Cooper v. State

961 S.W.2d 222, 1997 WL 144727
Court of Appeals of Texas·Decided March 11, 1998·No. 01-95-00308-CR·Published·Cited by 50 cases

Opinions

OPINION

HEDGES, Justice.

A jury convicted appellant, John Henry Cooper, of driving while intoxicated (DWI). The trial court sentenced him to 18 months in jail, probated for two years community supervision, and assessed a $2,000 fine, reduced to $1,000. In three points of error, appellant contends that (1) the trial court erred in failing to suppress the audio portion of a video taken at the police station in violation of his Fifth and Fourteenth Amendment rights under the United States Constitution and his Article I, Section 10 rights of the Texas Constitution, and (2) the trial court erred in refusing to admit relevant evidence that one of the arresting officers had been involved in several accidents. We reverse.

FACTS

On June 15, 1994, Houston police stopped appellant after seeing him pull his vehicle too far into an intersection. As one of the officers approached appellant’s car, the officer smelled alcohol. After appellant identified himself, the officers videotaped appellant performing field sobriety tests. They subsequently arrested him. At the police station, appellant was videotaped during the reading of his statutory warnings.1 Appellant filed a written motion to suppress the audio portion of the station video, claiming that there was a clear invocation of his right to counsel and his right to terminate the interview. The trial court denied the motion on the basis that there was no clear invocation of counsel and that his right to terminate the interview had not yet arisen.

SUPPRESSION OF AUDIO PORTION OF VIDEO

In points of error one and two, appellant contends that the trial court erred in failing to suppress the audio portion of a video taken at the police station in violation of his Fifth and Fourteenth Amendment rights under the United States Constitution and Article I, Section 10 under the Texas Constitution. Appellant argues that the video demonstrates that during the interview, he clearly and unequivocally requested his attorney, he exercised his right to remain silent, and he invoked his right to terminate the interview. The trial court, he argues, should have suppressed the audio portion of the video because his request for an attorney, his silence, and his request to terminate the interview cannot be used as evidence of his guilt.

Standard of Review

The standard for reviewing a trial court’s ruling on a motion to suppress evidence is abuse of discretion. Long v. State, 823 S.W.2d 259, 277 (Tex.Crim.App.1991). At a hearing on a motion to suppress, the [225] trial court is the sole trier of fact and judge of the credibility of the witnesses as well as the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Brooks v. State, 830 S.W.2d 817, 820 (Tex.App.—Houston [1st Dist.] 1992, no pet.). The trial court may choose to believe or disbelieve any or all of a witness’ testimony. Green v. State, 934 S.W.2d 92, 98 (Tex.Crim.App.1996). On appellate review, the evidence presented at the suppression hearing is viewed in the light most favorable to the trial court’s ruling to determine whether the trial court abused its discretion in denying the motion to suppress. Whitten v. State, 828 S.W.2d 817, 820 (Tex.App.—Houston [1st Dist.] 1992, pet. refd). Appellate courts are not at liberty to disturb any finding that is supported by the record. Green, 934 S.W.2d at 98; Johnson v. State, 803 S.W.2d 272, 287 (Tex.Crim.App.1990).

Right to Counsel and Termination

Once a suspect has invoked his right to counsel, all interrogation by the police must cease until counsel is provided or until the suspect himself re-initiates conversation. Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990); Dinkins v. State, 894 S.W.2d 330, 350 (Tex.Crim.App.1995). The right to counsel is invoked when a person indicates he or she desires to speak to an attorney or to have an attorney present during questioning. Din-kins, 894 S.W.2d at 351. An invocation of the right to counsel must be clear and unambiguous; the mere mention of the word “attorney” or “lawyer,” without more, does not automatically invoke the right to counsel. Id.; Robinson v. State, 851 S.W.2d 216, 223 (Tex.Crim.App.1991). While there are no magical words required to invoke an accused’s right to counsel, a suspect must express a definite desire to speak to someone, and that person be an attorney. Dinkins, 894 S.W.2d at 352.

The right to terminate questioning is among the procedural safeguards established by Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); Watson v. State, 762 S.W.2d 591, 596 (Tex.Crim.App.1988). If an individual indicates in any manner at any time before or during questioning that he wishes to remain silent, the interrogation must cease. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627; Watson, 762 S.W.2d at 596. There need not be a formal invocation of one’s right to terminate an interview. Watson, 762 S.W.2d at 598. Anything said or done by the appellant that could reasonably be interpreted as a desire to invoke that right should be sufficient to halt questioning. Id.

When appellant was taken to the station, the police videotaped2 the reading of [226] his statutory warnings. At the beginning of the video, the officer conducting the video and appellant briefly argued about why he was being videotaped and where he should stand. The officer began reading appellant his warnings, and appellant indicated his understanding that he had a right to remain silent and that any statement he made could be used against him. After the officer began to read his third warning,3 the following exchange took place:

A: Where is he?
Q: Did you understand what I just said?
A: No, I’m saying where is he?
Q: Where is who?
A: My lawyer.
Q: I haven’t asked you any questions yet.
A: Yes, you did.
Q: No, I haven’t.
A: Yes, sir. Where is my lawyer? Where is he? I don’t see him standing here?

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Cooper v. State, 961 S.W.2d 222, 1997 WL 144727 (Tex. Ct. App. 1998).

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