Martinez v. State

548 S.W.2d 719

Tex. Crim. App.

1977

Check Treatment

Felipe L. MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

No. 52188

Court of Criminal Appeals of Texas

March 23, 1977

548 S.W.2d 719

chemical test by silence or negative reply to a State‘s request or offer is compelled.

Art. 38.22, V.A.C.C.P., has been consistently construed by this Court as prohibiting proof of an accused‘s oral statement, silence or acts, if made while under arrest tending to communicate thoughts of the defendant which are of an incriminating nature.

Garner v. State, Tex.Cr.App., 464 S.W.2d 111; ; ; . Though not expressly stated heretofore, the decisions construing Art. 38.22, supra, reveal that, in practical application, said statute has been held to prohibit any act, silence or oral statement of an accused while in custody which has communicative or testimonial characteristics, substantially the same as the Fifth Amendment.

Art. 6701l-5, V.A.C.S., does not purport to apply to the question here presented, in that same addresses itself to the question of admissibility of the results of a chemical test, but not to an accused‘s refusal to submit to same at the request of an officer while under custodial arrest.

In this case there is no question presented for decision by this Court as to the admissibility of the results of a blood test and such constitutional question should not be decided by this Court until presented.

For the error stated, the judgment is reversed and the cause remanded.

ONION, Presiding Judge, concurring.

I concur in the reversal for the reasons stated in my concurring opinion in

Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.), this day decided.

DOUGLAS, Judge, concurring.

I concur in the result of the opinion of Judge Phillips in that the conviction must be reversed because the evidence of the refusal to take the breathalyzer test is not admissible because of the decision of the Supreme Court of the United States in

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). See also .

ROBERTS, Judge, dissenting.

The majority reverses this conviction because the trial court admitted in evidence a police officer‘s testimony that the appellant refused an offer to take a blood test. Although I agree that the alleged error was properly preserved, see

Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419 (1962), I cannot agree that the admission of the testimony was error. I would affirm.

I would hold that neither the Fifth Amendment to the United States Constitution, nor Article I, Section 10, of the Texas Constitution, nor Article 38.22 of the Texas Code of Criminal Procedure prohibits the admission of such evidence. See my dissenting opinion in

Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977), decided this day.

The judgment should be affirmed.

ODOM, J., joins in this dissent.

Marvin Miller, San Antonio, for appellant.

Ted Butler, Dist. Atty., Ted Arevalo, Stephen P. Allison and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State‘s Atty., and David S. McAngus, Asst. State‘s Atty., Austin, for the State.

OPINION

PHILLIPS, Judge.

This is an appeal of a conviction by a jury on a not guilty plea for the offense of driving while intoxicated. Punishment was assessed by the court at six months confinement in jail and a $100.00 fine, probated for a period of two years.

Appellant‘s sole contention on appeal is that the court reversibly erred in permitting the State, over appellant‘s objection, to elicit testimony before the jury that appellant had been offered and had refused to take a breath test.

Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App., decided this day), this Court held the admission of testimony concerning refusal to take a breathalyzer test constitutes reversible error. For the reasons set forth in , the trial court reversibly erred in admitting testimony before the jury that appellant had been offered and had refused to take a breath test.

The judgment is reversed, and the cause remanded.