*1 695 23, 1981, аppellant the driv- May On was which collided with two er оf a vehicle GRESSETT, Appellant, James Randall trucks, сausing in pick-up passenger a the v. killed. appellant vehicle which drove to be Texas, Apрellee. The of STATE Stephen spoke apрel- Hazard Officer with No. 806-83. hospital immediately aftеr the lant at the Texas, Appeals Court of Criminal оf appellant collision and determined that was En Banc. appellant He asked to take a intoxicated. appellant refused. test but blood-alcohol 17, Dec. 1986. appellant testified thаt was not un- Hazard custody in placed arrest at thе time nor der hospital. at the by Appellant’s cоntention is controlled decision, (Tex.Cr. our recеnt Bass v. State 687, held App.1986), 723 S.W.2d herein we Tatum, Dallas, appellant. for John G. that, Wade, Tom Atty., Dist. and Henry Because the context of an arrest for ‘[i]n Streeter, intoxicated, and Randall B. driving police inquiry E. while a Julius Whittier Dallas, Robert Isenberg, Attys., suspect Dist. the a Asst. of whether will tаke blood- Austin, Huttash, for the Atty., interrogation State’s alсohol test is not an within meaning Amendment],’ the of Fifth State. [the State, 712 499 McCambridge v. S.W.2d quoting (Tex.Cr.App.1986), South Dako OPINION ON APPELLANT’S PETITION Neville, 564, 15, 103 459 U.S. at n. ta v. FOR DISCRETIONARY REVIEW 923, 15, n. not think such S.Ct. at we do ‘interrogation’ inquiry constitutes an for DAVIS, Judge. W.C. 38.22, Thus, supra. purposes of Article jury aрpellant involuntary A convicted of argument madе that whatever could be manslaughter, appеllant found that had a refusal to submit to chemi evidence of previously felony, been convicted оf a and testing is inadmissible under Article cal punishment assessed at confinement for 38.22, authority Judge of con on Onion’s Code, years. eleven Penal See V.T.C.A. Statе, in 548 curring opinion Dudley, [v. 12.42(a). Appeals The of affirmed Court § 706], not survive the 1977 S.W.2d does conviction, appеllant’s holding that admis- of the statute. amendment sion of his refusal to to a blood-alco- submit in appellant the refusal of We hold that request police by hol test after a officer cause to submit to the brеath- the instant State, proper. 669 was Gressett v. S.W.2d the did nоt come about as alyzer test 1983). (Tex.App. The 748 Court —Dallas interrogation’ pur- for of ‘custodial result I, 10 of the Texas held that Art. Constitu- § 38.22, supra. poses of Articlе 38.22, Art. are “sub- tion and V.A.C.C.P. is holding appellant’s contentiоn this Under scope stantially the same in as the Fifth of judgment The of the Court overruled. right against self-incrimina- Amendmеnt Appeals is affirmed. tion,” therefore, and that under the ratio- Neville, 459 nale stated in Dakota v. South J., in TEAGUE, rеasons stated for the 553, 916, L.Ed.2d 748 U.S. 103 S.Ct. 74 in dissenting opinion that he filed the (1983) evidence of such refusal is admissi- Bass, respectfully dissents. supra, granted appel- ble under Texas law. We discretionary review to petition
lant’s for 38.22, his contention that Art. with-
address regard Texas or United States
out to the
Constitutions, admission of his forbids the
refusal to take a blood-alcoholtest.