Parks v. State

666 S.W.2d 597, 1984 Tex. App. LEXIS 5001

• Court: Court of Appeals of Texas
• Decided: February 2, 1984
• Docket: 01-83-0309-CR
• Status: Published

Opinions

OPINION

EVANS, Chief Justice.

A jury convicted the appellant of driving while intoxicated, and the court assessed his punishment at 90 days confinement, probated, and a $350 fine.

In three grounds of error the appellant contends that the trial court committed reversible error in allowing the State, over appellant’s objection, to elicit testimony that appellant had been offered and had refused to submit to a chemical breath test, and that in the absence of such testimony, the evidence is insufficient to support the conviction.

Two highway patrol officers testified that they first observed the appellant driving southbound on State Highway 6 about 8:15 p.m. on October 21, 1982. The officers, driving northbound on the highway, said that as they approached appellant’s vehicle, it appeared to be traveling at an excessive rate of speed. Their radar indicated a speed of 71 m.p.h. The officers made a u-turn and they followed the appellant’s vehicle for approximately one-quarter mile. During- that time, they observed appellant’s vehicle weave across the lines marking off the highway lanes. When the officers were within ten to fifteen yards of the appellant’s vehicle, they turned on their overhead lights, but the appellant’s vehicle continued on for about one-half mile before stopping.

One of the officers asked the appellant to step out and to approach the rear of his vehicle. As the appellant walked to the rear, both officers noticed that he was taking “very deliberate steps,” indicating the possibility of intoxication. The appellant was asked for his driver’s license, and he opened his wallet in an attempt to produce it. However, the officer noted, appellant passed over his license several times, and eventually handed the officer a Gulf Qil Company credit card. When the officer advised appellant of the mistake, he then located his license and also produced an identification card issued by the Clerk of the Texas Supreme Court, reflecting his status as a court reporter. According to the officers’ testimony, the appellant’s eyes were “glassy and glazed over” and emanating from his breath was a “strong odor” of alcoholic beverage. The officers testified that they did not notice anything unusual about appellant’s manner of speech, but both officers stated that, in their opinion, the appellant was intoxicated.

The appellant denied that he was intoxicated, and said that he had met his wife at the U.S. Bar & Grill in Houston about 4:30 p.m. that afternoon. He testified that he had only two Irish coffees at the restaurant and that while there, he ate some seafood and had a number of cups of plain coffee. Appellant’s wife confirmed his testimony as to the number of drinks he had at the restaurant, and she also testified that an enduring garlic odor also resulted from the type of meal he had consumed that evening. A friend of the appellant and his wife, and two employees at the restaurant, also confirmed the appellant’s testimony concerning the number of drinks he had consumed, and all defense witnesses stated that, in their opinion, the appellant was not intoxicated when he left the restaurant. The appellant explained his mistake in handing the officer a Gulf credit card, saying that a few minutes prior to his arrest, he had charged gasoline on his Gulf credit card and then placed the card in his wallet at the place where he usually kept his driver’s license.

The State did not mention the appellant’s refusal to take a breath test during its direct examination of the first officer to testify. On cross-examination, appellant’s counsel made a request to see the documents to which the officer had been referring during the course of giving his testimony. With regard to these documents, he asked the officer, “What is the yellow sheet?” The officer replied, “It’s a breath test refusal.”

The second arresting officer testified that appellant had not been read his Miranda rights. He additionally testified, over appellant’s objections, that appellant was advised when arrested that he would be asked to take a breath test, and that if he refused he could lose his license for a year. The witness stated that to his knowledge, appellant had not taken the breath test.

The record indicates that appellant himself opened the door to the State’s proof that he did, in fact, refuse to take the test. See, Ashford v. State, 658 S.W.2d 216 (Tex. App. — Texarkana 1983, no writ); Sutton v. State, 548 S.W.2d 720 (Tex.Cr.App.1977). However, we need not decide the case on that basis because we hold that evidence of such refusal was admissible as part of the State’s direct evidence.

In South Dakota v. Neville, — U.S. -, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the United States Supreme Court held that a suspect’s “refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.” Two Texas Courts of Appeals decisions, following the U.S. Supreme Court’s holding in South Dakota v. Neville, held that evidence of a defendant’s refusal to submit to a blood-alcohol test, after a lawful request by a police officer, is admissible at trial when intoxication is an issue. Ashford v. State, supra; Gressett v. State, No. 05-82-0493-CR (Tex.App. — Dallas, July 14, 1983, no writ) (not yet reported). In those cases, the defendant contended, as does the appellant here, that notwithstanding the U.S. Supreme Court’s decision in Neville, the constitution and laws of Texas still prohibit evidence of a defendant’s refusal to take a breath test in a driving while intoxicated trial. In support of this position, the appellant points out that the state statute in Neville specifically authorized the admission of the defendant’s refusal, while the Texas statutes contain no such provision. Thus, the appellant argues, the admission of such evidence is precluded under our state laws as decided in Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977); and Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951). The underlying basis of the appellant’s argument in this respect is that the admission of such evidence violates the provisions of Tex.Crim.Proc.Code Ann. art. 38.22, sec. 3 (Vernon’s Supp.1982-83) which prohibits evidence of oral statements or other communicative acts if made while under arrest that are incriminating in nature.

We conclude, as did the Texar-kana Court of Appeals in Ashford, and the Dallas Court of Appeals in Gressett, that the applicable provisions of art. 38.22 are substantially the same in scope as the Fifth Amendment right against incrimination, and that the provisions of the Texas Constitution and statute provide no broader protection in this respect than the provisions of the U.S. Constitution. Thus, following the rationale of these decisions, we hold that the evidence of the appellant’s refusal to submit to a breath test was admissible, and that Miranda and art. 38.22 warnings were not required to be given the appellant before asking if he would submit to a breath test.

The trial court’s judgment is affirmed.

DOYLE, J., participating.

LEVY, J., dissenting.