Bass v. State

723 S.W.2d 687, 1986 Tex. Crim. App. LEXIS 876

• Court: Court of Criminal Appeals of Texas
• Decided: November 19, 1986
• Docket: 714-84
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted for the offense of driving while intoxicated and assessed a punishment of six months confinement and a fine of $500.00, both probated. In an unpublished opinion the El Paso Court of Appeals reversed appellant’s conviction, holding that the trial court erred in admitting evidence of his refusal to submit to a breathalyzer test. Bass v. State (Tex.App — El Paso, No. 08-0-83-00113-CR, delivered May 2, 1984).

Recognizing that Tex.Rev.Civ.Stat.Ann., art. 6701l-5, § 3(g) presently allows such evidence to be admitted, see Acts 1983, 68th Leg., p. 1577, ch. 303, § 4, eff. Jan. 1, 1984, but noting that the instant proceedings all occurred prior to the effective date of that provision, the court of appeals ruled that State law applicable at the time prohibited admission of evidence of refusal. Said the court:

“The State relies exclusively upon the Supreme Court decision in South Dakota v. Neville, [459] U.S. [553], 74 L.Ed.2d 748, 103 S.Ct. 916 (1983). Neville simply provided that a South Dakota statute which authorized introduction of such evidence was not repugnant to the Fifth Amendment to the United States Constitution. The Supreme Court position in Neville is that introduction of such evidence is a matter of state law. The Texas proscription is founded upon state authority independent of the Fifth Amendment. Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977); Casselberry v. State, 631 S.W.2d 542 (Tex.App. —El Paso 1982, PDRR); Tex. Const. art. I, sec. 10; Tex.Code Crim.Pro.Ann. art. 38.22 (Vernon 1979 and Supp.1984).”¹

At least four other courts of appeals have held that there is no independent basis in state law for excluding evidence of refusal to submit to a breath test. See Gresset v. State, 669 S.W.2d 748 (Tex.App. — Dallas 1983); Ashford v. State, 658 S.W.2d 216 (Tex.App. — Texarkana 1983); Parks v. State, 666 S.W.2d 597 (Tex.App. — Houston [1st] 1984). Also: Nevarez v. State, 671 S.W.2d 90 (Tex.App. — El Paso 1984); Brant v. State, 676 S.W.2d 223 (Tex.App.— El Paso 1984); Sinast v. State, 688 S.W.2d 631 (Tex.App. — Corpus Christi 1985). We therefore granted the State’s petition for discretionary review in this cause in order to determine whether state law, and more specifically, either Article I, § 10 of the Texas Constitution, or Article 38.22, V.A.C.C.P., or both affords an appellant greater protection vis-a-vis the admissibility of refusal evidence than does the Fifth Amendment.

Just after midnight on January 8, 1983, appellant and a female companion were traveling in separate cars from Odessa to Midland on Highway 80 when appellant’s companion was pulled over by Officer Matt Andrews of the Department of Public Safety for suspicion of driving while intoxicated. As Andrews questioned his companion on the shoulder of the highway, appellant pulled up in his car and got out. Appellant, “was staggering” as he approached, and as he stood talking to Andrews’ partner, Deputy Constable Buzzell, he “was swaying and very unsteady on his feet.” After arresting appellant’s companion and placing her in his patrol car, Andrews approached appellant and noticed a “strong odor of alcoholic beverage on his breath, ... that his eyes were bloodshot,” and that “[h]is speech was very thick-tongued.” When Andrews’ flashlight was shined in appellant’s eyes, the pupils remained dilated. Andrews testified that it appeared to him that appellant lacked the normal use of his mental and physical faculties and that in his opinion appellant had been “too intoxicated to be operating a motor vehicle.”

At this point Andrews arrested appellant for driving while intoxicated and advised him of “his rights.”² Andrews testified that “[i]n advising him of his rights, as far as being under arrest for driving while intoxicated, [he] did request that [appellant] submit to a chemical breath test.” Over appellant’s objection Andrews testified that after initially agreeing to take a test, appellant changed his mind and refused to submit, and did not thereafter request that any test be administered.

In his argument to the trial court that the evidence of his refusal to submit should be excluded appellant expressly eschewed any reliance on the Fifth Amendment. Instead he relied on Article 38.22, V.A.C.C.P., and “the case law and cases holding in the State of Texas that such testimony is never admissible.” The principal case relied on is Dudley v. State, supra. For its part the State filed a trial brief arguing that under Dudley and Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1969), the protections of Article 38.22, supra, and of Article I, § 10, respectively, are no broader than those of the Fifth Amendment as construed in South Dakota v. Neville, supra. Since evidence of refusal to take a chemical breath test is not compelled, and is therefore admissible under a Fifth Amendment analysis, maintained the State, such evidence may also come in without violating State law.

We begin with an analysis of Dudley v. State, supra.

Dudley v. State

The five judges on the court who decided Dudley were split four ways in their views of how that cause should have been disposed of. The lead opinion, authored by Judge Phillips, concluded that evidence of the defendant’s refusal to submit to a breath test was inadmissible under the Fifth Amendment to the United States Constitution, and, finding that the protection afforded by Article 38.22, supra, was “substantially the same as [that of] the Fifth Amendment^,]” 548 S.W.2d at 708, held the evidence inadmissible under the statute as well. Though not purporting to decide the issue of admissibility of such evidence under Article I, § 10 of the State Constitution, Judge Phillips noted in passing that Olson v. State, supra, had held “that the prohibition of the Texas Constitution against the compelling of the defendant to give evidence against himself means the same as the prohibition in the Federal Constitution against compelling a defendant to be a witness against himself.”3 Id., at 707. No other judge joined Judge Phillips’ opinion, though two judges concurred in the result with opinions of their own. Two judges dissented, arguing in essence that the fact of an accused’s refusal to submit to chemical testing “is analogous to flight or escape, which are non-testimonial circumstances admissible to show an accused’s guilt.” ⁴ Id., at 715.

Presiding Judge Onion filed a concurring opinion in Dudley in which he argued, inter alia, that the Court should adhere to the line of cases begun with Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951).⁵ The Court in Cardwell had held:

“The State cannot avail itself of the silence or refusal of an accused prisoner as a circumstance tending to establish his guilt. See Carter v. State, 23 Tex.Ap. 508, 5 S.W. 128; Elliott v. State, 152 Tex.Cr.R. 285, 213 S.W.2d 833; Sharp v. State, 153 Tex.Cr.R. 96, 217 S.W.2d 1017.”

243 S.W.2d at 704. Judge Onion found it clear that this holding derived from “the confession statute as well as the rule of evidence which forbids an accused’s silence to be used against him as tending to establish guilt.” Dudley, supra, at 711. In thus finding the holding in Cardwell to have derived at least in part from Article 38.22, supra, and its progenitors, Judge Onion identified a source for excluding evidence of refusal apart from the Fifth Amendment, and, for that matter, Article I, § 10. 548 S.W.2d at 714.

Reliance upon Article 38.22, supra, for authority that evidence of refusal to submit to chemical testing for intoxication, either upon Judge Phillips’ view that its protection is “substantially the same as the Fifth Amendment[,]” or upon Judge Onion’s view that the statute would exclude such evidence apart from operation of the Federal Constitution, under Cardwell, supra, is currently untenable, as we now proceed to demonstrate.

Article 38.22

Assuming, arguendo, that Judge Phillips is correct that the scope of the protection against selfincrimination accorded by Article 38.22, supra, is no broader than that of the Fifth Amendment, we agree with the State that the statute would not prohibit admission of refusal evidence. This is so because, as the United States Supreme Court found in South Dakota v. Neville, supra, such evidence is not compelled for purposes of Fifth Amendment analysis. Not being a compelled communication, the appellant’s refusal to take the breathalyzer test in this cause does not call into play the federal privilege against selfincrimination; hence, consistent with Judge Phillips’ view, it would also be admissible under Article 38.22, supra.

Regarding Judge Onion’s view that Article 38.22, supra, would prohibit admission of refusal evidence irrespective of the scope of the Fifth Amendment, under Cardwell, supra, we observe that shortly after Dudley was delivered the socalled “confession” statute was amended in a critical way.

When Dudley was decided Article 38.22, supra, as had all its precursors, mandated that “[t]he confession shall not be admissible if the defendant was in jail or other place of confinement or in the custody of an officer at the time it was made, unless” certain prescribed conditions were met.⁶ Originally, Article 662 of the Old Code, and later Article 750 of the 1879 Code, allowed admission of any postarrest “confessions,” written or oral, only if voluntarily made after the accused had been “cautioned.” It was held under authority of the statute that evidence of an act by the accused while in custody which was in the nature of a confession was inadmissible if the accused was unwarned at the time. See Nolen v. The State, 14 Tex.App. 474 (Ct.App.1883). After amendment in 1907, however, the statute prohibited admission of oral “confessions,” regardless of whether the accused had been warned, except under very narrowly defined circumstances. Written confessions were admissible under the same terms as before, viz, after warning. The Court continued to hold that, e.g., “acts of the accused and even his silence while under arrest,[⁷] might be in the nature of confessions, and hence same would be inadmissible, unless coming under some exception to the statutory rule_” Taylor v. State, 118 Tex.Cr.R. 340, 42 S.W.2d 426, 427 (1931). It appears that an act or the silence of an accused was treated as tantamount to an oral confession under the amended statute, and hence evidence of acts or silence occurring any time after he was taken into custody was generally deemed inadmissible. Arguably Cardwell, supra, simply extended application of this statutory construction to refusal to submit to a sobriety test.

By Acts 1977, 65th Leg., p. 935, ch. 348, § 2, eff. Aug. 29, 1977, the Legislature, inter alia, shifted the focus of Article 38.-22, supra, from exclusion of most oral, and any unwarned written “confessions” obtained after an accused has been taken into custody, to exclusion only of any unwarned “statement,” written or oral, “made by an accused os a result of custodial interrogation [.]” Undoubtedly the legislature intended that the term “custodial interrogation” be construed consistently with its meaning under the Fifth Amendment. See Bubany, The Texas Confession Statute: Some New Wine in the Same Old Bottle, 10 Tex.Tech.L.Rev. 67, 73-76 (1978). Because “[i]n the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of [the Fifth Amendment],” McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App.1986), quoting South Dakota v. Neville, 459 U.S. at 564, n. 15, 103 S.Ct. at 923, n. 15, we do not think such inquiry constitutes an “interrogation” for purposes of Article 38.22, supra. Thus, whatever argument could be made that evidence of a refusal to submit to chemical testing is inadmissible under Article 38.22, on authority of Judge Onion’s concurring opinion in Dudley, does not survive the 1977 amendment of the statute.

We hold that the refusal of appellant in the instant cause to submit to the breathalyzer test did not come about as the result of “custodial interrogation” for purposes of Article 38.22, supra.⁸

Article I, § 10

The court of appeals also found that refusal evidence is inadmissible under Article I, § 10 of the Texas Constitution. The Court has this day held, however, that refusal to submit to a chemical breath test for intoxication is not a compelled communication, and thus its admission does not violate the mandate of Article I, § 10 that an accused not be “compelled to give evidence against himself.” Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App.1986).⁹

Finding no independent state authority among those cited by the court of appeals to necessitate exclusion of the evidence of appellant’s refusal to submit to a breath test, we reverse the judgment and remand the cause to that court for consideration of appellant’s other grounds of error.

MILLER, J., dissents.

1 . Were we to hold that evidence of refusal to submit to a chemical test for intoxication was inadmissible as violative of the State Constitution it would of course be tantamount to invalidating that part of the 1983 amendment which expressly permits introduction of such evidence at trial.

2 . Appellant contends, inter alia, that the record fails to establish he was given his Miranda warnings after his arrest. The record is indeed ambiguous on this point, but as we shall develop, post, our disposition of the case does not turn on resolution of this contention.

3 . Emphasis in the original. All other emphasis supplied by the writer of this opinion unless otherwise indicated.

4 . Emphasis in the original.

5 . See Bumpass v. State, 160 Tex.Cr.R. 423, 271 S.W.2d 953 (1954); Jordan v. State, 163 Tex.Cr.R. 287, 290 S.W.2d 666 (1956); White v. State, 164 Tex.Cr.R. 416, 299 S.W.2d 151 (1958); Brown v. State, 165 Tex.Cr.R. 535, 309 S.W.2d 452 (1958); Watts v. State, 167 Tex.Cr.R. 63, 318 S.W.2d 77 (1958); Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419 (1962); Shilling v. State, 434 S.W.2d 674 (Tex.Cr.App.1968); Willeford v. State, 489 S.W.2d 292 (Tex.Cr.App.1973). Cf. Sublett v. State, 158 Tex.Cr.R. 627, 258 S.W.2d 336 (1953).

6 .For a comprehensive history of the metamorphosis of the confession statute up to amendment in 1977, see Butler v. State, 493 S.W.2d 190, 191-192 (Tex.Cr.App.1973).

7 . It should be remembered that admissibility of evidence of postarrest silence is a question of state constitutional dimension, as was recently shown in Sanchez v. State, 707 S.W.2d 575 (Tex.Cr.App.1986) (Clinton, J., concurring).

8 . In view of our holding that appellant’s refusal was not a result of custodial interrogation, we find it unnecessary to resolve whether the evidence shows that Officer Andrews informed him of his Miranda rights prior to requesting the breath test. See n. 2, ante.

9 .But see this writer’s dissenting opinion.