Griffith v. State

• Decision Date: 19 September 2001
• Docket Number: No. 1957-98,1957-98
• Citation: 55 S.W.3d 598
• Parties: (Tex.Crim.App. 2001) CARL MICHAEL GRIFFITH, Appellant v. THE STATE OF TEXAS
• Court: Texas Court of Criminal Appeals

Page 598

55 S.W.3d 598 (Tex.Crim.App. 2001)

CARL MICHAEL GRIFFITH, Appellant v. THE STATE OF TEXAS

No. 1957-98

Court of Criminal Appeals of Texas, En Banc.

September 19, 2001.

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SECOND COURT OF APPEALS TARRANT COUNTY

[Copyrighted Material Omitted]

Forrest W. Wagner, Grand Prairie, for appellant.

C. James Gibson, Asst. DA, Forth Worth, for State.

Before the court en banc.

Womack, J., delivered the opinion of the Court, which Keller, P.J., and Meyers, Price, Keasler, Hervey and Holcomb, JJ., joined.

The issue in this case is whether constitutional rights were violated by the admission, as substantive evidence of guilt, of a recording of the appellant's request for an attorney when he was asked to take a breath-alcohol test before receiving Miranda warnings or being charged with an offense. We hold that they were not.

I.

After Fort Worth police officers arrested the appellant on suspicion of DWI, they transported him to the police station. At the station, the appellant was taken to a room where pictures and sound were recorded on videotape. He was asked by the officers whether he would take an "intoxilyzer" test for breath alcohol. Instead of answering, he asked to consult his lawyer before deciding whether to take the test. The officers informed him that he did not have the right to have an attorney present while he took the test. After each of several inquiries as to whether he would consent to take the test, the appellant maintained that he was not refusing the test but instead wanted to ask his lawyer whether he should take the test. The police officers repeated that he did not have the right to have an attorney present, and they told him that they would take his precondition as a refusal. The appellant did not change his answer, and the police treated his request for an attorney as a refusal to take the test. Then the appellant performed some sobriety tests at the instruction of the officers. The officers later gave the appellant Miranda warnings, after which he voluntarily answered questions about his actions that night.

Later, the State charged the appellant with the offense of driving while intoxicated (DWI).¹ The appellant pleaded not guilty. At trial he objected to the introduction of the audio portion of the videotape, in which he requested counsel. His objection was overruled. A jury convicted the appellant, and the trial court sentenced him to 90-days' confinement, probated for two years, and a $450 fine. The Second Court of Appeals affirmed his conviction. See Griffith v. State, No. 02-97-00530-CR (Tex. App .-- Fort Worth Sept. 10, 1998). We granted discretionary review to decide whether the audio portion of the videotape in which he requested counsel was properly admitted at his trial as substantive evidence of guilt.

II. Relevancy

We start with the general rule that relevant evidence is admissible unless its admission would violate the federal or state constitutions, state statutes, or other laws of evidence.² Since the definition of "intoxicated" includes "not having the normal use of mental or physical faculties,"³ any sign of impairment in the appellant's ability to speak would be circumstantially relevant to whether he was legally intoxicated while driving.⁴

Also relevant as evidence of intoxication is a refusal to take a blood-alcohol test.⁵ The appellant's precondition to taking the test -- that his lawyer be consulted -- is relevant to his refusing to take the test.

The jury could have considered the appellant's request to be incriminating beyond the police registering it as a refusal. It could have reflected an awareness of his intoxication such that he needed to consult with his lawyer about whether it would have been wiser for him to take to the test and let his lawyer cross-examine the results, or to have refused it and taken the refusal to the jury. The State replies that his request actually was exculpatory because it showed that he had control of his mental faculties to a degree that permitted him to ask for his attorney. But we have held that a defendant's "ineffectual requests for counsel ha[ve] no probative value and should not [be] admitted under Rule 402."⁶ "Consequently, the reason one refuses to submit to a breath test is irrelevant and inadmissible as a part of the State's case."⁷ We have found such a request in a similar situation apt to "be construed adversely to a defendant and may improperly be considered as an inference of guilt."⁸ Its introduction in the appellant's case, therefore, did not serve the truth-seeking function of the trial. The State consequently had little interest in introducing only the appellant's request for his lawyer.

The appellant's request for an attorney, however, was cloaked around his refusal to take the blood-alcohol test, which has statutorily-mandated probative value, as did his speech pattern if it was impaired. He never explicitly refused to take the test because he preconditioned his acquiescence to the test on first speaking with his attorney. Thus the appellant's refusal had probative value independent of his request for an attorney, although the request for an attorney alone was irrelevant to his guilt.

The State never argued at trial that the appellant was guilty because he requested an attorney.⁹ Instead it introduced his request as an indication of his intoxication independent of his request.

III. The Appellant's Grounds

The appellant asks us to hold that the introduction of this relevant evidence was reversible error because it infringed on his federal constitutional rights to have the assistance of counsel, to be afforded due process of law, and to be free from compulsion to be a witness against himself.

The appellant also objected at trial that his state constitutional rights under Texas Constitution article 1, section 10 were violated by the admission of his request for an attorney. The only case that he cites that addresses the state-constitution claim expressly held that the protections of Texas Constitution article 1, section 10 are no broader than those found in the federal constitution.¹⁰ The appellant has not argued here that the Texas Constitution should be interpreted differently from its federal counterpart. We shall not consider the application of the Texas Constitution to this case.¹¹

III. Rights to Counsel

The admission of the appellant's request for an attorney did not infringe on his federal constitutional rights to counsel. Rights to counsel are recognized in the Fifth Amendment, which protects a person from governmental compulsion to be a witness against himself, and in the Sixth Amendment, which provides a defendant a right to assistance of counsel in a criminal prosecution. We hold that, when the appellant requested his attorney, the State had not proceeded far enough in its investigation or prosecution of him to implicate such rights.

A. Fifth Amendment

The appellant's Fifth Amendment right to counsel was not implicated because he was not subjected to custodial interrogation. The Fifth-Amendment limitations on interrogation have been announced in court decisions beginning with Miranda v. Arizona, in which the Court held, "The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today."¹²

The Court's decisions go on to say, "It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation."¹³ "It is clear therefore that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. 'Interrogation,' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself."¹⁴ Therefore there is no Fifth Amendment right to counsel if there is no interrogation.

Questions normally accompanying the processing of a D.W.I. arrestee do not constitute interrogation.¹⁵ In particular, the admission into evidence of a defendant's refusal to submit to a blood-alcohol test does not offend the Fifth Amendment right against self-incrimination.

Schmerber v. California, 384 U.S. 757 (1966), held that a State could force a defendant to submit to a blood-alcohol test without violating the defendant's Fifth Amendment right against self-incrimination. We now address a question left open in Schmerber, id., at 765, and hold that the admission into evidence of a defendant's refusal to submit to such a test likewise does not offend the right against self-incrimination.¹⁶

In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda. As we stated in Rhode Island v. Innis, 446 U.S. 291, 301 (1980), police words or actions "normally attendant to arrest and custody" do not constitute interrogation. The police inquiry here is highly regulated by state law, and is presented in virtually the same words to all suspects. It is similar to a police request to submit to fingerprinting or photography. Respondent's choice of refusal thus enjoys no prophylactic Miranda protection outside the basic Fifth Amendment protection.¹⁷

Since the appellant's statements in this case were not produced by custodial interrogation, the appellant had no Fifth Amendment right to counsel.

B. Sixth Amendment

As for the appellant's Sixth Amendment right to counsel, it had not yet attached. The Right to Counsel Clause of the Sixth Amendment to the United States Constitution ("In all criminal prosecutions, the accused shall enjoy the right to have the assistance of...