Abbring v. State

882 S.W.2d 914, 1994 Tex. App. LEXIS 2140, 1994 WL 456001
CourtCourt of Appeals of Texas
DecidedAugust 24, 1994
Docket2-93-231-CR
StatusPublished
Cited by10 cases

This text of 882 S.W.2d 914 (Abbring v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbring v. State, 882 S.W.2d 914, 1994 Tex. App. LEXIS 2140, 1994 WL 456001 (Tex. Ct. App. 1994).

Opinion

OPINION

HILL, Chief Justice.

Ennes Ralph Abbring appeals his conviction by a jury of the offense of driving while intoxicated. The jury assessed his punishment at one year’s confinement in the Tar-rant County jail and a fine of $1,000. Abbr- *915 ing contends in four points of error that the trial court erred in permitting the State’s prosecutor to comment on his postarrest silence and in admitting three State’s exhibits, consisting of a document pertaining to Abbr-ing’s arrest, a Department of Public Safety driving record, and a judgment and sentence indicating a conviction for driving while intoxicated.

We affirm because: (1) where, as here, the defendant testifies at trial, comment by the prosecutor may impugn his testimony by reference to his prearrest silence; (2) his silence was prearrest when judged by the standard set in the United States Supreme Court’s opinion in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); (3) the record showing Abbring’s arrest for driving while intoxicated was properly admitted because it was connected to other records showing that Abbring was convicted in connection with the arrest; (4) Abbring’s driving record was properly admitted because we conclude that the admission into evidence of a properly certified driving record kept by the Texas Department of Public Safety is not barred by the hearsay rule; and (5) both State’s exhibit six, Abbring’s driving record, and State’s exhibit seven, the court’s judgment showing Abbring’s conviction for driving while intoxicated and an order discharging him from probation, were shown by the evidence presented to be those of Abbring, the defendant and appellant here.

Abbring contends in point of error number one that .the trial court erred by allowing the prosecutor to comment on his postarrest silence. While comment on post-arrest silence is improper, a defendant’s pre-arrest silence is a constitutionally permissible area of inquiry. Waldo v. State, 746 S.W.2d 750, 755 (Tex.Crim.App.1988) (prearrest silence is a constitutionally permissible area of inquiry); Sanchez v. State, 707 S.W.2d 575, 578 (Tex.Crim.App.1986) (comment on post-arrest silence is improper).

The United States Supreme Court has held that insofar as the United States Constitution is concerned, a person temporarily detained pursuant to a traffic stop is not “in custody” for the purposes of a requirement that he receive a Miranda warning. Berkemer, 468 U.S. at 440, 104 S.Ct. at 3150, 82 L.Ed.2d at 334-35; Wicker v. State, 740 S.W.2d 779, 786 (Tex.Crim.App.1987), cert. denied, 485 U.S. 938, 108 S.Ct. 1117, 99 L.Ed.2d 278 (1988). The Supreme Court in Berkemer held that this was true even if the arresting officer had already decided to arrest the accused, if the officer had not informed the accused of his intention. Berkemer, 468 U.S. at 441-42, 104 S.Ct. at 3151, 82 L.Ed.2d at 335-36. Consequently, the Court concluded, any statements that the defendant made could be used against him at trial. Id. at 442, 104 S.Ct. at 3152, 82 L.Ed.2d at 336. In this case, just as in Berkemer, the defendant had become the focus of inquiry and was not free to go, but the officer had not communicated to Abbring any definite intention to make an arrest.

The United States Supreme Court has held that neither the Fifth nor the Fourteenth Amendments to the United States Constitution are violated by the use of prear-rest silence to impeach a witness’s credibility. Jenkins v. Anderson, 447 U.S. 231, 235, 239-40, 100 S.Ct. 2124, 2127, 2129-30, 65 L.Ed.2d 86, 92, 95-96 (1980). Abbring testified in this case. While the prosecutor did not seek to use his silence to impeach Abbring while he was testifying, in making the comments complained of in argument the prosecutor was using Abbring’s silence to impeach him after he had testified. We hold that the principle in both instances is the same, so that, where the defendant has testified, his prearrest silence may be used to impeach him in final argument as a proper summation of the evidence.

Abbring argues that the silence in question was postarrest silence rather than prearrest silence, occurring at a time at which he should have received a Miranda warning. He relies upon the case of Newberry v. State, 552 S.W.2d 457 (Tex.Crim.App.1977). In Newberry the Texas Court of Criminal Appeals held that the defendant’s rights under Miranda had arisen prior to the defendant’s formal arrest for driving while intoxicated. Id. at 461. However, the Newberry opinion was written many years prior to the opinion of the United States Supreme Court in Ber- *916 kemer. Since Berkemer, the Texas Court of Criminal Appeals has acknowledged that the protection afforded by Miranda is inapplicable in those situations involving only roadside questioning of one stopped pursuant to a traffic violation. See Wicker, 740 S.W.2d at 786. Abbring does not discuss the Berkemer opinion at all in his brief. We overrule point of error number one.

Abbring urges in points of error numbers two, three, and four that the trial court erred by admitting into evidence at the punishment phase of the trial three exhibits that relate to his arrest and conviction for driving while intoxicated in Dallas County.

Abbring complains in point of error number two that the trial court erred by admitting into evidence State’s exhibit number five, a document that reflects an arrest for driving while intoxicated on March 13, 1985, of one Ennes Ralph Abbring, license number 12108128. It contains a photograph and fingerprints of the person arrested.

Abbring objected to this exhibit “because all it shows is a charge of investigation, INV slash DWI” and because it was not linked with State’s exhibit seven, the judgment of a Dallas County criminal court showing that one Ennes Ralph Abbring, in cause number MA85-39598-A, was convicted of driving while intoxicated, was given probation, and that he was subsequently discharged from probation.

State’s exhibit six is the driving record of Ennes Ralph Abbring, license number 12108128. This record shows a probated conviction for driving while intoxicated in Dallas County court, docket number MA8539598A.

State’s exhibit seven is the judgment of the Dallas County criminal court in cause number MA85-39598-A, showing the conviction of Ennes Ralph Abbring of the offense of driving while intoxicated, showing that he was placed on probation, and showing that his probation was subsequently discharged.

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882 S.W.2d 914, 1994 Tex. App. LEXIS 2140, 1994 WL 456001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbring-v-state-texapp-1994.