Forte v. State

• Decision Date: 09 April 1986
• Docket Number: No. 387-85,387-85
• Parties: Edward Earl FORTE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 89

707 S.W.2d 89

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

No. 387-85.

Court of Criminal Appeals of Texas En Banc.

April 9, 1986.

Richard Alley, Fort Worth (Court-appointed), for appellant.

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

Before the court en banc.

OPINION ON APPELLANT'S AND STATE'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury of driving while intoxicated. Punishment was assessed at confinement in jail for 30 days and a fine of $200.00.

The Second Court of Appeals reversed appellant's conviction, holding that appellant was denied a limited right to counsel prior to making a decision whether to provide a breath sample for an intoxilyzer test for alcohol concentration. Forte v. State, 686 S.W.2d 744, 745 (Tex.App.--Fort Worth 1985) (Opinion on Rehearing). The Court of Appeals rejected appellant's remaining grounds of error, including a facial attack upon Article 6701l -1(a)(2)(B), V.A.C.S. (Supp 1984), as unconstitutionally creating an "irrebuttable" presumption of intoxication. Id., at 748.

The State and appellant presented separate petitions for discretionary review to this Court. We granted the State's petition to determine whether a person arrested for suspicion of driving while intoxicated has a limited right to counsel, under the Sixth Amendment to the U.S. Constitution, prior to providing a breath sample for an alcohol concentration test. We also granted appellant's petition to determine whether Article 6701l -1(a)(2)(B), supra, unconstitutionally creates an "irrebuttable" presumption of intoxication. We will reverse in part and affirm in part and remand.

On January 10, 1984, appellant, while driving his car on a public road, weaved back and forth across the road, ran a stop sign and collided with another car. Appellant drove away from the scene of the accident but shortly became stuck in a ditch after losing control of his car. A driver who had observed the incident notified the police by phone.

An investigating officer, Lt. Crawford, responded to the call and arrested appellant for suspicion of driving while intoxicated. Lt. Crawford smelled alcohol on appellant's breath, heard appellant slur his speech, and saw appellant unable to stand without support. Lt. Crawford also found an empty wine bottle and a partially empty whiskey bottle in appellant's car and noticed appellant's pants had an open fly and a dark area in the crotch.

Appellant was transported to Forest Hill city jail, where he was given Miranda warnings. ¹ After also explaining to appellant the consequences of refusing to submit to a breath test for alcohol concentration, see V.A.C.S., art. 6701l -5, § 2(b), Lt. Crawford then asked appellant to provide a sample of his breath. Appellant agreed to provide the sample. Lt. Crawford then took appellant to the Fort Worth city jail for administration of an intoxilyzer test. (Forest Hill city jail did not have an intoxilyzer unit.)

At the Fort Worth city jail, appellant again received Miranda and "breath test" warnings and agreed to take the breath test. After some delay, unexplained in the record, appellant was given a third set of warnings. This time appellant requested an attorney; however, his request for an attorney was not honored. He then agreed, for a third time, to give a sample of his breath. A sample was taken, and the intoxilyzer test showed an alcohol concentration of 0.10%. The next day, January 11, 1984, appellant was formally charged with the offense of driving while intoxicated.

I. Right to Counsel.

The Court of Appeals held that appellant's decision whether to provide a breath sample for an alcohol concentration test ² was a "critical pretrial stage" that triggered a limited right to counsel. Forte, supra, at 754. In reaching its decision, the Court of Appeals quoted United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149, 1157 (1967), for the proposition that the right to counsel can attach "at any stage of the prosecution, formal or informal, in court or not, where counsel's absence might derogate from the accused's right to a fair trial." Forte, supra, at 752. Although the opinion of the Court of Appeals does not specifically mention a particular federal or state constitutional provision, given its reliance upon United States v. Wade, supra, it is clear that the decision was based upon the Sixth Amendment. ³ Indeed, we granted the ground of review in the State's petition that was posited solely on the Sixth Amendment.

The State argues that a defendant's Sixth Amendment right to counsel does not attach until formal criminal proceedings have been initiated against him, citing United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) and Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). The State further argues that the "critical" stage analysis of United States v. Wade, supra, only applies to situations that occur after the right to counsel has attached. We agree with both analyses.

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 187, 104 S.Ct., 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). 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. ⁴

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 ---, 106 S.Ct., at ------. 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, 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 prosecute, 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 ------ (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, 475 U.S. 625, ---, 106 S.Ct. 1404, 1409, 89 L.Ed.2d 631, 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. ------, 106 S.Ct. 1478, 89 L.Ed.2d 732 (1986) ("mere arrest and subsequent questioning" does not trigger Sixth Amendment right to counsel). These holdings make it clear that our determination whether appellant's Sixth Amendment right to counsel was denied in the instant case depends upon when formal adversary proceedings were initiated.

Appellant was arrested and given a breath test on January 10, 1984. A formal complaint, asserting that appellant was driving while intoxicated, was not filed until January 11, 1984. Appellant's right to counsel did not attach until the time the complaint was filed. Therefore, we find no denial of appellant's Sixth Amendment right to counsel.

Appellant argued to the Court of Appeals that his right to counsel under state law was also denied. Tex. Const. art. I, §§ 3, 10, & 19; Articles 1.04, 1.05, 38.23, V.A.C.C.P. Because the Court of Appeals decided the case only on federal constitutional grounds, we will remand the case for consideration of remaining state law grounds. See Eisenhauer v. State, 678 S.W.2d 947 (Tex.Cr.App.1984). However, we must first determine whether appellant's ground of review challenging the constitutionality of Article 6701l -1(a)(2)(B), supra, rejected by the Court of Appeals, has merit.

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