Jamail v. State

713 S.W.2d 776, 1986 Tex. App. LEXIS 7994

• Court: Court of Appeals of Texas
• Decided: July 10, 1986
• Docket: A14-85-019-CR
• Status: Published

Opinions

OPINION

SEARS, Justice.

The appellant was found guilty by a jury of the misdemeanor offense of driving while intoxicated (DWI). The court assessed punishment at ninety days’ confinement, probated two years, and a $1,000.00 fine. We find unassigned error in the refusal to terminate custodial interrogation after a request for counsel was made. We reverse the judgment of the trial court.

The evidence reveals that Officer Robert Jurich observed appellant traveling at a high rate of speed and driving erratically. Appellant exited the freeway and was stopped at a parking lot on the service road where he was administered a field sobriety test. The arresting officer formed the opinion that appellant was intoxicated, detained him and called a special “Step” unit. The “Step” unit officers arrived, observed appellant and had him perform field sobriety tests. They also formed the opinion that he was intoxicated. Appellant was then arrested and taken to the police station.

Appellant was Mirandized at the station, and he then made his first request to call an attorney. However, the officers informed appellant that the only phone they would allow him to use was the phone in the videotape room. Officer Mock testified that it was not the policy of the Houston Police Department to allow persons arrested for DWI to make private telephone calls to their attorneys. Instead, the accused must make such calls in the videotape room, and at least one police officer was to be in the room during any phone call. Appellant asked if the officers would turn off the video and audio tapes while he called his attorney. They responded that the tapes would be on and recording at all times appellant was in the room. Appellant then declined to use that phone and entered the videotape room with the officers.

In the videotape room appellant was advised that he was under arrest for suspicion of DWI and was again read his Miranda rights. Appellant was then required to perform several feats of dexterity, or motor skills exercise tests, and was made to read printed material. His mental and physical faculties were tested and recorded. Officer Mock then reminded appellant of the prior Miranda warnings and stated: “You have a right to have a lawyer present to advise you prior to and during these questions.” Appellant responded: “... [I]f I feel like a question is infringing on my rights, I’ll say so....”

The officer then asked several questions which appellant answered. However, when asked if he had been drinking, appellant responded: “Now it’s time for me to call my lawyer. ” . The following colloquy occurred:

Officer Mock: Okay. Do you want to call him now or ... ?

Appellant: Sure, Sure. Unless you have another question that you’d like to ask me.

Officer Mock: Well, I have more questions. You can refuse to answer questions.

Appellant: I, I would like to answer that question, but, uh, if you have another question I will answer it.

Officer Mock: Okay, you refuse to answer questions?

Appellant: Only because I’m not sure how this ...

Appellant was interrupted at this point and the officer impatiently asked:

Officer Mock: Yeah, yeah. Well, I have these questions I need to ask you.

Appellant: Yeah, I know, I know. And I’ll go on answering them, but those questions that I ...

The officer interrupted appellant again:

Officer Mock: Let me go ahead and ask them, and you tell me whether or not you want to answer them, okay? Are you under the influence of alcohol now?

The questions and answers then continued. Appellant was subsequently requested to submit a specimen to determine the alcohol concentration in his body. Appellant declined a breath test but consented to a blood test. The results of the blood test and the entire audio-video tape were introduced into evidence against appellant at trial.

When the accused indicates in any manner that he wants an attorney, the interrogation must cease until he has had an opportunity to confer with an attorney. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Ochoa v. State, 573 S.W.2d 796 (Tex.Crim.App.1978); Collins v. State, 701 S.W.2d 304 (Tex.App. —Houston [14th Dist.] 1985, pet. pending). Once the accused has invoked his right to counsel, a valid waiver of that right cannot be established by merely showing that he responded to further police-initated interrogation. Unless the accused himself initiates further communication or conversation with the authorities and affirmatively waives his right to counsel, he may not be subjected to further interrogation by the authorities until counsel has been made available. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Coleman v. State, 646 S.W.2d 937 (Tex.Crim.App.1983); Evans v. State, 659 S.W.2d 405 (Tex.Crim.App.1983). In Edwards, the Court held:

[W]hen an accused has invoked his right to have counsel present during 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.... [HJaving expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him....

Edwards, 451 U.S. at 484-485, 101 S.Ct. at 1884-85 (emphasis added).

While it may be argued that appellant initiated the conversation after the request to call his attorney, he did not affirmatively waive his right to counsel. In fact, each time he tried to explain his request to call an attorney, he was interrupted by the officer. The officer let appellant know there were additional questions that he needed to ask, and the officer ignored appellant’s request for counsel and continued the questioning. Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease. Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). This court has held that the interrogation must cease if the accused merely inquires “whether or when” an attorney would be appointed. Collins v. State, 701 S.W.2d at 305.

While the appellant has not assigned as error the continuation of the custodial interrogation after he affirmatively requested counsel, we find we have inherent authority to review any unassigned error in the interest that justice may best be served. See Perry v. State, 703 S.W.2d 668 (Tex.Crim.App.1986), and the cases cited therein. In reviewing this portion of the record, we find that appellant’s request for counsel was neither indecisive nor ambiguous. Therefore, we find that the continuation of the questioning by the police, during a custodial interrogation and after a request for counsel was made, was a violation of appellant’s constitutional rights. We further find the trial court committed reversible error by overruling the Motion to Suppress and in introducing the audio-video tape and the results of the blood test as evidence against appellant when they were taken after appellant was denied right to counsel during custodial interrogation. The fruits of the investigation initiated by the police, after a request for counsel was made, cannot be used against the accused. Edwards, 451 U.S. at 485, 101 S.Ct. at 1885.

We are fully aware of that line of cases which holds the accused has no right to counsel prior to deciding whether to submit a bodily substance for testing, and that such a specimen is not testimonial in nature and is therefore not constitutionally protected. However, those cases are distinguishable in that no prior right to counsel existed. Justice Campbell, writing for the court in McCambridge v. State, 712 S.W.2d 499 (Tex.Crim.App.1986), discusses this problem at note 18. While the McCam-bridge appeal did not involve a videotape, the Court found that, under the facts of that case, the appellant had no Miranda or Edwards right to counsel. The court recognized a potential problem, however, and further stated: “[W]e do not imply that a remedy will never be available to a suspect who is confused when faced with Miranda warnings and a breath testing decision without the benefit of requested counsel.” Id.

Under the facts of this case, we are unable to separate the wrongful custodial interrogation from the consent for a breath or blood sample. Both are fruits of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Once the accused has made known his desire for counsel, the interrogation must cease until an attorney is present. Miranda, 384 U.S. at 474, 86 S.Ct. at 1628. In Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2568-69, 61 L.Ed.2d 197 (1979), the Court referred to Miranda as a rigid rule requiring that all interrogation cease. Further, in Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980), when a suspect invoked his Miranda right to counsel, the Court reaffirmed the “undisputed right” to remain silent and be free of all interrogation until the accused has consulted with his attorney. In United States v. Recalde, 761 F.2d 1448 (10th Cir.1985), the court found that taking a suspect to the police station in the hope of obtaining his consent to a search was abusive of the custodial investigation detention process. While Recalde was a Fourth Amendment case, the analogy of abusive custodial interrogation applies equally to a request for consent to take a blood/breath test after right to counsel was denied. Our sister state of Oklahoma has addressed this problem and held:

We conclude that once an individual in custody requests an attorney, interrogating officers must not seek further con-sentual admissions, whether in the form of confession, consent to search, or waiver of other privileges.

Kreijanovsky v. State, 706 P.2d 541 (Okla.Crim.App.1985).

We therefore hold that the request for consent to a breath/blood test was the functional equivalent of continued custodial interrogation after right to counsel attached and right to counsel was denied. We expressly disagree with the contention that there is an “implied consent” to submit to the blood-alcohol testing procedure so long as the statute requires that the test shall not be conducted without the consent of the accused.

Because we have found unassigned reversible error, we do not reach appellant’s assigned grounds of error. However, in ground of error number five, appellant contends he was denied right to counsel as provided in Article 1, Section 10 of the Texas Constitution. Interestingly, this question has not been answered by the Court of Criminal Appeals; however, that court has sent two cases back to the Courts of Appeals to resolve the issue. Forte v. State, 707 S.W.2d 89 (Tex.Crim.App.1986) (en banc), and McCambridge v. State, 712 S.W.2d 499 (Tex.Crim.App.1986).

We also feel compelled to address another interesting aspect of this case. Due to the existing policy of the Houston Police Department, a DWI suspect is denied a private phone call to the attorney of his choice. Persons arrested for any other misdemeanor or felony offense are not denied private phone calls. We must protect the right of any person accused of a crime to freely and openly discuss any aspects of his case with his attorney. The accused can answer any question put to him by his attorney and find comfort in the knowledge that this communication is statutorily protected from disclosure to third parties. However, when the accused himself utters such a communication in the presence of a third party with whom no statutory protection exists, the privilege, and thereby the protection against disclosure, is lost. While we do not at this time rule on the admissibility of evidence obtained after a denial of private consultation with an attorney, or on the right to counsel prior to entering a videotape room, we believe the denial of such privacy to DWI suspects is discriminatory and tantamount to a denial of the right to counsel.

The judgment of conviction is reversed and this cause is remanded to the trial court.