Clinard v. State, 50538

• Decision Date: 23 March 1977
• Docket Number: No. 50538,50538
• Citation: 548 S.W.2d 716
• Parties: Tommy Earl CLINARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 716

548 S.W.2d 716

Tommy Earl CLINARD, Appellant, v. The STATE of Texas, Appellee.

No. 50538.

Court of Criminal Appeals of Texas.

March 23, 1977.

David Hollingsworth, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough, Michael Kuhn and Fred E. Reynolds, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ON APPELLANT'S MOTION TO REINSTATE

PHILLIPS, Judge.

On original submission this case was dismissed by per curiam opinion because the record failed to reflect a timely notice of appeal. By supplemental transcript it has been made to appear that notice of appeal was timely given. Accordingly, the appeal is reinstated and will be considered on the merits.

Appellant was convicted of driving while intoxicated; punishment was assessed at a $200.00 fine and 30 days in jail, and appellant was placed on probation for nine months.

In his second ground of error appellant contends the trial court erroneously permitted a police officer to testify that he refused an offer to take a blood test. The record reflects the following:

"Q (PROSECUTOR): Officer McFaddin, did you offer Mr. Clinard any tests of any sort?

A Yes, sir, he was offered a blood test.

Q And did you allow did you offer him an opportunity to have this test administered by his own physician?

A Yes, sir.

(DEFENSE COUNSEL): Your Honor, I object to that as being improper and immaterial.

THE COURT: Overruled.

(DEFENSE COUNSEL): Note my exception.

THE COURT: Yes, sir.

Q (PROSECUTOR): Did he refuse the test?

A Yes, sir, he did."

The State initially contends error was not preserved. Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419, is controlling on this point. See also Smith v. State, 141 Tex.Cr.R. 577, 150 S.W.2d 388; Arnold v. State, 157 Tex.Cr.R. 313, 248 S.W.2d 738; Fowler v. State, 171 Tex.Cr.R. 600, 352 S.W.2d 838; Xanthull v. State, 172 Tex.Cr.R. 481, 358 S.W.2d 631; Etchieson v. State, 172 Tex.Cr.R. 606, 361 S.W.2d 711; and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

It is the State's contention that Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Olson v. State, Tex.Cr.App., 484 S.W.2d 756 render said testimony now admissible in Texas, notwithstanding our unbroken line of decisions contrary thereto, notably, Willeford v. State, Tex.Cr.App., 489 S.W.2d 292; Shilling v. State, Tex.Cr.App., 434 S.W.2d 674; Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419; Brown v. State, 165 Tex.Cr.R. 535, 309 S.W.2d 452; Jordan v. State, 163 Tex.Cr.R. 287, 290 S.W.2d 666; Bumpass v. State, 160 Tex.Cr.R. 423, 271 S.W.2d 953; Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702. In Schmerber, the Supreme Court of the United States simply held that under the narrowed facts of that particular case proof of the results of a blood test, where the blood had been drawn by a physician in a hospital in excess of two hours after an accident involving the defendant, was admissible though the defendant had not consented thereto. Olson v. State, supra, merely held that the prohibition of the Texas Constitution against the compelling of a 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. Olson involved only a question of whether a handwriting sample voluntarily given by the defendant was rendered inadmissible because the defendant was under arrest and without counsel. The Court's statement in said opinion pertaining to the blood test was dicta and the Court in said case did not consider, by dicta or otherwise, the question of admissibility of defendant's refusal to take a breathalyzer test or any other chemical test.

Schmerber is not authority for the contention of the State herein, but is strong authority to the contrary. In Schmerber the Supreme Court gave as its reason for holding the results of said blood test beyond the scope of the Fifth Amendment the fact that such was merely a then existing physical characteristic of the defendant and "not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved." Schmerber at page 765 of 384 U.S., at page 1832 of 86 S.Ct. We interpret the majority opinion in said case in footnote nine to the above quoted statement to say general Fifth Amendment principles including Miranda requirements would apply as to proof of any refusal to take a breathalyzer test.

In said opinion, the Court also stated:

"We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . . It is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications . . ."

In 8 Wigmore, Evidence, Sec. 2265 (McNaughton rev. 1961), it is stated:

". . . unless some attempt is made to secure a communication written, oral or otherwise upon which reliance is to be placed as involving his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one . . ."

Conversely, if a communication, written, oral, or otherwise, involves an accused's consciousness of the facts and the operations of his mind in expressing it, such is testimonial and communicative in nature. A defendant's silence or negative reply to a demand or request by an officer made upon him while under the necessary compulsion attendant with custodial arrest, which demand or question reasonably called for an immediate reply by the defendant, is clearly a tacit or overt expression and communication of the defendant's thoughts in regard thereto. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The obvious purpose and certain result of proving a person accused of intoxication refused a request to take a blood test is to show the jury that the accused, with his full knowledge of the true amount he had consumed, thought that he could not afford to take said test. Such was the only reason for its relevancy. Thus, said evidence is without doubt of communicative and testimonial character and not mere factual proof of a then existing physical characteristic. The contention that if the result of a test is admissible that an accused person's expression of his desire not to submit to said test must also be admissible, is directly contrary to the reasoning of Schmerber. This is so because the Constitution simply forbids any compulsory revealing or communication of an accused person's thoughts or mental processes, whether it be by...