Bass v. State

• Decision Date: 19 November 1986
• Docket Number: No. 714-84,714-84
• Citation: Bass v. State, 723 S.W.2d 687 (Tex. Crim. App. 1986)
• Parties: James Benton BASS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 687

723 S.W.2d 687

James Benton BASS, Appellant, v.The STATE of Texas, Appellee.

No. 714-84.

Court of Criminal Appeals of Texas En Banc.

Nov. 19, 1986.

Jim T. Jordan, Odessa, for appellant.

J. Scott Henderson, Co. Atty. and Mark H. Dettman, Asst. Co. Atty., Midland, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted for the offense of driving while intoxicated and assessed a punishment of six months confinement and a fine of $500.00, both probated.In an unpublished opinion the El Paso Court of Appeals reversed appellant's conviction, holding that the trial court erred in admitting evidence of his refusal to submit to a breathalyzer test.Bass v. State(Tex.App.--El Paso, No. 08-0-83-00113-CR, delivered May 2, 1984).

Recognizing that Tex.Rev.Civ.Stat.Ann., art. 6701l-5, § 3(g) presently allows such evidence to be admitted, seeActs 1983, 68th Leg., p. 1577, ch. 303, § 4, eff. Jan. 1, 1984, but noting that the instant proceedings all occurred prior to the effective date of that provision, the court of appeals ruled that State law applicable at the time prohibited admission of evidence of refusal.Said the court:

"The State relies exclusively upon the Supreme Court decision in South Dakota v. Neville, U.S. , 74 L.Ed.2d 748, 103 S.Ct. 916(1983).Neville simply provided that a South Dakota statute which authorized introduction of such evidence was not repugnant to the Fifth Amendment to the United States Constitution.The Supreme Court position in Neville is that introduction of such evidence is a matter of state law.The Texas proscription is founded upon state authority independent of the Fifth Amendment.Dudley v. State, 548 S.W.2d 706(Tex.Cr.App.1977);Casselberry v. State, 631 S.W.2d 542(Tex.App.--El Paso 1982, PDRR);Tex. Const. art. I, sec. 10;Tex.Code Crim.Pro.Ann. art. 38.22(Vernon 1979and Supp.1984)."¹

At least four other courts of appeals have held that there is no independent basis in state law for excluding evidence of refusal to submit to a breath test.SeeGresset v. State, 669 S.W.2d 748(Tex.App.--Dallas1983);Ashford v. State, 658 S.W.2d 216(Tex.App.--Texarkana1983);Parks v. State, 666 S.W.2d 597(Tex.App.--Houston [1st]1984).Also: Nevarez v. State, 671 S.W.2d 90(Tex.App.--El Paso1984);Brant v. State, 676 S.W.2d 223(Tex.App.--El Paso1984);Sinast v. State, 688 S.W.2d 631(Tex.App.--Corpus Christi1985).We therefore granted the State's petition for discretionary review in this cause in order to determine whether state law, and more specifically, either Article I, § 10 of the Texas Constitution, or Article 38.22, V.A.C.C.P., or both affords an appellant greater protection vis-a-vis the admissibility of refusal evidence than does the Fifth Amendment.

Just after midnight on January 8, 1983, appellant and a female companion were traveling in separate cars from Odessa to Midland on Highway 80 when appellant's companion was pulled over by Officer Matt Andrews of the Department of Public Safety for suspicion of driving while intoxicated.As Andrews questioned his companion on the shoulder of the highway, appellant pulled up in his car and got out.Appellant, "was staggering" as he approached, and as he stood talking to Andrews' partner, Deputy Constable Buzzell, he"was swaying and very unsteady on his feet."After arresting appellant's companion and placing her in his patrol car, Andrews approached appellant and noticed a "strong odor of alcoholic beverage on his breath, ... that his eyes were bloodshot," and that "[h]is speech was very thick-tongued."When Andrews' flashlight was shined in appellant's eyes, the pupils remained dilated.Andrews testified that it appeared to him that appellant lacked the normal use of his mental and physical faculties and that in his opinion appellant had been "too intoxicated to be operating a motor vehicle."

At this point Andrews arrested appellant for driving while intoxicated and advised him of "his rights."² Andrews testified that "[i]n advising him of his rights, as far as being under arrest for driving while intoxicated, [he] did request that [appellant] submit to a chemical breath test."Over appellant's objection Andrews testified that after initially agreeing to take a test, appellant changed his mind and refused to submit, and did not thereafter request that any test be administered.

In his argument to the trial court that the evidence of his refusal to submit should be excluded appellant expressly eschewed any reliance on the Fifth Amendment.Instead he relied on Article 38.22, V.A.C.C.P., and "the case law and cases holding in the State of Texas that such testimony is never admissible."The principal case relied on is Dudley v. State, supra.For its part the State filed a trial brief arguing that under Dudley and Olson v. State, 484 S.W.2d 756(Tex.Cr.App.1969), the protections of Article 38.22, supra, and of Article I, § 10, respectively, are no broader than those of the Fifth Amendment as construed in South Dakota v. Neville, supra.Since evidence of refusal to take a chemical breath test is not compelled, and is therefore admissible under a Fifth Amendment analysis, maintained the State, such evidence may also come in without violating State law.

We begin with an analysis of Dudley v. State, supra.

Dudley v. State

The five judges on the court who decided Dudley were split four ways in their views of how that cause should have been disposed of.The lead opinion, authored by Judge Phillips, concluded that evidence of the defendant's refusal to submit to a breath test was inadmissible under the Fifth Amendment to the United States Constitution, and, finding that the protection afforded by Article 38.22, supra, was "substantially the same as [that of] the Fifth Amendment[,]"548 S.W.2d at 708, held the evidence inadmissible under the statute as well.Though not purporting to decide the issue of admissibility of such evidence under Article I, § 10 of the State Constitution, Judge Phillips noted in passing that Olson v. State, supra, had held "that the prohibition of the Texas Constitution against the compelling of the defendant to give evidence against himself means the same as the prohibition in the Federal Constitution against compelling a defendant to be a witness against himself."³Id., at 707.No other judge joined Judge Phillips' opinion, though two judges concurred in the result with opinions of their own.Two judges dissented, arguing in essence that the fact of an accused's refusal to submit to chemical testing "is analogous to flight or escape, which are non-testimonial circumstances admissible to show an accused's guilt."⁴Id., at 715.

Presiding Judge Onion filed a concurring opinion in Dudley in which he argued, inter alia, that the Court should adhere to the line of cases begun with Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702(1951).⁵The Court in Cardwell had held:

"The State cannot avail itself of the silence or refusal of an accused prisoner as a circumstance tending to establish his guilt.SeeCarter v. State, 23 Tex.App. 508, 5 S.W. 128;Elliott v. State, 152 Tex.Cr.R. 285, 213 S.W.2d 833;Sharp v. State, 153 Tex.Cr.R. 96, 217 S.W.2d 1017."

243 S.W.2d at 704.Judge Onion found it clear that this holding derived from "the confession statute as well as the rule of evidence which forbids an accused's silence to be used against him as tending to establish guilt."Dudley, supra, at 711.In thus finding the holding in Cardwell to have derived at least in part from Article 38.22, supra, and its progenitors, Judge Onion identified a source for excluding evidence of refusal apart from the Fifth Amendment, and, for that matter, Article I, § 10. 548 S.W.2d at 714.

Reliance upon Article 38.22, supra, for authority that evidence of refusal to submit to chemical testing for intoxication, either upon Judge Phillips' view that its protection is "substantially the same as the Fifth Amendment[,]" or upon Judge Onion's view that the statute would exclude such evidence apart from operation of the Federal Constitution, under Cardwell, supra, is currently untenable, as we now proceed to demonstrate.

Article 38.22

Assuming, arguendo, that Judge Phillips is correct that the scope of the protection against selfincrimination accorded by Article 38.22, supra, is no broader than that of the Fifth Amendment, we agree with the State that the statute would not prohibit admission of refusal evidence.This is so because, as the United States Supreme Court found in South Dakota v. Neville, supra, such evidence is not compelled for purposes of Fifth Amendment analysis.Not being a compelled communication, the appellant's refusal to take the breathalyzer test in this cause does not call into play the federal privilege against selfincrimination; hence, consistent with Judge Phillips' view, it would also be admissible under Article 38.22, supra.

Regarding Judge Onion's view that Article 38.22, supra, would prohibit admission of refusal evidence irrespective of the scope of the Fifth Amendment, under Cardwell, supra, we observe that shortly after Dudley was delivered the socalled "confession"statute was amended in a critical way.

When Dudley was decided Article 38.22, supra, as had all its precursors, mandated that "[t]he confession shall not be admissible if the defendant was in jail or other place of confinement or in the custody of an officer at the time it was made, unless" certain prescribed conditions were met.⁶Originally, Article 662 of the Old Code, and later Article 750 of the 1879 Code, allowed admission of any postarrest "confessions," written or oral, only if voluntarily made after the accused had been "cautioned."It was held under authority of the statute that evidence of an act by the accused while in custody which was in the nature of a confession was inadmissible if the...