Affirmed and Opinion Filed September 16, 2020

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-01386-CR

ASHLEY DANIELLE SIEBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 6

Dallas County, Texas

Trial Court Cause No. MA1659378

MEMORANDUM OPINION

Before Justices Partida-Kipness, Nowell, and Evans

Opinion by Justice Partida-Kipness

Appellant Ashley Danielle Siebert appeals her conviction for Class B 

misdemeanor driving while intoxicated. Siebert brings six issues on appeal. In her 

first four issues, Siebert seeks a second abatement of this appeal to obtain additional 

findings of fact and conclusions of law from the trial court regarding the denials of 

her motions to suppress. In her fifth issue, Siebert contends the trial court abused its 

discretion by admitting her post-Miranda statements to law enforcement. In her final 

issue, Siebert argues the trial court abused its discretion by refusing to exclude 

certain evidence she maintains the State failed to produce until the eve of trial. We 
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conclude a second abatement is unwarranted here, Siebert has not shown an abuse 

of discretion regarding admission of her post-Miranda statements, and Siebert failed 

to preserve error regarding the purportedly late-tendered evidence. We affirm the 

judgment.

BACKGROUND

In the early morning hours of August 5, 2016, Sergeant Amy Ginger of the 

Dallas Police Department was on bike patrol in the Central Business District of 

Dallas when she and her partner responded to a major accident call. Upon arrival, 

she observed Siebert sitting in the driver’s seat of a damaged vehicle and a paramedic 

attending to her. The vehicle was facing the wrong way on a one-way street, was 

straddling the curbs of the median, and had severe undercarriage damage, a flat front 

right tire, and a broken windshield. The driver’s airbag had deployed, which lead

Sergeant Ginger to conclude Siebert had “struck something solid at a relative high 

rate of speed.” After the paramedic completed his evaluation of Siebert, Sergeant

Ginger approached and asked Siebert to exit the vehicle. Siebert informed Sergeant 

Ginger that she was “okay,” was coming from Gexa Energy Pavilion, was alone in 

the vehicle, and no other vehicles were involved in the collision.

Sergeant Ginger testified that when Siebert exited the vehicle, she had 

unsteady balance, “seemed a little disoriented” during questioning, and had an odor 

of an alcoholic beverage on her breath. Based on her observations, Sergeant Ginger

thought Siebert might be intoxicated and asked dispatch to send an officer to 
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administer standardized field sobriety tests (SFSTs or field tests). Sergeant Ginger

remained at the scene and observed the administration of the SFSTs. 

Officer Min An was dispatched to administer the field tests. This was only the 

second time in his career that Officer An had administered SFSTs. Officer An had 

Siebert perform multiple field tests on scene before and after her vehicle was towed 

away. Officer An placed Siebert under arrest on scene and transported her to the Lew 

Sterrett Justice Center, where Siebert was taken to the intoxilyzer room to give a 

breath sample to determine her blood alcohol content (BAC).

Although Officer An decided to arrest Siebert half-way through the field 

sobriety testing and questioned Siebert on scene, neither he nor any of the other five 

officers on scene provided Siebert with Miranda warnings until after she arrived at 

the Lew Sterrett Justice Center and was taken into the intoxilyzer room. She did not 

receive Miranda warnings when she was arrested on scene or at any time during the

transport from the scene to the jail. The trial court excluded evidence of the on-scene, 

pre-Miranda custodial interrogation by Officer An at trial but denied Siebert’s 

motion to suppress the post-Miranda interrogation.

In the intoxilyzer room, Sergeant Ginger read Siebert the statutory warnings

regarding the breath test, which advised Siebert of her rights regarding the test, the 

consequences if the result showed a BAC over the legal limit of .08, and the 

consequences for refusing to consent to the test. Siebert said she would voluntarily 

give a breath sample, but the officer administering the test was unable to obtain a 
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sufficient breath sample from Siebert. Dallas Police Department Officer Robert 

Wilcox operated the intoxilyzer on Siebert. He testified that, in his opinion, Siebert 

was playing the system and not giving enough effort to give a proper sample. Officer 

Wilcox took the failed test as a refusal.

Due to the failed breath test, Sergeant Ginger obtained a search warrant for a 

blood draw. Siebert was transported to Parkland Hospital, and the blood draw 

occurred at 6:15 a.m., three hours after Officer An originally arrived at the scene of 

the collision. Brittany Welch, a toxicology chemist at the Southwestern Institute of 

Forensic Sciences, conducted the toxicology analysis on Siebert’s blood. Siebert’s 

BAC at the time of the blood draw was .198 grams of ethanol per 100 milliliters of 

blood. Welch testified that a result of .198 for a 135-pound female would represent 

approximately five to six standard drinks fully absorbed into her system at that time. 

She stated that an individual with a .198 blood alcohol concentration could not safely 

operate a motor vehicle.

While waiting the statutorily-required fifteen minutes before giving the breath 

test, Officer Wilcox read Siebert her Miranda rights. After receiving the Miranda

warnings, Siebert nodded her head to indicate that she understood her rights as 

Officer Wilcox read them to her, and said she wanted to “go forward” when asked 

if she wanted to waive her rights and answer Officer Wilcox’s questions. Officer 

Wilcox then stated he did not understand what she meant by wanting to go forward, 

and the following exchange occurred:
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Officer Wilcox: Do you want to answer some questions and waive your 

rights, and answer some questions for me about what happened tonight, 

or do you just want to —

Siebert: Answer questions —

Officer Wilcox: You do?

Siebert: Yeah.

Officer Wilcox: So you want to waive your rights to answer questions.

Siebert: Yeah, I guess.

Officer Wilcox then told Siebert that if she does not feel comfortable answering a 

question, she could tell him no at any time and could stop the interview at any time. 

Siebert stated she understood that information. 

Officer Wilcox then interviewed Siebert and obtained the following 

information from her: she was driving the motor vehicle that evening, the vehicle 

she was driving belonged to her, she was the only person in the vehicle, she was 

coming from a concert at the Gexa Energy Pavilion, and she was heading home to 

North Richland Hills at the time officers came in contact with her. Siebert also told 

Officer Wilcox she did not think she was in an accident that evening and was not 

injured. She stated that she last ate around 6:00 p.m. and admitted to drinking two 

rum and Cokes between 7:30 p.m. and 9:00 p.m. Officer Wilcox also asked Siebert

to perform two field tests because he did not see her perform the field tests on scene. 

The first was to recite the alphabet from “C” to “T,” which she was able to do. The 

second test was to count backward from 38 to 22, which Siebert performed but 

stopped at 27. Following these tests, Officer Wilcox attempted to obtain the breath 
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sample, which failed. Siebert refused to voluntarily provide a blood sample and, as 

discussed above, Sergeant Ginger obtained the necessary warrant, and Siebert was 

transported to Parkland Hospital for the blood draw.

Siebert moved to suppress her post-Miranda statements, arguing that officers 

engaged in a deliberate “question-first warn-later” strategy in order to obtain a 

confession. The trial court denied the motion to suppress. After the jury was selected 

but before opening statements, Siebert also moved to suppress certain evidence 

disclosed by the State the evening before trial, which prosecutors received from 

Sergeant Ginger after the trial court recessed at the end of the first day of trial.

Specifically, Sergeant Ginger told prosecutors that the arrival time listed on the 911 

call sheet was incorrect. She attributed the discrepancy to dispatcher error caused by 

a lack of GPS device on her road bike. She also said that when she first arrived on 

scene, she asked Siebert a series of questions after the paramedic finished treating 

Siebert, and, in response, Siebert informed Sergeant Ginger that she was “okay,” 

was coming from Gexa Energy Pavilion, was alone in the vehicle, and no other 

vehicles were involved in the collision. The trial court denied Siebert’s motion to 

suppress Sergeant Ginger’s evidence.

The jury found Siebert guilty of misdemeanor driving while intoxicated, and

the trial court assessed punishment at 180 days in the Dallas County jail probated 

for eighteen months with a $500.00 fine. This appeal followed.
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ANALYSIS

Siebert raises six issues on appeal. In issues one through four, she seeks a 

second abatement to obtain additional findings of fact and conclusions of law from 

the trial court regarding its rulings on Siebert’s motions to suppress. In issues five 

and six, Siebert seeks a new trial based on the allegedly erroneous admission of 

evidence at trial.

A. Adequacy of Findings of Fact and Conclusions of Law

In her first four issues, Siebert argues the trial court did not make all necessary 

findings regarding her motions to suppress evidence and asks this Court to abate the 

appeal for the trial court to issue additional findings. Siebert filed two motions to 

suppress. In one motion, she sought to suppress her pre-Miranda and post-Miranda

statements. Regarding the post-Miranda statements, Siebert argued the officers 

engaged in a deliberate and prohibited “question-first warn-later” strategy in order 

to obtain a confession. The trial court suppressed the pre-Miranda statements but 

denied the motion as to her post-Miranda statements. In the second motion, Siebert

moved to suppress late-tendered evidence. Specifically, Siebert sought to suppress 

the information the State received from Sergeant Ginger the evening before trial —

the incorrect arrival time listed on the 911 call sheet and the four statements made 

by Siebert to Sergeant Ginger when she first arrived on scene that were not disclosed 

on Sergeant Ginger’s incident report. In each motion, she included the following 

language:
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Finally, should this Honorable Court deny the instant motion, Ms. 

Siebert respectfully requests the Court to enter specific findings of fact 

and conclusions of law regarding the Court’s ruling. See State v. Cullen, 

195 S.W.3d 696 (Tex. Crim. App. 2006) (mandating trial courts enter 

essential findings and conclusions upon request of a non-prevailing 

party following a suppression hearing).

When no written findings of fact or conclusions of law were included in the appellate 

record, Siebert moved to abate this proceeding. We granted the motion, abated the 

appeal, and remanded the case for the trial court to prepare and file findings of fact 

and conclusions of law on the two motions to suppress. 

The trial court’s June 7, 2019 response to this Court’s abatement order did not 

address either of the motions to suppress. The trial court’s June 20, 2019 response, 

however, set out the following findings regarding the court’s denial of Siebert’s 

motion to suppress her post-Miranda statements:

The Trial Court finds and concludes that on October 30, 2018 the Trial 

Court heard the Defendant’s Motion to Suppress Evidence and Granted 

in Part the Defendant’s Motion and suppressed the questions and 

Defendant’s statements made after the Standardized and other Field 

Sobriety Test [sic] were concluded until the Defendant was Mirandized. 

The interviewing Officer, once at the jail, asked the Defendant several 

times, after she was given Miranda warnings, if she was sure she

wanted to answer questions. The Officer gave her many opportunities 

to change her mind. The Court finds and determines the Officer did not 

give the Defendant Miranda warnings after they were at the jail, in order 

to cure any error and that it was not error to give the Miranda warnings 

after the Defendant was at the jail and then ask her questions related to 

her arrest. The questions were not asked of the Defendant to trick her 

or subvert her rights against self-incrimination. The Court gave the 

Defendant the benefit of the doubt and suppressed the questions and 

statements after the Officer reached the decision point to arrest until the 

Defendant was Mirandized.
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The trial court did not, however, issue written findings addressing Siebert’s motion 

to suppress late-tendered evidence. Siebert maintains she cannot properly present 

her case on appeal without additional findings from the trial court as to the denial of 

both motions to suppress. We disagree.

We review findings to determine if they are inadequate under State v. Cullen, 

195 S.W.3d 696 (Tex. Crim. App. 2006), which requires the trial court, on the 

request of the losing party on a motion to suppress, to state its essential findings. Id.

at 699. Essential findings are those “findings of fact and conclusions of law adequate 

to provide an appellate court with a basis on which to review the trial court’s 

application of the law to the facts.” Id. A trial court’s findings on a motion to 

suppress may be written or oral. Id. Findings are inadequate when they are so 

incomplete an appellate court is unable to make a legal determination regarding a 

dispositive issue. High v. State, No. 05-15-00074-CR, 2016 WL 4123661, at *3 

(Tex. App.—Dallas July 29, 2016, no pet.) (mem. op., not designated for 

publication) (citing State v. Saenz, 411 S.W.3d 488, 495 (Tex. Crim. App. 2013)); 

see also TEX. R. APP. P. 44.4(a). To that end, the Court of Criminal Appeals 

explained in State v. Elias that adequate and complete findings are those “covering 

every potentially dispositive issue that might reasonably be said to have arisen in the 

course of the suppression proceedings.” 339 S.W.3d 667, 676 (Tex. Crim. App. 

2011) (whether appellee activated his turn signal within a hundred feet of the 

intersection was potentially dispositive of the legality of his initial detention and
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was, therefore, an essential finding requiring remand to obtain). When a trial court 

omits properly requested findings or provides inadequate findings, the remedy 

available to appellate courts is to remand the cause to the trial court for supplemental 

findings of fact and conclusions of law under rule 44.4 of the Texas Rules of 

Appellate Procedure. Cullen, 195 S.W.3d at 698–99; Elias, 339 S.W.3d at 676.

In our examination of whether the trial court met these standards, we must 

resolve what essential facts the trial court was required to establish. State v. Adams, 

454 S.W.3d 38, 43 (Tex. App.—San Antonio 2014, no pet.) (citing Elias, 339 

S.W.3d at 676). We first turn to the order denying suppression of Siebert’s postMiranda statements.

1. Post-Miranda statements

It is undisputed that Siebert did not receive Miranda warnings until Officer 

Wilcox read the Miranda rights to her in the intoxilyzer room at the Lew Sterrett 

Justice Center following her arrest. Siebert argued in her motion to suppress that her 

post-Miranda statements must be suppressed because the officers on scene engaged 

in a deliberate “question-first-warn-later strategy” also known as two-step 

questioning. A “two-step” or “question first, warn later” interrogation occurs when 

the police interrogate a suspect without giving her Miranda warnings, obtain a 

confession from her, then give the suspect Miranda warnings and get her to repeat 

the previously-made confession after the officers have cured the prior failure to 

Mirandize the suspect. Missouri v. Seibert, 542 U.S. 600, 604 (2004); Carter v. State, 
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309 S.W.3d 31, 37–38 (Tex. Crim. App. 2010). In her motion, Siebert stated that she 

“does not suggest” that Officer An “intentionally violated Miranda’s requirements.” 

Rather, Siebert argued Officer An “was not properly trained,” was an officer who 

“lacked basic Miranda-rights knowledge,” and was simply “an inexperienced officer 

who was in over his head regarding basic DWI investigation and enforcement 

requirements.” Siebert instead argued her post-Miranda statements must be 

suppressed due to the flagrant misconduct of the “horde of Dallas officers” who 

witnessed but did not remedy Officer An’s failure to Mirandize Siebert at the scene. 

Siebert’s counsel made similar arguments at the suppression hearing, which 

took place outside the presence of the jury during Officer An’s testimony. At that 

time, the trial court heard the arguments of counsel, and both defense counsel and 

the trial judge questioned Officer An. Defense counsel argued the post-Miranda

statements should be suppressed because “once they get [Siebert] to the station, 

almost the exact same questions are asked again post-Miranda. And case law says 

you can’t cure -- you can’t ask the same questions again. I’ll rephrase. You can’t ask 

the questions, try to cure it by giving Miranda later, and then asking again.” The trial 

judge told counsel she was not going to suppress statements made after Siebert was 

given Miranda warnings unless there was evidence that Siebert invoked her right to 

counsel, indicated she did not understand her rights, or otherwise showed her 

statements were involuntary. Defense counsel responded that Siebert did not 

unequivocally waive her rights because when asked if she wanted to waive her right 
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to answer questions, her response was “Yeah, I guess.” The trial court verbally 

denied the request to suppress the post-Miranda statements and signed a written 

order granting in part and denying in part the motion to suppress. On appeal, Siebert 

complains only that the post-Miranda statements were the result of two-step 

questioning. She does not appeal the trial court’s implicit ruling that she voluntarily 

waived her right to answer questions. 

The central question when determining the admissibility of post-Miranda

statements under the circumstances alleged here is whether the evidence shows that 

the officer deliberately employed a two-step “question first, warn later” interrogation 

technique to circumvent the suspect’s Miranda protections. Carter, 309 S.W.3d at

38. The essential finding the trial court was required to make to meet the 

requirements of Cullen and Elias, therefore, was whether there was evidence of 

deliberate police misconduct through the use of two-step questioning designed to 

circumvent Miranda. See, e.g., Juarez v. State, No. 05-12-00125-CR, 2013 WL 

3957008, at *6–7 (Tex. App.—Dallas July 31, 2013, pet. ref’d) (not designated for 

publication). 

Here, although the trial court’s June 20, 2019 findings do not specifically use 

the words “deliberate,” “two-step questioning,” or “question first, warn later,” the 

findings address every potentially dispositive issue. The trial court found that (1) the 

officer did not give the Miranda warnings in order to cure any error from the failure 

to Mirandize Siebert on scene, and (2) the post-Miranda questions were not asked 
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to trick Siebert or subvert her rights against self-incrimination. The trial court also 

concluded it was not error to (1) give the Miranda warnings after Siebert was at the 

jail and (2) ask Siebert questions related to her arrest after giving the Miranda

warnings. Finally, the trial court made findings that would support the legal 

conclusion that Siebert voluntarily waived her Miranda rights; namely, that the 

“interviewing Officer” (i.e., Officer Wilcox) asked Siebert several times, after she 

was given Miranda warnings, if she was sure she wanted to answer questions and 

gave Siebert many opportunities to change her mind. Those findings are adequate 

under Cullen and Elias because they are not so incomplete that we cannot use them 

to conduct our review of the dispositive legal question presented on appeal: whether 

Officer Wilcox deliberately employed a two-step “question first, warn later” 

interrogation technique to circumvent Siebert’s Miranda protections. See Carter, 

309 S.W.3d at 38. From those findings and a review of the complete clerk’s record 

and reporter’s record, we can address Siebert’s legal challenge to the trial court’s 

denial of her motion to suppress her post-Miranda statements.

Siebert also argues the June 20, 2019 findings are deficient because they do 

not include nine specific findings and conclusions she asked the trial court to make 

after receiving the June 20 findings. Siebert requested the trial court make findings 

of fact and conclusions of law “related to the following”:

 the credibility of each trial witness;
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 whether the post-warning custodial interrogation was 

substantively similar to the subsequent post-warning custodial 

interrogation;

 whether Ms. Siebert’s circumstances at the scene when being 

questioned were substantially similar to her circumstances at the 

police station during her second custodial interrogation;

 whether any officers at the scene should have realized Miranda

warnings were required;

 whether the extensive questioning of Siebert on scene without 

the benefit of Miranda warnings while officers observed 

constituted improper police conduct; 

 the legal impact of the officers’ use of a question-first strategy at 

the scene;

 whether the failure to issue timely Miranda warnings can be 

cured where the subsequent warnings did not include any 

additional warning regarding the likely inadmissibility of the 

already obtained pre-warning statements;

 whether case law pertaining to mid-stream Miranda warnings 

applies to this case’s facts; and

 whether Missouri v. Seibert, 124 S.Ct. 2601 (2004) applies to this 

case’s facts.

The trial court was not required to make the specific, granulated findings and 

conclusions requested by Siebert because those findings and conclusions are not 

essential. As discussed above, the essential findings necessary for appellate review 

of the order denying the motion to suppress the post-Miranda statements is whether 

the evidence shows that the officer deliberately employed a two-step “question first, 

warn later” interrogation technique to circumvent the suspect’s Miranda protections. 

See Carter, 309 S.W.3d at 38. The June 20, 2019 findings address those essential 
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findings and, while the nine findings Siebert requested would provide further support 

for the ruling, such findings are unnecessary for this Court’s review of Siebert’s

appellate issue related to the admission of her post-Miranda statements. 

On this record, we conclude the trial court provided adequate findings 

regarding the denial of the motion to suppress Siebert’s post-Miranda statements. 

2. Late-Tendered Evidence

We next look at the lack of written findings regarding the denial of the motion 

to suppress late-tendered evidence. Neither a second abatement nor a reversal is

necessary to obtain findings related to the order denying suppression of Sergeant 

Ginger’s evidence because Siebert’s appellate complaints regarding that ruling were 

not preserved for review. 

In her sixth appellate issue, Siebert argues that the late-tendered evidence 

violated Brady v. Maryland, 373 U.S. 83 (1963), article 39.14 of the Texas Code of 

Criminal Procedure (the Michael Morton Act), and the trial court’s purported ruling 

that all evidence be turned over to the defense ten days before trial. To preserve each 

of these alleged errors, however, Siebert was required to seek a continuance below, 

which she did not do. See Guerrero v. State, No. 05-17-00238-CR, 2018 WL 

6039647, at *1 (Tex. App.—Dallas Nov. 19, 2018, no pet.) (mem. op., not 

designated for publication) (where there has been a delayed disclosure of Brady
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evidence, the failure to request a continuance waives any Brady violation)1; Ray v. 

State, No. 10-17-00394-CR, 2018 WL 4926215, at *6 (Tex. App.—Waco Oct. 10, 

2018, pet. ref’d) (mem. op., not designated for publication) (just as a defendant’s 

failure to request a continuance waives any Brady violation, a defendant’s failure to 

request a continuance also waives any violation under Article 39.14(h)); Barrientos 

v. State, No. 05-14-00041-CR, 2015 WL 1089670, at *4 (Tex. App.—Dallas Mar. 

10, 2015, no pet.) (mem. op., not designated for publication) (to preserve error 

regarding the State’s willful withholding of evidence in violation of a discovery 

order, the defendant must request a continuance of the trial) (citing Duff–Smith v. 

State, 685 S.W.2d 26, 32 (Tex. Crim. App. 1985))

2

. Because these issues were not 

preserved for appellate review, any omitted essential findings are not necessary to 

the resolution of this appeal. 

For these reasons, we overrule Siebert’s first four issues.

 

1 Perez v. State, 414 S.W.3d 784, 790 (Tex. App.—Houston [1st Dist.] 2013, no pet.); Taylor v. State, 

93 S.W.3d 487, 502 (Tex. App.—Texarkana 2002, pet. ref’d); see also Valdez v. State, No. AP-77,042, 

2018 WL 3046403, at *11 (Tex. Crim. App. June 20, 2018), cert. denied, 139 S. Ct. 595, 202 L. Ed. 2d 428 

(2018) (“A defendant’s failure to request a continuance when Brady evidence is disclosed at trial arguably 

waives his complaint that the State has violated Brady and suggests that the tardy disclosure of the evidence 

was not prejudicial to him.” ) (citing State v. Fury, 186 S.W.3d 67, 73–74 (Tex. App.—Houston [1st Dist.] 

2005, pet. ref’d), and Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982) (“The failure to request 

a postponement or seek a continuance waives any error urged in an appeal on the basis of surprise.”)).

2

See also Massimo v. State, 144 S.W.3d 210, 215 (Tex. App.—Fort Worth 2004, no pet); Taylor, 93 

S.W.3d at 502; Oprean v. State, 201 S.W.3d 724, 730 n. 10 (Tex. Crim. App. 2006) (Cochran, J., 

concurring) (noting that “the trial court may always exclude the undisclosed evidence, but if he does not, 

any error in causing ‘surprise’ to the defense is forfeited on appeal unless the defendant has also requested 

a postponement or recess.”).
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B. Admission of Post-Miranda Statements

In her fifth issue, Siebert contends the trial court erred by admitting her postMiranda statements. She maintains the statements were tainted by earlier unlawful 

custodial questioning at the scene before officers gave her Miranda warnings. As 

discussed above, “two-step” or “question first, warn later” interrogation occurs when 

the police interrogate a suspect without giving her Miranda warnings, obtain a 

confession from her, then give her the Miranda warnings, and get her to repeat the 

confession she made previously. Seibert, 542 U.S. at 604. The deliberate 

employment of such a tactic is impermissible in Texas. Hill v. State, No. 05-15-

00989-CR, 2017 WL 343593, at *2 (Tex. App.—Dallas Jan. 18, 2017, pet. ref’d)

(mem. op., not designated for publication) (citing Carter, 309 S.W.3d at 38; 

Martinez v. State, 272 S.W.3d 615, 624 (Tex. Crim. App. 2008)). The central 

question when determining the admissibility of post-Miranda warning confessions 

made after Miranda violations is whether the evidence shows that the officer 

deliberately employed a two-step “question first, warn later” interrogation technique 

to circumvent the suspect’s Miranda protections. Juarez, 2013 WL 3957008, at *6–

7.

Whether the two-step questioning strategy was deliberate hinges on the 

interrogating officer’s subjective intent. Carter, 309 S.W.3d at 39. When the officer 

testifies at a hearing on a motion to suppress, the officer’s demeanor and testimonial 

evidence “are especially relevant to a deliberateness determination.” Id. at 40. Thus, 
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when the trial court, after having the chance to observe the officer’s testimonial 

evidence and demeanor, has made an explicit factual finding regarding the 

deliberateness of the strategy, a reviewing court must employ a highly deferential 

standard of review and may reverse only upon a showing of abuse of discretion. Id.

at 42. The Court of Criminal Appeals described this “highly deferential review” as 

similar to the Guzman standard, under which appellate courts should afford almost 

total deference if the resolution of an ultimate question turns on an evaluation of 

credibility and demeanor. Id. at 39–40 (citing Guzman v. State, 955 S.W.2d 85, 89 

(Tex. Crim. App. 1997)). In applying this standard, we must give “almost total 

deference to a trial court’s determination of the historical facts that the record 

supports especially when the trial court’s fact findings are based on an evaluation of 

credibility and demeanor.” Guzman, 955 S.W.2d at 89. We afford the same level of 

deference to a trial court’s ruling on “application of law to fact questions,” or “mixed 

questions of law and fact,” if the resolution of those questions turns on an evaluation 

of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 n. 20 (Tex. Crim. 

App. 2007). We review de novo “mixed questions of law and fact” that do not 

depend upon credibility and demeanor. Id. at n.21. “Unless the trial court abused its 

discretion by making a finding not supported by the record, we will defer to the trial 

court’s fact findings and not disturb the findings on appeal.” Gette v. State, 209 

S.W.3d 139, 142 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Cantu v. 

State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991)).
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At the suppression hearing, Siebert did not present Officer Wilcox as a witness 

and did not offer either the video from the intoxilyzer room or of the on-scene 

questioning of Siebert by Officer An to support the motion to suppress. Nor did

defense counsel argue in the motion to suppress or at the hearing that Officer An or 

Officer Wilcox deliberately employed a two-step “question first, warn later” 

interrogation technique to circumvent Siebert’s Miranda protections. Rather, 

defense counsel argued that the post-Miranda statements should be suppressed 

because the officers on scene allowed Officer An to question Siebert without giving 

her Miranda warnings and cannot cure that conduct by asking the same questions 

again at the jail.

In overruling Siebert’s motion to suppress, the trial judge found that Officer 

Wilcox did not give Siebert Miranda warnings at the jail in order to cure any error, 

and that his questions were not asked of Siebert to trick her or subvert her rights 

against self-incrimination. Those findings are supported by the record at the time of 

the suppression hearing because Siebert presented no argument or evidence at that 

time that Officer Wilcox or Officer An, the two officers who questioned Siebert, 

acted with subjective deliberateness. Those findings were then buttressed by Officer 

Wilcox’s testimony at trial and the video of his entire interaction with Siebert in the 

intoxilyzer room, which was admitted into evidence and shown to the court and jury 

in its entirety. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007)

(“when the parties subsequently re-litigate the suppression issue at the trial on the 
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merits, we consider all evidence, from both the pre-trial hearing and the trial, in our 

review of the trial court's determination”). 

Applying the appropriately deferential standard of review, we conclude that 

the record supports the trial judge’s finding that the officers did not engage in 

deliberate police misconduct designed to circumvent Miranda. See, e.g., Carter, 309 

S.W.3d at 41; see also Juarez, 2013 WL 3957008 at *7. Had the trial court not made

express factual findings as to whether officers deliberately employed a “question 

first, warn later” technique, we would imply fact findings that support the trial 

court’s ruling so long as the evidence supports those implied findings. See Gutierrez, 

221 S.W.3d at 687. Either way, on this record, we conclude the trial court did not 

err by denying Siebert’s motion to suppress her post-Miranda statements. See 

Carter, 309 S.W.3d at 40. We overrule Siebert’s fifth issue. 

C. Admission of Late-Tendered Evidence

In her final issue, Siebert complains the trial court abused its discretion by 

failing to suppress evidence received from the State the night before trial. This 

evidence consisted of new information received by the prosecutor from Sergeant 

Ginger. The evening before trial, the prosecutor informed defense counsel by e-mail 

that Sergeant Ginger’s arrival time in the 911 call sheet was incorrect, and that 

Siebert had made four statements to Sergeant Ginger that were not included in 

Sergeant Ginger’s disclosed incident report. Siebert moved to suppress this 

evidence, arguing the late-tendered information violated Brady, the Michael Morton 
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Act, and the trial court’s discovery order. The trial court denied the motion to 

suppress. 

As we addressed in our discussion of Siebert’s first four issues, Siebert was 

required to seek a continuance from the trial court to preserve error on these alleged 

violations. She did not request a continuance and, as such, waived each ground 

argued regarding the denial of her motion to suppress late-tendered evidence. 

Accordingly, we overrule her sixth and final issue.

CONCLUSION

We conclude abatement is unwarranted here, the trial court did not abuse its 

discretion by admitting Siebert’s post-Miranda statements, and Siebert waived her 

complaints regarding the denial of the motion to suppress late-tendered evidence.

Accordingly, we overrule Siebert’s appellate issues and affirm the judgment. 

Do Not Publish

TEX. R. APP. P. 47.2

181386F.U05

/Robbie Partida-Kipness/

ROBBIE PARTIDA-KIPNESS

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ASHLEY DANIELLE SIEBERT, 

Appellant

No. 05-18-01386-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal 

Court No. 6, Dallas County, Texas

Trial Court Cause No. MA1659378.

Opinion delivered by Justice PartidaKipness. Justices Nowell and Evans 

participating.

Based on the Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 16th day of September, 2020.