Jones v. State

• Decision Date: 25 November 1987
• Docket Number: No. 233-86,233-86
• Citation: 742 S.W.2d 398
• Parties: Gayle Lee JONES, Appellee, v. The STATE of Texas, Appellant.
• Court: Texas Court of Criminal Appeals

Page 398

742 S.W.2d 398

Gayle Lee JONES, Appellee, v. The STATE of Texas, Appellant.

No. 233-86.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 25, 1987.

Pete Gilfeather, Fort Worth, for appellant.

Jorge A. Solis, District Atty., J. Mark Westenhover and Sara A. Fauls, Asst. Dist. Attys., Abilene, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Gayle Lee Jones was convicted, following a jury trial in the County Court, of driving while intoxicated, pursuant to Tex.Rev.Civ.Stat.Ann. art. 6701l -1(b) (Vernon Supp.1987). Pursuant to her election, the trial court assessed punishment at thirty days' confinement and a fine of $300. The imposition of confinement was suspended and appellant was placed on probation for a period of twenty-four months. On direct appeal, the Court of Appeals for the Eleventh Supreme Judicial District of Texas reversed. Jones v. State, 703 S.W.2d 391 (Tex.App.--Eastland 1986, pet. granted).

We granted discretionary review, on the State's petition, to address an issue left open in our earlier opinions in Forte v. State, 707 S.W.2d 89 (Tex.Cr.App.1986) and McCambridge v. State, 712 S.W.2d 499 (Tex.Cr.App.1986). Specifically, we will address whether the court of appeals was correct in holding that it was error under the Fifth Amendment to the United States Constitution to allow the jury to hear the oral statements made by appellant, and recorded on video tape, as she was performing sobriety tests while she was in custody of the Abilene Police Department subsequent to her arrest for suspicion of driving while intoxicated. Tex.R.App.P. 200(c)(2),(3). We will vacate the judgment of the court of appeals and remand the cause to that court with instructions.

Shortly after 9 P.M., on the evening of August 1, 1984, Gayle Lee Jones, hereinafter appellant, left her place of employment in Abilene and proceeded to a local tavern. During the next three hours, according to her uncontroverted testimony, she consumed two mixed drinks. Following an argument with her boyfriend, one Thomas Erwin, appellant left the club and began the journey to her residence, also in Abilene. Erwin would later testify that appellant did not appear to him to be intoxicated at the time that she left the club, and that she did appear to have the normal use of her mental and physical functions at that time.

In route to her home, appellant was involved in an accident at the intersection of South Fourteenth and Danville Streets with an automobile occupied by one Harold McClelland and his wife. McClelland testified that appellant had stopped for a traffic light and then attempted to make her turn just as he entered the intersection. Appellant testified that she stopped for the light, waited for the oncoming traffic from both directions to clear and then attempted to make a turn at a time when there appeared to be no opposing traffic. Appellant was unaware of McClelland's presence at the intersection until the collision. Both cars then stopped at the scene of the collision.

The Abilene Police Department was made aware of the collision and Officers Scott and Spohn were dispatched to the scene. Appellant testified that she was in her car at the time the officers arrived and that Officer Scott initially conferred briefly with McClelland and then approached her car. Appellant testified that Officer Scott did not confer with her in any manner but immediately removed her from the car and placed her in handcuffs while informing her that she was under arrest for driving while intoxicated. Officer Scott testified that appellant was standing in close proximity to her car at the time that he arrived at the intersection and that he spoke with her for a period of seven to eight minutes, during which time he noted that she was unstable on her feet, her speech was slurred, her tongue was thick and her eyes were blood shot.

A second police unit, occupied by Officers Julie Komatz and Steve Rogers, was dispatched to the accident location to assist in directing traffic at the intersection. Rogers testified that he smelled a faint odor of alcohol on appellant's breath and that appellant swayed when she walked. Based upon the astute observations noted earlier, Scott placed appellant under arrest for driving while intoxicated and advised her of her constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant was then transported to the Abilene City Jail by Officers Rogers and Komatz. Officer Rogers testified that the smell of alcohol on appellant's breath, which he had earlier described as faint, was more noticeable in the police car during the drive to the jail.

Rogers indicated that it was standard practice to offer those arrested for suspicion of driving while intoxicated the opportunity to submit to a breathalyzer examination. If the suspect agreed to submit to a breathalyzer examination, that test was administered prior to a video tape examination of the suspect. ¹ If the suspect did not agree to a breathalyzer examination, then the standard procedure was to submit the suspect to a video tape examination and then again offer the breathalyzer examination. All parties agree that appellant was offered the breathalyzer examination and that she refused to submit to such a test. Thus, Rogers called Officer Ricky Sanchez to administer a video tape examination as to appellant's sobriety.

Sanchez testified that he administered Miranda warnings to appellant prior to the video tape examination. At a pretrial hearing on appellant's motion to suppress the video tape examination, appellant testified that she requested an attorney prior to the start of the video tape examination, and again at the beginning of the video tape itself, and that both requests were denied by the officers present in the examination room. ² Appellant objected to the introduction of her video tape examination at the conclusion of Sanchez' testimony and prior to the introduction of the video tape into evidence. The trial court overruled appellant's objections and allowed the State to play the video tape before the jury, subject to his ruling regarding portions of the audio on the video tape following the point where appellant actually called an attorney. ³ The video tape examination apparently lasts for approximately sixteen minutes. ⁴

Toward the latter portion of the video tape examination, appellant was allowed to use the telephone to contact an attorney and she succeeded in reaching one Quanah Parker. He apparently advised her not to take any action until he arrived at the city jail. Indeed, Parker did come to the Abilene City Jail, arriving approximately ten minutes after the phone call from appellant. Parker testified that he conferred with appellant for a period of approximately forty-five minutes and that in his opinion appellant did not appear to be intoxicated. Indeed, shortly after his arrival at the city jail, Parker offered to have appellant submit to a blood analysis to determine her blood alcohol concentration. This offer was initially accepted and then declined by the officer in charge of the city jail at that point in time. Under advice from Parker, appellant again declined to submit to a breathalyzer examination. Parker then left to attempt to make arrangements for appellant's release while appellant was taken to complete the "booking" process.

Appellant presented four points of error to the court of appeals. That court sustained the second point of error and concluded that the trial court erred in overruling appellant's objection to the admission of the audio portion of the video tape made of appellant at the jail following her arrest for driving while intoxicated. Jones v. State, supra at 392. In so doing, the court specifically concluded that appellant requested an attorney before the video tape was made and that she also requested the opportunity to consult with her attorney at the very beginning of the video tape. Id. Allowing the jury to hear the audio portion of the video tape until the point at which appellant was actually allowed to telephone her attorney was thus held "error under the United States Constitution as interpreted by the Supreme Court of the United States." Id. at 392-93. As in Forte, the opinion of the court of appeals does not specifically mention a particular provision of the federal constitution upon which the court based its decision. Forte v. State, supra at 91; Jones v. State, supra at 393. However, given the court of appeals' citation of Miranda v. Arizona, supra, and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1977), it is clear that the decision was based upon the Fifth Amendment. Indeed, the State in its petition for discretionary review as well as its brief on the merits addresses only those cases dealing with the rights protected by that amendment.

Thus, the issue raised by this petition for discretionary review is similar to those addressed by this Court on numerous occasions, most recently in McCambridge v. State, supra, and Forte v. State, supra. However, the precise context in which that issue is addressed was left open in both of those cases.

This case is distinguishable factually from McCambridge in that the jury here was allowed to hear the audio portion of the video tape of appellant's video tape examination until such time as appellant was actually allowed to call her attorney. McCambridge v. State, supra at 505. Given the court of appeals' specific conclusion that appellant requested counsel prior to the start of the video tape examination and again at the very beginning of that examination, this case may well present the factual situation contemplated by this Court when it indicated that a different question would be presented if there were a request for counsel which went ignored, coupled with interrogation by the police officer...