Jamail v. State

• Decision Date: 21 March 1990
• Docket Number: No. 941-86,941-86
• Citation: 787 S.W.2d 372
• Parties: Randall Haige JAMAIL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 372

787 S.W.2d 372

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

No. 941-86.

Court of Criminal Appeals of Texas En Banc.

March 21, 1990.

J. Gary Trichter, Edward A. Mallett, Gene L. Locke, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr., Shirley Cornelius, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON THE STATE'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM. ^*

Appellant was convicted by a jury for the offense of driving while intoxicated. Punishment was assessed at ninety days confinement in jail, probated for two years, and a fine of $1,000.00. The Fourteenth Court of Appeals reversed the conviction, holding that the trial court improperly denied the appellant's motion to suppress the results of his blood test and the videotape recording of appellant at the police station shortly after his arrest. Jamail v. State, 713 S.W.2d 776 (Tex.App.--Houston [14 Dist.] 1986).

We granted the State's petition for discretionary review to decide whether the videotape recording and the results of the blood test were fruits of an unlawful custodial interrogation.

On June 17, 1984, the appellant was arrested by two Houston police officers for suspicion of driving while intoxicated. After performing field sobriety tests, the officers transported appellant to the police station. Although the record is unclear, apparently upon arriving at the police station the appellant was given his Miranda warnings. He then requested that he be able to call his attorney. This request was denied, but he was informed by Officer Mock that he could make such a call once inside the videotape room. Appellant was also advised that if he chose to make the phone call in the videotape room at least one police officer would be in the room during that time and the audio and video equipment would remain on. ¹

Once inside the videotape room appellant was again given his Miranda warnings and then required to perform several motor skill exercises, and requested to read aloud a paragraph of material to test his mental faculties. This was recorded on videotape. After the dexterity tests were completed, Officer Mock again repeated the Miranda warnings and stated "You have a right to have a lawyer present to advise you prior to and during these questions." Appellant immediately responded: "[I]f I feel like a question is infringing on my rights, I'll say so...." ²

During the interrogation the police officer asked the appellant about several aspects of the offense which were answered by the appellant without any objection or a request for an attorney to be present during the questioning. When asked whether he had been drinking the appellant responded: "Now it's time for me to call my lawyer." The following colloquy then took place:

Officer Mock: Okay. Do you want to call him [an attorney] now or ...?

Appellant: Sure, sure. Unless you have another question that you'd like to ask me.

Officer Mock: Well, I have more questions. You refuse to answer questions.

Appellant: I would like to answer that question, but, uh, if you have another question I will answer it.

Officer Mock: Okay, you refuse to answer questions?

Appellant: Only because I'm not sure how this ...

Officer Mock: Yeah, yeah. Well, I have these questions I need to ask you.

Appellant: Yeah, I know, I know. And I'll go on answering them, but those questions that I ...

Officer Mock: Let me go ahead and ask them, and you tell me whether or not you want to answer them, okay? Are you under the influence of alcohol now?

Appellant chose to answer that question in the negative and then answered Mock's remaining questions. Officer Mock then gave appellant the statutory warnings pursuant to Art. 6701l -5, § 2(b), V.A.C.S. ³ Immediately after the appellant was given the statutory warnings he was requested to submit to a breath test to determine his blood/alcohol concentration. Appellant emphatically declined to submit to this test but did agree to submit to a blood test. The .19 blood-alcohol test results and the videotape were introduced into evidence at appellant's trial.

The court of appeals found that the trial court erred in failing to suppress the videotape and blood-alcohol test result, as both were the result of the wrongful custodial interrogation of appellant. The court relied upon unassigned error and decided that the continuation of the custodial interrogation, after the appellant had affirmatively requested counsel, violated the safeguards established by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

In its opinion, the court of appeals viewed the appellant's initial request to call an attorney an absolute assertion for the assistance of counsel that could not be overcome by other events. The court of appeals curiously observed that the "request for consent to a breath/alcohol test was the functional equivalent of continued custodial interrogation after the right to counsel attached and right to counsel was denied." Jamail v. State, supra, at 780.

Consistent with the court of appeals' opinion, the appellant asserts that the videotape and the resultant blood test results should have been suppressed by the trial court as he was denied the right to counsel under the Sixth Amendment to the United States Constitution and the right to counsel provision of Art. I, § 10 of the Texas Constitution. He further argues that he was denied his right to have the presence of counsel during in-custody interrogation in violation of the dictates of the Fifth Amendment to the United States Constitution and the right to be free from compelled self-incrimination as guaranteed by Art. I, § 10 of the Texas Constitution.

In addition, he contends that the confusion or mixing doctrine as set out in footnote 17 of Judge Campbell's opinion in McCambridge v. State, 712 S.W.2d 499, 506 (Tex.Cr.App.1986), is applicable. ⁴ In other words, the appellant claims that in refusing appellant's request for counsel pursuant to Miranda and its progeny the police officers mixed their request for breath/blood samples with questions that amounted to custodial interrogation ultimately resulting in appellant's confusion when viewed in conjunction with the Miranda assurances.

While the court of appeals did not decide the issue presented under the right to counsel provisions of the Federal and State constitutions, it did agree that the appellant was improperly denied the presence of counsel during his in-custody interrogation and that the police officers mixed their request for a breath/blood sample with what amounted to wrongful custodial interrogation. ⁵

The record reveals that the appellant requested that he be allowed to call an attorney twice. His first request came shortly after he was transported to the police station and immediately prior to entering the videotape room. As previously noted, this request was refused by one of the arresting officers, who, however, commented that appellant would have such an opportunity once inside the videotape room. Appellant's second request for an attorney came while he was in the videotape room during actual in-custody interrogation, when he responded to the question as to whether he had been drinking by stating: "Now it's time for me to call my lawyer." We will treat each request separately.

Relative to the appellant's initial request to call an attorney, it is imperative to note that appellant at that time had no right to counsel under the right to counsel provisions of either the Federal or Texas constitutions. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Forte v. State, 759 S.W.2d 128 (Tex.Cr.App.1988). However, in an abundance of caution we will indulge in the assumption that this initial plea to call an attorney was tantamount to a request to have counsel present prior to or during any custodial interrogation. His request was clear, and unequivocal and certainly sufficiently expressed appellant's desire to deal with the police officers only through counsel. See Smith v. Illinois, supra. However, at the time of this request the appellant was not being subjected to interrogation nor did the officer make an attempt to question appellant, rather he was simply advised that his request would be honored once he entered the videotape room. ⁶

After entering the videotape room the appellant was again given his Miranda warnings. He was then given the opportunity to call an attorney, which he expressly declined. However, the appellant did request that the officers turn the video equipment off, which they refused to do. Despite that, the appellant told the officers that he wanted to cooperate with them in every way "but I don't believe that a lawyer is going to be able to come to the video room and help me." ⁷ Appellant attempted to give the reasons for failing to contact an attorney but was unsuccessful in completing the explanation.

The appellant testified at the pretrial motion to suppress hearing and explained that he did not want to contact a lawyer at that time because he was being filmed and "I was scared that if I wanted a lawyer or asked for a lawyer while I was on video tape, that it would look like I was guilty, or it might appear that I thought I was guilty." Although appellant may have thought he was faced with the proverbial Hobson's choice, he nevertheless consciously and voluntarily made the decision to forego contacting an attorney at that time.

We therefore conclude that the appellant's behavior and comments constituted a voluntary, knowing and intelligent relinquishment and abandonment of his constitutional right to counsel under the Fifth and Fourteenth Amendments to the Federal Constitution as well as the right to counsel required under the self-incrimination provision of the Texas Constitution....