Jones v. State
| Citation | 795 S.W.2d 171 |
| Decision Date | 02 May 1990 |
| Docket Number | No. 246-88,246-88 |
| Parties | Gayle Lee JONES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Pete Gilfeather, Fort Worth, for appellant.
Jorge A. Solis, Dist. Atty., Sara A. Fauls, Asst. Dist. Atty., Abilene, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
In Miffleton v. State, 777 S.W.2d 76 (Tex.Cr.App.1989), we made it clear that compelling a DWI suspect to perform sobriety tests on videotape did not call for testimonial responses and therefore offended neither the United States nor the Texas Constitutions. This holding applied only to the visual part of the recording; we failed to reach the admissibility of defendant's statements on the accompanying soundtrack which were made after defendant invoked his Miranda right to counsel. In this case, we hold the police questioning incident to the videotaped sobriety test was "activity normally attendant to arrest and custody" of a DWI suspect, not "interrogation." Since there was an absence of police questioning calling for testimonial responses, the appellant's admissions on the audio portion of the DWI videotape were admissible even after a proper invocation of her Miranda rights.
Appellant was convicted of driving while intoxicated. On direct appeal to the Eastland Court of Appeals, appellant claimed, inter alia, that the trial court erred when it refused to suppress the oral statements she made on her DWI videotape beginning with her request to have counsel present. Jones v. State, 703 S.W.2d 391 (Tex.App.--Eastland 1986). The Court of Appeals held that appellant's rights under 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) had been violated.
On State's petition for review, we held that appellant had effectively invoked her Miranda right to counsel. We also held that her subsequent actions did not constitute a waiver of that right. Jones v. State, 742 S.W.2d 398 (Tex.Cr.App.1987). We then had only to determine whether any of appellant's statements on the videotape were the product of custodial interrogation. Id. It was clear that appellant had been in custody, id. at 406; all that remained was a determination whether she was under "interrogation" during those portions of the tape played to the jury. Unfortunately, we did not possess the videotape or a transcript of its contents with which to make this determination. We vacated the Court of Appeals' decision and remanded the case for application of the Rhode Island v. Innis standard in order to determine whether police conduct in the instant case constituted "interrogation" as that term has been defined in Miranda and its progeny. Id. at 407, Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).
On remand, the Court of Appeals applied Innis and held that "audio taping [in addition to videotaping[ the suspect's oral responses to questions incidental to the 'field sobriety test' is a practice which ... the 'police should know [is] reasonably likely to elicit an incriminating response' and 'thus amounts to interrogation.' " Jones v. State, 745 S.W.2d 94 (Tex.App.--Eastland 1988, pet. granted). The State then petitioned for review of this second holding of the Court of Appeals. As stated above, we hold in this case that the police behavior depicted in appellant's videotape is not "interrogation." 1 We therefore reverse the Court of Appeals' judgment and affirm appellant's conviction.
The facts of this case have already been set forth in our earlier opinion, Jones, 742 S.W.2d at 399-401, and need not be repeated here at great length. Suffice it to say that appellant requested an attorney before the taping began and at the beginning of the taping. Id. at 401. We held that appellant's requests clearly and unequivocally asserted her Fifth Amendment right to counsel announced in Miranda and Edwards. Id. at 406. We now have only to explore the nature of the police behavior during the videotaping.
The transcript of the audio portion of the videotape reads as follows:
Q. I am Officer Ricky Sanchez, the videotaping officer. The arresting officer is going to be Boyd Scott, which will not being (sic) present in the room. The transporting officers will be Steve Rogers and Julie Komatz. On my left will be the Defendant, last name Jones, Tayle, middle initial L., Lincoln.
A. Spelled L-e, Lee.
Q. L-e, okay. Date of birth, 12-10-62. At this time, pronounce your full name and your date of birth.
A. Gayle Lee Jones, 12-10-62.
Q. Okay. Okay, Gayle, listen up just a minute. Okay? You are now being photographed and recorded as a standard procedure in the interview of a driving while intoxicated suspect. You have the right to remain silent and not make any statement at all. Any statement you make may be used as evidence against you at your trial. Any statement you make may be used as evidence against you in Court. Do you understand these rights?
A. Yes.
Q. Yes or no?
A. Yes.
Q. Okay. You have the right to have a lawyer present to advise you prior to and during any questioning. If you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning. You have the right to terminate the interview at any time. Do you understand these rights?
A. Yes, but I think I would like to have a lawyer.
Q. Okay. All right. Gayle, step back here right now where the two is. Now, what I am going to have you do right now is a field sobriety test. Do you know what a field sobriety test is?
A. No.
Q. Okay. I am going to show you how to do a couple of things for me and you watch me first. Okay?
A. Yes.
Q. The first thing I want you to do is stand up straight with your feet together. Okay? Now, I want you to lift one foot up for approximately fifteen to twenty seconds until I tell you to put it down. Okay? Put your foot down.
A. When am I supposed to have a lawyer to do all of this stuff?
Q. As far as answering questions--
A. I can do all of this stuff by myself?
Q. Right. He don't have to be present for this.
A. Okay.
Q. Okay. The next thing I want you to do is turn around and face me. No, face me. Put your feet together, your hands to your side. I want you to close your eyes and tilt your head back for approximately fifteen or twenty seconds until I tell you to open your eyes. Close your eyes.
A. They are closed.
Q. Open your eyes. Step right over there.
A. Right here?
Q. Yes, that is fine. Do you see this line on the floor?
A. Yes.
Q. Okay. What I want you to do, I want you to walk that line, heel to toe, just like this. Okay? Heel to toe.
A. I am in the military service.
Q. Okay.
A. Do I have to do this?
Q. Gayle? Gayle, look at me.
A. Yes, I see that.
Q. Okay.
A. I follow the arrows.
Q. Follow the arrows all the way, heel to toe. Once you get there, pivot, go in to the box number two.
A. If I wanted to do this, I would have gone into the Marine Corps. I should have gone into the Marine Corps. Oh, you all are going to get me big time. This is on tape and talking to myself. Lock me up.
Q. Okay. Gayle, at this time, I need for you to pick this coin up just like this, bend over and just pick it up. Okay?
A. Yes, sir.
Q. Pick it up. Okay. Step back up where the one is. Okay. Gayle, can you read and comprehend the English language?
A. Yes, sir.
Q. Read that out loud for me.
A. Six different flags have flown over Texas during its history. Texas is often called the Lone Star State because its flag has a single star. The State flag is not the only State symbol. The pecan tree is the State tree and the bluebonnet is the State flower. In 1927, the mockingbird became the State bird. Texas has many symbols in which all Texans can take pride.
Q. Okay. Gayle, at this time, I am going to give you the opportunity to make a phone call to your attorney. If you want to make a phone call, there is a phone and a telephone book if you don't know the number.
The issue in this case has been the subject of conflicting opinions in the Courts of Appeals. In Mills v. State, 696 S.W.2d 421 (Tex.App.--Dallas 1985, vacated and remanded, 720 S.W.2d 525 (Tex.Cr.App.1986), and Knox v. State, 722 S.W.2d 793 (Tex.App.--Amarillo 1987), the Courts of Appeals held that compelled sobriety testing was custodial interrogation and therefore that statements made during these tests were inadmissible if made after the invocation of Miranda rights. We granted review in both cases, but we remanded partly on other grounds in Mills, and were unable to review the Knox decision when the videotape at issue was accidentally erased before reaching us. Mills v. State, 720 S.W.2d 525 (Tex.Cr.App.1986) and Knox v. State, 769 S.W.2d 244 (Tex.Cr.App.1989). 2
The Court in Gathright v. State, 698 S.W.2d 260 (Tex.App.--Ft. Worth, 1985, no pet.) went even further than the other two Courts of Appeals, holding that the entire video interview (sound and picture) was inadmissible when the suspect invoked his right to remain silent at the beginning of the sobriety tests.
On the other hand, the Court in Chadwick v. State, 766 S.W.2d 819 (Tex.App.--Dallas 1988, pet. granted), held that sobriety test questions, at least where they produced no responses other than those necessary to perform the tests, do not amount to "interrogation" and thus are not covered by the prophylactic safeguards of Miranda. Id. at 821. We are most in accord with the Chadwick holding.
Not all post-arrest police questioning can be classified as "interrogation." Courts around the nation and in Texas have held that a variety of questions are outside the constitutional definition of "interrogation." 3 The Innis definition itself expressly excludes certain police questioning and behavior from its ambit.
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