Travis CARTER, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 1051-86.
Court of Criminal Appeals of Texas, En Banc.
Oct. 21, 1987.
739 S.W.2d 398
Tim Curry, Dist. Atty., C. Chris Marshall and Delonia A. Watson, Asst. Dist. Attys., Fort Worth, Robert Huttash, State‘s Atty., Austin, for State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
PER CURIAM.
Appellant was convicted by a jury of the offense of aggravated sexual assault. On appeal, a panel majority of the Fort Worth Court of Appeals held, inter alia, that the evidence was sufficient to justify the warrantless arrest of the appellant due to the possibility that he would escape. Carter v. State, 713 S.W.2d 442 (Tex.App.-Fort Worth 1986). We refuse the petition for discretionary review; however, our refusal of the appellant‘s petition for discretionary review is not to be taken as an approval of the reasoning or the decision of the Court of Appeals.
With this understanding, we refuse appellant‘s petition for discretionary review.
Gayle Lee JONES, Appellee, v. The STATE of Texas, Appellant.
No. 233-86.
Court of Criminal Appeals of Texas, En Banc.
Nov. 25, 1987.
739 S.W.2d 398
Pete Gilfeather, Fort Worth, for appellant.
OPINION ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
CLINTON, Judge.
Gayle Lee Jones was convicted, following a jury trial in the County Court, of driving while intoxicated, pursuant to
We granted discretionary review, on the State‘s petition, to address an issue left open in our earlier opinions in Forte v. State, 707 S.W.2d 89 (Tex.Cr.App.1986) and McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App.1986). Specifically, we will address whether the court of appeals was correct in holding that it was error under the Fifth Amendment to the United States Constitution to allow the jury to hear the oral statements made by appellant, and recorded on video tape, as she was performing sobriety tests while she was in custody of the Abilene Police Department subsequent to her arrest for suspicion of driving while intoxicated.
Shortly after 9 P.M., on the evening of August 1, 1984, Gayle Lee Jones, hereinafter appellant, left her place of employment in Abilene and proceeded to a local tavern. During the next three hours, according to her uncontroverted testimony, she consumed two mixed drinks. Follow-
In route to her home, appellant was involved in an accident at the intersection of South Fourteenth and Danville Streets with an automobile occupied by one Harold McClelland and his wife. McClelland testified that appellant had stopped for a traffic light and then attempted to make her turn just as he entered the intersection. Appellant testified that she stopped for the light, waited for the oncoming traffic from both directions to clear and then attempted to make a turn at a time when there appeared to be no opposing traffic. Appellant was unaware of McClelland‘s presence at the intersection until the collision. Both cars then stopped at the scene of the collision.
The Abilene Police Department was made aware of the collision and Officers Scott and Spohn were dispatched to the scene. Appellant testified that she was in her car at the time the officers arrived and that Officer Scott initially conferred briefly with McClelland and then approached her car. Appellant testified that Officer Scott did not confer with her in any manner but immediately removed her from the car and placed her in handcuffs while informing her that she was under arrest for driving while intoxicated. Officer Scott testified that appellant was standing in close proximity to her car at the time that he arrived at the intersection and that he spoke with her for a period of seven to eight minutes, during which time he noted that she was unstable on her feet, her speech was slurred, her tongue was thick and her eyes were blood shot.
A second police unit, occupied by Officers Julie Komatz and Steve Rogers, was dispatched to the accident location to assist in directing traffic at the intersection. Rogers testified that he smelled a faint odor of alcohol on appellant‘s breath and that appellant swayed when she walked. Based upon the astute observations noted earlier, Scott placed appellant under arrest for driving while intoxicated and advised her of her constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Appellant was then transported to the Abilene City Jail by Officers Rogers and Komatz. Officer Rogers testified that the smell of alcohol on appellant‘s breath, which he had earlier described as faint, was more noticeable in the police car during the drive to the jail.
Rogers indicated that it was standard practice to offer those arrested for suspicion of driving while intoxicated the opportunity to submit to a breathalyzer examination. If the suspect agreed to submit to a breathalyzer examination, that test was administered prior to a video tape examination of the suspect.1 If the suspect did not agree to a breathalyzer examination, then the standard procedure was to submit the suspect to a video tape examination and then again offer the breathalyzer examination. All parties agree that appellant was offered the breathalyzer examination and that she refused to submit to such a test. Thus, Rogers called Officer Ricky Sanchez to administer a video tape examination as to appellant‘s sobriety.
Sanchez testified that he administered Miranda warnings to appellant prior to the video tape examination. At a pretrial hearing on appellant‘s motion to suppress the video tape examination, appellant testified that she requested an attorney prior to the start of the video tape examination, and again at the beginning of the video tape itself, and that both requests were denied by the officers present in the examination room.2 Appellant objected to the introduc-
Toward the latter portion of the video tape examination, appellant was allowed to use the telephone to contact an attorney and she succeeded in reaching one Quanah Parker. He apparently advised her not to take any action until he arrived at the city jail. Indeed, Parker did come to the Abilene City Jail, arriving approximately ten minutes after the phone call from appellant. Parker testified that he conferred with appellant for a period of approximately forty-five minutes and that in his opinion appellant did not appear to be intoxicated. Indeed, shortly after his arrival at the city jail, Parker offered to have appellant submit to a blood analysis to determine her blood alcohol concentration. This offer was initially accepted and then declined by the officer in charge of the city jail at that point in time. Under advice from Parker, appellant again declined to submit to a breathalyzer examination. Parker then left to attempt to make arrangements for appellant‘s release while appellant was taken to complete the “booking” process.
Appellant presented four points of error to the court of appeals. That court sustained the second point of error and concluded that the trial court erred in overruling appellant‘s objection to the admission of the audio portion of the video tape made of appellant at the jail following her arrest for driving while intoxicated. Jones v. State, supra at 392. In so doing, the court specifically concluded that appellant requested an attorney before the video tape was made and that she also requested the opportunity to consult with her attorney at the very beginning of the video tape. Id. Allowing the jury to hear the audio portion of the video tape until the point at which appellant was actually allowed to telephone her attorney was thus held “error under
Thus, the issue raised by this petition for discretionary review is similar to those addressed by this Court on numerous occasions, most recently in McCambridge v. State, supra, and Forte v. State, supra. However, the precise context in which that issue is addressed was left open in both of those cases.
This case is distinguishable factually from McCambridge in that the jury here was allowed to hear the audio portion of the video tape of appellant‘s video tape examination until such time as appellant was actually allowed to call her attorney. McCambridge v. State, supra at 505. Given the court of appeals’ specific conclusion that appellant requested counsel prior to the start of the video tape examination and again at the very beginning of that examination, this case may well present the factual situation contemplated by this Court when it indicated that a different question would be presented if there were a request for counsel which went ignored, coupled 5 with interrogation by the police officer administering the video tape examination. McCambridge v. State, supra at 506 n. 17. Indeed, as we shall discuss below, there was an apparent violation of the request for counsel, coupled with what may have been interrogation under Miranda and its progeny.
Additionally, we note that our present analysis proceeds under the Fifth Amendment to the United States Constitution and, of course, the relevant decisions of the United States Supreme Court, alone. Neither the State nor the appellant raised any arguments before the court of appeals nor in this Court regarding the application of the comparable sections of the Texas Constitution. Accordingly, we express no view as to the resolution of the issue discussed herein under the Constitution and laws of Texas.
Finally, we note that the Fifth Amendment analysis involved here distinguishes this case from Forte v. State, supra. There Judge Campbell analyzed the Wade-Kirby line of cases6 and concluded that the Texas video tape procedure utilized in driving while intoxicated cases is not a critical pretrial stage to which the right to counsel attaches under the Sixth Amendment. Forte v. State, supra at 91-92. The present analysis, proceeding as it does along a different route, not surprisingly arrives at a different destination.
Naturally, our discussion begins with Chief Justice Warren‘s often quoted passage from Miranda v. Arizona, wherein he encapsulated the Fifth Amendment protection as follows:
“Our holding will be spelled out with some specificity in the pages which fol-
low but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”
Miranda v. Arizona, supra 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. In a footnote, the Court indicated that the concept of “custodial interrogation” was what it had meant in its decision in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), when it established restrictions on questioning a suspect out of the presence of counsel after the police investigation had become “focused” on the suspect. However, “focus” is not necessarily equivalent to “custody.” Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976).
Custodial interrogation occurs, and thus Miranda warnings are required, when questioning takes place in a prison setting during a suspect‘s term of imprisonment on a separate offense, Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), when questioning occurs in an individual‘s home after he has been arrested and is no longer free to leave, Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), and, of course, when a suspect is “picked up” on less than probable cause, taken to police headquarters in a police car and subsequently questioned in an interrogation room, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). However, the Court has cautioned that a non-custodial situation is not converted into one in which Miranda, supra, applies in the absence of a formal arrest or restraint on freedom of movement merely because an appellate court concludes that the questioning occurred in a “coercive environment.” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977).
Indeed, the Mathiason Court noted that any questioning by police will have coercive aspects to it, simply by virtue of the police officer‘s role in the law enforcement system. Police are not required to give Miranda warnings to everyone whom they question; rather, the warnings are required “only where there has been such a restriction on a person‘s freedom as to render him ‘in custody.‘” Id. at 495, 97 S.Ct. at 714, 50 L.Ed.2d at 719.
Having concluded that without proper safeguards the process of incustody interrogation of persons accused or suspected of crime contains inherently compelling pressures which work to undermine an individual‘s will and compel him to speak where he would not otherwise do so freely, the Miranda Court held that the Fifth Amendment is available to protect persons “in all settings in which their freedom of action is curtailed in any significant way.” Miranda v. Arizona, supra 384 U.S. at 467, 86 S.Ct. at 1624, 16 L.Ed.2d at 719. After delineating the now familiar procedural safeguards, the Court clearly stated that once an individual has shown that he intends to exercise his Fifth Amendment privilege any statement taken after the invocation of that privilege cannot be other than the product of compulsion, whether subtle or otherwise. Id. at 474, 86 S.Ct. at 1627-28, 16 L.Ed.2d at 723. The necessity of honoring the request to discontinue further questioning was emphasized with unmistakable clarity:
“Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to the police, they must respect his decision to remain silent. * * * * * *”
[A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”
Id. at 473-75, 86 S.Ct. at 1627-28, 16 L.Ed. 2d at 723-24. (Citations and quotation marks omitted.)
Later cases have clarified the scope and breadth of the Miranda protections. Elaborating on the protections spelled out in Miranda, supra, the Court has explicitly held that once an accused has expressed a desire to deal with the police solely through counsel, the accused is not subject to further interrogation until counsel has been made available to the accused unless the accused himself initiates the further communication, exchanges or conversations with the police. Edwards v. Arizona, supra 451 U.S. at 484-85, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386. Appellant in the instant cause argued at the hearing on her motion to suppress and again at trial on the merits that she invoked her right to counsel in clear and unequivocal fashion both before the video tape examination began and again at the start of that video tape examination. The court of appeals specifically agreed with both contentions. Jones v. State, supra at 392.
Moreover, sensing that the police misconduct cataloged in the Miranda opinion itself was still much in evidence some fifteen years after that landmark decision was handed down, the Court strongly indicated that additional safeguards are necessary once the accused invokes his right to counsel. Edwards v. Arizona, supra 451 U.S. at 484, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386. Thus, when an accused has invoked his right to have counsel present during the custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. Id. at 484, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386. In appellant‘s case it would not behoove that State to suggest that appellant may have waived her Miranda protections by continuing to submit to the video tape examination after she had invoked her right to counsel, as such behavior cannot constitute the voluntary, knowing and intelligent relinquishment or abandonment which is the sine qua non for relinquishment of a constitutional right. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938); Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581-82 (1975); Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424, 439-40 (1977); North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1758-59, 60 L.Ed.2d 286, 293-94 (1979); Fare v. Michael C., 442 U.S. 707, 724-25, 99 S.Ct. 2560, 2571-72, 61 L.Ed.2d 197, 211-13 (1979); Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883-84, 68 L.Ed.2d 378, 385 (1981). This is manifestly apparent in light of the court of appeals’ conclusion that appellant requested counsel both before the video tape examination and again at the very beginning of that examination, Jones v. State, supra at 392, particularly when these conclusions are viewed in light of the uncontroverted fact that appellant actually contacted an attorney when she was first given the opportunity to do so by the Abilene Police.
The constitutional rule requiring that once an accused has requested the pres-
This is not to say, of course, that the protection afforded by Miranda, supra, and Edwards, supra, is absolute and cannot be waived through the voluntary action of the individual accused of criminal activity. Once the procedural safeguards outlined in Miranda have been complied with and the individual has been advised of the full panoply of constitutional protections afforded him in the custodial interrogation situation, those rights may indeed be waived. However, as noted above, the State will bear the heavy burden of showing that such waiver was both knowing and voluntary.
The right to counsel has been held to have been waived when an individual who had received his Miranda warnings stated that he did not wish to have an attorney present and then consented to a polygraph examination, following which he again received Miranda warnings and then made inculpatory statements to investigators from the Army‘s Criminal Investigation Division. Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982). The per curiam opinion in Wyrick, expressing the views of seven members of the Court, clearly states that by consenting to the polygraph examination, Fields not only initiated the “meeting” with the investigators, he initiated the interrogation itself. Id. at 47, 103 S.Ct. at 396, 74 L.Ed.2d at 218. Thus the Court concluded that Fields waived not only his right to be free of contact with the authorities in the absence of his attorney, but also his right to be free of interrogation about the crime of which he was suspected. Id.
Similarly, although an individual who has been arrested and has received his Miranda warnings has expressed a desire to be provided with counsel, he may nevertheless waive that constitutional right by initiating further contact with the authorities. Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). Bradshaw, like Fields, initiated conversation with the individuals investigating the crime of which he was suspected, consented to submit to a polygraph examination and then offered inculpatory statements to those authorities when they indicated that he had not been truthful in the polygraph examination. Id. at 1041-43, 103 S.Ct. at 2832-34, 77 L.Ed.2d at 409-11. Stressing that Bradshaw‘s statement to the police (“Well, what is going to happen to me now?“) was not merely a necessary inquiry arising out of the incidents of the custodial relationship, such a request for water or the use of the telephone, the Court concluded that Bradshaw had evidenced a “desire for a generalized discussion about the investigation.” Id. at 1045-46, 103 S.Ct. at 2834-35, 77 L.Ed.2d at 412-13. Both Bradshaw and Fields are clearly distinguishable from appellant‘s situation in that appellant clearly did not request the video tape examination to which she was subjected after her request for counsel went ignored.
Moreover, we readily agree with the court of appeals implicit holding that appellant‘s statement, “I think I want a lawyer,” was a clear and unequivocal assertion of her right to consult with counsel prior to
The State has not directed our attention to anything in the record which undermines the clarity of appellant‘s initial request for counsel. Indeed, the State has failed to address the issue of appellant‘s request altogether, other than the argument that appellant‘s request was not entitled to be honored during the initial portion of the video tape interview. While we do not wish to embark on a series of examinations regarding whether a particular statement is or is not sufficient to invoke the right to counsel in a particular situation, we certainly agree with the court of appeals that appellant‘s statement here is clear and unequivocal.
Thus, we hold that appellant enjoyed the full panoply of rights delineated in Miranda, supra, and Edwards, supra, at the time of her arrest for suspicion of driving while intoxicated by the Abilene Police Department. Having timely and specifically invoked those rights in a clear and unequivocal fashion, it would be a violation of appellant‘s rights under the Fifth Amendment to subject her to custodial interrogation in the absence of counsel. The focus of our inquiry now shifts to an analysis of whether appellant was subjected to “custodial interrogation,” as that term is defined by the Supreme Court, at the time of her video tape examination.
At the time of the video tape examination, appellant had already been arrested for driving while intoxicated and informed of her Miranda rights by Officer Scott. She had been taken to the city jail by Officers Rogers and Komatz, and had been “booked in,” at least in part. And at the time her oral responses were recorded on video tape, appellant was being questioned in the video tape room in the presence of at least two police officers. Under the circumstances, it is obvious that appellant was either “in custody,” or that she had been “deprived of [her] freedom of action in [a] significant way.” Miranda v. Arizona, supra 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706. Cf. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).
The second prong of our Miranda analysis is whether appellant was subjected to “interrogation” during the portion of the video tape which the jury was allowed to hear. Given our conclusion that she timely invoked her right to counsel and that this invocation was ignored by the police, any interrogation which was later displayed to
The current Supreme Court definition of “interrogation” is set forth in the following language:
“The term “interrogation” under Miranda (sic) refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. * * * A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, * * * the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.”
Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297, 307-08 (1980).
Final disposition of this cause requires only the application of the above quoted test to the specific questions posed to appellant, considered in conjunction with any answers or other responses which those questions may have elicited from her, by the officers of the Abilene Police Department as depicted on the video tape sobriety examination. Unfortunately, we are not in possession of that item, and the cause must be remanded to the court of appeals for such an analysis.8 Thus we remand this cause to the court of appeals so that they may ascertain whether the police behavior depicted in the portion of the video tape which the jury was allowed to hear constitutes “interrogation.” That is, whether the activity was that which the police knew or should reasonably have known was likely to have elicited incriminating responses from the appellant, or was simply activity normally attendant to arrest and custody. Rhode Island v. Innis, supra at 300-02, 100 S.Ct. at 1689-90, 64 L.Ed.2d at 307-08; Oregon v. Bradshaw, supra 462 U.S. at 1045-46, 103 S.Ct. at 2834-35, 77 L.Ed.2d at 412-13.
The Supreme Court has recently reiterated confessions remain a proper element in law enforcement and that any statement given freely and voluntarily without any compelling influences is admissible in evidence. Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 1936, 95 L.Ed.2d 458, 468 (1987) (Quoting Miranda v. Arizona, supra, and Rhode Island v. Innis, supra.) The Court then cautioned that in deciding whether particular police conduct is interrogation, (an appellate court) must be directed by the purpose behind the decisions in Miranda and Edwards: preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment. Id. at 107 S.Ct. at 1936-37, 95 L.Ed.2d at 468.
The decision of the court of appeals reversing appellant‘s conviction is vacated, and the cause is remanded to that court for further proceedings not inconsistent with this opinion.
McCORMICK, Judge, dissenting.
I dissent only to the remand of the case to the Court of Appeals. Pursuant to
For these reasons, I respectfully dissent.
ONION, P.J., TEAGUE and MILLER, JJ., join in this dissent.