Jamail v. State

• Decision Date: 21 March 1990
• Docket Number: No. 768-87,768-87
• Citation: 787 S.W.2d 380
• Parties: Randall Hage JAMAIL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 380

787 S.W.2d 380

58 USLW 2618

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

No. 768-87.

Court of Criminal Appeals of Texas En Banc.

March 21, 1990.

Rehearing Denied April 25, 1990.

J. Gary Trichter, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., William J. Delmore, III, Mark L. Frazier, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON THE APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM. ¹

The appellant was convicted of driving while intoxicated following his plea of nolo contendere, which was based upon a negotiated plea bargain made pursuant to and in compliance with Article 44.02, V.A.C.C.P. The trial court assessed appellant's punishment at 120 days confinement, probated for two years, and a monetary fine of $300.00. The First Court of Appeals affirmed the conviction, holding that the trial court correctly denied the appellant's motion to suppress evidence. Jamail v. State, 731 S.W.2d 708 (Tex.App.--Houston [1st Dist.] 1987).

We granted the appellant's petition for discretionary review to determine whether the court of appeals was correct in its conclusion that the trial court did not err in failing to suppress appellant's refusal to submit to the breath test. The appellant claimed that evidence of his refusal to take the breath test violated his rights to due course of law under the State Constitution and his concomitant federal right to due process of law. In addition, he claimed that such evidence was a violation of his rights to counsel under Article I, § 10, of the Texas Constitution or Article 1.05 of the Texas Code of Criminal Procedure.

Specifically, and relevant to his first ground for review, the appellant claims that evidence of his refusing to take the breath test should have been suppressed because the refusal was based on his inability to consult with an attorney before refusing the test. Therefore, according to the appellant, his due process rights were breached. ² It must be emphasized that the appellant is not arguing that his refusal to take the test is absolutely inadmissible. Rather, he is arguing that when one's refusal is predicated on the absence of requested counsel an invalid inference of guilt accompanies the evidence of the refusal. Or, as the appellant states in his brief:

When the trial court failed to suppress Appellant's alleged refusal it effectively equated his counsel['s] request to a refusal, i.e., an inference of guilt. Such a holding by the trial court violated the Appellant's due process rights because a request for counsel cannot give rise to an inference of guilt.

After reviewing the videotape it is clear that the appellant's refusal to take the test occurred after he had repeatedly attempted to contact counsel. Moreover, the State does not contend otherwise. Consequently, we will accept that the appellant's refusal to take the breath test was based entirely upon his inability to obtain an attorney's advice prior to taking the breath test.

Although the appellant's argument is both unique and intriguing we nonetheless disagree. In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Supreme Court concluded that there was no constitutional violation attendant to the admissibility of evidence of a suspect's refusal to submit to a blood test. In 1983 the 68th Legislature revised some of the laws relating to driving while intoxicated. Consistent with the Supreme Court's holding in South Dakota v. Neville, id., the Legislature authorized as admissible evidence of a defendant's refusal to take a breath or blood test. Article 6701l -5, § 3(g), V.A.C.S., provides:

If the person refuses a request by an officer to give a specimen of breath or blood, whether the refusal was express or the result of an intentional failure of the person to give the specimen, that fact may be introduced into evidence at the person's trial.

Clearly, the statute does not predicate the admissibility of such evidence on a reason for the refusal. Thus, if a refusal is found to be inadmissible it must be on constitutional grounds.

In Forte v. State, 707 S.W.2d 89 (Tex.Cr.App.1986) and Forte v. State, 759 S.W.2d 128 (Tex.Cr.App.1988), we found that one did not have a right to counsel before he decides to take or refuse a breath test authorized under Article 6701l -5, V.A.C.S. Therefore, when the appellant refused to submit to the breath test he had no statutory or constitutional right to consult counsel regarding the test. In other words when the appellant refused to take the breath test his reason for the refusal was based upon a right he did not possess: the right to consult with counsel.

The appellant argues that the refusal to take the test, because it was based on his request for counsel, should be treated differently than a refusal based on some other reason. He argues that an inference of guilt necessarily accompanies the refusal when it is based upon a suspect's request for counsel. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court held that it was a violation of due process to impeach a defendant's testimony with evidence of his post-arrest, post-Miranda ³ silence. Basically, the Court held that it was fundamentally unfair to promise a defendant that he has a right to remain silent and then violate that assurance by impeaching him when he invokes that right. In several cases that followed Doyle the Supreme Court distinguished the holding in Doyle or made exceptions to it. See Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980), and Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). In Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), however, the Supreme Court followed Doyle. In Wainwright v. Greenfield, id., after the defendant was arrested for sexual battery and given his Miranda warnings he elected to remain silent and requested an attorney. At his trial, the defendant claimed insanity. During final argument the prosecutor commented on the defendant's silence after his arrest and suggested that this was consistent with sanity.

After making its way through the Florida State courts and lower federal courts the Supreme Court granted review. The Supreme Court, as previously noted, applied Doyle and held that even when an insanity offense is pled the State cannot comment upon a defendant's post-arrest, post-Miranda silence because to do so would be fundamentally unfair and a violation of due process.

The appellant cites Wainwright v. Greenfield, supra, in support of his argument that a similar rule should apply when a refusal to take a breath test is based upon the absence of counsel. In essence, the appellant argues that one's invocation of the right to silence and one's invocation of the right to an attorney carry the same adverse inference of guilt if such evidence is admitted at trial. We do not agree for several reasons.

First, the defendant had no right to counsel regarding the breath test. The appellant was not undergoing custodial interrogation because the breath test is not testimonial. Thus, he was not entitled to counsel under the self-incrimination clauses of either the Federal or State Constitutions. See both Forte cases, supra. In addition, because the proceeding had not reached the "critical stage" of the criminal process, the appellant had no right to counsel under the right to counsel provisions of either the Federal or State Constitutions. McCambridge v. State, 778 S.W.2d 70 (Tex.Cr.App.1989).

Second, Doyle v. Ohio, supra, contrary to some opinions, did not hold that an inference of guilt invariably accompanies evidence of one's silence. Instead, the Supreme Court held that once a suspect is arrested and advised he may remain silent, as required by Miranda v. Arizona, supra, then his invocation of that right renders the silence "insolubly ambiguous." Doyle v. Ohio, supra 426 U.S. at 618, 96 S.Ct. at 2245. In other words, "[s]ilence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights," id., and not indicative of his guilt. Therefore, if post-Miranda silence does not carry the inference of guilt then one's request for counsel surely does not either.

Third, even assuming human nature and experience compel the conclusion that evidence of one's silence when confronted with allegations of moral and/or legal improprieties inexorably create an inference of guilt, we do not agree with appellant that the same inference will accompany the request for counsel. As noted, the Supreme Court in Doyle more or less recognized this when it stated that "every post-arrest silence is insolubly ambiguous because ...," id., at 617, 96 S.Ct. at 2244, of the Miranda warnings. However, the same cannot be said of one's right to counsel. Human nature and experience do not compel the conclusion that evidence of one requesting the assistance of counsel when confronted with allegations of moral and/or legal improprieties inexorably create an inference of guilt. And, neither the Supreme Court nor this Court has so held.

In fact, the concurring opinion in Wainwright v. Greenfield, supra, held to the contrary. In his concurring opinion, then-Justice Rehnquist criticizes the court of appeals' opinion that "expanded Doyle to cover not mere silence, but requests for counsel...." Id. 474 U.S. at 296, 106 S.Ct. at 641. The concurring opinion recognizes that because one's post-Miranda silence is by its nature "insolubly ambiguous," ("the defendant may...