NUMBER 13-20-00413-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

THE STATE OF TEXAS, Appellant,

v.

ERIC SCARBERRY, Appellee.

On appeal from the 156th District Court 

of Bee County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Tijerina

Memorandum Opinion by Justice Benavides

The State appeals from the trial court’s order granting the suppression of certain 

items of evidence in Eric Scarberry’s criminal case. By two issues, the State argues the 

trial court erred by granting Scarberry’s motions to suppress on the grounds that (1) the 

search warrant violated Article 18.04(5) of the Texas Code of Criminal Procedure, and (2) 
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Scarberry’s statements were obtained in violation of Miranda and Article 38.22 of the 

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC ANN. art. 38.22; Miranda 

v. Arizona, 384 U.S. 436, 498 (1966). We affirm in part and reverse and remand in part.

I. BACKGROUND

On July 25, 2019, Scarberry was indicted on one count of burglary of a building 

with intent to commit theft and one count of theft, both state jail felonies alleged to have 

occurred at Coastal Bend College in Beeville, Texas. See TEX. PENAL CODE ANN.

§§ 30.02, 31.03. An attorney from the Bee County Regional Public Defender entered her

appearance as attorney of record for Scarberry on June 25, 2020. She then filed two 

motions to suppress on July 28, 2020. The first motion requested suppression of certain 

evidence due to a faulty search warrant. Specifically, Scarberry alleged that the warrant 

issued was invalid because: (1) the supporting affidavit did not reflect sufficient probable 

cause to justify the issuance of the search warrant; and (2) the warrant failed to comply 

with Article 18.04(5) of the Texas Code of Criminal Procedure, which requires the 

magistrate’s name to appear in clearly legible handwriting or in typewritten form with the 

magistrate’s signature. See TEX. CODE CRIM. PROC. ANN. arts. 18.01(b), 18.04(5).

The second motion requested the suppression of any oral statements Scarberry 

purportedly made to law enforcement on the grounds that the statements were involuntary 

and taken in violation of Article 38.22 of the Texas Code of Criminal Procedure. See id. 

art. 38.22. The motion also asserted that admission of the statements would violate 

Scarberry’s statutory and constitutional rights.
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On August 20, 2020, the trial court held a hearing on Scarberry’s motions to 

suppress. At the hearing, the search warrant and corresponding affidavit were admitted 

into evidence, and the court heard argument concerning the warrant’s propriety. After 

hearing argument, the trial court stated, “The only problem—honestly, the only problem I 

see with this search warrant are the signatures, and if that’s enough to find that that 

search warrant is invalid then—then that’s where you win.”

The trial court also heard testimony and argument concerning the oral statements 

Scarberry allegedly made to police. Detective Adam Levine of the Bee County Sheriff’s 

Office testified that he could not remember on what day or at what time Scarberry made 

the statements at issue. He also did not record the statements. However, he did include 

their substance on an undated supplemental incident report. Levine could not remember 

when he completed the report, but he affirmed it was not made contemporaneously with 

his conversation with Scarberry.

Scarberry’s and Levine’s accounts differed concerning the nature of their

conversation. Scarberry testified that he was in his cell and was informed that Levine 

wanted to speak to him. Scarberry was brought into an interview room where Levine was 

waiting for him. According to Scarberry, when he walked into the room, Levine 

immediately said, “[T]his isn’t about the case that [Scarberry was] in jail for.” Scarberry 

testified that Levine asked about an unrelated incident and denied making any 

incriminating statements whatsoever. Scarberry also testified about an interaction he had 

with the Chief of Police at Coastal Bend College, Kevin Behr:

[T]he only time I actually talked to Mr. Behr is when I got arrested when I 

went over there to talk to him and they arrested me and he came—he came 
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to me and said if I wanted to make a statement he would come back for me

later on.

Levine’s own testimony concerning what he asked Scarberry varied. Initially, 

Levine stated that he approached Scarberry at the Bee County Jail and:

I asked him if he wanted to have the opportunity—or I told him he would be 

given the opportunity to talk to Chief Behr about his case since I’m really 

not too involved with the investigation. I just assisted Chief Behr with some 

interviews. And I told him he would have the opportunity to tell his side of 

the story. And that was—I didn’t ask him any questions about the case or 

anything like that.

Levine then went on to state that he “asked [Scarberry] if he wanted to have the 

opportunity to present his side of the story to [Behr].” Levine later confirmed that his 

question was whether Scarberry “wanted to give a statement to Chief Behr about the 

Coastal Bend College burglary,” but he also acknowledged that he simply asked if 

Scarberry “wanted to give a statement.” Levine also testified that it is “not uncommon” for 

him to approach people in custody and ask if they want to give a statement about the 

crime for which they have been arrested. 

Regardless of the substance of his inquiry, Levine testified that Scarberry initially 

declined to give a statement, then proffered a partial admission, and then reiterated that 

he did not wish to discuss the matter further with law enforcement. Specifically, Levine 

testified:

I was just going to say that to save anyone who is in custody, the jail staff, 

everyone else’s time, we ask them if they wish to provide a statement. He 

chose not to. That was the end of it, other than the comment that he made, 

and that was after I asked him if he wanted to talk to Chief Behr.

Levine affirmed that Miranda warnings were not administered.
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The trial court granted both motions to suppress. The trial court also issued 

findings of fact concerning the search warrant. The trial court found that “the Search 

Warrant and Affidavit were made in good faith . . . and . . . the affidavit fully and accurately 

described the location to be searched with adequate specificity to locate the property on 

the ground.” The trial court also found “that there was probable cause for the search, and 

under the apparent authority of the Search Warrant, that said search was conducted in 

good faith.” However, the trial court ultimately found that “the magistrate’s name was not 

in ‘clearly legible handwriting or in typewritten (or printed) form with the magistrate[’]s 

signature’” and therefore concluded that “the Search Warrant is invalid and . . . the 

property recovered through the execution of the Search Warrant must be suppressed at 

trial.”

This appeal followed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5). We abated 

this case so that the trial court could make findings consistent with Vasquez v. State on 

the voluntariness of Scarberry’s oral statements to Levine. See id. art. 38.22, § 6; 

Vasquez v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013) (“[W]ritten findings are 

required in all cases concerning voluntariness. [Article 38.22, § 6] has no exceptions.”).

The trial court issued the following findings of fact:

1. The Defendant Eric Scarberry was incarcerated in the Bee County 

Jail for the offenses alleged in the indictment in this cause.

2. At some point during Defendant Eric Scarberry’s incarceration, 

Detective Adam Levine approached the Defendant at the Bee 

County jail and inquired if he would be willing to make a statement to 

law enforcement about these offenses.

3. Defendant Eric Scarberry told Detective Levine that he did not desire 

to make a statement. According to Detective Levine, the Defendant 
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Eric Scarberry then went on to make admissions saying that he had 

been involved in the offense but that he did not want to discuss it 

further or give an interview to law enforcement.

4. Prior to his conversation with Defendant Eric Scarberry, Detective 

Adam Levine failed to give the Defendant the warnings mandated by 

Miranda v. Arizona or Article 38.22, Sec. 3 of the Texas Code of 

Criminal Procedure.

5. Prior to his conversation with Defendant Eric Scarberry, Detective 

Adam Levine failed to get permission from the Defendant’s courtappointed attorney, . . . to have a conversation with the Defendant.

6. Detective Adam Levine failed to record his in-custody conversation 

with Defendant Eric Scarberry in accordance with the requirements 

of Article 38.22, Sec. 3, Texas Code of Criminal Procedure.

7. Prior to or during his custodial conversation with Detective Levine, 

the Defendant Eric Scarberry was never given the opportunity to 

waive the rights set out in Article[] 38.22 of the Texas Code of 

Criminal Procedure or in Miranda v. Arizona.

(internal citations omitted). The trial court concluded that Scarberry’s statements to Levine 

were “not knowingly and voluntarily made.” We did not specifically request findings from 

the trial court concerning whether Levine’s conversation with Scarberry constituted an 

interrogation. See Alford v. State, 358 S.W.3d 647, 651 n. 6 (Tex. Crim. App. 2012) 

(quoting Nichols v. State, 810 S.W.2d 829, 831 (Tex. App.—Dallas 1991, pet. ref’d)); cf.

Greer v. State, No. 14-18-01000-CR, 2020 WL 6439721, at *4 (Tex. App.—Houston [14th 

Dist.] 2020, pet. ref’d) (“If a trial court has not made a finding on a relevant fact, we imply 

the finding that supports the trial court’s ruling, so long as it finds some support in the 

record.”).

II. SEARCH WARRANT

The State argues by its first issue that the trial court erred in suppressing the
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physical fruits seized as a result of the search warrant based on the illegibility of the 

magistrate’s signature. Scarberry concedes the trial court erred but asks this Court to 

remand for further findings of fact and conclusions of law concerning the validity of the 

search warrant.

A. Standard of Review

We review a ruling on a motion to suppress using a bifurcated standard of review. 

Guzman v. State, 955 S.W.2d 85, 87–91 (Tex. Crim. App. 1997). A trial court’s findings 

of historical facts, and determinations of mixed questions of law and fact that turn on 

credibility and demeanor, are afforded almost total deference if reasonably supported by 

the record. Id. We review a trial court’s determination of legal questions and its application 

of the law to facts that do not turn upon a determination of witness credibility and 

demeanor de novo. Id. 

B. Analysis

The statutory exclusionary rule provides that “[n]o evidence obtained by an officer 

or other person in violation of any provisions of the Constitution or laws of the State of 

Texas, or of . . . the United States of America, shall be admitted in evidence against the 

accused on the trial of any criminal case.” TEX. CODE CRIM. PROC. ANN. art. 38.23(a). But 

there is an exception to that rule when “the evidence was obtained by a law enforcement 

officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate 

based on probable cause.” Id. art. 38.23(b).

State v. Arellano was decided two months prior to the trial court’s suppression of 

the evidence seized as a result of the search warrant in this case. 600 S.W.3d 53 (Tex. 
8

Crim. App. 2020). In Arellano, the court of criminal appeals held that an illegible 

magistrate’s signature does not render a search warrant facially invalid. Id. at 61; see 

TEX. CODE CRIM. PROC. ANN. art. 18.04(5) (requiring a search warrant to contain “the 

magistrate’s name . . . in clearly legible handwriting or in typewritten form with the 

magistrate’s signature”); see also McClintock v. State, 541 S.W.3d 63, 73 (Tex. Crim. 

App. 2017) (“In executing the warrant, [an] officer ‘act[s] in objective good faith reliance 

upon’ the warrant, as long as the warrant is facially valid.”). Therefore, evidence obtained 

pursuant to a warrant with an illegible magistrate’s signature is not inadmissible, so long 

as the Article 38.23(b) exception applies—i.e., if “the officer was acting in objective goodfaith reliance upon a warrant based upon a neutral magistrate’s determination of probable 

cause.” Arellano, 600 S.W.3d at 61; see TEX. CODE CRIM. PROC. ANN. art. 38.23(b).

Appellee concedes that the trial court erred to the extent that it suppressed the 

evidence based upon the legibility of the magistrate’s signature. See Arellano, 600 

S.W.3d at 61. Nevertheless, appellee argues that the case should be remanded for further 

fact findings. Namely, Appellee urges that the trial court did not address whether the 

warrant was “illegally issued for the reason that the supporting affidavit does not reflect 

sufficient probable cause to justify the issuance of a search warrant.” 

We disagree. Here, the trial court specifically found that “there was probable cause

for the search, and under the apparent authority of the Search Warrant, that said search 

was conducted in good faith.” Therefore, there are no findings left for the trial court to 

make, and the evidence seized as a result of the search warrant was inappropriately 

suppressed. See Arellano, 600 S.W.3d at 61; TEX. CODE CRIM. PROC. ANN. art. 38.23(b).
9

We sustain the State’s first issue.

III. INTERROGATION

The State argues by its second issue that Scarberry’s statements were made in 

the absence of custodial interrogation and were therefore admissible.

A. Standard of Review

“The decision as to whether custodial questioning constitutes ‘interrogation’ under 

Miranda is a mixed question of law and fact, and we defer to the trial court’s fact findings 

that turn on an evaluation of credibility and demeanor.” Alford, 358 S.W.3d at 653. An 

issue “turns” on an evaluation of credibility and demeanor when the testimony of one or 

more witnesses, if believed, is always enough to add up to what is needed to decide the 

substantive issue. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998). If 

credibility and demeanor are not important to the resolution of the issue, “whether a set 

of historical facts constitutes custodial interrogation under the Fifth Amendment is subject 

to de novo review because that is an issue of law: it requires application of legal principles 

to a specific set of facts.” Alford, 358 S.W.3d at 653.

When challenging the admissibility of a statement on grounds that Miranda 

warnings were not given, the defendant has the initial burden of proving that his statement 

was the product of custodial interrogation. Herrera v. State, 241 S.W.3d 520, 526 (Tex. 

Crim. App. 2007). However, the State bears a separate burden of proof at a hearing on 

admissibility to show by a preponderance of the evidence that the defendant’s statement 

was given voluntarily. Martinez v. State, 272 S.W.3d 615, 623 (Tex. Crim. App. 2008);

Bleil v. State, 496 S.W.3d 194, 207 (Tex. App.—Fort Worth 2016, pet. ref’d).
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B. Applicable Law

“The Fifth Amendment prohibits the government from compelling a criminal 

suspect to bear witness against himself.” Pecina v. State, 361 S.W.3d 68, 74–75 (Tex. 

Crim. App. 2012) (citing U.S. CONST. amend. V). The Miranda Court held that “[i]n dealing 

with custodial interrogation, we will not presume that a defendant has been effectively 

apprised of his rights and that his privilege against self-incrimination has been adequately 

safeguarded on a record that does not show that any warnings have been given.”

Miranda, 384 U.S. at 498. Thus, Miranda warnings are necessary before an accused is 

subjected to custodial interrogation. See Gaitan v. State, 533 S.W.3d 19, 27 (Tex. App.—

Corpus Christi–Edinburg 2016, pet. ref’d). Miranda defined custodial interrogation with 

some specificity: “By custodial interrogation, we mean questioning initiated by law 

enforcement officers after a person has been taken into custody or otherwise deprived of 

his freedom of action in any significant way.” Miranda, 384 U.S. at 444.

In the intervening years, this definition has changed. The Innis Court redefined

“interrogation” to include both “express questioning” and “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 (1980). However, subsequent courts have held 

that “express questioning” is not interrogation unless the Innis “should know” test applies 

to the questioning at issue. See, e.g., State v. Cruz, 461 S.W.3d 531, 536 n.15 (Tex. Crim. 

App. 2015) (citing Innis, 446 U.S. at 301–02); United States v. Cash, 733 F.3d 1264, 1277 

(10th Cir. 2013); United States v. Hunter, 708 F.3d 938, 954 (7th Cir. 2013); State v. 
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Morrisey, 214 P.3d 708, 723 (Mont. 2009). Although we assess whether words or actions 

constitute custodial interrogation based on what the police “should know,” this test 

“focuses primarily upon the perceptions of the suspect, rather than the intent of the police” 

to determine whether the suspect was interrogated. Alford, 358 S.W.3d at 653 (quoting 

Innis, 446 U.S. at 301).

The Sixth Amendment, on the other hand, guarantees a defendant the right to have 

counsel present at all critical stages of criminal proceedings once the adversary process 

has been initiated. Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (citing United States 

v. Wade, 388 U.S. 218, 227–28 (1967)). Interrogation by the State is such a critical stage. 

Id. The Sixth Amendment right to counsel may be waived by a defendant, so long as 

relinquishment of that right is voluntary, knowing, and intelligent. Id. (citing Patterson v. 

Illinois, 487 U.S. 285, 292 n.4 (1988)). “[W]hen a defendant is read his Miranda rights 

(which include the right to have counsel present during interrogation) and agrees to waive 

those rights, that typically does the trick.” Id. at 786.

Edwards v. Arizona determined that “when an accused has invoked his right to 

have counsel present during custodial interrogation . . . [he] is not subject to further 

interrogation by the authorities until counsel has been made available,” unless he initiates 

contact with the police. 451 U.S. 477, 484–85 (1981).1 However, the Montejo Court 

1

In his concurrence, Justice Powell wrote,

[F]ew cases will be as clear as this one. Communications between police and a suspect in 

custody are common-place. It is useful to contrast the circumstances of this case with 

typical, and permissible, custodial communications between police and a suspect who has 

asked for counsel. For example, police do not impermissibly “initiate” renewed interrogation 

by engaging in routine conversations with suspects about unrelated matters. And police 

legitimately may inquire whether a suspect has changed his mind about speaking to them 

without an attorney. . . .
12

rejected the principle that “if police initiate interrogation after a defendant’s assertion, at 

an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s 

right to counsel for that police-initiated interrogation is invalid.” Montejo, 556 U.S. at 782 

(overruling Michigan v. Jackson, 475 U.S. 625, 636 (1986)). Instead, Justice Scalia 

reasoned that “no reason exists to assume” that an indigent defendant who has been 

appointed counsel “would not be perfectly amenable to speaking with the police without 

having counsel present. And no reason exists to prohibit the police from inquiring.” Id. at 

789. Thus, the fact that Scarberry was represented by an attorney at the time he made 

his statements is immaterial for purposes of determining whether law enforcement was 

permitted to initiate interrogation. See id. Rather, “[w]hat matters for Miranda and 

Edwards is what happens when the defendant is approached for interrogation, and (if he 

consents) what happens during the interrogation.” Id. at 797.

Now, under Montejo, Fifth and Sixth Amendment rights are not necessarily discrete 

in the context of post-arraignment interrogation. See id. at 795; Pecina, 361 S.W.3d at 71 

(“Both the Fifth and Sixth Amendment rights to counsel apply to post-magistration 

custodial interrogation, but each is invoked and waived in exactly the same manner—

under the Fifth Amendment prophylactic Miranda rules.”). “An uncharged suspect may 

invoke his Fifth Amendment right to counsel (and a defendant who has been arraigned 

In sum, once warnings have been given and the right to counsel has been invoked, the 

relevant inquiry—whether the suspect now desires to talk to police without counsel—is a 

question of fact to be determined in light of all of the circumstances. Who “initiated” a 

conversation may be relevant to the question of waiver, but it is not the sine qua non to the 

inquiry. The ultimate question is whether there was a free and knowing waiver of counsel 

before interrogation commenced.

Edwards v. Arizona, 451 U.S. 477, 490–91 (1981) (Powell, J., concurring).
13

may invoke his Sixth Amendment right to counsel) for purposes of custodial interrogation 

when the police or other law-enforcement agents approach him and give him his Miranda 

warnings.” See Pecina, 361 S.W.3d at 78 (emphasis added) see also Montejo, 556 U.S. 

at 794 (“Under the Miranda-Edwards-Minnick line of cases . . . a defendant who does not 

want to speak to the police without counsel present need only say as much when he is 

first approached and given the Miranda warnings.”) (emphasis added). “That is the time 

and place to either invoke or waive the right to counsel for purposes of police questioning.”

Pecina, 361 S.W.3d at 78.

Under Texas law, an accused’s statement “may be used in evidence against him 

if it appears that the same was freely and voluntarily made without compulsion or 

persuasion.” TEX. CODE CRIM. PROC. ANN. art. 38.21. An oral statement of the accused is 

not admissible against him unless several requirements have been met, including the 

administration of Miranda-type warnings. Id. art. 38.22, § 3(a). Law enforcement must 

administer Miranda warnings “immediately before custodial interrogation.” Pecina, 361 

S.W.3d at 75. “Failure to administer Miranda warnings creates a presumption of 

compulsion.” Oregon v. Elstad, 470 U.S. 298, 307 (1985). In addition to being warned of 

their rights, defendants must also waive those same rights. State v. Lujan, 634 S.W.3d 

862, 865 (Tex. Crim. App. 2021). “Only ‘warned and waived’ custodial statements are 

admissible in evidence.” Id. (quoting Oursbourn v. State, 259 S.W.3d 159, 171 (Tex. Crim. 

App. 2008)). However, neither Miranda nor Article 38.22 preclude the admission of 

statements that are volunteered. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5;

Miranda, 384 U.S. at 478.
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C. Analysis

There is no dispute that Scarberry was in custody when he was approached. 

Therefore, the relevant inquiry is whether Scarberry’s statement was made in response 

to police interrogation. 

“To be an interrogation, a statement or question must demonstrate ‘a measure of 

compulsion above and beyond that inherent in custody itself.’” Gaitan, 533 S.W.3d at 29. 

Courts are divided on whether asking an accused if he would like to make a statement or 

if he would like to give his side of the story constitutes interrogation for purposes of 

Miranda. Compare People v. Romero, 51 N.E.3d 554, 554 (N.Y. 2016) (“Defendant’s preMiranda statement, while in custody, in response to a detective’s question regarding 

whether he would like to make a statement should have been suppressed.”), and State 

v. Eli, 273 P.3d 1196, 1208–09 (Haw. 2012) (“By asking Defendant if he wanted to give 

his side of the story without first stating the Miranda warnings, Detective violated 

Defendant’s right to be informed of his right to remain silent before making the decision 

and commitment to give a statement.”), with State v. Harris, 892 N.W.2d 663, 676 (Wis. 

2017) (“Detective Buchanan’s inquiry into whether Mr. Harris would like to make a 

statement was diagnostic in nature, not inquisitorial, and the circumstances confirm that 

it was not the functional equivalent of an interrogation.”), and U.S. v. Wallace, 753 F.3d 

671, 673 (7th Cir. 2014) (holding that agent’s pre-arrest question, “would you mind 

stepping out to talk about this?” was not interrogation); see also Cruice v. State, No. 14-

96-01362-CR, 2000 WL 328197, at *3 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) 

(mem. op., not designated for publication) (holding that officer’s question, “do you want 
15

to give a written statement,” posed after “remind[ing] appellant that appellant was still 

under the statutory warnings” was “an invitation to engage in interrogation,” but was not 

itself interrogation).

It is difficult to imagine that Levine’s time-saving technique of approaching inmates 

and asking for a statement would be a “not uncommon” occurrence if it did not frequently 

yield the result allegedly obtained in this case—an incriminating response. The trial court 

had the discretion to disbelieve Levine’s conclusory testimony that his frequent question 

posed to inmates would not cause them to incriminate themselves. See State v. Ross, 32 

S.W.3d 853, 858 (Tex. Crim. App. 2000). In fact, a review of the case law indicates that 

this is generally the first interrogatory posed by investigators immediately after Miranda

warnings have been administered. See, e.g., Montoya v. State, 810 S.W.2d 160, 173 

(Tex. Crim. App. 1989) (“[Appellant] was then informed that he was under arrest for capital 

murder and his rights were again read to him in Spanish. Again appellant acknowledged 

that he understood them. The investigators then asked appellant if he would like to give 

a statement.”); Silva v. State, 936 S.W.2d 721, 723 (Tex. App.—El Paso 1996, pet. ref’d) 

(“[Wizgell] then read the Miranda warnings to appellant and made sure she understood 

the warnings. Wizgell requested that appellant give her side of the story.”); see also 

Minjarez v. State, No. AP-74,592, 2005 WL 3061981, at *2 (Tex. Crim. App. Nov. 16, 

2005) (not designated for publication) (“After advising appellant of his rights, Carian asked 

whether if [sic] appellant would be willing to give a statement.”); Wilson v. State, No. 11-

11-00225-CR, 2013 WL 4715688, at *3 (Tex. App.—Eastland Aug. 30, 2013, no pet.) 

(mem. op., not designated for publication) (“Detective Mitchell then read Appellant his 
16

Miranda rights and asked Appellant if he would like to give a statement.”); Hernandez v. 

State, No. 08-06-00223-CR, 2008 WL 2402249, at *1 (Tex. App.—El Paso June 12, 2008, 

no pet.) (not designated for publication) (“Tabullo read him his Miranda rights and asked 

if he [was] willing to give a statement.”); Lockett v. State, No. 01-03-01016-CR, 2005 WL 

1474023, at *5 (Tex. App.—Houston [1st Dist.] June 23, 2005, no pet.) (mem. op., not 

designated for publication) (“[B]efore offering Mr. Lockett a chance to talk to us on video, 

I , at that time, read him his [legal rights], gave him the [legal rights]. Um, read to him that 

he had the right to remain silent. . . . And afterwards, I asked him if he understood it and 

if he was willing to talk on.”); Oliver v. State, No. 2-03-525-CR, 2004 WL 2847823, at *3 

(Tex. App.—Fort Worth Dec. 9. 2004, pet. ref’d) (“Officer Campbell testified that after 

giving appellant his second Miranda warning, he asked appellant if he would like to give 

a statement, . . .”). As the Supreme Court noted in Innis, “where a police practice is 

designed to elicit an incriminating response from the accused, it is unlikely that the 

practice will not also be one which the police should have known was reasonably likely to 

have that effect.” 446 U.S. at 302 n.7.

However, while Levine’s intent is relevant, it is not the primary focus of our inquiry.

See id. at 301–302. Instead, we analyze the facts, in the light most favorable to the trial 

court’s findings, from Scarberry’s perspective to determine whether Levine should have 

known his words or actions were “reasonably likely to elicit an incriminating response.” 

See id. In doing so, we look to see “what happen[ed] when the defendant [wa]s 

approached for interrogation, and (if he consent[ed]) what happen[ed] during the 

interrogation.” Montejo, 556 U.S. at 797.
17

The evidence supports the trial court’s finding that “Levine approached the 

Defendant at the Bee County jail and inquired if he would be willing to make a statement 

to law enforcement about these offenses.” Levine’s testimony varied, but there were three 

main components to his inquiry that were consistent: (1) Levine asked whether Scarberry 

“wanted to give a statement” about the burglary; (2) Levine told Scarberry he was being 

given “the opportunity to tell his side of the story”; and (3) Levine asked whether Scarberry 

wanted to speak with Behr about the burglary.

We conclude that Levine should have known his query was reasonably likely to 

result in an incriminating response. See Innis, 446 U.S. at 301–302. It is not the three 

components of his inquiry individually that lead us to this conclusion, but their synergistic 

effect upon Scarberry. Levine specifically mentioned the offense for which Scarberry was 

in custody and proclaimed this to be Scarberry’s opportunity to “tell his side of the story,” 

implying that the version of the story the police already had was that Scarberry was guilty. 

By asking Scarberry to give a statement, offering Scarberry an opportunity to give his 

version of events, and specifically addressing the crime of which Scarberry had been 

accused, Levine should have known that any actor, guilty or innocent, would have the 

urge to minimize his involvement. See Eli, 273 P.3d at 1208–09; cf. Elstad, 470 U.S. at 

300–01, 315 (holding, in dicta, officer’s initial unwarned statement that “[he] felt [Elstad] 

was involved in [the burglary]” “breached Miranda” and Elstad’s response was properly 

suppressed). The law draws no distinction between inculpatory and exculpatory 

statements; both are incriminating. See Miranda, 384 U.S. at 476–77 (“[N]o distinction 

may be drawn between inculpatory statements and statements alleged to be merely 
18

‘exculpatory.’”).

Scarberry had not requested a visit from Levine, and by all accounts, Scarberry 

initially declined to make any statement to him. However, Levine proceeded to ask if 

Scarberry instead wanted to speak with Behr about the burglary. See Michigan v. Mosley, 

423 U.S. 96, 102–104 (1975) (police must scrupulously honor defendant’s assertion of 

right to remain silent); cf. Cruice, 2000 WL 328197 at *3 (“Even if the question amounted 

to interrogation, appellant’s negative response terminated the interrogation. Perkins 

asked no other questions of appellant until after appellant made his statement.”). Levine’s 

inquiry left Scarberry with the false dilemma of either giving a statement to Levine about 

the burglary or having to speak to Behr about it. And the reference to Behr would have 

special meaning to Scarberry, whose only prior attempt to speak with Behr immediately 

precipitated his arrest. Levine testified that Scarberry made a partial admission only “after 

[Levine] asked [Scarberry] if he wanted to talk to Chief Behr” regarding the burglary. The 

bar for what constitutes interrogation is not a high one; interrogation need only “reflect a 

measure of compulsion above and beyond that inherent in custody itself.” Griffith v. State, 

55 S.W.3d 598, 603 (Tex. Crim. App. 2001). In viewing the evidence in the light most 

favorable to the trial court’s findings, we conclude that Scarberry’s statement was 

compelled by Levine’s question. Therefore, Scarberry’s statement was made in response 

to a custodial interrogation. See id.

The dissent criticizes our citation to Hawaiian authority but apparently ignores our 

reliance on Supreme Court precedent. See Innis, 446 U.S. at 302 n.7. We concede that 

decisions of other states are “advisory, not controlling.” Ex Parte Hernandez, 953 S.W.2d 
19

275, 281 (Tex. Crim. App. 1997). But our reliance on Eli is overstated by the dissent. 

Although Miranda has been whittled down throughout the years, it has never been 

overruled. “[V]ertical stare decisis is absolute . . . . In other words, the state courts . . . 

have a constitutional obligation to follow a precedent of [the United States Supreme] Court 

unless and until it is overruled by [that] Court.” Ramos v. Louisiana, --- U.S. ----, 140 S. 

Ct. 1390, 1416 n.5 (2020). Therefore, when the Supreme Court dictates that a suspect

may “agree to answer questions or make a statement” only after Miranda warnings have 

been given, we must apply this binding reasoning to the facts at hand. See Miranda, 384 

U.S. at 479. When the Supreme Court states that when “police ask questions of a suspect 

in custody without administering the required warnings, Miranda dictates that the answers 

received be presumed compelled and that they be excluded from evidence at trial in the 

State’s case in chief,” we must apply this binding reasoning to the facts at hand. See 

Elstad, 470 U.S. at 317. And when the Supreme Court explains that a question will 

constitute an interrogation if it is “reasonably likely,” to result in an incriminating 

response—rather than absolutely certain to result in such a response—we must apply 

this binding reasoning to the facts at hand. See Innis, 446 U.S. at 301–302. In doing so, 

we conclude that Scarberry was interrogated. See id.; Elstad, 470 U.S. at 317; Miranda, 

384 U.S. at 479.

The dissent relies on Batiste v. State (which we note relies on Utah authority) for 

its proposition that “yes or no” questions are non-violative of Miranda. Our court of criminal 

appeals has held, in a case that does not have precedential value, that the question, 

“[h]ave you been shot?” was “simply a yes or no question. Neither a ‘yes,’ nor a ‘no’ would 
20

have been incriminating.” See Batiste v. State, No. AP-76600, 2013 WL 2424134, at *15 

(Tex. Crim. App. June 5, 2013) (not designated for publication) (citing State v. Riggs, 987 

P.2d 1281, 1283–84 (Utah Ct. App. 1999), abrogated on other grounds by State v. Levin, 

144 P.3d 1096 (Utah 2006)). Unpublished opinions handed down by the court of criminal 

appeals “have no precedential value and must not be cited as authority by counsel or by 

a court.” TEX. R. APP. P. 77.3 (emphasis added); see also Damron v. State, No. 2-08-399-

CR, 2010 WL 1006392, at *4 (Tex. App.—Fort Worth Mar. 18, 2010, no pet.) (mem. op., 

not designated for publication). “Though courts may cite an unpublished opinion of the 

Court of Criminal Appeals to show the procedural history of the case, courts may not use 

an unpublished opinion from the Court of Criminal Appeals as authority of any sort, 

whether binding or persuasive.” Ex parte Fairchild-Porche, 638 S.W.3d 770, 791 (Tex. 

App.—Houston [14th Dist.] 2021, no pet.); see Skinner v. State, 293 S.W.3d 196, 202 

(Tex. Crim. App. 2009) (explaining that Rule 77.3 “prohibits the use of an unpublished 

opinion as authority of any sort, whether binding or persuasive”). Unpublished opinions 

and memorandum opinions by the courts of appeals in criminal cases similarly “have no 

precedential value.” TEX. R. APP. P. 47.7(a); see Precedent, BLACK’S LAW DICTIONARY

(11th ed. 2019).

While we are permitted to rely on unpublished opinions as an aid in developing our 

own independent reasoning, we are not persuaded by the reasoning in Batiste. As the 

Batiste court noted in its opinion, questions mandated by public safety are outside the 

constitutional definition of interrogation. Batiste, 2013 WL 2424134, at *14. Because the 

court of criminal appeals concluded that the question “have you been shot?” was 
21

necessary to the officer’s duty to administer aid, see id. at *14, the court of criminal 

appeals did not need to apply the Innis test to the facts in Batiste. 

When a question is outside the definition of interrogation, it matters not whether 

that question is reasonably likely to lead to an incriminating response. See New York v. 

Quarles, 467 U.S. 649, 651, 655–56 (1984) (holding that asking about the whereabouts 

of a missing gun to defendant who was later charged with “criminal possession of a 

weapon” fell within public safety exception to Miranda); Alford v. State, 358 S.W.3d 647, 

660 (Tex. Crim. App. 2012) (explaining that “language” in Innis “gave rise to the bookingquestion exception by indicating that routine administrative questions necessary for 

booking processing do not constitute interrogation, regardless of whether police should 

know that such questions are reasonably likely to elicit incriminating information”). The

application of Innis is therefore merely dictum. See State v. Brabson, 976 S.W.2d 182, 

186 (Tex. Crim. App. 1998). Judicial dictum, true, but dictum nonetheless. See Dictum, 

BLACK’S LAW DICTIONARY (11th ed. 2019). And unlike Batiste, the only law enforcement 

duty implicated in this case is Levine’s investigative duty, which is precisely the duty that 

Miranda and its progeny touched upon. See Miranda, 384 U.S. at 481; Elstad, 470 U.S. 

at 309.

We also respectfully disagree that a “no” answer to the question “have you been 

shot?” in Batiste would not be an incriminating response. Batiste was stopped by police 

after he engaged in a “high-speed chase.” See Batiste, 2013 WL 2424134, at *1. The car 

he had driven had “a great deal of blood on the . . . steering wheel and driver’s seat.” Id. 

The passenger side window had been shattered. Id. Batiste had “blood all over” him when 
22

the officer asked whether he had been shot. Id. at *13. The circumstantial evidence clearly 

indicated that someone was shot in the car Batiste was driving. See id. at *1. If Batiste 

denied having been shot, the evidence would indicate that Batiste was the one who did 

the shooting. See id. We also note that there are many other “yes or no” questions that 

will almost always lead to an incriminating response, such as, “Did you commit the crime 

you stand accused of?” See Miranda, 384 U.S. at 476–77 (explaining that both inculpatory 

and exculpatory statements are “incriminating”). Scarberry may have had the ability to 

respond with either a “yes” or a “no” to Levine’s question. Realistically, however, the 

answers “yes, I did it,” or “no, I didn’t do it” were also “reasonably likely” to flow from the 

question “do you want to make a statement about the burglary?” See Innis, 446 U.S. at 

301. We have found no court of criminal appeals case that similarly addresses “yes or 

no” questions in the context of Miranda and Article 38.22.

Similarly, we are unpersuaded by Cruice v. State. 2000 WL 328197, at *2. In 

Cruice, unlike here, the defendant was read his statutory rights and then reminded of his 

statutory rights prior to his confession. See id. The Cruice court was also careful to note

that “[e]ven if the question amounted to interrogation, appellant’s negative response 

terminated the interrogation.” Id. In response to Cruice’s “no,” the officer got up to leave 

the room. At that point, Cruice tendered an incriminating response. Id. The Cruice court 

held that “[l]eaving a room is not an action that [the investigator] should have known was 

reasonably likely to elicit an incriminating response from appellant.” Id. Here, the facts 

indicate that there were multiple, unwarned questions posed to Scarberry before he 

confessed. And according to Levine, Scarberry’s confession was made in response to his
23

express questioning related to the criminal offense, not an attempt to disengage after 

Scarberry asserted his right to remain silent.

Prior to the custodial interrogation, Scarberry was not warned of his rights nor did 

he waive those rights. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(2); Miranda, 

384 U.S. at 479 (“After such warnings have been given, and such opportunity afforded 

him, the individual may knowingly and intelligently waive these rights and agree to answer 

questions or make a statement.”); Lujan, 634 S.W.3d at 865. Moreover, the statement 

was not recorded. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(1). Therefore, 

Scarberry’s oral statement to Levine was not admissible. We conclude that the trial court 

did not err in suppressing Scarberry’s statement.

We therefore overrule the State’s second issue.

IV. CONCLUSION

We affirm the trial court’s judgment suppressing Scarberry’s oral statement to 

police. We reverse the trial court’s suppression of evidence stemming from the validly 

issued search warrant, and we remand for further proceedings consistent with this 

opinion.

GINA M. BENAVIDES

Justice

Dissenting Memorandum Opinion by Justice Tijerina. 

Do not publish. 

TEX. R. APP. P 47.2(b). 

Delivered and filed on the 

9th day of June, 2022.