, “a suspect who has once responded to unwarned yet un-coercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” In upholding the admission of Elstad’s post-Miranda statements, the Court concluded that there were “none of the earmarks of coercion” in that particular factual situation and that the officer’s initial failure to warn was merely an “oversight.”

B. Missouri v. Seibert

The Supreme Court clarified its approach to “question first, warn later” situations in Missouri v. Seibert. In that case, officers were acting under express orders to withhold Miranda warnings from Seibert, who was charged with murder. An officer questioned Seibert for thirty to forty minutes at the police station while squeezing her arm and repeating incriminating statements in an attempt to have her confess. Seibert eventually did confess; only then did the officers give her Miranda warnings and ask her to repeat her earlier, unwarned confession.

Although the Court echoed the Elstad proposition that not every violation of Miranda requires suppression of a later confession, it determined that, under these circumstances, the post-admission warnings did not serve their purpose. A plurality of the Court noted that, by any objective measure, this police strategy was adapted to undermine the efficacy of Miranda warnings. The plurality applied an objective, multifactor test to determine whether midstream warnings could have been effective to accomplish the goals of Miranda and concluded that “a reasonable person” in Seibert’s position “would not have understood [the warnings] to convey a message that she retained a choice about continuing to talk.”

The crucial fifth vote was that of Justice Kennedy, who wrote a concurring opinion. Although he agreed that the interrogation technique used with Seibert undermined the goals of Miranda and thus required suppression, he noted that the plurality “envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations.” Concluding that “this test cuts too broadly,” he “would apply a narrower test applicable only in the infrequent case ... in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” He explained that, in such cases, post-warning statements must be excluded unless “curative measures” are taken before the post-warning statement is made. Unless a deliberate two-step strategy is employed, Elstad applies.

In sum, the Seibert plurality set out an objective, totality-of-the-circumstances inquiry to determine the effectiveness of midstream Miranda warnings and focused on the perspective of a reasonable person in the suspect’s shoes irrespective of an officer’s intent. Justice Kennedy, the fifth vote, would apply the plurality’s objective inquiry only after finding that the officer deliberately used a two-step, “question first, warn later” strategy. In short, the plurality’s test is an objective “effects” one, while Justice Kennedy’s is a subjective “intent” one that precedes (and potentially precludes) the effects analysis.

C. Martinez v. State

This Court first applied Seibert in Martinez v. State, in which the arresting officers did not Mirandize the defendant before questioning him at the police station. After subjecting Martinez to a three- to four-hour polygraph examination, the officers told him that he had failed the examination. He later received Miranda warnings from a magistrate and gave a videotaped statement. This Court, echoing Justice Kennedy’s Seibert concurrence, concluded that “ ‘the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.’ ” We noted that this “question first, warn later” technique was “not a mistake based on the interrogating officers’ mistaken belief that appellant was not in custody, but rather a conscious choice.” We then addressed whether the record showed curative measures as drawn from both the SeibeH plurality and concurring opinions.

In Martinez, we did not explicitly adopt either the plurality or concurring opinion from Seibert. But it is well settled that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” We therefore join numerous state and federal jurisdictions in adopting Justice Kennedy’s concurrence in Seibert because it is narrower in scope than the plurality opinion and applies only to two-step interrogations involving deliberate police misconduct. Consequently, the question is whether the evidence shows that Trooper Henderson deliberately employed a two-step “question first, warn later” interrogation technique to circumvent appellant’s Miranda protections.

D. Standard of Review

As an initial matter, we note that Justice Kennedy provided no guidance on how to conduct or review a deliberateness determination. We thus consider how various courts have treated such issues. In United States v. Stewart, the Seventh Circuit noted that “[t]here is not yet a general consensus among the circuits about the standard of review that applies to Seibert-deliberateness determinations, but the trend appears to be in the direction of review for clear error.” It explained that the “question of whether the interrogating officer deliberately withheld Miranda warnings will invariably turn on the credibility of the officer’s testimony in light of the totality of the circumstances surrounding the interrogation. This is a factual finding entitled to deference on appeal” and reviewed only for clear error. Numerous other jurisdictions have applied this same standard to the “deliberateness” question in addressing “question first, warn later” scenarios. As one state court has noted, the trial judge’s assessment of the interrogating officer’s subjective intent is especially important under Justice Kennedy’s approach in Seibert:

By adopting Justice Kennedy’s subjective test as opposed to the plurality’s objective test, the role of trial courts in this state is heightened to ensure that the accused’s Miranda rights are protected. This is because the accused’s Miranda rights protections turn on whether the trial court finds an arresting officer’s questioning prior to the advisement of Miranda rights was inadvertent or intended to acquire an advantage in the interrogation process. A specific factual finding in this regard greatly assists the Court on appellate review.

We therefore adopt the position of those federal and state courts that have applied a highly deferential review — similar to our Guzman standard — of the question of an officer’s subjective “deliberateness” in the “question first, warn later” context.

III. Application

A. /Steifteri-deliberateness determination

In this case, the court of appeals concluded that credibility and demeanor were not issues because “the facts regarding the interrogation were preserved on videotape and are completely uncontro-verted.” It thus reviewed the efficacy of the midstream warnings de novo. We note two problems with this approach. First, a trial court’s determination of historical facts based on a videotape recording is still reviewed under a deferential standard. Second, in addition to the videotape, the trial judge saw and listened to Trooper Henderson both during the suppression hearing and at trial. The court of appeals’s analysis does not reflect consideration of this testimonial evidence and demeanor, which are especially relevant to a deliberateness determination.

The evidence shows that the colloquy between Trooper Henderson and appellant was conversational and that appellant was calm and cooperative. There was no evidence that Trooper Henderson exhibited hostile, aggressive, or threatening behavior toward appellant or that he intended to create a coercive environment. The trooper’s pre-Miranda questioning lasted approximately ten seconds. Immediately after appellant made incriminating statements, Henderson stopped the interview, said, “You have not been informed of your rights,” and read appellant his Miranda warnings. After appellant waived his rights, Henderson did not repeat his pre-warning questions. We think these facts do not necessarily exemplify the deliberate “question first, warn later” gamesmanship so obvious in Seibert.

Where the totality of these facts fall on the Elstad-Seibert continuum, though, is a question on which reasonable minds may disagree. The court of appeals, for example, concluded that this case was “a far cry from Elstad where the initial conversation took place in the suspect’s living room with his mother nearby. Rather, this case is more like Seibert where the defendant was under arrest and in custody but had not received any Miranda warnings.” Indeed, the objective record could certainly support that conclusion. However, the applicable standard does not permit a reviewing court to reverse a trial court’s finding of fact simply because it would have decided the question differently.

Based on our review of the record, we cannot say that the trial judge’s findings— that Trooper Henderson’s failure to initially warn appellant was “simply an oversight” and that he did not deliberately employ a two-step questioning technique— were “implausible on [their] face” or unsupported by the record. Applying the appropriately deferential standard of review, we conclude that the record supports the trial judge’s finding that Trooper Henderson’s pre-Miranda questioning was not a “deliberate attempt to avoid the requirements of Miranda.”

B. Elstad voluntariness inquiry

Once a determination has been made that the pre-warning questioning was not part of a deliberate plan to undermine a suspect’s Miranda protections, it is still necessary to determine if appellant’s post-warning statements were voluntarily made. Thus, the factfinder must examine all of the circumstances and the course of police conduct in evaluating the volun-tariness of those post-Miranda statements.

This Court has previously held that the trial court is the “sole and exclusive trier of fact and judge of the credibility of the witnesses,” particularly when a motion to suppress is based on the voluntariness of a confession. We must give great deference “to the trial judge’s decision to admit or exclude such evidence, which will be overturned on appeal only where a flagrant abuse of discretion is shown.”

In this case, the trial judge made specific findings that appellant’s post-Miranda statements to Trooper Henderson were knowingly and voluntarily made. We find that the record and reasonable inferences from that record support this finding. In cases like this, “ ‘[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.’ ” Trooper Henderson administered appropriate Miranda warnings prior to further questioning, and thus we agree with the trial judge that appellant’s post-warning statements were admissible under the Elstad standard.

IV. Conclusion

We find that the trial judge did not err in denying appellant’s motion to suppress. Therefore, we reverse the judgment of the court of appeals and remand this case to that court to address appellant’s remaining issue.

      . Carter v. State, - S.W.3d -,(Tex.App.-Amarillo 2009) ("Under the circumstances presented here, considering all of the relevant factors, it is clear that the Miranda warnings could not have functioned effectively. The two-step interrogation technique had the likely effect of undermining both appellant’s ability to assert his right to remain silent and his ability to knowingly, voluntarily, or intelligently waive that right.”)

      . The State’s ground for review is, "Whether the Court below erred in finding that both the pre- and post-Miranda statements made by appellant to a trooper were the product of an illegal two-step interrogation technique that undermined appellant's right to remain silent and his ability to voluntarily waive that right. This holding contravenes decisions from this Court, as well as the United States Supreme Court, and therefore calls for this Court to grant the State’s Petition for Discretionary Review. See, Tex.R.App. P. § 66.3(c).”

      . The court of appeals spelled the driver’s name as Craig "Willis,” while the court reporter spelled it as “Wills.”

      . Wills explained that they were driving on I-40 through Wheeler County from Tucson, Arizona, where his brother played college basketball. Appellant said that they were coming from Phoenix, where they had stayed at a friend's house for two days' vacation.

      . Wills was transported by another deputy.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (U.S.1966).

      . That objection and ruling was as follows:
      Defense: Your Honor, I’m going to object to any further statements based on the fact that he did it after he Mirandized, the prior statements he had already incriminated himself and this is just further indication of the fact that he was not — the statements were not voluntary and he had already violated the rules, which is not as good as—
      Court: Well, ... my understanding of Miranda is ... that if you don’t give [the warnings] then nothing he ever says is admissible. It's anything he says prior to being Mirandized, once he’s Mirandized would be admissible is my understanding of the rule.

      . The trooper told appellant,
      You have not been advised of your rights so you don’t have to say no more and I’ll read your rights here in just a second. You are under arrest for possession of cocaine. Anything you say can be used in a court of law; you have a right to stop answering questions at any time; you have a right to an attorney; if you can't afford one, one will be appointed for you. You understand all these questions I covered with you today?

      . Although we defer to the trial court's finding that appellant was properly Mirandized, we note that the record does not reflect that Trooper Henderson expressly requested a waiver of those rights. As has been suggested before, interrogating officers should request an express waiver of Miranda, rights to avoid later litigation and the possible exclusion of incriminating statements. See Joseph v. State, 309 S.W.3d 20, 28-29 (Tex.Crim.App.2010) (Cochran, J., concurring).

      . Carter v. State, 2008 WL 2221801, at *1, 2008 Tex.App. LEXIS 3954, at *2 (Tex.App.-Amarillo, May 29, 2008) (not designated for publication) (citing Tex.Codf. Crim. Proc., art. 38.22, § 6).

      . Id. at -.

      . Id. at 2009 WL 857501 at *10. The court of appeals pointed to the facts that (1) Trooper Henderson was "highly experienced;" (2) he began interrogating appellant within nine minutes of his arrest; (3) "[wjithin three short questions spanning approximately seventeen seconds," appellant had confessed; (4) Henderson immediately Mirandized appellant and then resumed interrogation.

      . Id. at 2009 WL 857501 at *12.

      . Miranda, 384 U.S. at 464-65, 86 S.Ct. 1602.

      . Dickerson v. United States, 530 U.S. 428, 435, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).

      . Miranda, 384 U.S. at 467, 86 S.Ct. 1602.

      . Id.

      . 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

      . Id. at 318, 105 S.Ct. 1285. The evidence showed that officers went to Elstad's home to arrest him on a burglary charge. During a "brief stop” in Elstad's living room, officers asked him if he knew why they were there. Elstad said "No.” An officer told him that he "felt” that Elstad was involved, and Elstad responded that he "was there.” Officers transported him to police headquarters, Mirandized him, and he gave a confession. Id. at 301, 105 S.Ct. 1285.

      . Id. at 318, 105 S.Ct. 1285. The Court explained that the "psychological impact” of prior statements that "let the cat out of the bag,” without more, does not compel the conclusion that a subsequent confession was involuntary. Id. at 311-12, 105 S.Ct. 1285.

      . Id. at 316, 105 S.Ct. 1285.

      . 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

      . Id. at 604, 124 S.Ct. 2601.

      . Id. at 604-05, 124 S.Ct. 2601. After a twenty-minute break, the interrogator Miran-dized Seibert, then confronted her with her prewarning statements, prompting her to repeat her earlier confession.

      . Id. at 616, 124 S.Ct. 2601. In a footnote to this conclusion, the plurality explained that "Ihlecause the intent of the officer will rarely be as candidly admitted as it was here ... the focus is on facts apart from intent to show the question-first tactic at work.” Id. at n. 6.

      . Id. at 615, 124 S.Ct. 2601 (those factors included "the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first.”).

      . Id. at 617, 124 S.Ct. 2601.

      . Id. at 618, 124 S.Ct. 2601 (Kennedy, J., concurring).

      . Id. at 621, 124 S.Ct. 2601.

      . Id. at 622, 124 S.Ct. 2601 (Justice Kennedy reasoned that “Miranda s clarity is one of its strengths, and a multi-factor test that applies to every two-stage interrogation” would undermine that clarity).

      . Id. (“Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn.”).

      . 272 S.W.3d 615 (Tex.Crim.App.2008).

      . Id. at 617-18.

      . Id. at 623 (quoting Seibert, 542 U.S. at 621, 124 S.Ct. 2601 (Kennedy, J., concurring)).

      . Id. at 624.

      . Id. at 626-27.

      . Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (internal quotation omitted); see also Haynes v. State, 273 S.W.3d 183, 186-87 (Tex.Crim.App.2008).

      . See United States v. Nunez-Sanchez, 478 F.3d 663, 668 n. 1 (5th Cir.2007) ("In Missouri v. Seibert, Justice Kennedy provided the fifth vote in a 5-4 decision, and decided the case on narrower grounds than the majority. 'It is well established that when we are confronted with a plurality opinion, we look to that position taken by those Members who concurred in the judgments on the narrowest grounds.' Therefore, we find Seibert’s holding in Justice Kennedy's opinion concurring in the judgment.”), (quoting United States v. Courtney, 463 F.3d 333, 338 (5th Cir.2006)); United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir.2007) ("We treat Justice Kennedy's concurrence as controlling since it provided the fifth vote necessary for a majority and since it was decided on narrower grounds than the plurality opinion."); United States v. Carter, 489 F.3d 528, 536 (2d Cir.2007) ("We now join our sister circuits in holding that Seibert lays out an exception to Elstad for cases in which a deliberate, two-step strategy was used by law enforcement to obtain the post warning confession.”); State v. Fleurie, 185 Vt. 29, 968 A.2d 326, 333 (2008) (citing Marks and adopting Justice Kennedy’s concurrence as the narrower holding; "Under Justice Kennedy's test, the threshold inquiry is whether the police intentionally withheld Miranda warnings to circumvent its protections. If warnings were not intentionally withheld, both Kennedy and the Seibert plurality would apply the Elstad framework.”) (citation omitted); State v. Gaw, 285 S.W.3d 318, 323-24 (Mo.2009) ("[Tjhis Court determines that Justice Kennedy’s 'deliberate violation' standard represents a ‘lowest common denominator' between his views and those of the four-justice plurality. This Court accordingly joins numerous other courts that have held that Justice Kennedy's concurring opinion supplies the standard to be applied”), cert. denied, - U.S. -, 130 S.Ct. 1082, - L.Ed.2d -, 2010 WL 58585 (2010); Tengbergen v. State, 9 So.3d 729, 735 (Fla.Ct.App.2009) ("Florida courts have heretofore applied Justice Kennedy's rule, as it represents the narrower view.”); but see United States v. Heron, 564 F.3d 879, 884-86 (7th Cir.2009) (noting that Justice Kennedy’s approach was “different” from that of the plurality, not narrower, and thus "it is risky to assume that the Court has announced any particular rule of law,” but finding it unnecessary to resolve what rule can be gleaned from Seibert as the defendant's statements would be admissible under "any test one might extract”).

      . One of the Supreme Court's earlier cases that addressed the trial court's critical role in assessing "intent” was Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), in which the Court held that "a finding of intentional discrimination is a finding of fact." Thus, the standard of review of a trial court's finding of intent "shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Id. at 575, 105 S.Ct. 1504. Factual findings concerning intent or deliberateness should not be disturbed by an appellate court absent contradicting extrinsic evidence or internal inconsistencies that render testimony "implausible on its face.” Id. This standard is similar to our "great deference” standard of review for all factual findings, including intent, if such findings are supported by the record. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) (appellate courts should afford almost total deference if the resolution of an ultimate question turns on an evaluation of credibility and demeanor).

      . 536 F.3d 714, 719 (7th Cir.2008).

      . Id. at 720-21 (holding that, despite plausible alternative explanations, the district court's determination that the officer did not engage in deliberate sequential interrogation was not clearly erroneous.).

        . United States v. Narvaez-Gomez, 489 F.3d 970, 974 (9th Cir.2007) (applying clear-error standard of review); United States v. Nunez-Sanchez, 478 F.3d 663, 668-69 (5th Cir.2007) (without deciding the matter, appearing implicitly to apply clear-error review); United States v. Naranjo, 426 F.3d 221, 226, 232 (3d Cir.2005) (applying clear-error standard of review); United States v. Mashburn, 406 F.3d 303, 309 (4th Cir.2005) (applying clear-error standard of review); Ford v. United States, 931 A.2d 1045, 1052-52 (D.C.2007) (applying clear error to the trial court's findings on remand, noting that it was consistent with its review of similar trial court determinations involving credibility and deliberateness).
      In United States v. Torres-Lona, 491 F.3d 750 (8th Cir.2007), the district court stated that the agents conducting a custodial interrogation should have known that their questions were likely to elicit an incriminating response, so it suppressed the defendant's unwarned statements. However, the district court also noted that "the initial failure to warn appellant was ‘merely an oversight’ on the part of the agents rather than a calculated strategy to circumvent Miranda." Id. at 758. The Eighth Circuit held that "the district court’s determination that the [ ] agents acted in good faith” was not "clearly erroneous” and upheld the admission of the post-Miranda statements. Id.

      . State v. Gaw, 285 S.W.3d 318, 324 (Mo.2009) (officer arrested defendant after confronting him about having marijuana and defendant produced a baggie of marijuana; during post-arrest, pre-Miranda questioning, defendant made incriminating statements; upholding trial court's denial of motion to suppress post-warning statements because the unwarned questioning was not part of a deliberate plan to undermine defendant's understanding of Miranda rights), cert. denied, - U.S. -, 130 S.Ct. 1082, - L.Ed.2d - (2010).

      . See note 39 supra.

      . Carter, - S.W.3d at -.

      . Id.

      . See Montanez v. State, 195 S.W.3d 101 (Tex.Crim.App.2006). In Montanez, we addressed the standard of review involving a videotape of a traffic stop and subsequent search in which the issue was voluntary consent. We noted that, “in Anderson v. Bessemer City, the Supreme Court held that appellate courts should review a trial court's determination of historical facts under a deferential standard, even if that determination was not based on an evaluation of credibility and demeanor.” Id. 108-09 (internal quotation marks omitted). Therefore, we held that “the deferential standard of review in Guzman applies to a trial court’s determination of historical facts when that determination is based on a videotape recording admitted into evidence at a suppression hearing.” Id. at 109; see also State v. Gobert, 275 S.W.3d 888, 891-892 & n. 13 (Tex.Crim.App.2009) (“[T]he trial judge viewed the DVD with the State’s transcript in hand, and he found that the appellee did in fact actually declare, T don't want to give up any right though, if I don't got no lawyer.’ The record supports that conclusion, even as it might also support a different conclusion. Therefore, we will not second-guess the trial court's determination of the facts.... Under these circumstances, it is appropriate that we defer to the trial court's primary fact-finding function.”).

      . The fact that appellant was questioned while handcuffed in the backseat of a police vehicle without Miranda warnings does not, in and of itself, show a deliberate and calculated method to undermine the safeguards guaranteed in Miranda. See Tengbergen, 9 So.3d at 735. Moreover, the fact that a suspect was in custody for purposes of Miranda does not, alone, require a finding of coercion. See, e.g., Nunez-Sanchez, 478 F.3d at 668-69; Torres-Lona, 491 F.3d at 758; Gaw, 285 S.W.3d at 325.

      . Seibert, 542 U.S. at 616, 124 S.Ct. 2601.

      . Carter, - S.W.3d at - (internal citation omitted).

      . The court of appeals’s analysis closely tracked the objective "effects” approach taken by the Seibert plurality. See Seibert, 542 U.S. at 615-17, 124 S.Ct. 2601.

      . Anderson, 470 U.S. at 573, 105 S.Ct. 1504.

      . See id. at 575, 105 S.Ct. 1504. Of course, had the trial judge concluded that Trooper Henderson did deliberately employ a two-step questioning technique, we might well uphold that determination because that conclusion is also supported by the objective record. In this case, however, the court of appeals thought it appropriate to remand the case to obtain written factual findings by the trial judge concerning Trooper Henderson’s credibility and intent. Having done so, it could not then ignore those specific factual findings and rely solely upon its own assessment of the objective circumstances if applying Justice Kennedy's subjective “intent” approach.

      . United States v. Stewart, 536 F.3d 714, 723 (7th Cir.2008) (when the interrogation process used was not a deliberate end run around Miranda, a trial court should determine "whether the initial unwarned confession would flunk the voluntariness standard of Elstad such that the taint would carry over to the second warned confession”) (internal quotation marks omitted); see Elstad, 470 U.S. at 310, 105 S.Ct. 1285.

      . Elstad, 470 U.S. at 318, 105 S.Ct. 1285.

        . Delao v. State, 235 S.W.3d 235, 238 (Tex.Crim.App.2007); see also Green v. State, 934 S.W.2d 92, 98-99 (Tex.Crim.App.1996) (stating that, in the context of determining the voluntariness of a confession, the trial court is the sole factfinder and may elect to “believe or disbelieve any or all” of the evidence presented al a hearing on a motion to suppress).

      . Delao, 235 S.W.3d at 238.

      . United States v. Nunez-Sanchez, 478 F.3d 663, 669 (5th Cir.2007) (quoting Elstad, 470 U.S. at 314, 105 S.Ct. 1285).