Dangerfield v. The State Of Tex., 06-09-00185-CR
| Decision Date | 04 August 2010 |
| Docket Number | No. 06-09-00185-CR,No. 22821,06-09-00185-CR,22821 |
| Parties | ROBERT EARL DANGERFIELD, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the Sixth Judicial District Court Lamar County.
Before Morriss, C.J., Carter and Moseley, JJ.
Robert Earl Dangerfield was convicted of DWI, third offense, 1 and was sentenced to ten years' imprisonment. Dangerfield appeals his conviction, claiming (1) his right to counsel was violated; (2) he received ineffective assistance of counsel during trial; and (3) the evidence was legally and factually insufficient to support a conviction for DWI. We affirm the judgment of the trial court.
Officer Billy Pillars2 was on patrol duty on the evening of July 24, 2008, when he saw a puff of smoke coming from underneath the Loop on North Main Street in Paris, Texas. Pillars proceeded toward the Loop and found a blue car high centered on the guardrail underneath the Loop on the east side. The only person in the blue car was a black male, who identified himself as Dangerfield. Dangerfield was sitting on the driver's side of the car, with the engine still running. Both doors were jammed shut, but Dangerfield was able to kick the passenger's side door open and get out of the car. Dangerfield told Pillars he did not know what happened, and stated that he was not injured.
When Dangerfield stepped out of the car, his balance was very unsteady, he only had one shoe on, and he began urinating on the side of the road. When Pillars told Dangerfield to stop, Dangerfield zipped his pants back up, but did not stop urinating. Dangerfield's eyes were red, and his breath carried a strong odor of alcohol.3 Pillars found an open can of cold Busch beer in Dangerfield's car. When asked to perform standard field sobriety tests, Dangerfield refused. When Dangerfield refused to attempt to step over the guardrail, Pillars asked him to walk around it. At that time Pillars testified that Daingerfield stated, "I'm drunk, just show me, I'm drunk." Dangerfield was then transported to the Lamar County jail, where Corporal Doug Murphy4 was called upon to administer an Intoxilyzer test.
Before attempting to administer the test and prior to advising Dangerfield of his statutory rights, 5 Murphy advised Dangerfield of his Miranda6 rights. Immediately, Dangerfield requested an attorney. Dangerfield was then advised of his statutory rights under the Texas Transportation Code, during which time he reiterated his request for counsel. Murphy advised Dangerfield that he did not have a right to counsel during the taking of a specimen. After having been advised of his statutory rights, Dangerfield indicated he did not wish to speak with Murphy.7
Dangerfield voluntarily stated, however, that he was not drunk and that he was not high. Murphy then asked Dangerfield if he wanted to "answer any more of my questions?" Dangerfield responded, "Since it's you, I will [answer your questions]."
Thereafter, Dangerfield proceeded to tell Murphy that he had been "drinking earlier," that he had been "drinking since one o'clock," and that he had consumed Busch beer and Canadian Hunter whiskey. Dangerfield, a diabetic, also told Murphy that he had not taken any medicine for his diabetes in approximately two weeks because he had been drinking. Dangerfield refused to submit to an Intoxilyzer test.
Dangerfield's claim that he was denied right to counsel under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution is based on the admission of evidence at trial allegedly obtained in violation of his Miranda rights, 8 and even though his trial counsel did not object to the admission of evidence obtained after he invoked his right to counsel, the admission of such evidence is fundamental error. We disagree.
The right to counsel under the Sixth Amendment to the United States Constitution protectsan accused's right to counsel "only at or after the time that adversary judicial proceedings have been initiated, whether by way of a formal charge, preliminary hearing, indictment, information or arraignment." Griffith v. State, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001). A person has not become an "accused" within the meaning of the Sixth Amendment merely because he or she has been detained by the government with the intention of filing charges against them. Id.; United States v. Gouveia, 467 U.S. 180, 187-90 (1984). In the present case, "adversary judicial proceedings" had yet to commence because the State did not file charges against Dangerfield until sometime after questioning by Murphy. Therefore, Dangerfield's Sixth Amendment right to counsel had not yet attached. Accordingly, no violation of Dangerfield's Sixth Amendment right to counsel occurred. This point of error is overruled.
Id. at 469. Miranda's procedural safeguards were designed to operate in the context of custodial interrogation. Griffith, 55 S.W.3d at 603. Questions normally accompanying the processing of a DWI arrestee do not constitute custodial interrogation. Id.; McCambridge v. State, 712 S.W.2d 499, 504 (Tex. Crim. App. 1986). Further, a "suspect's decision to take or refuse a breath test and the question prompting that decision do not constitute custodial interrogation, nor do they involve the constitutional privilege against self-incrimination." Hernandez v. State, 13 S.W.3d 78, 82 (Tex. App. Texarkana 2000, no pet.).
Dangerfield contends, however, that because he was asked a number of pointed questions regarding the facts of the amount of alcohol he drank, when he quit drinking, when he last ate, as well as information about medications he was taking, all of which took place after he invoked his right to counsel, nothing he said thereafter could be introduced as evidence at trial. Assuming the State elicited such information in derogation of Dangerfield's Miranda rights, we will address Dangerfield's contention that the introduction of such evidence amounts to fundamental error.
Dangerfield acknowledges his failure to object to alleged inadmissible evidence, but claims that the admission of the disputed evidence constitutes fundamental error and is therefore reviewable. To preserve error concerning the erroneous admission of evidence, a defendant must timely lodge a specific objection. Tex. R. Evid. 103(a)(1); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Cacy v. State, 901 S.W.2d 691, 699 (Tex. App. El Paso 1995, pet. ref' d). However, an exception to general waiver principles exists for fundamental error. See Tex. R. Evid. 103(a)(1). Fundamental errors are violations of rights which must be affirmatively waived, or denials of absolute systemic requirements. Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).9
Numerous constitutional rights, including those that implicate a defendant's due process rights, may be forfeited for purposes of appellate review unless properly preserved. Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009). A defendant's right to have the State refrain from introducing certain evidence is neither an absolute systemic requirement, nor a right that must be affirmatively waived. Saldano, 70 S.W.3d at 889. In order to complain about the admissibility of a confession, even in regard to a violation of Miranda, and other federally guaranteed constitutional rights, there must be an objection in the trial court. Ex parte Bagley, 509 S.W.2d 332, 333 (Tex. Crim. App. 1974). The requirement of a trial court objection applies with equal force to alleged Miranda violations. Allridge v. State, 762 S.W.2d 146, 157 (Tex. Crim. App. 1988). The defendant's right to remain silent and not have that silence used against him or her at trial is a right which may be forfeited, and must be preserved via appropriateobjection at trial. See Wheatfallv. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994) (). Moreover, to permit a jury to hear a defendant invoke his or her right to counsel is not fundamental error. Reyes v. State, 267 S.W.2d 268, 273 (Tex. App. Corpus Christi 2008, pet. denied).
Here, the failure to object to the admission of the officer's testimony and the recording did not deny Dangerfield of the right to counsel, but merely forfeited his remedy of excluding evidence obtained after he had invoked his right to counsel during the interrogation. We find this complaint involves a right that was forfeitable. Because Dangerfield did not object to the admission of the evidence of which he now complains Murphy's testimony regarding what is on the video recording, and the presentation to the jury of the actual video recording the question he seeks to present has not been preserved for our review. We overrule this point of error.
In his second point of error, Dangerfield asserts four instances whereby he was allegedly denied effective assistance of counsel for failing to object to the following: (1) inadmissible portions of the video recording of Dangerfield, showing incriminating responses to custodial interrogation; (2)...
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