Jamail v. State

• Decision Date: 21 May 1987
• Docket Number: No. 01-86-0727-CR,01-86-0727-CR
• Citation: 731 S.W.2d 708
• Parties: Randall Haige JAMAIL, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 708

731 S.W.2d 708

Randall Haige JAMAIL, Appellant, v. The STATE of Texas, Appellee.

No. 01-86-0727-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

May 21, 1987.

Rehearing Overruled June 4, 1987.

J. Gary Trichter, Houston, for appellant.

John B. Holmes, Jr. Harris County Dist. Atty., William J. Delmore, III, Mark L. Frazier Harris County Asst. Dist. Attys., Houston, for appellee.

OPINION

Before SAM BASS, DUGGAN and LEVY, JJ.

SAM BASS, Justice.

This is an appeal from a conviction for driving while intoxicated. After the appellant's motion to suppress evidence was overruled, he entered a plea of nolo contendere. Pursuant to a negotiated plea bargain, the court assessed appellant's punishment at 120 days confinement, probated for two years, and a $300 fine. This appeal is focused upon the trial court's denial of appellant's motion to suppress.

Appellant brings nine points of error. Appellant's first three points of error contend that the trial court erred in not suppressing appellant's refusal to submit to a breath-alcohol test as the fruit of an unreasonable seizure. Appellant's first point of error is based on the fourth amendment of the United States Constitution, the second point of error is based on article 1 § 9 of the Texas Constitution, and the third point of error is based on article 1.06 of the Texas Code of Criminal Procedure. (Vernon 1977). Appellant contends that a motion to suppress was properly presented to the trial court urging that the appellant was unreasonably arrested absent proper judicial authorization or any exception to the warrant requirement. Appellant further argues that the State offered no evidence to justify appellant's seizure. Appellant argues that where a defendant properly presents a motion to suppress complaining of an illegal seizure, the burden of proof shifts to the State to establish the legality of the seizure.

Appellant ignores his initial burden of proving that he was subjected to a warrantless seizure. In Russell v. State, 717 S.W.2d 7, 9-10 (Tex.Crim.App.1986), the court stated:

When a defendant seeks to suppress evidence on the basis of a Fourth Amendment violation, this Court has placed the burden of proof initially upon the defendant. Mattei v. State, 455 S.W.2d 761, 765-66 (Tex.Cr.App.1970). As the movant in a motion to suppress evidence, a defendant must produce evidence that defeats the presumption of proper police conduct and therefore shifts the burden of proof to the State. Id., relying upon United States v. Thompson, 421 F.2d 373, 377 (5th Cir.1970) and Rogers v. United States, 330 F.2d 535 (5th Cir.1964), cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d 186. Cf. United States v. Bachner, 706 F.2d 1121, 1125-26 (11 Cir.1983). A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant. Mattei, supra, at 766, quoting Rogers v. United States, 330 F.2d, at 542.

Once a defendant has established 1) that a search or seizure occurred and 2) that no warrant was obtained, the burden of proof shifts to the State. Id.

(Footnotes omitted.)

In this case, appellant failed to meet the initial burden of proof. Appellant did not produce any evidence established that a seizure occurred without a warrant. No witnesses for the appellant or the State testified at the suppression hearing. The only evidence presented at the suppression hearing was the videotape, which was admitted into evidence at the hearing. The circumstances surrounding the alleged seizure do not appear in the record. Because appellant failed to produce evidence that established that a seizure occurred without a warrant, the burden of proof never shifted to the State.

Appellant's first, second, and third points of error are overruled.

Appellant's fourth and fifth points of error contend that the trial court erred in not suppressing evidence of appellant's refusal to take a breath-alcohol test because it was the fruit of a violation of his right to assistance of counsel under article 1, § 10 of the Texas Constitution and its statutory analogue, Tex.Code Crim.P.Ann. art. 1.05 (Vernon 1977).

In Foster v. State, 713 S.W.2d 789 (Tex.App.--Houston [1st Dist.] 1986, pet. granted), this Court noted that article 1, § 10 of the Texas Constitution and article 1.05 "provide only that the defendant has a right to counsel, and does not specifically delineate when this right attaches." In Foster, this Court held that the defendant's right to counsel based upon the Texas Constitution was not violated at the time of a lineup because no formal adversarial judicial proceedings had commenced against the defendant. We observed that we were "unable to find any basis upon which to interpret our State Constitution's right-to-counsel provision as giving a criminal defendant any greater protection than is given by the United States Constitution." 713 S.W.2d at 790.

In Ramirez v. State, 721 S.W.2d 490 (Tex.App.--Houston [1st Dist.] 1986, pet. granted), this Court noted that the Court of Criminal Appeals has held that the right to counsel under the sixth amendment attaches only upon or after the filing of a complaint and information against a DWI arrestee, Forte v. State, 707 S.W.2d 89, 91 (Tex.Crim.App.1986), and held that the Texas Constitution's provision for the right to counsel affords an accused no greater protection than that given by the United States Constitution's corresponding provision.

In McCambridge v. State, 725 S.W.2d 418 (Tex.App.--Houston [1st Dist.] 1987, pet. filed) (on remand) (McCambridge III ) this Court again addressed in a DWI case the issue of whether article 1, section 10 of the Texas Constitution affords greater protection than does the sixth amendment. After noting our rulings in Foster and Ramirez, we chose not to depart from those holdings.

We adhere to our holdings in Foster, Ramirez, and McCambridge. Appellant's fourth and fifth points of error are overruled.

Appellant's sixth point of error contends that the trial court erred in not suppressing appellant's refusal to submit to an intoxilyzer test, as it was the fruit of a violation of the right to assistance of counsel under Tex.Code Crim.P.Ann. art. 15.17(a) (Vernon Supp.1987).

Article 15.17(a) provides:

In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some magistrate of the county where the accused was arrested. The magistrate shall inform in clear language the person arrested of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, of his right to request the appointment of counsel if he is indigent and cannot afford counsel, and of his right to have an examining trial. He shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowed by law.

Article 15.17(a) only requires that an arrestee be taken before a magistrate "without unnecessary delay." The court in Sanders v. City of Houston, 543 F.Supp. 694, 705 (S.D.Tex.1982), aff'd, 741 F.2d 1379 (5th Cir.1984), held that article 15.17 allows a person who is arrested on probable cause to be held for a brief period in order that the police officers may accomplish necessary administrative tasks incident to arrest. The State asserts, and we agree, that "necessary administrative tasks incident to arrest" would include breath testing in the case of a driving while intoxicated suspect.

The express terms of article 15.17 require only that the "magistrate shall allow the person arrested reasonable time and opportunity to consult counsel." Article 15.17 does not grant an arrestee the right to counsel before the arrestee is taken before the magistrate nor does article 15.17 grant an accused the right to counsel during a breath test taken prior to the time the accused is taken before a magistrate.

Appellant's sixth point of error is overruled.

Appellant's seventh point of error contends that the trial court erred in not suppressing appellant's refusal to submit to the intoxilyzer test because it was the product of a violation of his right to assistance of counsel under Tex.Code Crim.P.Ann. art. 38.22, sec. 3(a)(2) (Vernon Supp.1987)

Article 38.22(3)(a)(2) provides:

No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

* * *

* * *

Prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

(Emphasis added.)

Article 38.22, section 3(a)(2) provides that an accused's statement "made as a result of custodial interrogation" is inadmissible against the accused in a criminal proceeding unless the accused receives the warning in article 38.22, section 2(a), prior to giving his statement. In McGinty v. State, 723 S.W.2d 719 (Tex.Crim.App.1986), the court held that a police officer's inquiry of whether the suspect would take a blood-alcohol test was not an interrogation. The defendant's "refusal to submit to the breathalyzer test did not result from a custodial interrogation" for purposes of article 38.22. Id. The court in Bass v. State, 723 S.W.2d 687 (Tex.Crim.App.1986), also held that the police inquiry of whether the suspect would take a blood alcohol test is not an interrogation for purposes of article 38.22. See also Gressett v. State, 723 S.W.2d 695 (Tex.Crim.App.1986) ("We hold that the...