Forte v. State

• Decision Date: 21 February 1985
• Docket Number: No. 2-84-012-CR,2-84-012-CR
• Citation: 686 S.W.2d 744
• Parties: Edward Earl FORTE, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 744

686 S.W.2d 744

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

No. 2-84-012-CR.

Court of Appeals of Texas,

Fort Worth.

Feb. 21, 1985.

Richard Alley, Fort Worth, for appellant.

Chris Marshall, Asst. Dist. Atty., Fort Worth, for the State.

En Banc.

OPINION ON REHEARING

ASHWORTH, Justice.

In its Motion for Rehearing, the State contends the original opinion was in reality a minority opinion by Justices Ashworth and Spurlock; that Justice Burdock's concurring opinion did not state agreement with the supposedly majority opinion but stated a reversal for a different reason. The State further contends that it has been advised by the clerk's office of this Court that Justice Gray, who assumed office on January 1, 1985, did not participate in the opinion which was issued on January 10, 1985, and that Justice Hughes, who retired on December 31, 1984, could not participate in the opinion. In order to clarify the composition of the Court and the opinions of the members, we grant the State's Motion for Rehearing and the opinion heretofore issued on January 10, 1985, is withdrawn and the following opinion substituted.

Appellant, Edward Earl Forte, was found guilty by a jury of driving while intoxicated. TEX.REV.CIV.STAT.ANN. art. 6701l-1(b) (Vernon Supp.1984). The court assessed punishment at 30 days confinement and a two hundred dollar fine.

We reverse and remand inasmuch as we hold that appellant was improperly denied a limited right to counsel prior to making a decision as to whether to take an intoxilyzer examination.

The evidence reveals that Myrtle Fenton was driving her car on January 10, 1984 when she was struck by another vehicle on the rear passenger side of her car, causing her car to spin and stop in a nearby yard. Fenton was unable to see the driver of the vehicle that hit her.

Immediately prior to the accident, Martha Raincrow was traveling in her car on the same road when she saw appellant's vehicle in her rearview mirror weaving all over the road. Raincrow testified that she had to move her car to the side of the road in order to avoid a collision with appellant's vehicle. Raincrow watched appellant pass her car, saw him run a stop sign, and then observed him collide with Fenton's car. After the accident, Raincrow followed appellant and when he apparently lost control of his vehicle and ran into a ditch, she stopped her car to get his license plate number. Raincrow thereupon proceeded to telephone the police.

Lieutenant William Crawford testified that when he arrived at the scene he saw appellant in the driver's seat of a vehicle that evidently had landed in a chain link fence in a ditch. Inasmuch as appellant would not get out of the vehicle upon request, Crawford had to open the door and pull him out. Crawford related that appellant's pants were undone and his fly was open, appellant smelled strongly of alcohol, had slurred and choppy speech, and could not stand up without support. Appellant was arrested and subsequently submitted to an intoxilyzer test, the results of which indicated that the alcohol concentration level of his breath was 0.10%.

Appellant raises eight grounds of error contending that: (1) during closing argument the State's attorney impermissibly gave an opinion regarding appellant's guilt; (2) the evidence is insufficient to sustain the conviction; (3) the court erred in failing to instruct the jury regarding the rebuttability of the presumption of intoxication; (4) the court erred in admitting into evidence the results of the intoxilyzer test because appellant had previously invoked and been denied his right to counsel; (5) the court erred in not instructing the jury on the issue of appellant's voluntary consent to taking the breath test; and the current D.W.I. statute is unconstitutional because: (6) it provides for a conclusive presumption of intoxication, (7) its body contains more subjects than are given fair notice of in its caption, and (8) the term "public place" is overly broad, vague and indefinite. In view of the constitutional challenges appellant makes, we will address these arguments first.

In his sixth ground of error, appellant contends that the statute under which he was convicted creates a conclusive presumption of intoxication once an accused's alcohol concentration is established at Prior to January 1, 1984, TEX.REV.CIV.STAT.ANN. art. 6701l-1 provided that it was an offense for a person to drive or operate a motor vehicle upon any public road or highway while such person was intoxicated or under the influence of intoxicating liquor. Speed and Driving While Intoxicated, ch. 682, sec. 3, 1979 Tex.Gen.Laws 1608, 1609, amended by Act of June 16, 1983, ch. 303, sec. 3, 1983 Tex.Gen.Laws 1568, 1574-75. Further, the statutory evidentiary rules then in effect provided that if at the time of the person's arrest there was 0.10% or more by weight of alcohol in his blood, it was presumed that the person was under the influence of intoxicating liquor. Driving While Intoxicated, ch. 709, sec. 1, 1971 Tex.Gen.Laws 2340, 2341, amended by, Act of June 16, 1983, ch. 303, sec. 4, 1983 Tex.Gen.Laws 1568, 1581-82.

0.10% or more, and therefore the statute is unconstitutional. We disagree.

The 68th Texas Legislature passed S.B. No. 1, effective Jan. 1, 1984, which amended the driving while intoxicated statute and provided, in pertinent part:

Art. 6701l-1. Intoxicated driver; penalty

(a) In this article:

(1) "Alcohol concentration" means:

(A) the number of grams of alcohol per 100 milliliters of blood;

(B) the number of grams of alcohol per 210 liters of breath; or

(C) the number of grams of alcohol per 67 milliliters of urine.

(2) "Intoxication means:

(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body; or

(B) having an alcohol concentration of 0.10 percent or more.

* * *

* * *

(4) "Public place" has the meaning assigned by Section 1.07(a)(29), Penal Code.

(b) A person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place. The fact that any person charged with a violation of this section is or has been entitled to use a controlled substance or drug under the laws of this state is not a defense.

TEX.REV.CIV.STAT.ANN. art. 6701l-1 (Vernon Supp.1984).

Under our prior D.W.I. statute, the amount of alcohol in a person's blood created a presumption regarding whether a person was under the influence of intoxicating liquor. Under the present statutory scheme, however, the presumption has been abolished. Instead, the statute sets out two alternative methods of committing the offense of driving while intoxicated. The State now has the burden of proving that the defendant: (1) was in control of the vehicle; (2) was operating the vehicle in a public place; and either: (3)(a) did not have the normal use of his mental or physical faculties by reason of the introduction of alcohol into his body, OR, (3)(b) had an alcohol concentration of 0.10% or more. At the urging of the United States Congress, ¹ statutes of this kind have recently been enacted by the majority of states in the United States and by the District of Columbia. ²

Appellant asserts that art. 6701l-1(a)(2)(B) is an impermissible conclusive presumption which violates the Sixth and Fourteenth Amendments to the United States Constitution, and the Texas Constitution art. I, secs. 3, 10 and 19. When the constitutionality of a statute is attacked, the Court must begin with the presumption that the statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting the statute. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). The burden rests upon the individual who challenges the act to establish its unconstitutionality. Id. It is the duty of this Court to construe a statute in such a way as to uphold its constitutionality if possible. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979). Further, when construing a statute, we must determine and follow the legislative intent underlying the enactment of the statute. Faulk v. State, 608 S.W.2d 625, 630 (Tex.Crim.App.1980).

In support of his contention that the statute creates a conclusive presumption, appellant relies upon Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and County Court of Ulster New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). In Sandstrom, the jury was instructed that "the law presumes that a person intends the ordinary consequences of his voluntary acts". The United States Supreme Court held that this instruction was unconstitutional because the jury may have interpreted the judge's instruction as constituting either a burden-shifting presumption, or a conclusive presumption, and because either interpretation would have deprived the accused of the right to the due process of law. Sandstrom, 442 U.S. at 524, 99 S.Ct. at 2459. In Allen, the court reached a different conclusion and upheld a New York statute which provided that if a weapon was found in an automobile, it was presumptive evidence of its possession by all persons occupying such automobile at the time the weapon is discovered.

Contrary to appellant's assertions, these authorities are not applicable to the instant case because art. 6701l-1(a)(2)(B) does not create a presumption of intoxication, nor does it eliminate the prosecutor's burden of proof when the accused is found to have a level of alcohol concentration of 0.10% in his system. Instead, the statute defines in precise terms the conduct proscribed. In other states that have enacted statutes similar to art. 6701l-1, the courts have drawn the same conclusion. See Fuenning v. Arizona, 139 Ariz. 590, 680 P.2d 121 (1983); Coxe v. Delaware, 281 A.2d 606 (Del.1971); Burg v. Municipal Court, 35 Cal.3d 257, 198 Cal.Rptr. 145, 673...