Chadwick v. State
766 S.W.2d 819
Tex. App.
1988
Check Treatment

*2 Yes, sir, it, A. I say part can but STEPHENS, Before STEWART and don’t know it all. ROWE, JJ. Q. you say you Can what know of the alphabet? STEWART, Justice. A,B,C,D,E,F,G,H,I,J,K,L,M,N,0,P,Q, A. appeals his misde- R,S,T W,X,Y,Z. — meanor conviction for while intoxi- The officer then asked the defendant to (DWI). cated The punish- court assessed Appellant count from backward 37 to 18. ninety days’ confinement, ment at probated correctly counted backward from 37 years, payment and of a fine of through apparently 15 and if started to ask Appellant complains $500. of admission enough. that was far The officer said that into portion evidence of the audio of a further, appellant went that he had asked videotape. Finding no merit in this conten- stop eighteen. defendant to tion, we affirm.1 INTERROGATION In his second appellant State, contends that the trial court erred in admit- In 742 Jones v. S.W.2d 398 ting the audio of a (Tex.Crim.App.1987), which the court had before allegedly contained questions it the issue of whether the defendant’s oral appellant statements, asked right after his tape invoked recorded on as she was tests, counsel. A performing sobriety review the video re- were admissible following. gave veals the jury. The officer de- before the The court noted that the warnings prescribed fendant DWI in content of the is crucial in deter 6701Z-5, 2(b) article mining section of the Texas subjected whether defendant was (Vernon Supp.1987) Revised “interrogation” right Civil Statutes after she invoked the regarding breath and blood tests. The offi- to counsel.2 Id. at 407. The court relied 1. We undisputed have overruled four other It was in Jones that the defendant points unpublished prior taping had invoked opinion, of error in an to counsel during tests involved in that Chadwick v. No. (Tex. 05-88-00187-CR App. 1988). appellant case. In our refused the breath — Dallas present test unless his but never

821 “interrogation” involuntary on the definition of suspect in tect a from testimoni 300-02, Innis, Rhode Island 446 U.S. al incrimination. Thomas v. 1682, 1689-90, (em (Tex.Crim.App.1986) S.Ct. L.Ed.2d S.W.2d which, (1980), substance, therefore, in states phasis original); suspect in “interrogation” express question provide physical evi refers to compelled be (em any intoxication, other words or actions on the dence id. his at 704-05 (other part police phasis original), physical than those normal evi ly custody) attendant to arrest and dence is not testimonial in nature. *3 police knew or should have known were Likewise, we conclude that a recitation of reasonably likely incriminating to elicit an alphabet the are backward Jones, 407; response. 742 S.W.2d at see testimonial in nature these Innis, 300-02, 446 U.S. at 100 S.Ct. at physical communications are of 1689-90, 64 L.Ed.2d at 308. functioning appellant’s the of mental and

Because the Jones court did not have the physical performance faculties. The of it, tape before it remanded sobriety to the Court of these tests shows the condition of whether, analysis an of under suspect’s body. Any indication of intoxi- given the “interrogation,” definition demeanor, the suspect’s cation comes from a specific questions Jones, posed to con- speaks, the in manner which he and wheth- conjunction sidered in with her answers or er he ability perform has the mental to the responses other which ques- the officers’ correctly. tests These communications do her, tions elicited from constitut- have guilt by- not amount to an admission of “interrogation.” ed The court formulated appellant they knowledge nor do indicate a is, the issue as follows: “That whether the of facts which him incriminate or tend to activity was police that which the knew or EVI- WIGMORE, incriminate Mm. reasonably should likely have known was DENCE 2260 is 2263. For these rea- §§ to have incriminating responses elicited sons, that, we hold in this these com- appellant, from the simply or activity constitutionally pro- munications are not normally attendant to custody.” arrest and privilege against tected under the self-in- Jones, 742 S.W.2d at 407. crimination. Applying these principles, we hold that addition, In tape the shows questions the officer’s in the instant case by that, argu- words or actions the officer elicit, did not seek to nor did the ably, he or knew should have known were constitute, answers type the of “incrimina- reasonably likely to elicit an ting responses” protected which are by the hi§ response requests were directions and privilege against self-incrimination under performance teste, sobriety of those either the state or federal constitutions. appellant and the shows that made no Historically, privilege the “was directed at responses except answers or other those employment legal process the to extract required perform requested. the tests person’s lips own an admission from facte, Under these and based on the reason- guilt, which would place thus take the above, appellant set out we hold that is, other evidence. That it was intended to subjected “interrogation” was not under prevent legal compulsion the use of to ex- Jones, but, in test set out to the con- person tract from the a sworn communica- trary, the officer’s actions here were sim- knowledge tion of his of facts that would ply activity normally attendant ar- WIGMORE, incriminate him.” EVI- Jones, custody suspect. rest and of a DWI (1961). DENCE (Emphasis origi- in § 407. S.W.2d at nal). principles These historical re- are flected in our current law. VOLUNTARINESS

Thus, privi Moreover, appel the state and federal we conclude that leges against only pro compelled supply self-incrimination lant was not the re

requested purposes opinion, appellant in relation to the three fer of this had Nevertheless, assume, prior tests here. we invoked his to counsel to these tests.

sponses gave performing regarding he in the sobriety of error the admission of the above, tests at issue. videotape. According- As stated both the audio state privileges against ly, judgment and federal I would reverse the self-in- prevent crimination trial court and remand the case for further involuntary testimoni- Thomas, al action consistent with this dissent. incrimination. 723 S.W.2d at 704; therefore, privilege only protects a.m., 29, 1987, Friday, August At 1:35 providing defendant from evidence that is police Dallas officer Curtis Fowler ob- compelled. both testimonial and Id. served Chadwick northbound on Thus, assuming appellant’s responses Dallas, Greenville Avenue Texas. Offi- testimonial, are we nevertheless hold that cer changed Fowler testified that Chadwick was admissible because the apparent signal lanes for no reason without that, request reflects at the of within a few blocks. Chadwick then lit a officer, appellant performed the sobrie- cigarette stopped light. at a red After ty tests at issue voluntarily and without light changed, proceeded objection. There is no evidence that the through the intersection. Officer Fowler appellant perform officer forced them. *4 police lights then turned on the of his un- Consequently, we hold that there was no pulled marked car and Chadwick over into privilege against violation of the self-in- parking a lot. crimination. See Millican v. approached Officer Fowler Chadwick’s 115, 357, Tex.Crim. 157 S.W.2d 358-59 car and asked to see his driver’s license. (1942). At this time officer Fowler testified that he strong noticed a smell of alcohol and asked HARM ANALYSIS get go Chadwick to out of his car and to Finally, if admission of the audio walking the back of the vehicle. While to error, portion of the constitutes car, the rear of the Chadwick balanced we hold that such error was harmless be by leaning himself his hand on the car. yond a reasonable doubt. TEX.R.APP.P. adequately per- Chadwick then failed to 81(b)(2). videotape, appellant On the did sobriety form several field tests. Officer intoxicated; appear explained not he Fowler determined that Chadwick was in- complete alphabet, yet he did not know the placed him toxicated and under arrest. At “U,V” recitation; he omitted the in his videotaped jail, Chadwick was while his correctly he counted backward without un rights perform- read to him and while were hesitation, due but continued including reading several tests stopping requested; 15 instead at 18 as sample reciting alphabet. of text and speech and his not manner did videotape along portion This with the audio reasons, hold, intoxication. For these we were admitted at trial over Chadwick’s ob- doubt, beyond a reasonable that the admis jection portion, that the audio after he in- portions sion of the audio of the did counsel, right his voked should have appellant’s contribute conviction or been excluded. punishment. Accordingly, Id. we overrule point As a Chadwick asserts point second of error. We af admitting that the trial court erred in firm. portion videotape containing audio of the responses questions and af STEPHENS, J., dissenting files a right ter he invoked his to counsel. The opinion. issue addressed is whether which must be STEPHENS, Justice, dissenting. Arizona, safeguards of Miranda v. 436, 478, 1602, 1629, appeals 16 L.Ed. his convic- U.S. 86 S.Ct. Arizona, (1966), tion for while intoxicated. The 2d 694 v. Edwards 477, 481-87, 1880, punishment ninety days’ court assessed 451 U.S. 101 S.Ct. 1883- 86, (1981), probated years confinement and a 68 L.Ed.2d 378 were breached points question fine of Chadwick asserts five when the officers continued $500. his point of error. I would sustain his second Chadwick after he had invoked California, counsel. In Schmerber v. 757, 762-64, 1826, 1831-32, 16 BROWNE,

U.S. 86 S.Ct. Appellant, J. Wade (1966), Supreme L.Ed.2d 908 Court not privilege against ed that the self-incrimina BEAR, CO., INC., STEARNS & Miranda and Edwards is protected by tion Feinberg, Appellees. Hillel A. against compelling communications a bar testimony. No. or 05-88-00854-CV. In the instant Chadwick was video Texas, Court of taped requesting after while Dallas. being portion prepared to read asked 12, Jan. 1989. text, alphabet, to recite the and to count 13, Rehearing A Denied Feb. backward. review of the audio reveals that at one questioning “why officer asked not [re alphabet], you cite the did it before?” hold, whole,

would taken as a

questions asked Chadwick were tanta interrogation

mount to custodial which was require

calculated to Chadwick to testimo-

nially incriminate himself. See Jones v. 742 S.W.2d 407 (Tex.Crim.App. remand,

1987), on (Tex. 745 S.W.2d

App. pet. granted); Mills — Eastland *5 (Tex.Crim. 720 S.W.2d McCambridge v.

App.1986);

S.W.2d 501-07 (Tex.Crim.App.1986).

Having error, found I would then deter-

mine whether the error was harmless. The

test applied which must be is whether this beyond

Court can conclude a reasonable

doubt that the error made no contribution

to the punishment. conviction or TEX.R. 81(b)(2).

APP.P. I say beyond cannot

reasonable doubt that the erroneous admis-

sion of the audio

made no contribution to the conviction.

Because I would sustain Chadwick’s second

point of there would be no need to remaining points

reach his of error. judgment would reverse of the trial court Jones, Dallas, Ralph appellant. C. for and remand the cause for a new trial. O’Connor, Dallas, Mary appellees. L. DEVANY,1

Before McCLUNG and LAGARDE, JJ.

McCLUNG, Justice. Appellant brought an action the 160th County Judicial District Court Dallas defamation, tortious interference with con- tract, negligent wrongful gamish- Joseph Devany participating. 1. Justice A.