Nelson, Mona Yvette ( 2015 )


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  •                                                                     PD-0390-15
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 5/8/2015 1:55:28 PM
    Accepted 5/12/2015 1:02:41 PM
    ABEL ACOSTA
    NO. PD-0390-15                                         CLERK
    COURT OF CRIMINAL APPEALS
    TEXAS RULES OF APPELLATE PROCEDURE, RULE 68.4
    MONA YVETTE NELSON
    v.
    THE STATE OF TEXAS
    On Petition for Discretionary Review
    from the First Court of Appeals in
    No. 01-13-00769-CR Affirming the
    Conviction in No. 1394964 from the
    182nd Judicial District Court
    of Harris County, Texas
    APPELLANT’S PETITION FOR
    DISCRETIONARY REVIEW
    ALLEN C. ISBELL
    2016 Main St., Suite 110
    Houston, Texas 77002
    713-236-1000
    May 12, 2015                    Fax No. 713-236-1809
    STATE BAR NO. 10431500
    email: allenisbell@sbcglobal.net
    COUNSEL ON APPEAL
    NAMES AND ADDRESSES OF ALL PARTIES
    AT THE TRIAL COURT’S FINAL JUDGMENT
    Trial Judge
    Honorable Jeannine Barr
    182nd District Court
    1201 Franklin, 18th Fl., Houston, Texas 77002
    Appellant/Defendant
    Ms. Mona Yvette Nelson
    #01877556
    Hobby Unit
    742 FM 712, Marlin, Texas 76661
    Appellant’s Counsel
    Mr. Allen C. Isbell - Counsel on Appeal
    202 Travis, Suite 208, Houston, Texas 77002
    Mr. Allen Tanner - Counsel Attorney at Trial
    917 Franklin St., Suite 550, Houston, Texas 77002
    Attorneys for the State of Texas
    Ms. Constance “Connie” Spence - Assistant District Attorney at Trial
    1201 Franklin, 6th Fl., Houston, Texas 77002
    Ms. Anshu “Sunni” Mitchell - Assistant District Attorney at Trial
    1201 Franklin, 6th Fl., Houston, Texas 77002
    ii
    TABLE OF CONTENTS
    PAGE
    Names and Addresses of All Parties at the Trial Court’s Final Judgment
    . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
    Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
    Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . iv
    Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Statement of Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    Ground for Review 1
    Whether the Court of Appeals conducted an adequate analysis of
    the “totality of the circumstances” in deciding that the police
    officers did not use impermissible interrogation techniques that
    caused appellant to incriminate herself after she had terminated
    the police interview and requested counsel? . . . . . . . . . . . . . . 1-2
    Ground for Review 2
    Whether the Court of Appeals’ decision tacitly approving the
    technique of police officers describing the gruesome details of a
    child’s murder while the suspect is forced to be in their presence
    is consistent with appellant’s right to terminate the interrogation
    and asking for counsel? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    Brief Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
    Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
    c:\appeals\nelson\pdr                                                                                            iii
    INDEX OF AUTHORITIES
    STATUTES                                                                     PAGE
    Texas Rules of Appellate Procedure, Rule 66.3(b)(c) . . . . . . . . . . . . . . . . 7
    STATEMENT REGARDING ORAL ARGUMENT
    Oral argument is waived.
    c:\appeals\nelson\pdr                                                              iv
    TO THE HONORABLE COURT OF CRIMINAL APPEALS:
    COMES NOW MONA YVETTE NELSON, appellant in the above entitled
    and numbered cause, by and through her appointed counsel, ALLEN C.
    ISBELL, and petitions the Court of Criminal Appeals to review the opinion by
    the First Court of Appeals, and respectfully shows this Court the following in
    support of her petition.
    Statement of the Case
    This appeal is from a conviction for Capital Murder arising out of the
    182nd District Court of Harris County, Texas, the Honorable Jeannine Barr,
    Judge Presiding. Appellant waived her right to a trial by jury and entered a
    plea of “not guilty.” The judge found appellant guilty. The judge assessed
    punishment at LIFE in the Institutional Division of the Texas Department of
    Criminal Justice.
    Statement of Procedural History
    The First Court of Appeals handed down an opinion affirming the
    conviction on March 10, 2015. Appellant filed a Motion for Extension of Time
    to file the petition. This petition is filed within the time allowed by law.
    Ground for Review 1
    Whether the Court of Appeals conducted an adequate analysis of the
    c:\appeals\nelson\pdr                                                          1
    “totality of the circumstances” in deciding that the police officers did not
    use impermissible interrogation techniques that caused appellant to
    incriminate herself after she had terminated the police interview and
    requested counsel?
    Ground for Review 2
    Whether the Court of Appeals’ decision tacitly approving the technique
    of police officers describing the gruesome details of a child’s murder
    while the suspect is forced to be in their presence is consistent with
    appellant’s right to terminate the interrogation and asking for counsel?
    Brief Argument
    An appellate court must consider the “totality of the circumstances”
    when deciding whether an accused’s constitutional rights have been
    preserved.     In deciding whether the police officers used impermissible
    interrogation techniques to cause Appellant to renew talking to the police,
    after she had terminated the interrogation and requested counsel, the Court
    of Appeals opinion does not review adequately the “totality of the
    circumstances.” The opinion does not consider or mention indisputable facts
    that are a significant part of the “totality of the circumstances,” such as:
    c:\appeals\nelson\pdr                                                          2
    First, after appellant told Investigator Phil Waters that she did not want
    to talk to the police any more and that she wanted counsel, Waters made her
    sit in the room with him and listen to what Waters wanted to say to her about
    this horrendous homicide. This action by Waters sheds light on what Waters
    and Sgt. Harris did shortly later during the ride to the jail when appellant was
    forced to be in the back seat. But, the Court of Appeals did not mention or
    consider this event as part of the “totality of the circumstances.” This is what
    occurs between Waters and appellant immediately after she says that she
    does not want to talk any more, that she wants to talk to a lawyer:
    Mona Nelson:        I don’t want to talk any more. I want to talk to a
    lawyer.
    Partner (Waters):         Okay. Well then you can listen to me. How
    about that? I’ll talk. I don’t need a lawyer, but
    I can talk. All right?
    Mona Nelson:        [sighs]
    Partner:            Here’s what’s happened. Here’s what’s disappointing
    to me. You and I have sat in here, and I thought we
    had kind of a relationship when we walked out of this
    place.
    Mona Nelson:        I did also.
    Partner:            All right. And what you told me was that you would
    talk to me again today, and we would discuss the fact
    that your – that you and your truck are in that video,
    with that little boy . . .
    c:\appeals\nelson\pdr                                                          3
    Mona Nelson:        That y’all are saying my truck is at . . .
    Partner:            No, no, no, no. Listen.
    Mona Nelson:        I would like to talk to a lawyer. I don’t want to talk any
    more.
    Partner:            Okay. Well, I – you don’t have to talk.
    Mona Nelson:        But you’re asking me questions and you’re talking to
    me.
    Partner:            No, no, no. I haven’t asked you a question.
    Mona Nelson:        Ohh.
    Partner:            I want you to sit and listen to me. All right? (State’s
    Exhibit 341, pp. 110-111).
    The significance is that this is the technique of interrogation used shortly later
    when Investigator Phil Waters and Sgt. Harris have appellant in the back seat
    of their patrol car, taking her to jail.
    Second, in analyzing the “totality of the circumstances,” the opinion does
    not include Investigator Phil Waters admissions under oath that Sgt. Harris
    may have said something during the ride in the police car “about the sad life
    he (the victim) had that his mom and his dad didn’t care about him, and that
    it was sad he died the way he did.” Waters’ admission that during the ride to
    the jail, he and Harris discussed about how horrible the victim’s death was, his
    charred remains, the manner of his death and what suffering the child went
    c:\appeals\nelson\pdr                                                             4
    through before he died. Waters’ testimony showed that his and Sgt. Harris’
    “interrogation technique” succeeded. Waters said that when they arrived at
    the jail, appellant appeared emotional and had a tear running down her face.
    Waters testified that when they arrived at the jail, appellant said that she was
    not a monster. After the ride to the jail, appellant confessed (R.R. 5, 205-
    206).
    Third, that Sgt. Harris wrote the offense report section about the ride to
    the jail. It was written contemporaneously with the event. Sgt. Harris wrote
    in his offense report that “the car ride was very quiet, and Walters and I were
    talking back and forth on how strange the case was and how horrific it had
    been for Jonathan.” The Court of Appeals’ opinion quotes what Sgt. Harris
    said about the ride to the jail during the pre-trial motion to suppress
    appellant’s statements which she made after that ride. The opinion notes that
    Sgt. Harris said that during the ride he turned the “good time radio” on and
    that he “turned it up” so what he and Waters discussed could not be
    overheard by appellant who was sitting in the back seat. Harris claimed that
    the conversation between himself and Waters was about how the case was
    managed, the dynamic of the case itself as far as the assignments and some
    decisions that Lieutenants had made” with which they did not agree (R.R. 4,
    c:\appeals\nelson\pdr                                                           5
    138-139). The opinion leaves the impression that appellant could not hear the
    conversation between Waters and Harris.          However, the “totality of the
    circumstances” review shows that is not true.
    Third, in reviewing the “totality of the circumstances,” the Court of
    Appeals does not mention that Sgt. Harris admitted that he described the
    horrific nature of this crime, showing her a picture of the victim’s charred
    remains, because he was trying to appeal to appellant to confess because
    appellant had mentioned that she was religious, that she was a Christian. The
    opinion does not mention that Investigator Phil Waters seized upon
    appellant’s religious sentiment as a Christian in mentioning the story of Cain
    and Abel (R.R. 4, 172-174).
    Appellant exercised her Constitutional rights to terminate being
    interrogated by the police officers, and her right for counsel to act as a
    medium between her and the State. The State had an affirmative duty not to
    act in a manner that circumvents those Constitutional protections. She was
    entitled to be free of being interrogated without counsel, regardless of the form
    of that interrogation.
    By not doing an adequate analysis of the “totality of the circumstances,”
    the Court of Appeals’ opinion tacitly approves the interrogation tactic of forcing
    c:\appeals\nelson\pdr                                                           6
    an accused to sit and listen to the police harangue the accused by describing
    gruesome, horrendous facts of a murder, after the accused has terminated the
    interrogation and has asked for counsel.
    The Court of Appeals has decided an important question of law that the
    Court of Criminal Appeals should address. The Court of Appeals’ conflicts
    with established Constitutional Law. Texas Rules of Appellate Procedure,
    Rule 66.3(b)(c).
    Conclusion and Prayer
    Appellant prays that this Court grant her Petition for Discretionary
    Review. Following the grant of review, Appellant prays that this Court reverse
    the judgment of the Court of Appeals.
    Respectfully submitted,
    /s/ Allen C. Isbell
    ALLEN C. ISBELL
    2016 Main St., Suite 110
    Houston, Texas 77002
    713/236-1000
    Fax: 713/236-1809
    STATE BAR NO. 10431500
    email: allenisbell@sbcglobal.net
    COUNSEL ON APPEAL
    c:\appeals\nelson\pdr                                                         7
    Certificate of Service
    I hereby certify that on this 8th day of May, 2015, a true and correct copy
    of the forgoing petition has been sent to the District Attorney’s Office,
    Appellate Division, and to Ms. Mona Yvette Nelson, appellant.
    /s/ Allen C. Isbell
    ALLEN C. ISBELL
    Certificate of Compliance
    The undersigned attorney on appeal certifies this petition is computer
    generated and consists of 1,838 words. Counsel is relying on the word count
    provided by the Word Perfect computer software used to prepare the petition.
    /s/ Allen C. Isbell
    ALLEN C. ISBELL
    c:\appeals\nelson\pdr                                                          8
    Opinion issued March 10, 2015
    In The
    Court of Appeals
    For The
    First District of Texas
    ————————————
    NO. 01-13-00769-CR
    ———————————
    MONA YVETTE NELSON, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 182nd District Court
    Harris County, Texas
    Trial Court Case No. 1394964
    OPINION
    Appellant Mona Yvette Nelson was charged with the offense of capital
    murder. TEX. PENAL CODE § 19.03. After a plea of “not guilty,” the case was tried
    to the court, which found Nelson guilty and sentenced her to life in prison. On
    appeal, Nelson contends that the trial court abused its discretion when it admitted
    into evidence her statements made to the police after she had asked to speak to a
    lawyer. Applying the standard of Rhode Island v. Innis, 
    446 U.S. 291
    , 
    100 S. Ct. 1682
    (1980), we conclude that the record supports the trial court’s factual
    determination that Nelson’s statements were not the result of further interrogation
    without her lawyer present. Accordingly, we affirm.
    Background
    The complainant, a 12-year-old boy named Jonathan, went missing on the
    afternoon of Christmas Eve 2010. The police were called that evening, and a
    missing-person report was filed on Christmas day. Jonathan’s dead body was
    found three days later, in a drainage pipe across the street from a warehouse. The
    boy’s wrists were tied behind his back, and his body was so badly burned that a
    visual identification was impossible.
    The police reviewed surveillance video obtained from the warehouse.
    Footage from Christmas Eve showed that at 6:06 p.m. a gray truck with distinctive
    wheels stopped near where the body was found. A person wearing a white shirt and
    a white baseball cap was shown walking outside of the truck, appearing to move
    items in the bed of the truck. As cars passed by, the person ducked down behind
    the truck.
    When officers were told to be on lookout for the truck in the surveillance
    video, two officers investigating Jonathan’s disappearance were driving up to the
    2
    home of appellant Mona Nelson. The officers noticed that her truck, with its
    distinctive wheels, matched the description. Nelson consented to a search of her
    truck, and then she voluntarily accompanied the officers to police headquarters for
    an interview. This interview was the first in a series of interviews she gave to the
    police over the course of two days.
    Nelson gave a videorecorded statement during her first interview. She was
    acquainted with Jonathan, and she admitted seeing him on Christmas Eve. Nelson
    denied having anything to do with Jonathan’s disappearance, and she stated that no
    one else used her truck that day. Following that statement, she gave the police
    permission to search her home. She also agreed to participate in a live lineup.
    Later that evening, Sergeant B. Harris, one of the lead investigators, asked
    Nelson if she would speak with him. She agreed, and they began a second recorded
    interview at 1:26 a.m. Sgt. Harris informed Nelson that a witness placed her at
    Jonathan’s last known location around the time he disappeared. She was also
    shown the surveillance video that showed a truck similar to hers at the site where
    Jonathan’s body was found. Nelson denied that the truck was hers. After about an
    hour, Nelson terminated the interview, so Sgt. Harris returned her to her home. The
    two agreed to speak again later that day.
    By 8:25 a.m., the police had secured a warrant for Nelson’s arrest.
    Sgt. Harris and the other lead investigator, Officer P. Waters, met Nelson at her
    3
    house and asked if she would speak with them again. Nelson agreed to a third
    interview. Sgt. Harris told her that she was free to go and not under arrest at the
    time. During the interview at police headquarters, Nelson began coughing and
    spitting up blood. When she asked to stop the interview so she could go to see a
    doctor, she was placed under arrest. Nelson then invoked her right to a lawyer,
    stating, “I want a lawyer. I don’t want to talk anymore.” The investigating officers
    took Nelson to a police station to be booked into jail.
    During the drive to the jail, Sgt. Harris and Officer Waters turned up their
    AM/FM car radio to have a conversation without Nelson hearing. The record is
    essentially undisputed that the investigators’ conversation discussed the “horrific”
    circumstances under which Jonathan was “burned alive” and “burned to a crisp.”
    Upon reaching the police station, Nelson had become emotional. She cooperated
    with routine booking questions and stated that she was “not a monster.” Sgt. Harris
    responded, “Well, we don’t . . . know anything other than what we’ve got to go
    with.” Nelson told him to keep investigating, and he responded that he couldn’t
    have a conversation with her because she had “lawyered up.” Nelson replied, “You
    had told me earlier that if I reached out to you . . . we could talk. So, I’m reaching
    out.”
    The investigating officers then took Nelson back to the headquarters for a
    fourth recorded interview, stopping along the way at a hospital so she could
    4
    receive treatment. At the headquarters, she waived her right to counsel and dictated
    a written custodial statement, which was also recorded. Nelson later moved before
    trial to suppress the evidence of her inculpatory statements in the fourth recorded
    interview, on the grounds that they were improperly elicited after she had invoked
    her right to counsel. The trial court denied the motion to suppress, and Nelson
    ultimately was convicted of capital murder and sentenced to life in prison.
    Analysis
    On appeal, Nelson argues in a single issue that the admission of her
    statements in the fourth interview violated her rights under the Fifth and
    Fourteenth Amendments to the United States Constitution.
    In reviewing the trial court’s ruling on a motion to suppress statements made
    as a result of custodial interrogation, we apply a bifurcated standard of review.
    Pecina v. State, 
    361 S.W.3d 68
    , 78–79 (Tex. Crim. App. 2012) (citing Guzman v.
    State, 
    955 S.W.2d 85
    , 89 (Tex. Crim. App. 1997)). We review the ruling in light of
    the totality of the circumstances, giving total deference to the trial court on
    questions of historical fact, as well as its application of law to fact questions that
    turn on credibility and demeanor. 
    Id. at 79;
    Leza v. State, 
    351 S.W.3d 344
    , 349
    (Tex. Crim. App. 2011). But we review de novo the trial court’s rulings on
    questions of law and mixed questions of law and fact that do not depend on
    credibility determinations. 
    Pecina, 361 S.W.3d at 79
    ; 
    Leza, 351 S.W.3d at 349
    . We
    5
    view the record in the light most favorable to the trial court’s ruling and reverse the
    judgment only if it is outside the zone of reasonable disagreement. Hereford v.
    State, 
    339 S.W.3d 111
    , 118 (Tex. Crim. App. 2011). When the trial court makes no
    express, written findings of fact following its ruling on a motion to suppress, we
    must presume that the trial court found facts consistent with its ruling as long as
    the implied findings are supported by the record. 
    Id. To protect
    the privilege against self-incrimination guaranteed by the Fifth
    Amendment, police may not conduct a custodial interrogation of a suspect who has
    requested the assistance of counsel. Minnick v. Mississippi, 
    498 U.S. 146
    , 147, 
    111 S. Ct. 486
    , 488 (1990); Edwards v. Arizona, 
    451 U.S. 477
    , 484–85, 
    101 S. Ct. 1880
    , 1884–85 (1981). Once an individual in custody invokes her right to counsel,
    “interrogation ‘must cease until an attorney is present.’” 
    Minnick, 498 U.S. at 150
    ,
    111 S. Ct. at 489 (quoting Miranda v. Arizona, 
    384 U.S. 436
    , 474, 
    86 S. Ct. 1602
    ,
    1628 (1966)). Thus statements made in response to further police-initiated
    questioning without the presence of an attorney are inadmissible, even if made
    after the suspect is again advised of her rights. 
    Id. at 150–51,
    111 S. Ct. at 489.
    Before a subject in custody can be subjected to further interrogation after she
    requests an attorney, there must be a showing that the suspect herself initiated
    dialogue with the authorities. 
    Edwards, 451 U.S. at 484
    –85, 101 S. Ct. at 1885.
    Once a suspect has invoked her right to counsel, her unwillingness to communicate
    6
    with authorities without the presence of counsel “is presumed to persist” unless the
    suspect herself “initiates further conversation about the investigation.” Cross v.
    State, 
    144 S.W.3d 521
    , 526 (Tex. Crim. App. 2004). To establish that a suspect has
    waived her previously-invoked right to counsel, the State must prove two things:
    that the suspect herself initiated further communication with the authorities; and
    that she thereafter validly waived her right to counsel. 
    Id. at 526–27.
    A valid
    waiver of the right to counsel cannot be established by “showing only that [the
    accused] responded to further police-initiated custodial interrogation, even if [she]
    has been advised of [her] rights.” 
    Edwards, 451 U.S. at 484
    , 101 S. Ct. at 1884–85.
    In this context, the term “interrogation” refers “not only to express
    questioning, but also to any words or actions on the part of the police (other than
    those normally attendant to arrest and custody) that the police should know are
    reasonably likely to elicit an incriminating response from the suspect.” Rhode
    Island v. Innis, 
    446 U.S. 291
    , 301, 
    100 S. Ct. 1682
    , 1689–90 (1980); Moran v.
    State, 
    213 S.W.3d 917
    , 922–23 (Tex. Crim. App. 2007). The determination of
    whether the police should know such actions are reasonably likely to elicit an
    incriminating response “focuses primarily on the perceptions of the suspect, rather
    than the intent of the police.” 
    Innis, 446 U.S. at 301
    , 100 S. Ct. at 1690.
    Furthermore, “[a]ny knowledge the police may have had concerning the unusual
    susceptibility of a defendant to a particular form of persuasion might be an
    7
    important factor in determining whether the police should have known that their
    words or actions were reasonably likely to elicit an incriminating response from
    the suspect.” 
    Id. at 301
    n. 
    8, 100 S. Ct. at 1690
    n.8. Off-hand remarks that are not
    particularly evocative under the circumstances do not constitute interrogation, as
    opposed to subjecting the suspect to a “lengthy harangue.” 
    Id. at 303,
    100 S. Ct. at
    1691.
    In this case, the trial court determined, and the parties agree, that Nelson
    invoked her right to counsel during the third interview. The trial court also
    determined that Nelson was in custody after the third interview. The disputed
    question on appeal is whether the police officers used impermissible interrogation
    techniques to prompt Nelson’s renewed communications, which led to the fourth
    interview.
    At the hearing on the motion to suppress, the trial court heard testimony
    regarding the actions of the police between Nelson’s initial invocation of her right
    to counsel and her later reinitiation of communication with the police. Sgt. Harris
    testified that in their car on the way to book Nelson into jail, he and Officer Waters
    had a conversation in the front seat. Nelson was in the back seat, and the officers
    turned on their car radio. Sgt. Harris testified that he and Officer Waters spoke in a
    low voice so that Nelson would not be able to hear. He stated that they discussed
    the management and dynamics of the case, as well as “the fact of this little boy
    8
    who had been found the way he had been found” and “how horrific the case was.”
    He admitted that he may have said something like Jonathan “was burned to a crisp
    and how terrible it must have felt to be burned alive.” He stated that he never
    looked back at Nelson during the ride. Once they arrived at the substation, he
    noticed that Nelson’s demeanor had changed and that she “had a tear, some
    sniffles.” Officer Waters generally corroborated Sgt. Harris’s account. He testified
    that Sgt. Harris “may have made a comment . . . about the way [Jonathan] died.”
    Further, he said that Nelson appeared to be emotional when they arrived at the
    substation.
    Nelson testified to a different version of events. She testified that the radio
    was never on and that Sgt. Harris looked at her in the rearview mirror while
    discussing how someone with kids would want to help with Jonathan’s case. She
    said that she heard the officers speaking of how “poor Jonathan’s body was burnt,”
    and “how sad it was that he had to go that way.” She further stated that they
    remarked, “[Y]ou would think somebody with kids would want to help and give as
    much information as possible.” Nelson also testified about her discussion with
    Sgt. Harris once they had arrived at the police station:
    Q:      And after you had tears in your eyes after hearing them talk, did
    you say anything to them?
    A:      No, sir, not until we got to the jail, he opened the door and saw
    that I was upset. And he said, “Look, it’s clear that you—you
    know, you have kids. And if you reach out to us, if there’s
    9
    anything you can tell us, you know, wouldn’t you want to
    know? Wouldn’t you want to know what happened? And if you
    had any information, I mean, wouldn’t you want to know? And
    if you—if you reach out to us, we can—we can help you, you
    know, if you help us. I mean, we can—we can get you proper
    medical treatment. You don’t have to go in there and, you
    know, be treated—you know, how they treat prisoners in
    there.”
    The trial court denied Nelson’s motion to suppress her statements in the
    fourth interview and explained its findings from the bench. The court noted that it
    was “crucial” to its findings that it believed Nelson to be “educated” and
    “intelligent.” As such, the court did not believe “that the comments did elicit her
    reinitiating the conversation.” The court further found that the investigators’
    conversation was “not intended to get her to start talking,” since the officers “had
    been talking to her many, many times before and none of the other methodologies
    seemed to get her to really talk or say too much.” In conclusion, the court found
    “the defendant did reinitiate conversation,” that in the fourth interview Nelson
    “was once again given all of her warnings,” and that “she did waive all of those
    rights and voluntarily agree to give a statement.”
    The question of whether the officers violated the prohibition on interrogation
    in this case, after Nelson asserted her right to counsel, is similar to the
    circumstances of Rhode Island v. Innis, 
    446 U.S. 291
    , 
    100 S. Ct. 1682
    (1980). In
    that case, the defendant was accused of murdering a taxi driver. 
    Innis, 446 U.S. at 293
    , 100 S. Ct. at 1686. The murder weapon was believed to be a sawed-off
    10
    shotgun, although the defendant was unarmed when he was found by the police. 
    Id. at 294,
    100 S. Ct. at 1686. After the defendant was arrested and advised of his
    Miranda rights, he requested a lawyer. 
    Id. He was
    placed in a vehicle with three
    officers to be driven to the police station. 
    Id. As they
    drove to the station, two officers discussed the missing shotgun,
    which they believed to be in an area near a school. 
    Id. at 294–95,
    100 S. Ct. at
    1686–87. One of the officers remarked that, because a school for disabled children
    was nearby, there were a lot of those children running around, and “God forbid one
    of them might find a weapon with shells and they might hurt themselves.” 
    Id. The defendant
    then interrupted the officers, asking them to turn the car around so he
    could show them where the gun was located. 
    Id. at 295,
    100 S. Ct. at 1687.
    The Supreme Court considered whether the actions of the police amounted
    to the “functional equivalent” of express questioning, such that they would have
    violated Miranda’s safeguards against custodial interrogation without a lawyer
    present. 
    Id. at 298,
    100 S. Ct. at 1688. After explaining that “any words or actions
    on the part of the police (other than those normally attendant to arrest and custody)
    that the police should know are reasonably likely to elicit an incriminating
    response from the suspect” would constitute the functional equivalent of express
    questioning, the Court determined that the officer’s remarks did not rise to the
    level of interrogation. 
    Id. at 301
    –03, 100 S. Ct. at 1689–91.
    11
    To support its conclusion, the Court observed that nothing in the record
    suggested that the defendant was “particularly susceptible to an appeal to his
    conscience” concerning the safety of disabled children. 
    Id. at 302,
    100 S. Ct. at
    1690. The Court further observed that nothing in the record suggested that the
    police knew that the defendant was “unusually disoriented or upset at the time of
    his arrest,” noting that nothing suggested that the officers’ remarks were designed
    to elicit a response. 
    Id. at 302–03
    & 
    n.9, 100 S. Ct. at 1690
    & n.9. Furthermore, the
    Court evaluated the officers’ remarks “in the context of a brief conversation,”
    observing that the entire dialogue “consisted of no more than a few off hand
    remarks,” as opposed to a “lengthy harangue in the presence of the suspect.” 
    Id. at 303,
    100 S. Ct. at 1691. The Court conceded that the conversation provided “subtle
    compulsion,” but it held that subtle compulsion, standing alone, does not establish
    that the officers should have known that their words or actions were reasonably
    likely to elicit an incriminating response. 
    Id. at 303,
    100 S. Ct. at 1691.
    Justice Marshall dissented, joined by Justice Brennan. 
    Id. at 305,
    100 S. Ct.
    at 1692. The dissent agreed with the Court’s definition of interrogation, but not its
    application of that definition to the officers’ conversation. It reasoned that the
    comments would have constituted interrogation had they been directed at the
    defendant, and “the result should not be different because they were nominally
    addressed” to another officer. 
    Id. at 306,
    100 S. Ct. at 1692. Notably, the dissent
    12
    pointed out that “an appeal to a suspect to confess for the sake of others, to ‘display
    some evidence of decency and honor,’ is a classic interrogation technique.” 
    Id. Applying the
    Innis standard, and viewing the record in the light most
    favorable to the trial court’s ruling, we conclude that the trial court did not commit
    reversible error by determining that the officers could not be imputed with
    knowledge that their actions were reasonably likely to elicit an incriminating
    response. In this regard, we must defer to the trial court’s application of law to
    facts that turn on credibility. 
    Pecina, 361 S.W.3d at 79
    .
    As in Innis, in which the Supreme Court concluded the officers’ remarks
    were not designed to elicit a response, we likewise conclude that the record
    supports a conclusion that the conversation conceded by the officers amounted to
    no more than “subtle compulsion” that did not rise to the level of interrogation. See
    
    Innis, 446 U.S. at 303
    , 100 S. Ct. at 1690. The record supports the implied factual
    conclusion that the officers turned up the radio in the car specifically to prevent
    Nelson from hearing their conversation. Furthermore, after observing the testimony
    the trial court found that Nelson was “educated” and “intelligent,” expressly stating
    that she was not actually affected by the officers’ discussion, and also implying a
    finding that she was not unusually susceptible to any particular form of persuasion
    inherent in the officers’ comments. See 
    id. at 302
    n.
    8, 100 S. Ct. at 1690
    n.8.
    Nelson does not dispute or challenge the trial court’s assessment of her as
    13
    “educated” and “intelligent.” The officers’ remarks were brief, off-hand comments;
    like Innis, this is “not a case where the police carried on a lengthy harangue in the
    presence of the suspect.” See id. at 
    303, 100 S. Ct. at 1691
    .
    The essence of Nelson’s argument is that the experienced police
    investigators involved in this case used an interrogation technique to deliberately
    elicit her self-incriminating statements. But the trial court found that did not
    happen in this case. To the extent Nelson’s argument nevertheless characterizes the
    officers’   statements   as   an      interrogation   technique,   the   argument   is
    indistinguishable from the observations made in Justice Marshall’s Innis dissent—
    and rejected by the Innis majority.
    Nelson also attempts to analogize this case to the actions of officers in the
    noted “Christian burial speech” at issue in Brewer v. Williams, 
    430 U.S. 387
    , 97 S.
    Ct. 1232 (1977). In Brewer, a police officer addressed the respondent, who was a
    deeply religious former mental-health patient, while driving him to jail. 
    Id. at 390–
    393, 97 S. Ct. at 1235
    –36. The officer stated that the parents of a missing girl
    should be entitled to a “Christian burial for the little girl who was snatched away
    from them on Christmas (E)ve and murdered.” 
    Id. at 392–93,
    97 S. Ct. at 1236.
    Williams then directed the officers to the body. 
    Id. at 393,
    97 S. Ct. at 1236. The
    Supreme Court held that the officer’s speech, despite not involving any questions
    directed at the respondent, resulted in a Sixth Amendment violation. 
    Id. at 397–98,
    14
    97 S. Ct. at 1239
    . The Court determined that the officer had “deliberately and
    designedly set out to elicit information from [the defendant] just as surely as and
    perhaps more effectively than if he had formally interrogated him.” 
    Id. at 399,
    97
    S. Ct. at 1240.
    Nelson’s analogy to Brewer is unavailing. To the extent that the Court’s
    analysis in Brewer extends to the determination of whether police conduct
    constitutes interrogation under the Fifth Amendment, that case involved a mental-
    health patient, whom the police officer knew was deeply religious. 
    Id. at 390–
    93.
    Indeed, the police officer in Brewer testified that he was attempting to extract
    information from the defendant when he made the Christian burial speech. 
    Id. at 399.
    And, unlike the facts before us, the officer’s remarks in Brewer were both
    lengthy and directed at the defendant. Compare id. at 
    392–93, 97 S. Ct. at 1236
    ,
    with Moreno v. State, No. 01-85-00551-CR, 
    1987 WL 6130
    , at *3 (Tex. App.—
    Houston [1st Dist.] Feb. 5, 1987, pet. ref’d) (mem. op., not designated for
    publication) (relying on Innis, holding that officer’s remark to appellant, “you need
    to find God again if you knew him at one time,” was not akin to statements in
    Brewer because it was only an “off-hand remark”).
    In sum, viewed in the light most favorable to the trial court’s ruling, the
    record supports the conclusion that the officers, while discussing the case with
    each other in hushed voices and with the radio turned up to ensure they could not
    15
    be heard, should not be charged with knowledge that their discussion was
    reasonably likely to elicit an incriminating response. See 
    Innis, 446 U.S. at 301
    ,
    100 S. Ct. at 1689–90. As such, their actions did not constitute interrogation within
    the meaning of Miranda, Nelson’s waiver of her right to counsel was valid, and her
    Fifth Amendment right to counsel was not violated. See 
    Edwards, 451 U.S. at 484
    85, 101 S. Ct. at 1884
    –85.
    We affirm the trial court’s denial of Nelson’s motion to suppress her fourth
    interview.
    Conclusion
    We affirm the trial court’s judgment.
    Michael Massengale
    Justice
    Panel consists of Justices Massengale, Brown, and Huddle.
    Publish. TEX. R. APP. P. 47.2(b).
    16