Cooper v. State
| Decision Date | 27 March 1997 |
| Docket Number | No. 01-95-00308-CR,01-95-00308-CR |
| Citation | 961 S.W.2d 222 |
| Parties | John Henry COOPER, Appellant, v. The STATE of Texas, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
W. Troy McKinney, J. Gary Trichter, Houston, for Appellant.
Bonnie J. Bonnicksen, Houston, for Appellee.
Before HEDGES, COHEN and TAFT, JJ.
A jury convicted appellant, John Henry Cooper, of driving while intoxicated (DWI). The trial court sentenced him to 18 months in jail, probated for two years community supervision, and assessed a $2,000 fine, reduced to $1,000. In three points of error, appellant contends that (1) the trial court erred in failing to suppress the audio portion of a video taken at the police station in violation of his Fifth and Fourteenth Amendment rights under the United States Constitution and his Article I, Section 10 rights of the Texas Constitution, and (2) the trial court erred in refusing to admit relevant evidence that one of the arresting officers had been involved in several accidents. We reverse.
On June 15, 1994, Houston police stopped appellant after seeing him pull his vehicle too far into an intersection. As one of the officers approached appellant's car, the officer smelled alcohol. After appellant identified himself, the officers videotaped appellant performing field sobriety tests. They subsequently arrested him. At the police station, appellant was videotaped during the reading of his statutory warnings. 1 Appellant filed a written motion to suppress the audio portion of the station video, claiming that there was a clear invocation of his right to counsel and his right to terminate the interview. The trial court denied the motion on the basis that there was no clear invocation of counsel and that his right to terminate the interview had not yet arisen.
In points of error one and two, appellant contends that the trial court erred in failing to suppress the audio portion of a video taken at the police station in violation of his Fifth and Fourteenth Amendment rights under the United States Constitution and Article I, Section 10 under the Texas Constitution. Appellant argues that the video demonstrates that during the interview, he clearly and unequivocally requested his attorney, he exercised his right to remain silent, and he invoked his right to terminate the interview. The trial court, he argues, should have suppressed the audio portion of the video because his request for an attorney, his silence, and his request to terminate the interview cannot be used as evidence of his guilt.
The standard for reviewing a trial court's ruling on a motion to suppress evidence is abuse of discretion. Long v. State, 823 S.W.2d 259, 277 (Tex.Crim.App.1991). At a hearing on a motion to suppress, the trial court is the sole trier of fact and judge of the credibility of the witnesses as well as the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Brooks v. State, 830 S.W.2d 817, 820 (Tex.App.--Houston [1st Dist.] 1992, no pet.). The trial court may choose to believe or disbelieve any or all of a witness' testimony. Green v. State, 934 S.W.2d 92, 98 (Tex.Crim.App.1996). On appellate review, the evidence presented at the suppression hearing is viewed in the light most favorable to the trial court's ruling to determine whether the trial court abused its discretion in denying the motion to suppress. Whitten v. State, 828 S.W.2d 817, 820 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd). Appellate courts are not at liberty to disturb any finding that is supported by the record. Green, 934 S.W.2d at 98; Johnson v. State, 803 S.W.2d 272, 287 (Tex.Crim.App.1990).
Once a suspect has invoked his right to counsel, all interrogation by the police must cease until counsel is provided or until the suspect himself re-initiates conversation. Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489 (1990); Dinkins v. State, 894 S.W.2d 330, 350 (Tex.Crim.App.1995). The right to counsel is invoked when a person indicates he or she desires to speak to an attorney or to have an attorney present during questioning. Dinkins, 894 S.W.2d at 351. An invocation of the right to counsel must be clear and unambiguous; the mere mention of the word "attorney" or "lawyer," without more, does not automatically invoke the right to counsel. Id.; Robinson v. State, 851 S.W.2d 216, 223 (Tex.Crim.App.1991). While there are no magical words required to invoke an accused's right to counsel, a suspect must express a definite desire to speak to someone, and that person be an attorney. Dinkins, 894 S.W.2d at 352.
The right to terminate questioning is among the procedural safeguards established by Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); Watson v. State, 762 S.W.2d 591, 596 (Tex.Crim.App.1988). If an individual indicates in any manner at any time before or during questioning that he wishes to remain silent, the interrogation must cease. Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627; Watson, 762 S.W.2d at 596. There need not be a formal invocation of one's right to terminate an interview. Watson, 762 S.W.2d at 598. Anything said or done by the appellant that could reasonably be interpreted as a desire to invoke that right should be sufficient to halt questioning. Id.
When appellant was taken to the station, the police videotaped 2 the reading of his statutory warnings. At the beginning of the video, the officer conducting the video and appellant briefly argued about why he was being videotaped and where he should stand. The officer began reading appellant his warnings, and appellant indicated his understanding that he had a right to remain silent and that any statement he made could be used against him. After the officer began to read his third warning, 3 the following exchange took place:
Appellant did not invoke his right to have a lawyer present until the conclusion of the video. Appellant's response, "Where is he," was not an unequivocal assertion of his right to counsel; rather, it was a facetious expression of defiance. Nor was his reiteration of that statement several times throughout the video an unequivocal invocation. He affirmatively invoked his right only at the conclusion of the video when he stated, "I'm not understanding anything until my attorney is present." At that point, the officer terminated the video.
Appellant did, however, invoke his right to terminate the interview when he stated, "I'm not answering any questions," and he continued to invoke that right throughout the remainder of the video. Evidence of invoking the right to terminate an interview is inadmissible as evidence of guilt. See Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991). Although Hardie referred specifically to invocation of the right to counsel, we find no reason to differentiate an invocation of the right to terminate. We find, therefore, that the trial court erred in admitting into evidence the audio portion from the point appellant invoked his right to terminate until the end of the video tape.
Harmful error
Because we find that the trial court erred in admitting the audio portion of the videotape from the point where appellant stated, "I'm not answering any questions," until the end of the videotape, we must determine whether such error was harmful to appellant. If the appellate record in a criminal case reveals error in the proceedings below, the appellate court must reverse the judgment under review unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. TEX.R.APP.P. 81(b)(2); Taylor v. State, 755 S.W.2d 548, 550 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd). The impact of the error cannot be properly evaluated without examining its interaction with the other evidence. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989). The entire record must be considered. Id. The evidence is viewed in a neutral, impartial, and even-handed fashion, not in the light most favorable to conviction. Id.
We analyze the harm of the trial court's error under the standard set forth in Harris. That case dictates that reversal of a conviction is mandated unless the appellate court concludes beyond a reasonable doubt that the error did not contribute to the conviction or the punishment assessed. Harris, 790 S.W.2d at 587. We must look at the following factors:
(1) the source...
To continue reading
Request your trial
-
Walker v. State
...from burglar alarm protection system and concluding evidence was sufficient to support burglary conviction); Cooper v. State, 961 S.W.2d 222, 226-27 (Tex.Ct.App.1997) (reviewing videotape in connection with motion to suppress videotape made at police station and concluding that trial court ......
-
Ex parte Skelton
...1999, no pet.); Loy v. State, 982 S.W.2d 616, 617 (Tex.App.-Houston [1st Dist.] 1998, pet ref'd); Cooper v. State, 961 S.W.2d 222, 226–27 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd); see also Wainwright, 474 U.S. at 295 & n. 13, 106 S.Ct. 634. This kind of due-process violation is preju......
-
Tiede v. State
...and (6) whether declaring the error harmless would encourage the State to repeat it with impunity. Cooper v. State, 961 S.W.2d 222, 227 (Tex.App. — Houston [1st Dist.] 1997, pet. ref'd), (citing Harris v. State, 790 S.W.2d 568, 587 (Tex. In the present case, the source of the error was the ......
-
Ahmad v. State
...need not be specific if the trial judge was aware of the substance of the objection when it was made. Cooper v. State, 961 S.W.2d 222, 228 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd); Kelly v. State, 903 S.W.2d 809, 811 (Tex.App.-Dallas 1995, pet. ref'd). Appellant's objection, although......