Forte v. State

• Decision Date: 27 September 1988
• Docket Number: No. 118-87,118-87
• Citation: 759 S.W.2d 128
• Parties: Edward Earl FORTE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 128

759 S.W.2d 128

57 USLW 2291

Edward Earl FORTE, Appellant, v. The STATE of Texas, Appellee.

No. 118-87.

Court of Criminal Appeals of Texas En Banc.

Sept. 27, 1988.

Rehearing Denied Oct. 19, 1988.

Richard Alley (court appointed), Fort Worth, for appellant.

Tim Curry, Dist. Atty. and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

The appellant was convicted of driving while intoxicated. Granting his first petition for discretionary review in FORTE V. STATE, 707 S.W.2D 89(TEX.CR.APP.1986)¹, we reversed the judgment of the Fort Worth Court of Appeals and decided that under the Sixth Amendment to the United States Constitution the "[a]ppellant's right to counsel did not attach until the time the complaint was filed." Id., at 92. Consequently, under the Sixth Amendment, the appellant was not entitled to consult with an attorney prior to taking the breath test.

Despite the appellant properly asserting a violation of his State constitutional and statutory rights the court of appeals "decided the case only on federal constitutional grounds...." Id. Therefore, the case was remanded to the court of appeals to resolve the issues predicated on State constitutional and statutory grounds. Following the remand, the court of appeals affirmed the appellant's conviction. Forte v. State, 722 S.W.2d 219 (Tex.App.--Fort Worth, 1986, pet. granted). In doing so the court of appeals rejected appellant's State claims, writing inter alia:

[A]n exhaustive search of the record has been conducted to determine whether appellant was denied some privilege to which he has been held to be entitled under some provision of either the Texas or United States Constitution, the implementation of which might require the consultation with legal counsel before the execution of some option to exercise or waive such right or privilege. We find no evidence admitted in this cause (whether proper objection be laid or not) which was obtained in violation of any known constitutional provision or safeguard.

Id., at 221.

This Court granted the appellant's second petition for discretionary review to decide whether the court of appeals' conclusion relative to the State law oriented issues was correct.

In summary, the sole issue presented in this case is whether a person arrested for driving while intoxicated, prior to deciding whether to submit to a chemical sobriety test, in particular the breathalyzer, has a constitutional right to counsel under Art. I Sec. 10, of the Texas Constitution. Submission to a breath test is required pursuant to the Texas Implied Consent Statute, Article 6701L-5, Sec. 1, V.A.C.S. ²

In order to clarify the issue one should observe that Art. I, Sec. 10, Tex. Const., encompasses numerous safeguards which are relevant to the administration of the Texas criminal justice system. This stylistic compilation of several rights within one paragraph is somewhat contrary to the style of the Federal Constitution. Be that as it may, the only issue that we will resolve is the appellant's right to counsel under Art. I, Sec. 10, Tex. Const. ³

This observation is particularly significant because of the confusion that exists between the express constitutional right to counsel (Sixth Amendment and Art. I, Sec. 10, Tex. Const.) and the implicit right to consult with an attorney under the Fifth Amendment of the United States Constitution, as interpreted by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Similar to the Federal Constitution, the right against compulsory self-incrimination and the right to counsel are separate and distinct under the Texas Constitution, although at times they seem to be intertwined. As noted, this has lead to much confusion among the bench and bar. This confusion is at its apogee in the application of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), and its state and federal progeny.

In Miranda v. Arizona, id., the Supreme Court announced that certain procedural safeguards were necessary in order to secure the privilege against self-incrimination, when a criminal suspect was subjected to custodial interrogation. Thus, in such a setting and prior to any questioning by a law enforcement officer, a suspect must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. In addition, once the person being interrogated indicates he desires to consult with an attorney, there can be no further questioning. The Court concluded that these warnings were necessary as a prophylactic device to protect the privilege against compulsory self-incrimination, and thus emanated from the Fifth Amendment out of "concern for adequate safeguards to protect precious Fifth Amendment right...." Miranda, id., at 457, 86 S.Ct. at 1618, 16 L.Ed.2d at 713. ⁴ The Sixth Amendment right to counsel was not considered by the Supreme Court when it decided Miranda.

Both the Supreme Court and this Court have already determined that Fifth Amendment principles do not govern the admissibility of evidence obtained from the breathalyzer. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Rodriquez v. State, 631 S.W.2d 515 (Tex.Cr.App.1982); Olsen v. State, 484 S.W.2d 756 (Tex.Cr.App.1969). However, contrary to the beliefs of many courts of appeals throughout this State, this Court has never determined when the right to counsel attaches exclusively under the right to counsel provision of Art. I, Sec. 10, of the Texas Constitution. ⁵

As previously observed, on original submission this Court rejected appellant's Sixth Amendment claim concluding that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant. Thus, under the Federal Constitution the appellant had no right to consult with counsel prior to deciding whether or not he should take the breathalyzer. In reaching this conclusion Judge Campbell wrote:

In 1984, the Supreme Court revisited its decisions regarding when the Sixth Amendment right to counsel attaches and concluded that 'our cases have long recognized that the right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant.' United States v. Gouveia, 467 U.S. at , at 187, 104 S.Ct., [2292], at 2297 (placement of prisoner in administrative segregation prior to initiation of adversary judicial proceedings does not entitle him to appointment of counsel). That conclusion essentially gave majority approval to an earlier plurality opinion of the court in Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). See United States v. Gouveia, 467 U.S., at 187, 104 S.Ct., at 2297-98 (approving language from Kirby v. Illinois [406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411] ). In Kirby v. Illinois, supra, the Supreme Court concluded that the Sixth Amendment right to counsel attaches only upon or after formal initiation of judicial proceedings. [Footnote omitted]

Appellant argues that earlier Supreme Court decisions suggest that a stage may be characterized as critical prior to the formal initiation of judicial proceedings, thus triggering the right to counsel under the Sixth Amendment. See United States v. Gouveia, 467 U.S., at 192, 104 S.Ct., at 2300 (Stevens, J., and Brennan, J., concurring) (prior cases do 'not foreclose the possibility that the right to counsel might under some circumstances attach prior to the formal initiation of judicial proceedings....'). Specifically, appellant argues that United States v. Gouveia, supra, does not foreclose such a possibility in the instant case. We disagree.

The Supreme Court has only deviated from the bright line rule established for attachment of the Sixth Amendment right to counsel in two prior cases: Miranda v. Arizona, supra, and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). United States v. Gouveia, 467 U.S., at 188, n. 5, 104 S.Ct., at 2298, n. 5. However, the constitutional foundation for the decisions in both Miranda and Escobedo has since been limited to the Fifth Amendment. Id.; Moran v. Burbine, U.S. , at [425-426] 106 S.Ct. [1135], at [1145-1146]. Thus, in no case has the Supreme Court extended the Sixth Amendment right to counsel to a scenario that occurred prior to initiation of adversary judicial proceedings. Compare, e.g., United States v. Wade, [388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149] supra (Sixth Amendment right to counsel attaches at post-indictment lineup) with Kirby v. Illinois, supra (Sixth Amendment right to counsel does not attach at pre-indictment lineup).

Furthermore, the Supreme Court recently rejected the notion that a 'critical stage' can occur prior to initiation of judicial proceedings and crystallized its position as to when the Sixth Amendment right to counsel attaches:

As Gouveia made clear, until such time as the ' "government has committed itself to prose ute, and ... the adverse positions of government and defendant have solidified" ' the Sixth Amendment right to counsel does not attach. United States v. Gouveia, supra, at 189 (quoting Kirby v. Illinois, 406 U.S., at 689 ).

Moran v. Burbine, U.S., at , 106 S.Ct., at [1147] (interrogation prior to indictment does not raise Sixth Amendment right to counsel, regardless of 'critical' nature of the pretrial event). See also Michigan v. Jackson, U.S. , , 106 S.Ct. 1404, 1409, 89 L.Ed.2d , n. 5 (1986) (Sixth Amendment provides right to counsel at a 'critical stage' after initiation of adversary judicial proceedings ); Dunn v. State, 696 S.W.2d 561, 565 (1985) cert. denied. U.S. [1089], 106 S.Ct. 1478, 89 L.Ed.2d 732 (1986) ('mere arrest and subsequent questioning' does not trigger ...