THE STATE OF TEXAS v. KEVIN ROBLES (2025)

DISSENTING OPINION

The police must terminate an interview when a suspect unambiguously invokes his right to remain silent. But in his interview, Appellee said, “I think I'm done with this interview.”¹ The words “I think” could suggest uncertainty about whether he really wanted to end the interview, which would mean that his right to remain silent was not unambiguously invoked. The State makes this argument in its second ground for review—and it is a good one. But the substantialness of that argument also adds weight to the State's first ground for review: that we should re-examine the rule that allows an appellate court, in a State's appeal, to uphold a trial court's suppression of evidence on a basis the trial court did not articulate. Here, Appellee litigated a claim that the police failed to honor an unambiguous invocation of his right to remain silent, but the trial court resolved the case on a different basis—perhaps because it wasn't certain of the correctness of Appellee's invocation-of-silence claim. I would grant review of both of the State's grounds.

I. BACKGROUND

A. The Interview

Appellee was arrested for stabbing and killing his grandfather. He was given magistrate warnings and later taken to a police interrogation room. After Appellee answered some background questions, a police officer advised him of his warnings under Miranda v. Arizona ² and Article 38.22,³ including the warning that the interviewee has a right “to terminate the interview at any time.”⁴ The officer asked Appellee if he understood those rights and if he knowingly, intelligently, and voluntarily waived them, and he said, “Yes.”

The officer proceeded to question Appellee. When asked what he did the day before his arrest, Appellee responded that he had gone to work and come back and did “nothing” other than surf the web on his phone in his bedroom. Then Appellee trailed off and the following colloquy occurred:

OFFICER: Mm-hmm.

APPELLEE: I got kind of agitated and went into crisis.

OFFICER: Okay.

APPELLEE: But uh—I think I'm done with this interview.

OFFICER: You—you're saying you're—you felt agitated and you went into crisis?

APPELLEE: Yes.

OFFICER: And you say you felt done with this interview?

APPELLEE: Yes. Um—

OFFICER: How are you feeling?

APPELLEE: Uh.

OFFICER: Right now, anyway. I know you felt agitated last night. But how do you feel right now?

APPELLEE: Uh, I feel—can you repeat yourself?

OFFICER: Yes, sir. I'm trying to figure out how you feel right now.

APPELLEE: Um, well. I didn't sleep—

OFFICER: Okay.

APPELLEE: —through this whole process.

OFFICER: Uh-huh.

APPELLEE: So, I feel a little tired and low.

OFFICER: Yeah.

APPELLEE: I was trying to sleep over there.

OFFICER: Yeah.

APPELLEE: I felt a little hungry, but—

OFFICER: But you maybe feel better.

APPELLEE: Yes, I feel a little—healthy? You know? To have—a conversation?

OFFICER: Yes, sir.

APPELLEE: In the right way, you know?

OFFICER: Yes, sir.

APPELLEE: And not in a bad way.

OFFICER: Exactly.

APPELLEE: Other than that, um—What would you guys like to know?

OFFICER: What happened to your grandpa?

APPELLEE: Uh. I just went into crisis. And I just laid my hands on him.5

The interview continued, and Appellee made other incriminating statements.

B. Suppression Hearing

Appellee litigated two bases for suppression: (1) that he did not voluntarily, knowingly, and intelligently waive his Miranda rights and, (2) that the police failed to scrupulously honor an invocation of the right to remain silent. The trial court suppressed on the first basis and did not address the second basis. The trial court's resolution of the first basis included its assessment of Appellee's mental health history, his intellectual functioning, his mental state during the interrogation, alleged attempts to stop the interrogation, allegedly coercive interrogation methods, and answers to certain standardized tests relating to Miranda warnings. The trial court emphasized that its decision to suppress the statements was “not based on a single factor considered in isolation, but rather on the totality of circumstances that collectively demonstrate the involuntariness of his waiver of Miranda rights.”⁶

C. Appeal

To avoid running afoul of the Calloway rule ⁷ —that allows an appellate court to affirm on a basis not articulated by the trial court that is nevertheless deemed applicable to the case—the State argued against both of Appellee's bases for suppression on appeal. The court of appeals affirmed on the second basis—the one the trial court did not rely upon.⁸

Relying upon State v. Copeland,⁹ which applied the Calloway rule to a State's appeal, the court of appeals held that it could affirm the trial court's suppression order on Appellee's invocation claim even though the trial court did not base its decision on that claim.¹⁰ And relying upon Jones v. State,¹¹ which held the words “I think I want a lawyer” to be an unambiguous invocation of the right to an attorney, the court of appeals held the words “I think I'm done with this interview” to be an unambiguous invocation of the right to remain silent.¹² But even assuming those words were not by themselves unambiguous, the court of appeals held that any ambiguity was clarified by Appellee's “yes” answer to the follow-up question “And you say you felt done with this interview?”¹³

II. ANALYSIS

A. The Calloway rule

The “Calloway rule” dictates that a trial court's ruling must be affirmed if it is correct “on any theory of law applicable to the case even if the trial court did not purport to rely on that theory and the prevailing party did not explicitly raise the theory.”¹⁴ This rule actually predates Calloway and was originally formulated in the context of a defendant's appeal of a conviction.¹⁵

There is an exception if affirming on a particular legal theory would work a manifest injustice because “the appealing party did not have an adequate opportunity to develop a complete factual record with respect to the theory.”¹⁶ So, while the Calloway rule can require affirmance on a theory not raised by the prevailing party at the trial level,¹⁷ the prevailing party's failure to raise the theory increases the likelihood that the manifest-injustice exception will apply, and that seems to be especially true in a State's appeal from the granting of a suppression motion.¹⁸ In the present case, however, no one disputes that Appellee actually litigated the invocation-of-silence claim at the suppression hearing, so the “manifest injustice” exception is not at issue here.

But the present case is also not a Copeland case. In Copeland, the defendant litigated a “length of detention” claim, but the trial court did not address that claim and chose to grant the motion to suppress on a different claim (lack of consent to search).¹⁹ On appeal, the State attacked only the claim that the trial court did address—raising no challenge to the “length of detention” claim.²⁰ This Court stated that the State “procedurally defaulted” the “length of detention” issue by failing to raise it on appeal, and thus, under the Calloway rule, that issue was automatically a basis for affirming the trial court's judgment.²¹ This Court suggested that, had the State raised the “length of detention issue” on appeal, it would have been entitled to an abatement and remand for findings on it pursuant to State v. Elias.²²

Here, though, the State did attack the invocation-of-silence issue on appeal, so the State preserved the claim under Copeland. And, the trial court didn't make findings on the issue, so at least arguably, the State is entitled to an abatement and remand for findings pursuant to Elias. If there is any issue of fact on which deference to the trial court would be required, then a remand would seem to be necessary to get the trial court's decision on the fact issue.²³

But a remand under Elias could perhaps be deemed unnecessary if the only dispute is a legal one or an application-of-law to fact question that is subject to de novo review. Whether particular words constitute an unambiguous invocation of the right to remain silent appears to be a question that is reviewed de novo.²⁴ Under this view, the court of appeals could simply decide which party is correct on the matter.

But I am persuaded by former Presiding Judge Keller's concurring opinion in Esparza that the Calloway rule should have no application in a State's appeal from the granting of a suppression motion.²⁵ Such an appeal is interlocutory in nature, so “the prevailing party still has the ability to make further arguments to the trial court when the case returns to the trial court after the appeal” and evidence could yet be suppressed on a basis not previously addressed by the trial court.²⁶ In such a situation, the cost of addressing only the issue resolved by the trial court is low. If the trial court is found to be wrong in its resolution of that issue, that court can pick up where it left off—suppress on another basis, after which the State can appeal again, or go to trial. This contrasts with an appeal from a conviction, where the cost would be high—a redo of the proceedings.²⁷

Also, no law requires the trial court to resolve suppression claims prior to trial.²⁸ If a trial court does not make findings on a particular claim, then the conclusion should be that the trial court did not resolve the claim. It is perfectly acceptable for a trial court to decide to carry a particular claim along with the trial.²⁹ Applying the Calloway rule to interlocutory appeals short-circuits a trial court's ability to do that. Essentially, once a trial court suppresses a claim on one basis, it cannot carry a different alleged basis for suppression with the trial, because an appellate court will see that unaddressed basis as an alternative basis for upholding the suppression order. Perhaps the trial court could deny the other basis so as to carry it along with the trial, but if the trial court is genuinely undecided about the other basis, why should it be required to make a disposition that it is not sure is correct just to prevent the application of a court-made appellate doctrine that was not originally intended for the interlocutory-appeal context?

And applying the Callowayrule to the interlocutory-appeal context increases the burden on the parties, the trial court, and the appellate courts. Instead of merely challenging the actual basis for the trial court's ruling, the State has to also challenge possible alternative supporting bases. In the present case, for example, the State has had to go through the extra effort to brief an issue the trial court never resolved. And because there is not a bright-line requirement that the alternative supporting basis has to have been explicitly litigated by the prevailing defendant, the State cannot always be sure it will discover every basis it needs to challenge.

As I explained earlier, applying the Calloway rule to an interlocutory appeal can effectively cut off a trial court's ability to carry an issue for trial. And if the trial court hones in on only one issue anyway, an appellate court could decide that it needs to make findings on additional issues pursuant to Elias—all without an appellate court having yet addressed the issue the trial court did address—the one it thought important enough to actually make findings on.

And the Calloway rule creates extra work for appellate courts too. To reverse, an appellate court cannot merely decide that the trial court was wrong on the legal issue it explicitly resolved—the appellate court has to look for other possible issues and resolve them too. Article 44.01, which provides for a State's appeal, suggests a legislative purpose to dispose of suppression issues quickly.³⁰ Applying the Calloway rule in this context undermines that purpose. And because litigation of an issue is not necessarily required for the Calloway rule to apply, an appellate court might perceive an issue that the trial court and the State did not even perceive to be in the case. Indeed, that last problem has been the subject of at least two decisions from this Court.³¹

Some costs might be papered over if a court of appeals affirms a suppression order and no higher court reverses it. For example, here, affirming on the basis of the invocation-of-silence claim might seem like an efficient disposal of the case. But if we disagree with the court of appeals's resolution of the issue in some way, then the consumption of judicial resources multiplies. We could decide that the trial court needs to issue supplemental findings under Elias. Or we could reverse the court of appeals on the invocation-of-silence issue, and that court would still have to address the involuntary-waiver claim that the trial court actually resolved. And if the involuntary-waiver claim were ultimately decided against Appellee, the court of appeals might still have to scour the record to ensure that there are no other claims that could fairly be raised as a result of the suppression proceedings.

On the other hand, if the Calloway rule did not apply to a State's appeal from a suppression order, and if that had been the rule before this case was appealed, then proceedings would have been much simpler. The trial court would have been secure in the knowledge that the involuntary-waiver claim it resolved was the only basis that could be appealed, the State would have had to brief only the involuntary-waiver claim, and the court of appeals would have addressed that claim and been done with it. We could then be called upon to review the court of appeals's resolution of that claim, but whichever way we went on it, the appeal would likely then come to an end.

Why create the extra time, trouble, and uncertainty associated with the Calloway rule for an interlocutory appeal? If one of the parties wants a particular claim to be a part of the State's appeal, it can ask the trial court to make findings on the claim. And if the trial court declines to do so, it has that authority—to carry a suppression claim along with the trial. Consequently, I would grant review of the State's first ground to reconsider the application of the Calloway rule to interlocutory suppression appeals and, ultimately, I would abrogate the application of the Calloway rule in that context.

B. Invocation of the Right to Remain Silent

To trigger a police officer's duty to terminate an interrogation, a suspect's invocation of that right must be unambiguous, and an officer is not required to clarify ambiguous remarks.³² Appellee said, “I think I'm done with this interview.”³³ At the beginning of a sentence, the words, “I think” often denote uncertainty.³⁴ When this Court surveyed the caselaw on what it took to unambiguously invoke the right to counsel, it discovered cases with “I think” statements going both ways—some saying the statement in question was ambiguous and others that it was not.³⁵ When it came to invoking the right to silence, this Court held in Dowthitt that a statement that a defendant needed to stop the interview because he was physically unable to continue was not an unambiguous invocation.³⁶

The court of appeals relied upon our case in Jones, decided in 1987. There,this Court “readily agree[d]” with the court of appeals's “implicit holding” that the statement, “I think I want a lawyer,” made “near the beginning” of video of the interrogation, was “a clear and unequivocal assertion” of the right to counsel.³⁷ I would observe that the Jones case was decided before the Supreme Court's 1994 decision in Davis, which established the rule that an invocation of the right to counsel must be unambiguous to be effective.³⁸ Jones was also decided before this Court's 1996 decision in Dowthitt—dealing with the right to remain silent—and before this Court's 2010 decision in the similarly named Davis case that surveyed caselaw on invoking the right to counsel. The Jones court did use appropriate language for the standard the Supreme Court would later articulate in Davis, but a lot has happened under the Supreme Court's Davis decision, and it is not at all clear that the holding in Jones remains good law.³⁹ The fact is, the phrase “I think”—made at the beginning of a sentence before a second “I” followed by a second verb—suggests uncertainty.

Perhaps it matters that the “I think” happened “near the beginning” of the interrogation in Jones. Our Jones decision did not explain what it meant by “near the beginning,”⁴⁰ but the court of appeals in that case said that the defendant requested an attorney “before the video tape was made” and also “at the very beginning of the video tape.”⁴¹ So, if we apply that gloss to “near,” then Jones's “I think I want a lawyer” statement was made at the very beginning of the interview. By contrast, Appellee's “I think” statement was not at the very beginning of the interview, with it being made after he waived his rights and answered at least one substantive question about his whereabouts close to the time of the crime.

The Jones court of appeals's observation that there were actually two possible invocations of the right to counsel—the first before the interview had even begun—would also seem relevant. Neither Jones opinion sets out the wording of the earlier pre-video invocation.⁴² It is true that Appellee's case involved a follow-up question that Appellee answered “yes” to. The follow-up question asked whether Appellee “felt done.” To the extent that question and its answer could be seen as a restatement of Appellee's earlier statement, it does not clear up any ambiguity.⁴³ To the extent “felt” might be seen as adding something different, it appeared to be asking (rather vaguely) whether Appellee was like the defendant in Dowthitt—expressing an inability to continue due to physical limitations rather than a desire to invoke the right to remain silent.

In any event, the phrase “I think I want ․” is different from the phrase “I think I'm done․” “Want” suggests a request while “done” could suggest a need to quit, due to fatigue. As we explained in Dowthitt, asserting a need to quit because of physical limitations is not the same as asserting a desire to invoke the right to remain silent.

And while Appellant's later statements cannot be used to directly interpret whether earlier statements are unambiguous invocations—since the police would be required to stop the interview after an unambiguous invocation—those later statements can be looked at as general societal information on whether the earlier statements are the sort of statements that can be deemed unambiguous. When questioned, Appellant explained that he was “tired and low.” The police officer did suggest, perhaps to get Appellant out of a tired funk, “but you maybe feel better.” When discussing how he felt physically, Appellant eventually asked, without a request from the officer to continue the interview, “What would you guys like to know?” The context of Appellant's own interview suggests that these “done” statements, even when combined, are not the sort of statements that would constitute an unambiguous invocation of the right to remain silent, but are ambiguous statements that could be seen as declarations of physical or mental exhaustion, like the statements in Dowthitt.

Thus, Appellant's references to terminating the interview contained at least two ambiguities: (1) whether he was certain he wanted to terminate the interview, and (2) whether he wanted to invoke his right to remain silent or merely felt that he could not physically go on with the interview. Under these circumstances, Appellant did not unambiguously invoke his right to remain silent. Accordingly, if we do not abrogate our caselaw applying the Calloway rule to interlocutory suppression appeals, I would nevertheless grant review of the State's second ground and, ultimately, conclude that the State is correct that Appellee did not unambiguously invoke his right to remain silent.

III. CONCLUSION AND DISPOSITION

I would grant both of the State's grounds for review. The State's second ground actually helps to illustrate why the first ground should be granted. The Calloway rule was not formulated with interlocutory appeals in mind, and its application to such appeals is inappropriate. The trial court did not resolve Appellee's invocation-of-silence claim—perhaps to carry it with trial or perhaps because the trial court deemed it difficult enough to not be worth the effort. We should respect that decision and require review of the claim the trial court did resolve. Alternatively, the State is correct that the record does not show that Appellee unambiguously invoked his right to remain silent. In either event, we should reverse the judgment of the court of appeals and remand the case to it to address the involuntary-waiver claim the trial court did resolve.

FOOTNOTES

1.   Emphasis added.

2.   384 U.S. 436 (1966).

3.   Tex. Code Crim. Proc. art. 38.22.

4.   See id. § 2(a)(5).

5.   Emphasis added.

6.   Although the trial court found, as part of its holistic review of voluntariness, that Appellee had “attempted to stop the interrogation three times” and that the interrogation continued “[d]espite his requests to terminate the interview,” the trial court did not find that Appellee's requests were unambiguous.

7.   See Calloway v. Sate, 743 S.W.2d 645 (Tex. Crim. App. 1988).

8.   State v. Robles, 720 S.W.3d 546, 554 (Tex. App.—El Paso 2025).

9.   501 S.W.3d 610 (Tex. Crim. App. 2016).

10.   Robles, 720 S.W.3d at 554 n.7.

11.   742 S.W.2d 398 (Tex. Crim. App. 1987).

12.   Robles, 720 S.W.3d at 556.

13.   Id. at 557.

14.   State v. Castanedanieto, 607 S.W.3d 315, 327 (Tex. Crim. App. 2020) (internal quotation marks omitted); Calloway, 743 S.W.2d at 651-52 (“Further, it is well established that the mere fact that a correct ruling is given for the wrong reason will not result in a reversal. If the decision is correct on any theory of law applicable to the case it will not be disturbed.”).

15.   See Calloway, supra at 652 (citing cases).

16.   Castanedanieto, 607 S.W.3d at 327.

17.   See also State v. Esparza, 413 S.W.3d 81, 86 & n.17 (Tex. Crim. App. 2013) (saying that the court of appeals “may have gone too far” when it said that “the theories of law applicable to the case are limited to those theories of exclusion that [the appellee] offered to the trial court”) (internal quotation marks omitted).

18.   See Castanedanieto, 607 S.W.3d at 327-29 (appellee's litigation of Sixth Amendment, Miranda, and Art. 38.22 theories did not put State on notice of “coercion” theory); Esparza, supra at 87-90 (appellee's litigation of illegally-obtained evidence theories did not put State on notice of Rule 702 theory).

19.   501 S.W.3d at 612-13.

20.   Id. at 611-12.

21.   Id. at 614.

22.   Id. at 613-14 (discussing State v. Elias, 339 S.W.3d 667 (Tex. Crim. App. 2011)).

23.   See Elias, supra at 676-77 (“[T]he trial court was on notice that the question whether the appellee activated his turn signal within a hundred feet of the intersection was potentially dispositive of the legality of his initial detention, yet it failed to make any express finding with respect to this issue. Under these circumstances, the court of appeals should have remanded the cause to the trial court.”).

24.   See Davis v. State, 313 S.W.3d 317, 338-41 (Tex. Crim. App. 2010) (surveying caselaw on what sorts of statements constituted an ambiguous or unambiguous invocation of the right to an attorney); Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996) (appearing to conduct a de novo review on whether a statement constituted an invocation of the right to remain silent without explicitly saying so).

25.   See Esparza, 413 S.W.3d at 92-93 (Tex. Crim. App. 2013) (Keller, P.J., concurring).

26.   Id.

27.   See id. at 92 (“But if, in an appeal after trial, the appellate court disagrees with the reasons articulated by the prevailing party at trial, the prevailing party no longer has the ability to inform the trial court of additional reasons for ruling in his favor—unless the appellate court orders additional trial proceedings (e.g. reversal of the conviction, retrospective hearing), which appellate courts are reluctant to do without compelling reasons.”).

28.   York v. State, 342 S.W.3d 528, 550-51 (Tex. Crim. App. 2011).

29.   Id.

30.   SeeTex. code Crim. Proc. art. 44.01(a)(5) (requiring prosecuting attorney to certify that the “appeal is not taken for the purpose of delay”), (f) (requiring courts of appeals to give these sorts of appeals “precedence in its docket”).

31.   See supra at n.18.

32.   Dowthitt, 931 S.W.2d at 257; see also Davis v. United States, 512 U.S. 452, 461-62 (1994)(regarding invocation of counsel); Davis, 313 S.W.3d at 339 (same). To avoid confusion, I note that the Davis cases cited here coincidentally involve different defendants who happen to have the same last name.

33.   Emphasis added.

34.   See https://dictionary.cambridge.org/us/grammar/british-grammar/think (page view December 3, 2025) (Heading: “Uncertainty”; text under heading: “When we use I think to express uncertainty, it usually goes at the beginning: I think I gave the file to Holly on Monday. I think your keys are on the table.”) (bold and italics in original); Think, New Oxford American Dictionary (3d ed. 2010) (entry 1, subentry “I think”: “used in speech to reduce the force of a statement or opinion or to politely suggest or refuse something”).

35.   Davis, 313 S.W.3d at 339-40.

36.   931 S.W.2d at 257 (not an unambiguous invocation of the right to remain silent: “I can't say more than that. I need to rest.”) .

37.   742 S.W.2d at 400 n.2, 405-06. In a footnote, this Court noted some uncertainty over the exact wording of the defendant's statement on the video. See id. at 400 n.2 (“The trial court concluded that appellant made a statement near the beginning of the video tape which the trial court described at the pretrial suppression hearing as ‘ “I think I want a lawyer” or some comment about how about an attorney.’ ”).

38.   See supra at n.32 (citing Supreme Court's Davis case).

39.   The Jones court did note that the trial court in that case found the statement to be equivocal and insufficient to invoke the right to counsel. 724 S.W.2d at 400 n.2.

40.   See id.

41.   Jones v. State, 703 S.W.2d 391, 392 (Tex. App.—Eastland 1986).

42.   See Jones, 724 S.W.2d at passim; Jones, 703 S.W.2d at passim.

43.   See Dowthitt, 931 S.W.2d at 257 (“Further, even if we examined other statements made before appellant was in custody, those statements also suffer the same ambiguity.”).