Gray v. State
| Decision Date | 03 March 1999 |
| Docket Number | No. 09-97-303,09-97-303 |
| Citation | 986 S.W.2d 814 |
| Parties | Alan William GRAY, Appellant, v. The STATE of Texas, Appellee. CR. |
| Court | Texas Court of Appeals |
James R. Reed, Houston, for appellant.
Frank Bass, Jr., County Atty., Jose Mata, Asst. County Atty., Conroe, for State.
Before WALKER, C.J., BURGESS, and STOVER, JJ.
A jury convicted Alan William Gray of the misdemeanor offense of driving while intoxicated. The trial court assessed punishment, sentencing Gray to 180 days' confinement in the County Jail, suspended for two years. Gray appeals, challenging the trial court's denial of his motion to suppress. Specifically, he alleges the audio portions of the DWI videotape where he invoked his sixth amendment right to counsel and sought to terminate the interview should not have been published to the jury.
The standard for reviewing a trial court's ruling on a motion to suppress evidence was succinctly stated by the Court of Criminal Appeals as follows:
A trial court's ruling on a motion to suppress lies within the sound discretion of that court. At the hearing on the motion the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).... [A]n appellate court must view the record evidence and all reasonable inferences therefrom in the light most favorable to the trial court's ruling, and must sustain the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id.
Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996).
Directly on point is Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991). In that case, the defendant was arrested for DWI, taken to the police station and videotaped. The defendant sought to suppress the tape on the grounds that it improperly informed the jury of his exercise of his constitutional rights but the trial court overruled his objections. The Dallas Court of Appeals held the admission of the audio portion of the tape impermissibly penalized the defendant for exercising his right against self-incrimination. Hardie v. State, 787 S.W.2d 89, 90 (Tex.App.--Dallas 1990). On appeal, the Court of Criminal Appeals upheld that decision, reasoning:
We believe that evidence of an accused invoking his or her right to counsel may indeed be construed adversely to a defendant and may improperly be considered as an inference of guilt.... Such adverse use of evidence that a defendant invoked a right or privilege which has been granted him, is constitutionally impermissible.... We therefore hold that evidence of one's invocation of the right to counsel is inadmissible as evidence of guilt.
Hardie, 807 S.W.2d at 322 (citations omitted).
In addressing this issue, other courts of appeals have continued to follow Hardie and said it is error to admit such evidence. See Fierro v. State, 969 S.W.2d 51, 54-55 (Tex.App.--Austin 1998, no pet.); Reeves v. State, 969 S.W.2d 471, 495-97 (Tex.App.--Waco 1998, pet. ref'd); Cooper v. State, 961 S.W.2d 222, 226-27 (Tex.App.--Houston [1st Dist.] 1997, pet. ref'd); Johnson v. State, 841 S.W.2d 562, 565 (Tex.App.--Eastland 1992), rev'd on other grounds, 869 S.W.2d 347 (Tex.Crim.App.1994). See also State v. Lee, 971 S.W.2d 553, 556 (Tex.App.--Dallas 1997, pet. granted); Morris v. State, 897 S.W.2d 528, 533 (Tex.App.--El Paso 1995, no pet.); Raffaelli v. State, 881 S.W.2d 714, 716 (Tex.App.--Texarkana 1994, pet. ref'd); Sontag v. State, 841 S.W.2d 889, 893 (Tex.App.--Corpus Christi 1992, pet. ref'd); Dumas v. State, 812 S.W.2d 611, 614 (Tex.App.--Dallas 1991, pet. ref'd).
In accordance with Hardie and its progeny, we hold the trial court erred in admitting evidence of Gray's invocation of his right to counsel and his right to terminate the interview.
Having found trial error, we now conduct a harm analysis in accordance with T EX. R. A PP. P. 44.2. As the error involved is constitutional in nature, Rule 44.2(a) is implicated. Like Rule 81(b)(2) before it, Rule 44.2(a) mandates reversal unless this court determines beyond a reasonable doubt the error made no contribution to the conviction. Accordingly, a Rule 44.2(a) analysis also requires us to examine the source and nature of the error, whether or to what extent it was emphasized by the State, its probable collateral implications, how much weight a juror would probably place upon the error, and whether declaring the error harmless would encourage the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989).
In this case, the source of the error was the State's offering and the trial court's admitting into evidence the audio portion of the videotape where Gray invoked his right to counsel and his right to terminate the interview. The nature of the error was to point out Gray's combative attitude. The State directly emphasized Gray's invocation of his right to counsel in its closing argument stating, The probable collateral implication was that Gray was guilty.
In considering the weight a juror would probably place upon the error, we look to the other evidence of Gray's guilt. Officer Trooper Kenneth Brown, the arresting officer, was the only witness. Brown testified Gray was speeding and swerving from lane to lane prior to being pulled over and failed to stop in a timely manner. Brown noticed a strong odor of alcohol coming from the vehicle. He also noted Gray's eyes were red and glassy and his speech was slurred. Gray admitted he had been drinking but did not know how many drinks he had consumed. Brown also testified that Gray's wife said, "I told you you had too much to drink to drive." Brown further testified Gray stumbled when walking, failed to follow instructions and continually interrupted him. The videotape reflects Gray's combative attitude. His...
To continue reading
Request your trial
-
Ex parte Skelton
...807 S.W.2d 319, 322 (Tex.Crim.App.1991); Kalisz v. State, 32 S.W.3d 718, 723 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); Gray v. State, 986 S.W.2d 814, 815 (Tex.App.-Beaumont 1999, no pet.); Loy v. State, 982 S.W.2d 616, 617 (Tex.App.-Houston [1st Dist.] 1998, pet ref'd); Cooper v. St......
-
Walter Francis Kalisz v. the State of Texas
...of the type alleged by appellant. See, e.g., Mayes v. State, 8 S.W.3d 354, 361-62 (Tex. App. Amarillo 1999, no pet.); Gray v. State, 986 S.W.2d 814, 815-16 (Tex. App. Beaumont 1999, no pet.). In applying that rule, we are guided by the following factors: (1) the source of the error; (2) the......
-
Self-incrimination
...appeals courts conduct a harm analysis under Tex. R. App. P. 44.2 because the error involved is constitutional in nature. Gray v. State, 986 S.W.2d 814 (Tex.App.—Beaumont 1999, no pet .). Pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against compelled self-in......
-
Self-Incrimination
...appeals courts conduct a harm analysis under Tex. R. App. P. 44.2 because the error involved is constitutional in nature. Gray v. State, 986 S.W.2d 814 (Tex. App.—Beaumont 1999, no pet .). Pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against compelled self-i......
-
Evidence
...his right to counsel and sought to terminate the interview. Failure to suppress DWI videotape results is reversible error. Gray v. State, 986 S.W.2d 814 (Tex.App.—Beaumont 1999). Harm analysis under T.R.A.P. 44.2(a), as error is constitutional, and uses the factors set forth in Harris v. St......
-
Evidence
...his right to counsel and sought to terminate the interview. Failure to suppress DWI videotape results is reversible error. Gray v. State, 986 S.W.2d 814 (Tex.App.—Beaumont 1999). Harm analysis under T.R.A.P. 44.2(a), as error is constitutional, and uses the factors set forth in Harris v. St......