John Henry COOPER, Appellant, v. The STATE of Texas, Appellee.
No. 01-95-00308-CR
Court of Appeals of Texas, Houston (1st Dist.).
March 27, 1997
Rehearing Overruled Aug. 18, 1997
Discretionary Review Refused March 11, 1998.
We reverse the judgment of the trial court and remand this case for further proceedings consistent with this opinion.
Bonnie J. Bonnicksen, Houston, for Appellee.
Before HEDGES, COHEN and TAFT, JJ.
OPINION
HEDGES, Justice.
A jury convicted appellant, John Henry Cooper, of driving while intoxicated (DWI). The trial court sentenced him to 18 months in jail, probated for two years community supervision, and assessed a $2,000 fine, reduced to $1,000. In three points of error, appellant contends that (1) the trial court erred in failing to suppress the audio portion of a video taken at the police station in violation of his Fifth and Fourteenth Amendment rights under the United States Constitution and his Article I, Section 10 rights of the Texas Constitution, and (2) the trial court erred in refusing to admit relevant evidence that one of the arresting officers had been involved in several accidents. We reverse.
FACTS
On June 15, 1994, Houston police stopped appellant after seeing him pull his vehicle too far into an intersection. As one of the officers approached appellant‘s car, the officer smelled alcohol. After appellant identified himself, the officers videotaped appellant performing field sobriety tests. They subsequently arrested him. At the police station, appellant was videotaped during the reading of his statutory warnings.1 Appellant filed a written motion to suppress the audio portion of the station video, claiming that there was a clear invocation of his right to counsel and his right to terminate the interview. The trial court denied the motion on the basis that there was no clear invocation of counsel and that his right to terminate the interview had not yet arisen.
SUPPRESSION OF AUDIO PORTION OF VIDEO
In points of error one and two, appellant contends that the trial court erred in failing to suppress the audio portion of a video taken at the police station in violation of his Fifth and Fourteenth Amendment rights under the United States Constitution and Article I, Section 10 under the Texas Constitution. Appellant argues that the video demonstrates that during the interview, he clearly and unequivocally requested his attorney, he exercised his right to remain silent, and he invoked his right to terminate the interview. The trial court, he argues, should have suppressed the audio portion of the video because his request for an attorney, his silence, and his request to terminate the interview cannot be used as evidence of his guilt.
Standard of Review
The standard for reviewing a trial court‘s ruling on a motion to suppress evidence is abuse of discretion. Long v. State, 823 S.W.2d 259, 277 (Tex.Crim.App.1991). At a hearing on a motion to suppress, the
Right to Counsel and Termination
Once a suspect has invoked his right to counsel, all interrogation by the police must cease until counsel is provided or until the suspect himself re-initiates conversation. Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990); Dinkins v. State, 894 S.W.2d 330, 350 (Tex.Crim.App.1995). The right to counsel is invoked when a person indicates he or she desires to speak to an attorney or to have an attorney present during questioning. Dinkins, 894 S.W.2d at 351. An invocation of the right to counsel must be clear and unambiguous; the mere mention of the word “attorney” or “lawyer,” without more, does not automatically invoke the right to counsel. Id.; Robinson v. State, 851 S.W.2d 216, 223 (Tex. Crim.App.1991). While there are no magical words required to invoke an accused‘s right to counsel, a suspect must express a definite desire to speak to someone, and that person be an attorney. Dinkins, 894 S.W.2d at 352.
The right to terminate questioning is among the procedural safeguards established by Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); Watson v. State, 762 S.W.2d 591, 596 (Tex.Crim.App.1988). If an individual indicates in any manner at any time before or during questioning that he wishes to remain silent, the interrogation must cease. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627; Watson, 762 S.W.2d at 596. There need not be a formal invocation of one‘s right to terminate an interview. Watson, 762 S.W.2d at 598. Anything said or done by the appellant that could reasonably be interpreted as a desire to invoke that right should be sufficient to halt questioning. Id.
When appellant was taken to the station, the police videotaped2 the reading of
A: Where is he?
Q: Did you understand what I just said?
A: No, I‘m saying where is he?
Q: Where is who?
A: My lawyer.
Q: I haven‘t asked you any questions yet.
A: Yes, you did.
Q: No, I haven‘t.
A: Yes, sir. Where is my lawyer? Where is he? I don‘t see him standing here?
Q: If you are unable to employ one, one will be appointed for you. Do you understand?
A: I‘m not answering any questions.
Q: I don‘t care.
A: I don‘t care either. Where is he? You stated “my lawyer....” Where is he?....
Q: Are you done now?
A: I‘m done. Are you done?
Q: I will be in a minute.
A: I‘ve been polite to you .... good night.
Q: You have the right to terminate the interview at any time ...
A: I terminate it. Good night.
Q: Do you understand these rights?
A: No, I don‘t. About three of them.
Q: Which ones?
A: I terminate. Good night
Q: Which ones didn‘t you understand?
A: Good night.... I didn‘t do anything wrong.
Q: I didn‘t arrest you. You don‘t have to prove anything to me.
A: Not to you. Good night.... I didn‘t do anything wrong with you or with those people.
Q: Which rights did you not understand. Could you clarify?
A: I‘m not clarifying.
Q: So, did you understand all of them?
A: No. Good night. I‘m not understanding anything until my lawyer is present.
Q: All right. It‘s terminated.4
Appellant did not invoke his right to have a lawyer present until the conclusion of the video. Appellant‘s response, “Where is he,” was not an unequivocal assertion of his right to counsel; rather, it was a facetious expression of defiance. Nor was his reiteration of that statement several times throughout the video an unequivocal invocation. He affirmatively invoked his right only at the conclusion of the video when he stated, “I‘m not understanding anything until my attorney is present.” At that point, the officer terminated the video.
Appellant did, however, invoke his right to terminate the interview when he stated, “I‘m not answering any questions,” and he continued to invoke that right throughout the remainder of the video. Evidence of invoking the right to terminate an interview is inadmissible as evidence of guilt. See Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991). Although Hardie referred specifically to invocation of the right to counsel, we find no reason to differentiate an invocation of the right to terminate. We find, therefore, that the trial court erred in admitting into evidence the audio portion
Harmful error
Because we find that the trial court erred in admitting the audio portion of the videotape from the point where appellant stated, “I‘m not answering any questions,” until the end of the videotape, we must determine whether such error was harmful to appellant. If the appellate record in a criminal case reveals error in the proceedings below, the appellate court must reverse the judgment under review unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.
We analyze the harm of the trial court‘s error under the standard set forth in Harris. That case dictates that reversal of a conviction is mandated unless the appellate court concludes beyond a reasonable doubt that the error did not contribute to the conviction or the punishment assessed. Harris, 790 S.W.2d at 587. We must look at the following factors:
- the source of the error;
- the nature of the error;
- whether or to what extent it was emphasized by the State;
- its probable collateral implications;
- how much weight a juror would probably place on the error; and
- whether declaring the error harmless would encourage the State to repeat it with impunity.
Id. We are mindful that “[i]f overwhelming evidence dissipates the error‘s effect upon the jury‘s function in determining the facts so that it did not contribute to the verdict then the error is harmless.” Id.
In this case, the source of the error was the State‘s offering and the trial court‘s admitting into evidence the audio portion of the videotape from the point at which appellant invoked his right to terminate until the end of the video. The nature of the error was to emphasize appellant‘s defiant attitude expressed in verbal combat with the officer. The probable collateral implication was that appellant was guilty because he wanted to terminate the interview. Although the State did not emphasize appellant‘s invocation directly in its closing argument, it did emphasize that appellant‘s repeated utterance of “good night” was an indication of intoxication.
In analyzing the weight a juror would probably place on the error, we look at the other evidence of appellant‘s guilt. Officers Lindsey and Jones, the arresting officers, testified that they stopped appellant for a traffic violation and that as they approached the car, both smelled alcohol on appellant‘s breath. Officer Jones testified that appellant‘s speech was slurred and his eyes appeared bloodshot. Officer Lindsey videotaped Officer Jones administering four field sobriety tests: Horizontal Gaze Nystagmus (HGN), head tilt, heel to toe, and the one leg stand. Officer Jones admitted that he performed the HGN improperly. He stated that appellant performed poorly on all the field tests. Officer Lindsey, who observed the tests from the car, stated that appellant performed the tests poorly. At the station, appellant refused a breath test but requested a blood test. Officer York, who was in charge of the intoxilyzer room, testified that appellant had alcohol on his breath and had slurred speech. Officer Miller, who videotaped appellant at the station, stated that he smelled alcohol on appellant‘s breath. Officer Miller testified that appellant‘s attitude was combative and that during the video, appellant leaned against the wall for support. In his opinion, appellant‘s attitude and conduct was that of an intoxicated person.
The videotape reflects appellant‘s combative attitude. Appellant‘s appearance and statements made during the video, however,
We cannot say that if we were to declare this error harmless, the State would not be encouraged to offer this kind of impermissible evidence in the future. See Hardie, 807 S.W.2d at 322. We find, therefore, that the trial court‘s error in not suppressing the audio portion of the videotape from the point where appellant invoked his right to terminate until the end of the videotape harmed appellant.
We reject the State‘s argument that appellant failed to preserve error because he failed to object with specificity and because he asserted inconsistent legal theories. Relying on
We also find that appellant has not asserted inconsistent legal theories on appeal. Appellant objected by way of written motion to the introduction of the audio portion of the videotape, relying on both the
Because we sustain points of error one and two, we do not reach the merits of point of error three.
TAFT, J., concurs.
TAFT, Justice, concurring.
My concurring opinion urges the Court of Criminal Appeals to reconsider the harmless error analysis established in Harris v. State, 790 S.W.2d 568 (Tex.Crim.App.1989). The approach in Harris is confusing because it includes factors, such as whether declaring error harmless would encourage the State to repeat it with impunity, which have no logical relation to a harm analysis. Indeed, the majority opinion relies in part on the “encourage the State to repeat it with impunity” factor in finding harm, and thus reversible error, in this case.
As set out in the majority opinion, the Harris factors include:
- the source of the error;
- the nature of the error;
- whether or to what extent it was emphasized by the State;
- its probable collateral implications;
- how much weight a juror would probably place on the error; and
- whether declaring the error harmless would encourage the State to repeat it with impunity.
Factors two through five are inquiries logically relevant to determining harmless error. Factor one, the source of the error, comes into play when the source is the appellant in determining whether the error was invited. Thus, it belongs in a waiver, rather than a harmless error, inquiry. Because most error determinations are directed at evaluating a trial court‘s action or inaction, factor six is usually misdirected by focusing on the conduct of the prosecutor. Even when the error is the result of prosecutorial misconduct, however, factor six still makes no sense in determining whether the defendant was actually harmed in a particular case. It appears to be an attempt to exercise a non-existent supervisory responsibility over prosecuting attorneys.
Why should there be different analytical constructs to guide harmless error in general, and harmless error in the jury charge? In Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984), the Court of Criminal Appeals set out a harmless error analysis including review of the: (1) entire jury charge; (2) state of the evidence, including the contested issues and weight of probative evidence; (3) argument of counsel; and (4) any other relevant information.
Isn‘t it time to consolidate a list of factors useful to harmless error analysis, regardless of the type of error?
Michael Wayne COOPER, Appellant, v. The STATE of Texas, Appellee.
No. 01-96-00593-CR
Court of Appeals of Texas, Houston (1st Dist.).
March 27, 1997
Rehearing Overruled Aug. 13, 1997
Discretionary Review Refused Nov. 19, 1997.