James Benton BASS, Appellant, v. The STATE of Texas, Appellee.
No. 714-84.
Court of Criminal Appeals of Texas, En Banc.
Nov. 19, 1986.
723 S.W.2d 687
“While it is impossible to make a meaningful distinction between Gibbons, which holds that ‘abduct’ must be defined in a kidnapping indictment, and Ward, which holds that ‘restraint’ need not be defined in a false imprisonment indictment, Ward clearly controls when the term ‘restraint’ is at issue.”
679 S.W.2d at 720. We disagree with this analysis. In Ward, the allegation in the mоtion to quash was that the indictments were vague and insufficient because they did not “state with particularity ‘the circumstances which gave rise to the allegation of restraint and/or confinement.‘” 642 S.W.2d at 784 (Emphasis added). This Court held that this request was evidentiary only and therefore was not required for the purpose of notice. Id. Here, however, the motion to quash alleged that the term “restrain” was not sufficiently defined so as to inform the appellant which tyрe of restraint was to be relied upon by the State. Therefore, Ward does not control the instant case. Insofar as Reese v. State, 712 S.W.2d 131 (Tex.Cr.App.1986) is inconsistent with this opinion, it is overruled.
Having found that the indictment did not provide appellant with the requisite notice, the next stage of the Adams test, i.e. the harm analysis, must be employed. Accordingly, we remand to the Court of Appeals to determine whether or not appellant was harmed by the trial court‘s overruling his motion to quash. See, e.g. Cane v. State, 698 S.W.2d 138, 141 (Tex.Cr.App.1985). This Court expresses no opinion with respect to the ultimate disposition of the ground of error.
The judgment of the Court of Appeals is vacated and the cause is remanded for further proceedings consistent with this opinion.
ONION, Presiding Judge, dissenting.
I agree that the trial court erred in overruling the appellant‘s motion to quash the indictment, but I would reverse the conviction. I do not agree with Adams v. State, 707 S.W.2d 900 (Tex.Cr.App.1986). If, however, Adams is to be applied, it should be applied here. The case should not be remanded to the Court of Appeals. Ping pong justice does nothing to promоte the finality of judgments in criminal cases.
TEAGUE, J., joins in this dissent.
Jim T. Jordan, Odessa, for appellant.
J. Scott Henderson, Co. Atty. and Mark H. Dettman, Asst. Co. Atty., Midland, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge.
Recognizing that
“The State relies exclusively upon the Supreme Court deсision in South Dakota v. Neville, [459] U.S. [553], 74 L.Ed.2d 748, 103 S.Ct. 916 (1983). Neville simply provided that a South Dakota statute which authorized introduction of such evidence was not repugnant to the Fifth Amendment to the United States Constitution. The Supreme Court position in Neville is that introduction of such evidence is a matter of state law. The Texas proscription is founded upon state authority independent of the Fifth Amendment. Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977); Casselberry v. State, 631 S.W.2d 542 (Tex.App.—El Paso 1982, PDRR);
Tex. Const. art. I, sec. 10 ;Tex.Code Crim.Pro.Ann. art. 38.22 (Vernon 1979 and Supp.1984) .”1
At least four other courts of appeals have held that there is no independent basis in state law for excluding evidence of refusal to submit to a breath test. See Gresset v. State, 669 S.W.2d 748 (Tex.App.—Dallas 1983); Ashford v. State, 658 S.W.2d 216 (Tex.App.—Texarkana 1983); Parks v. State, 666 S.W.2d 597 (Tex.App.—Houston [1st] 1984). Also: Nevarez v. State, 671 S.W.2d 90 (Tex.App.—El Paso 1984); Brant v. State, 676 S.W.2d 223 (Tex.App.—El Paso 1984); Sinast v. State, 688 S.W.2d 631 (Tex.App.—Corpus Christi 1985). We therefore granted the State‘s petition for
Just after midnight on January 8, 1983, appellant and a female companion were traveling in separate cars from Odessa to Midland on Highway 80 when appellant‘s companion was pulled over by Officer Matt Andrews of the Department of Public Safety for suspicion of driving while intoxicated. As Andrews questioned his companion on the shoulder of the highway, appellant pulled up in his car and got out. Appellant, “was staggering” as he approached, and as he stood talking to Andrews’ partner, Deputy Constable Buzzell, he “was swaying and very unsteady on his feet.” After аrresting appellant‘s companion and placing her in his patrol car, Andrews approached appellant and noticed a “strong odor of alcoholic beverage on his breath, . . . that his eyes were bloodshot,” and that “[h]is speech was very thick-tongued.” When Andrews’ flashlight was shined in appellant‘s eyes, the pupils remained dilated. Andrews testified that it appeared to him that appellant lacked the normal use of his mental and physical faculties and that in his opinion appellant had been “too intoxicated to be operating a motor vehicle.”
At this point Andrews arrested appellant for driving while intoxicated and advised him of “his rights.”2 Andrews testified that “[i]n advising him of his rights, as far as being under arrest for driving while intoxicated, [he] did request that [appellant] submit to a chemical breath test.” Over appellant‘s objection Andrews testified that after initially agreeing to take a test, appellant changed his mind and refused to submit, and did not thereafter request that any test be administered.
In his argument to the trial court that the evidence of his refusal to submit should be excluded appellant expressly eschewed any reliance on the Fifth Amendment. Instead he relied on
We begin with an analysis of Dudley v. State, supra.
Dudley v. State
The five judges on the court who decided Dudley were split four ways in their views of how that cause should have been disposed of. The lead opinion, authored by Judge Phillips, concluded that evidence of the defendant‘s refusal to submit to a breath test was inadmissible under the Fifth Amendment to the United States Constitution, and, finding that the protection afforded by
Presiding Judge Onion filed a concurring opinion in Dudley in which he argued, inter alia, that the Court should adhere to the line of cases begun with Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951).5 The Court in Cardwell had held:
“The State cannot avail itself of the silence or refusal of an accused prisoner as a circumstance tending to establish his guilt. See Carter v. State, 23 Tex.Ap. 508, 5 S.W. 128; Elliott v. State, 152 Tex.Cr.R. 285, 213 S.W.2d 833; Sharp v. State, 153 Tex.Cr.R. 96, 217 S.W.2d 1017.”
243 S.W.2d at 704. Judge Onion found it clear that this holding derived from “the confession statute as well as the rule of evidence which forbids an accused‘s silence to be used against him as tending to establish guilt.” Dudley, supra, at 711. In thus finding the holding in Cardwell to have derived at least in part from
Reliance upon
Article 38.22
Assuming, arguendo, that Judge Phillips is correct that the scope of the protection against selfincrimination accorded by
Regarding Judge Onion‘s view that
When Dudley was decided
By Acts 1977, 65th Leg., p. 935, ch. 348, § 2, eff. Aug. 29, 1977, the Legislature, inter alia, shifted the focus of
We hold that the refusal of appellant in the instant cause to submit to the breathalyzer test did not come about as the result of “custodial interrogation” for purposes of
Article I, § 10
The court of appeals also found that refusal evidence is inadmissible under
Finding no independent state authority among those cited by the court of appeals
MILLER, J., dissents.
TEAGUE, Judge, dissenting.
For the reasons that I state herein, as well as the reasons I have stated in the dissenting opinions that I have filed in Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App.1986), Mc Ginty v. State, 723 S.W.2d 719 (Tex.Cr.App.1986), and McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App.1986), I respectfully dissent.
This is another driving while intoxicated case where the accused, after being arrested and receiving his Miranda warnings,1 when requested to do so, refused to take the chemical breath test.
The facts reflect that the appellant was arrested for the offense of driving while intoxicated. Thereafter, he was apparently given the Miranda warnings. He was also requested to give a chemical breath test by the arresting officer, which he eventually refused to take. The trial court admitted into evidence over objection the appellant‘s refusal to take the test. The El Paso Court of Appeals, relying upon its decisions of Nevarez v. State, 671 S.W.2d 90 (Tex.App.—El Paso 1984), and Casselberry v. State, 631 S.W.2d 542 (Tex.App.—El Paso 1982), in which this Court refused the State‘s petition for discretionary review, reversed. Nevarez, supra, and Casselberry, supra, had relied upon this Court‘s decisions of Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977), also see Martinez v. State, 548 S.W.2d 719 (Tex.Cr.App.1977); Boney v. State, 548 S.W.2d 730 (Tex.Cr.App.1977); Hitt v. State, 548 S.W.2d 732 (Tex.Cr.App.1977); Clinard v. State, 548 S.W.2d 716 (Tex.Cr.App.1977), Sutton v. State, 548 S.W.2d 720 (Tex.Cr.App.1977), all of which decisions the bench and the bar of this State—for almost ten years—have believed stood for the proposition that in a prosecution for driving while intoxicated, unless some exception came into play, it was error for the trial court to admit testimony that the accused had been offered and refused to take a breath test. Today, an aggressive and assertive majority of this Court “deep-sixes” that belief. It appаrently does so in order that it can overcome the decision by the El Paso Court of Appeals in this cause.
Judge Clinton, the author of the aggressive and assertive majority opinion, implicitly latches onto what he stated in the dissenting opinion that he filed in Thomas v. State, supra, namely, “An accused has no constitutional right, however, to refuse to submit to a chemical sobriety test. Rodriguez v. State, 631 S.W.2d 515 (Tex.Cr.App.1982).”2 My research to date reveals that with the exception of Rodriguez v. State, supra, since Dudley et al were decided, this Court has not been confronted with a single case on direct appeal where it was contended that a trial court erred in admitting over objection the accused‘s refusal to take the test. In light of the fact that Rodriguez, supra, only represents a two judge majority panel opinion of this Court, with Presiding Judge Onion writing the majority opinion and Judge Clinton joining him, with the undersigned dissenting without opinion, it is certainly questionable that it is as authoritative as Judge Clinton implies.
In his dissecting manner, Judge Clinton appears to find fault with what Dudley v. State, supra, and its progeny held, and how they have been religiously adhered to by most members of the Bench and Bar of this State. He does so because “The five judges on the court who decided Dudley were split four ways in their view of how that cause should have been disposed of.” In light of the fact that his “authoritative”
Judge Clinton is correct, however, in advising us that the issue before this Court in this cause is “whether state law, and more specifically, either
For the reasons I have expressed in my dissenting opinion in Mc Ginty, supra, I am unable to understand how any rational appellate court judge can state without any qualification that an accused, who has been arrested, placed in a police car, asked questions by the arresting officer, to which he gives responses, albeit negative ones, is not then in the grips of “custodial interrogation“.
It has been stated: “The most damaging result of a refusal to submit to a chemical test is usually not the suspension or revocation of the client‘s driver‘s license but rather the effect that the fact of refusal will have on a trial. For certainly any jury will draw from a refusal the adverse inference of consciousness of guilt, i.e., that the defеndant refused to submit to a chemical test because he knew the result would reflect the many drinks he had taken . . .” Taylor, Drunk Driving Defense (1981), at page 257. Furthermore, this kind of law that permits comment upon the accused‘s refusal to take the test “reverses the traditional presumption of innocence. . . .” Taylor, “Blood-Alcohol Analysis and the
In writing for the aggressive and assertive majority of this Court, Judge Clinton holds that refusal evidence by the accused is not protected by the provisions of
Until today, the Legislature of this State and this Court has long jealously guarded the right of an accused to remain silent. This Court has consistently held that under our self-incrimination laws the receipt of evidence in a criminal trial, over objection, of a defendant‘s completе silence or refusal to answer questions is error. This has been on the theory that the fact that a defendant did what he had an absolute right to do cannot be used to create any unfavorable inference against him. See Dudley et al, supra.
To equate the taking of blood or breath from an accused to the refusal to give or take such a test is simply nonsensical. Refusal is, by definition, communication. As communication, it falls within the protective cloak of the self-incrimination clause of
It is apparent to me, if no one else, that the majority opinion proceeds on the nonsequitur that since submission to the test is non-testimonial, the refusal to submit is, likewise, non-testimonial. It is plain, however, that one does not follow from the other. Equally plain, refusal may be transmitted only by some form of communication or communicative act. State v. Rodriguez, 80 Misc.2d 1060, 364 N.Y.S.2d 786 (1975).
It should not be questioned that a refusal to take the test is communicative in nature rather than physical. In State v. Jackson, 195 Mont. 185, 637 P.2d 1 (1981), that Court correctly observed that “[e]vidence of a defendant‘s refusal, whether expressed verbally or by physical resistance, is relevant in its testimonial aspect as the equivalent of the statement, ‘Because I fear that the test will produce evidence of my guilt, I refuse to take the test.‘”
Admission of such refusal is too high a price to pay for the privilege of driving a motor vehicle on a highway.
Furthermore, but as I pointed out in the dissenting opinion that I filed in Mc Ginty v. State, supra, how the refusal to take the test is relevant and sufficiently probative evidence to overcome its prejudical effects in a D.W.I. case also escapes me. “[T]he fact of the defendant‘s refusal would be no more a relevant circumstance to establish consciousness of guilt than the fact of the arresting officer‘s refraining from obtaining a warrant indicates that he believed that the defendant was not intoxicated . . . [[E]vidence of refusal] was simply not relevant evidence.” State v. Chavez, 96 N.M. 313, 629 P.2d 1242 (1981). Also see State v. Munroe, 22 Conn.Sup. 321, 171 A.2d 419 (1961); City of St. Joseph v. Johnson, 539 S.W.2d 784 (Mo.Sup.Ct.1976); Crawley v. State, 219 Tenn. 707, 413 S.W.2d 370 (1967); State v. Sverson, 75 N.W.2d 316 (N.D.Sup.Ct.1956); City of Columbus v. Mullins, 162 Ohio St. 419, 123 N.E.2d 422 (1954); People v. Knutson, 17 Ill.App.2d 251, 149 N.E.2d 461 (1958); People v. Hayes, 64 Mich.App. 203, 235 N.W.2d 182 (1975); State v. Parker, 16 Wash.App. 632, 558 P.2d 1361 (1976); People v. Hayes, 64 Mich.App. 203, 235 N.W.2d 182 (1975); State v. Wilson, 5 Kan.App.2d 130, 613 P.2d 384 (1980); City of Seattle v. Boulanger, 37 Wash.App. 357, 680 P.2d 67 (1984); People v. Duke, 136 Mich.App. 798, 357 N.W.2d 775 (1948). Lastly, to admit his refusal into evidence in this instance placed the appellant in a “Catch 22” or a “damned if I do, damned if I don‘t position.”
In this instance, the arresting officer unquestionably gave the appellant the Miranda warnings after which the appellant refused to take the test. He was thus given a choice by thе arresting officer and he refused to take the test. Thus, the arresting officer provided the appellant with a definite choice, and we should not render the appellant‘s decision to refuse to take the test an illusory one. Cf. State Department of Highways v. Beckey, 291 Minn. 483, 192 N.W.2d 441 (1971).
Anything that is said in Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1969), about the admissibility of an accused‘s refusal to take a chemical breath test and such being admissible evidence against him at his trial is pure dicta because Olson involved the taking of hand-writing exemplars. Thus, this Court‘s panеl opinion of Rodriguez, supra, which relied upon Olson, supra, was incorrectly decided and should be expressly overruled by the En Banc Court.
Today, it is unquestionably popular to “lock-step” with those who favor abolishing all rights which the respective Constitutions grant our people, because “it is only those who are guilty who hide behind those rights and innocent persons have no need to hide behind those rights.” However, I am confident that the majority of the people of this State will not join this mеthod of thinking and will continue to subscribe to what is expressed in the respective Constitutions that were written in 1776 and 1836. Cf. Harrington, “The Texas Bill of Rights and Civil Liberties,” 17 Texas Tech Law Review, No. 5.
For all of the above and foregoing reasons, I respectfully dissent.