Ashford v. State, 6-82-063-CR
| Decision Date | 30 August 1983 |
| Docket Number | No. 6-82-063-CR,6-82-063-CR |
| Citation | 658 S.W.2d 216 |
| Parties | James ASHFORD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
David Holmes, Paris, for appellant.
Tom Wells, III, Dist. Atty., Paris, for appellee.
James Ashford appeals his conviction for a subsequent offense of driving while intoxicated. After arrest, Ashford refused to take a breath test for alcohol content. The issues before us are these: Did Ashford, by his attorney's cross-examination of an arresting officer, open the door for the admission of evidence of his refusal to take a breath alcohol test? In any instance, is evidence of a defendant's refusal to take a breath alcohol test now properly admissible in Texas in light of South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983)? Our answer to both questions is yes.
Two police officers noticed Ashford driving away from Williamsburg Shopping Center in Paris. He drove his vehicle through the parking lot in excess of normal speed then exited over a curb. The police officers followed Ashford, noticing that he was going ten to fifteen miles per hour and occasionally veering off the right side of the road. When they stopped Ashford both officers noticed his slurred speech, staggering gait and bloodshot eyes. They believed he was extremely intoxicated. Although Ashford first said he wanted to take a breath test to determine his sobriety, he later declined to take the test.
Fred Willoughby, one of the arresting officers, testified that he believed Ashford was intoxicated. On direct examination no mention was made of the existence of any breath alcohol test, of one having been offered Ashford, or of his refusal to take it. On cross-examination Willoughby reiterated his observations and, in response to a question, indicated that in his experience he had never formed an opinion that someone was intoxicated and later changed his mind. Ashford's attorney pursued the line of questioning:
This ended cross-examination and on redirect examination the State, over objection, elicited that Ashford was requested to take a breath alcohol test but refused.
In urging that the court erred, Ashford relies on the rule that prohibits evidence of a refusal to take a breath test in a driving while intoxicated trial. Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977); Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951). Since the Cardwell decision this rule has been uniformly followed in Texas when the State initially elicits the evidence. However, when a defendant opens the door, the State is permitted to adduce evidence of a defendant's refusal to take a breath alcohol test. Sutton v. State, 548 S.W.2d 720 (Tex.Cr.App.1977); Birdwell v. State, 510 S.W.2d 347 (Tex.Cr.App.1974). We hold that when Ashford established that scientific tests might establish the degree of intoxication, that the police officer might change his opinion of a defendant's intoxicated state if the test showed he was not intoxicated, and that no test was given to Ashford, the State was thereafter properly allowed to show that Ashford was offered, but refused, to take a breath alcohol test. Any other holding would condone a defendant's misleading the jury about the known facts.
We now re-examine the question whether evidence of a defendant's refusal to take a breath test for intoxication is admissible over objection. Our consideration of this question begins with the awareness that since Cardwell v. State, supra, the rule of law has been considered settled, and that this exact issue has been repeatedly examined by our Court of Criminal Appeals. See, e.g., Dudley v. State, supra, and Sutton v. State, supra, and the cases there cited.
The exclusion of evidence of a defendant's refusal to take a breath test has always been founded upon the Fifth Amendment, United States Constitution, which prohibits compelling a defendant to be a witness against himself. The Court of Criminal Appeals, in Dudley v. State, supra, and Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1969), held that the scope of the privilege against self-incrimination in the Texas Constitution affords the same but no greater rights than the United States Constitution. This was reaffirmed in Rodriguez v. State, 631 S.W.2d 515, 517 (Tex.Cr.App.1982), which held...
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