COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00218-CR

DEREK WRYAN WILSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1290837D

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CONCURRING OPINION

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I concur in the result reached by the majority opinion because I agree that 

the majority has properly applied Dowthitt and its progeny in arriving at the 

conclusion that in this case Wilson was not legally in custody, but I write 

separately to voice my belief that what the officers in this case did was 

deliberately circumvent Miranda by choosing to delay their arrest of the only 

suspect in order to obtain a confession. Miranda v. Arizona, 384 U.S. 436, 450, 
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86 S. Ct. 1602, 1615 (1966); Dowthitt v. State, 931 S.W.2d 244, 251 (Tex. Crim. 

App. 1996).

Here, during the interview, Detective Woodside repeatedly expressed to 

Wilson that he was their only suspect. Woodside can be heard throughout the 

interview saying “Everything leads to you,” “I’m telling you right now you did this,” 

and “My investigation leads right to you.” And the facts of this case quickly bear

out that Detective Woodside was correct. There is no possible suspect in this 

case other than Wilson, which begs the question: why did the police not arrest 

Wilson at the moment they knew he was the assailant? The logical answer is 

that they wanted a confession, a confession that the police intended to use 

against Wilson at trial. See Esparza v. Quarterman, No. SA-07-CA-265-FB, 

2010 WL 9532282, at *45 (W. D. Tex. Mar. 24, 2010) (“A practice the police 

should know is reasonably likely to evoke an incriminating response from a 

suspect amounts to ‘interrogation.’”). Indeed, throughout the interview, Detective 

Woodside can be heard telling Wilson that the video of his interview would be 

played to a jury and that no jury would believe anything other than that Wilson 

had purposely assaulted Amy. Detective Woodside even told Wilson that he 

himself was going to testify against Wilson at trial because he had no doubt that 

Wilson was the assailant.

The setting in which this interview took place had all the markings of an 

interrogation. The detectives interviewed Wilson in the middle of the night in a 

small room at the police station. Both Detectives Woodside and Eubanks used 
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the classic interrogation techniques by tag-teaming their questioning, by leaving 

the room claiming that they needed to check on something just as Wilson began 

to unroll his confession, and by using frequent intimidating language that Wilson 

needed to “man up.” Detective Eubanks even gradually scooted his chair closer 

and closer to Wilson as Wilson began to express his guilt, eventually serving as a 

human barrier between Wilson and the door.

All of these tactics echo the psychological interrogation methods discussed 

in Miranda which prompted the Supreme Court of the United States to dictate 

that a defendant be read his rights to remain silent and invoke counsel. Miranda, 

384 U.S. at 444, 86 S. Ct. at 1615. In Miranda, the Court expressed concern that 

modern-day interrogations involved psychological stress borne out by 

interviewing the suspect at the police station and expressing confidence in the 

suspect’s guilt: 

“‘If at all practicable, the interrogation should take place in the 

investigator’s office or at least in a room of his own choice. The 

subject should be deprived of every psychological advantage. In his 

own home he may be confident, indignant, or recalcitrant. He is 

more keenly aware of his rights and more reluctant to tell of his 

indiscretions of criminal behavior within the walls of his home.’”

. . . 

“[Police interrogation manuals] instruct the police to display an 

air of confidence in the suspect’s guilt and from outward appearance 

to maintain only an interest in confirming certain details. The guilt of 

the subject is to be posited as a fact. The interrogator should direct 

his comments toward the reasons why the subject committed the 

act, rather than court failure by asking the subject whether he did it. .

. . These tactics are designed to put the subject in a psychological 

state where his story is but an elaboration of what the police purport 
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to know already—that he is guilty. Explanations to the contrary are 

dismissed and discouraged. The texts thus stress that the major 

qualities an interrogator should possess are patience and 

perseverance.” Miranda, 384 U.S. at 449, 86 S. Ct. at 1615.

These quotes from Miranda detailing the psychological techniques utilized 

in an interrogation prompting the necessity that a suspect be informed of his 

rights is precisely what transpired in this case. The officers routinely expressed 

confidence that Wilson was guilty, they interviewed him in a small room at the 

police station in the middle of the night, and this “incommunicado interrogation of 

[Wilson] in a police-dominated atmosphere, result[ed] in self-incriminating 

statements without full warnings of [his] constitutional rights.” Id. at 445, 1612.

But these coercive police tactics are deemed lawful because the police told 

Wilson that he was free to leave at the start of the interview. See Dowthitt, 931 

S.W.2d at 255 (“[C]ustody is established if the manifestation of probable cause, 

combined with other circumstances, would lead a reasonable person to believe 

that he is under restraint to the degree associated with an arrest.”). That, 

however, was simply a ruse because the police were finished investigating who 

had assaulted Amy. They knew Wilson had done it. All they wanted was a 

confession. And the officers in this case appear to have skirted by Miranda to 

obtain one by postponing Wilson’s arrest and delaying telling him he was not free 

to leave. See Oregon v. Mathiason, 429 U.S. 492, 499, 97 S. Ct. 711, 716 n.5 

(1977) (J. Marshall dissenting) (“I trust today’s decision does not suggest that 

police officers can circumvent Miranda by deliberately postponing the official 
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“arrest” and the giving of Miranda warnings until the necessary incriminating 

statements have been obtained.”); see also Missouri v. Seibert, 542 U.S. 600, 

620, 124 S. Ct. 2601, 2615 (2004) (“The police used a two-step questioning 

technique based on a deliberate violation of Miranda.”). Thus, I write separately 

to express my concerns that such tactics by law enforcement result in nothing 

more than a rhetorical circumvention of Miranda and its progeny. But because 

that appears to be the law and controlling precedent in this case under Dowthitt, I 

concur with the majority’s opinion.

/s/ Bill Meier

BILL MEIER

JUSTICE

PUBLISH

DELIVERED: August 14, 2014