McGinty v. State

723 S.W.2d 719, 1986 Tex. Crim. App. LEXIS 881

• Court: Court of Criminal Appeals of Texas
• Decided: November 19, 1986
• Docket: 1058-84
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appellant was convicted by a jury of the offense of driving while intoxicated (subsequent offense). See Art. 6701l -1(d), V.A.C.S. The jury subsequently assessed punishment at eighteen months confinement in the Brazos County Jail and a fine of $1,500.00.

Appellant raised four grounds of error in the Court of Appeals. That court affirmed the conviction. McGinty a/k/a McGinety v. State, unpublished (No. 10-84-021-CR, Tex.App.-Waco, Sept. 27, 1984). In that opinion, the Court of Appeals decided that the trial court was “ill advised” to instruct the jury on a definition of reasonable doubt, but that this did not result in harm to the appellant. In a separate ground of error, the Court of Appeals ruled that the appellant’s refusal, in the instant case, to take a chemical breath test was admissible in evidence against him. Appellant contests both of these rulings in two grounds for review. We affirm.

The facts of the case reveal that appellant was arrested on February 1, 1983, while driving southbound on Texas Avenue in College Station. Sgt. Alva Wayne On-stott, the arresting officer and only witness for the State, testified that he observed appellant’s truck weaving back and forth while traveling on Texas Avenue. Onstott followed appellant approximately eleven blocks before pulling him over. Onstott smelled alcohol on appellant’s breath and noticed that appellant swayed when he walked.

At this point, Onstott asked the appellant if he would consent to take a chemical breath test. The appellant agreed. On-stott then arrested the appellant for driving while intoxicated. When Onstott and the appellant arrived at the College Station Police Department, while they were at the booking desk, Onstott asked the appellant again if he would take the breath test. This time, the appellant refused. At trial, Onstott testified that he did not give the appellant “any warning”. He also stated that, at the police department, he did not read the appellant the “D.P.S. D.W.I. warnings about the breathalyzer.” Appellant requested the trial court to suppress anything the appellant said to Onstott because he did not receive his “Miranda warnings.” ¹ The trial court denied this request. At trial, over appellant’s objection, Onstott testified that he asked the appellant at the booking desk to take the breath test, and the appellant “said that he didn’t want to take it.”

Appellant’s first ground for review is that the trial court erred in defining “reasonable doubt” in the jury charge, over a timely objection. This Court does not approve of the definition of reasonable doubt as given in the trial court’s charge to the jury. In fact, this Court has stated that the language of the statute on reasonable doubt does not need amplification or an attempt by the trial court to explain the term. Whitson v. State, 495 S.W.2d 944, at 946 (Tex.Cr.App.1973). In Texas, only a non-definitional charge on reasonable doubt is normally given. This Court will not condone the giving of a charge on reasonable doubt that goes beyond that. Young v. State, 648 S.W.2d 2, at 4 (Onion, P.J., concurring) (Tex.Cr.App.1983). The trial court erred when it instructed the jury on its definition of reasonable doubt.

Appellant properly objected to the charge, see Art. 36.14, Y.A.C.C.P. Therefore, the proper standard for determining if a reversal is required is whether appellant suffered some harm in light of the entire charge, the state of the evidence, argument of counsel, and any other relevant information. See Almanza v. State, 686 S.W.2d 157 at 171 (on State’s Motion for Rehearing) (Tex.Cr.App.1985).

The portion of the charge that appellant complains of reads:

“A reasonable doubt is a doubt based on reason and common sense. ‘A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act in the conduct of their more serious and important personal affairs. Proof beyond a reasonable doubt must, therefore, be of such a convincing character that you would be willing to rely and act upon unhesitantly in those most important of your own affairs.’ ”

We reviewed this error, in light of Almanza, to determine if it resulted in some harm to the appellant. The erroneous instruction favored the appellant, 'because it would impose a greater burden of proof upon the State to prove the guilt of the appellant. In the context of the entire trial, the trial court’s instruction on the law of reasonable doubt did not result in harm to the appellant. The first ground for review is overruled.

Appellant’s second ground for review states: Is evidence of breath test refusal admissible in pre-1984 DWI cases after Neville v. South Dakota? Officer Onstott was permitted to testify, over objection, that appellant stated he would take the breathalizer test when he was at the scene of the arrest, but refused to do so after he [appellant] arrived at the College Station Police Department.

Appellant contends that evidence of a defendant’s refusal to submit to a breathal-izer test is inadmissible under our holding in Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977). The State submits that after the holding of the United States Supreme Court in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), evidence of a refusal to take a breathalizer test is not prohibited by the United States Constitution.² The State cites Olson v. State, 484 S.W.2d 756, at 772 (opinion on Motion for Rehearing) (Tex.Cr.App.1972), for the proposition that Art. 1, Sec. 10 of the Texas Constitution is only as broad as the Fifth and Fourteenth Amendments of the United States Constitution. Therefore, according to the State, Neville, supra, is controlling.

In Neville, the Court decided that a refusal to take a blood-alcohol test after a police officer has requested it is not an act coerced by the officer, and is not protected by the Fifth Amendment privilege against self-incrimination. 459 U.S., at 564, 103 S.Ct., at 923, 74 L.Ed.2d, at 759. Therefore, Art. 1, Sec. 10 of the Texas Constitution does not prevent the State from using a defendant’s refusal to take a blood-alcohol test against that defendant. Olson, supra. The only question is whether Art. 38.22, V.A.C.C.P., prohibits the State from using this evidence.

Appellant correctly cited Dudley for the proposition that under Art. 38.22, to admit evidence of a refusal to take a breathalizer test is error. However, Dudley also held that the Fifth and Fourteenth Amendments to the United States Constitution barred use of this evidence. Neville effectively overruled the latter holding.

In the instant case, appellant was in custody at the time he refused to take the blood-alcohol test offered him by Officer Onstott. When he made this refusal, he had not been warned of his rights. Art. 38.22, Sec. 3(a)(2), V.A.C.C.P., states that an accused’s statement “made as a result of custodial interrogation” is inadmissible against the accused in a criminal proceeding unless the accused receives the warning in Art. 38.22, Sec. 2(a), prior to giving his statement.

Officer Onstott’s inquiry of whether the appellant would take a blood-alcohol test was not an interrogation. “Police words and actions normally attendant to arrest and custody do not constitute interrogation.” Neville, supra. This Court relied on this language in Neville when we decided that “a defendant, faced with a decision whether to provide a blood or breath sample for chemical analysis of alcohol concentration, may not avoid making a decision by invoking the protection of the Fifth Amendment privilege against self-incrimination or the prophylactic safeguards of Miranda.” McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App.1986), at 504; Mills v. State, 720 S.W.2d 525 (Tex.Cr.App.1986). The appellant’s refusal to submit to the breathalizer test did not result from a custodial interrogation for purposes of Art. 38.22. The testimony concerning appellant’s refusal to take a breathalizer test was admissible. Appellant's second ground for review is overruled.

The judgment of the Court of Appeals is affirmed.

MILLER, J., dissents.

1 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2 . Appellant was arrested on February 1, 1983 and convicted on January 5, 1984, almost one year after his arrest. The Neville decision was handed down on February 22, 1983.

Legislation specifically authorizing the admission of a refusal to take a breathalizer test became effective January 1, 1984. See Art. 6701 1-5, Sec. 3(g), V.A.C.S. Acts 1983, 68th Leg., p. 1577, ch. 303, sec. 4, eff. January 1, 1984.