Dudley v. State

• Decision Date: 23 March 1977
• Docket Number: No. 50448,50448
• Citation: 548 S.W.2d 706
• Parties: Kenneth Wayne DUDLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 706

548 S.W.2d 706

Kenneth Wayne DUDLEY, Appellant, v. The STATE of Texas, Appellee.

No. 50448.

Court of Criminal Appeals of Texas.

March 23, 1977.

Rehearing Denied April 13, 1977.

Will Gray, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Marshall M. Arnold, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., for the State.

OPINION

PHILLIPS, Judge.

Appellant was convicted of the offense of driving while intoxicated, and his punishment was assessed at a fine of $100.00 and 30 days in jail. The jail term was probated for two years.

Appellant's sole contention on appeal is that the court reversibly erred in permitting the State, over appellant's objection, to elicit testimony before the jury that appellant had been offered and had refused to take a breath test.

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 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. Olson involved only the 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 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."

It is stated in 8 Wigmore, Evidence, Sec. 2265 (McNaughton rev. 1961):

". . . 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 calls for an immediate reply by the defendant, is clearly a tacit or overt expression and communication of the defendant's thoughts in regard thereto, 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 breathalyzer 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 the 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 is by acts, failure to act, words spoken or failure to speak, and the fact that it does not extend its scope further and forbid compulsory exhibition of physical characteristics does not nullify the extent to which it has extended its protection to an accused.

It has been contended that the appellant's refusal to submit to a chemical test is the same as flight or escape, but the distinction lies in the fact that escape and flight are not compelled or even requested by the State; whereas, if an accused under custodial arrest is requested or offered a chemical test for intoxication, anything he does other than affirmatively agree to same is a refusal to submit. Thus, escape and flight are not "compelled", a necessary factor under the Fifth Amendment, but a refusal to take a chemical test by silence or negative reply to a State's request or offer is compelled.

Art. 38.22, V.A.C.C.P. has been consistently construed by this Court as prohibiting proof of an accused's oral statements, silence or acts, if made while under arrest and tending to communicate thoughts of the defendant which are of an incriminating nature. Garner v. State, Tex.Cr.App., 464 S.W.2d 111; Butler v. State, Tex.Cr.App., 493 S.W.2d 190; Hubbard v. State, 153 Tex.Cr.R. 143, 217 S.W.2d 1019; Brent v. State, 89 Tex.Cr.R. 544, 232 S.W. 845. Though not expressly stated heretofore, the decisions construing Art. 38.22, supra, reveal that, in practical application, said statute has been held to prohibit any act, silence or oral statement of an accused while in custody which has communicative or testimonial characteristics, substantially the same as the Fifth Amendment.

Therefore, appellant's objection in the trial court to said testimony upon the grounds of Art. 38.22, supra, as well as the Fifth and Fourteenth Amendments to the Constitution of the United States, should have been sustained and the failure of the trial court to do so was error prejudicial to the rights of the appellant.

Art. 6701l -5, V.A.C.S., does not purport to apply to the question here presented in that same addresses itself to the question of admissibility of the results of a chemical test, but not to an accused's refusal to submit to same at the request of an officer while under custodial arrest.

For the error stated, the judgment is reversed and the cause remanded.

ONION, Presiding Judge, concurring.

This appeal presents for reconsideration the question of whether the State may initially elicit from the arresting officer or others the fact that the accused has been offered and refused to take a breath test to determine intoxication. The State urges that reconsideration is long overdue in light of Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972), which overruled Trammell v. State, 162 Tex.Cr.R. 543, 287 S.W.2d 487 (1956). There are, however, several bases for either the admission or exclusion of such evidence that should be discussed.

The conviction in the instant case is for driving a motor vehicle upon a public highway while intoxicated. The offense was shown to have occurred on June 8, 1974. Punishment was assessed at thirty (30) days in the county jail and at a fine of $100.00. The jail term was probated under Article 42.13, Vernon's Ann.C.C.P.

At the trial the State in its case in chief on direct examination elicited, over proper objection, from the arresting officer that the appellant had been offered and had verbally refused to take a breath test, and still later on cross-examination inquired of the appellant about the same matter.

The only ground of error urged by the appellant is that the trial court erred in admitting such evidence over objection.

The Cardwell Case, Article 38.22, V.A.C.C.P., Etc.

Appellant relies upon Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951), and a line of cases following it which hold such evidence of refusal inadmissible.

The State urges that this court take this opportunity to overrule the Cardwell line of cases in light of the holding in Olson v. State, supra. In holding admissible handwriting exemplars, Olson held that the scope of the privilege against self-incrimination in Article I, § 10, Texas Constitution, is identical to that of the Fifth Amendment, United States Constitution, and that state constitutional provision affords the same but no greater rights than the federal constitutional provision. ¹ Olson overruled several cases, including Trammell v. State, supra, which had held that the...