Forte v. State
| Decision Date | 11 December 1986 |
| Docket Number | No. 2-84-012-CR,2-84-012-CR |
| Citation | 722 S.W.2d 219 |
| Parties | Edward Earl FORTE, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Alley & Alley, Richard Alley, Fort Worth, Mallett, Trichter & Brann, J. Gary Trichter, Stanley Schneider, Houston, for appellant.
Tim Curry, C. Chris Marshall, Fort Worth, Stephen H. Capelle, Austin, for the State.
OPINION ON REMAND
This is an ongoing appeal from a conviction for DWI wherein, upon original submission, this court disposed of all intervening points of error (adversely to appellant) and ordered the case reversed because appellant's rights under the sixth amendment to the Constitution of the United States were violated when he was denied the privilege of consultation with counsel before giving a breath sample to be tested for alcoholic content. See Forte v. State, 686 S.W.2d 744 (Tex.App.--Fort Worth 1985). The Court of Criminal Appeals (on discretionary review) held that no sixth amendment right had attached and remanded the cause to us solely for consideration of appellant's claims under Texas law. See Forte v. State, 707 S.W.2d 89 (Tex.Crim.App.1986).
Appellant urges that we again reverse the judgment of conviction on any or all of the following grounds, to wit, violation of appellant's rights under:
(1) Article I, Section 3, Texas Constitution (Equal Rights).
(2) Article I, Section 10, Texas Constitution ().
(3) Article I, Section 13, Texas Constitution (Due Course of Law).
(4) Article I, Section 19, Texas Constitution ().
(5) Article 1.04, Texas Code of Criminal Procedure (Due Course of Law).
(6) Article 1.05, Texas Code of Criminal Procedure ().
(7) Article 38.21, Texas Code of Criminal Procedure (Voluntariness of Confessions).
(8) Article 38.22, Texas Code of Criminal Procedure (Minimum Standards for Voluntary Statements).
(9) Article 38.23, Texas Code of Criminal Procedure ().
By logic alone we can eliminate many of these grounds from further discussion and level our attention on the true problem before us. Equal rights (TEX.CONST. art. I, sec. 3) can be eliminated as we find no improper discrimination in the classification of "intoxicated drivers" as offenders. Due course of law (TEX.CONST. art. I, secs. 13, 19; TEX.CODE CRIM.PROC.ANN. art. 1.04 [Vernon 1977] ) can be eliminated by our simply holding that if, in fact, a person has a definable right or privilege under the Texas Constitution, the law must provide a reasonable means whereby such right or privilege may be exercised. Under our holding herein we do not reach this question.
The disposition of the complaint of violation of articles 38.21 and 38.22, Texas Code of Criminal Procedure, governing the taking of statements is foreclosed by the holding of the Court of Criminal Appeals in Rodriguez v. State, 631 S.W.2d 515 (Tex.Crim.App.1982) wherein Presiding Judge Onion stated:
We hold that the taking of the breathalyzer test is not a testimonial communication that Article I, sec. 10, Texas Constitution, or the Fifth Amendment, United States Constitution, seek to protect.
Id. at 517. And lastly we eliminate discussion of article 38.23, Texas Code of Criminal Procedure, as such simply provides a statutory definition of a portion of "due course of law" and we presume that any court observing illegally obtained evidence (as so defined in the statute) will bar its admission into evidence.
We are left then with the right to counsel problem. Since article 1.05 of the Code of Criminal Procedure and article I, section 10 of the Constitution are in virtually identical language (with the statute being worded more narrowly than and fully included within the constitutional provision) and since we have not found any authority for giving greater effect to the statute, we will proceed to discuss the constitutional question alone. Simply stated we must determine whether our Texas Constitution assures a right of consultation with counsel prior to testing to a person reasonably suspected of having more than .10 percent alcohol in his blood.
This court has heretofore faced a virtually identical question in Floyd v. State, 710 S.W.2d 807 (Tex.App.--Fort Worth 1986, pet. filed). In Floyd the defendant declined to furnish a breath sample until he could consult with counsel. The police officers treated this as a refusal to submit to testing. Over objection the trial court in Fl...
To continue reading
Request your trial
-
Forte v. State
...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 [A]n exhaustive search of the r......
-
Garner v. State, 2-87-079-CR
...consultation with counsel did not bar the introduction of evidence of the refusal to submit to breath testing. Forte v. State, 722 S.W.2d 219, 221 (Tex.App.--Fort Worth 1986), affirmed, 759 S.W.2d 128 (Tex.Crim.App.1988) (en banc); Floyd v. State, 710 S.W.2d 807, 808 (Tex.App.--Fort Worth 1......
-
Miffleton v. State
...held there is no right to counsel under art. I, § 10 before consenting to a videotaped sobriety test. 1 See Forte v. State, 722 S.W.2d 219 (Tex.App.--Fort Worth, 1987); Recaz v. State, 722 S.W.2d 32 (Tex.App.--Dallas, 1986); Ramirez v. State, 721 S.W.2d 490 (Tex.App.--Houston [1st], 1986); ......
-
McCambridge v. State
...is afforded by the United States Constitution. The Fort Worth Court of Appeals later issued a similar holding. Forte v. State, 722 S.W.2d 219 (Tex.App.--Fort Worth, 1986) (on remand); see also Floyd v. State, 710 S.W.2d 807 (Tex.App.--Fort Worth 1986, no pet.); Yates v. State, 679 S.W.2d 53......