McCambridge v. State

• Decision Date: 14 May 1986
• Docket Number: No. 1086-85,1086-85
• Citation: 712 S.W.2d 499
• Parties: Dennis Michael McCAMBRIDGE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 499

712 S.W.2d 499

Dennis Michael McCAMBRIDGE, Appellant, v. The STATE of Texas, Appellee.

No. 1086-85.

Court of Criminal Appeals of Texas En Banc.

May 14, 1986.

J. Gary Trichter, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and James C. Brough and Jon Munier, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted on a plea of guilty of the offense of driving while intoxicated. Punishment was assessed at six months confinement in jail and a $200.00 fine, probated for two years. The First Court of Appeals affirmed the conviction, holding that the trial court properly denied appellant's motion to suppress the results of his intoxilyzer test. McCambridge v. State, 698 S.W.2d 390, (Tex.App.--Houston [1st] 1985). We granted appellant's petition for discretionary review to decide 1) whether appellant had a right to counsel ¹ before deciding to provide a breath sample for an intoxilyzer test, and 2) whether the State's use of appellant's breath sample, obtained after appellant responded to Miranda warnings with a request for counsel, violated the prophylactic 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). ² We remand.

Appellant was arrested on May 21, 1984, at approximately 11 p.m., by two Houston police officers for suspicion of driving while intoxicated. At the scene of his arrest, appellant requested an attorney. The arresting officers told appellant he would have to wait until he was downtown before receiving the aid of an attorney. Appellant was then transported to the Houston Police Department and taken to a videotaping room. See V.A.C.S., art. 6701l-1 note, (Supp.1986). Videotaping began, and appellant was given Miranda warnings in the presence of three police officers. Appellant responded by stating that he wanted to consult with his attorney. Appellant was given an opportunity to contact an attorney by telephone. However, his attempt was unsuccessful. ³

After appellant completed his phone call, the police officers resumed questioning appellant. Appellant again requested that an attorney be present. The officers granted appellant another opportunity to contact an attorney. Appellant attempted to re-call his wife, but the line was busy. An officer then resumed questioning appellant. Appellant again asked for an attorney, but the questioning continued. Appellant requested counsel seven more times, but questioning continued. ⁴

Upon appellant's eleventh request for an attorney, the officers abruptly concluded the videotaping of appellant and took appellant outside the videotaping room and into the hallway. While in the hallway, appellant was asked repeatedly whether he would provide a breath sample to determine alcohol concentration. See V.A.C.S., art. 6701l-5, § 1 (Supp.1986). Appellant continued to request an attorney. After five to ten minutes, appellant agreed to provide a breath sample for use in an intoxilyzer test.

Prior to taking a breath sample from appellant, an intoxilyzer operator advised appellant of the required statutory breath test warnings. ⁵ Appellant again agreed to provide a breath sample, stating to the intoxilyzer operator that "he would then take the test because of the [concern over losing his] driver's license." ⁶ On May 22, 1984, at 2:24 a.m., a complaint and an information were filed against appellant, charging him with driving while intoxicated. See Arts. 2.04 & 2.05, V.A.C.C.P.

Before trial, appellant sought to suppress the videotape of his arrest and the results of the breath test. At the conclusion of the hearing on appellant's motion to suppress, the trial court suppressed the audio portion of the videotape. The trial court overruled appellant's motion to suppress as it applied to the remainder of the videotape and the results of the intoxilyzer test. Appellant then pled guilty with the agreement that he could appeal the trial court's order. ⁷ See Art. 44.02, V.A.C.C.P.; Morgan v. State, 688 S.W.2d 504 (Tex.Cr.App.1985).

I. Right to Counsel

Relying upon three Supreme Court cases, ⁸ the Court of Appeals overruled appellant's first ground of error, in which appellant argued that he had a right to counsel before deciding whether to provide a breath sample for an intoxilyzer test. McCambridge, supra, at 394. ⁹ Although the Court of Appeals did not explicitly state that it was only addressing a particular federal constitutional provision, given the court's reliance on the above Supreme Court opinions, it is clear that the decision to affirm was grounded upon appellant's argument that he had a Sixth Amendment right to counsel. ¹⁰ Appellant's remaining federal and state constitutional arguments claiming a right to counsel were left unaddressed.

This Court recently held that the right to counsel under the Sixth Amendment attaches only upon or after formal initiation of judicial proceedings. Forte v. State, 707 S.W.2d 89, 91 (Tex.Cr.App.1986). Therefore, our determination in the instant case whether the Court of Appeals correctly decided that appellant was not denied his Sixth Amendment right to counsel only depends upon when formal adversary proceedings were initiated. Id. ¹¹

Appellant was arrested at approximately 11 p.m. on May 21, 1984. Appellant then provided the police with a breath sample prior to a complaint and an information being filed at 2:42 a.m. on May 22, 1984, thus charging appellant with driving while intoxicated. Appellant's Sixth Amendment right to counsel did not attach until the complaint and information were filed. See Forte, supra, at 92. Therefore, we find no denial of appellant's Sixth Amendment right to counsel.

As we noted earlier, appellant also argued to the Court of Appeals that his right to counsel was denied under the "right to counsel" provision of the state constitution, Tex. Const. art. I, § 10, the Due Process Clause, U.S. Const. amend. XIV, and the Due Course of Law Clause, Tex. Const. art. I, § 19. ¹² In his supplemental brief, appellant requests that we decide the instant case on the basis of independent state constitutional authority. We decline to do so at this point because the Court of Appeals affirmed appellant's conviction only on the basis that his Sixth Amendment right to counsel was not denied. Therefore, in order to give the Court of Appeals an opportunity to address all of appellant's constitutional arguments before this Court decides such an important question of state law, we will remand the case for consideration of appellant's remaining state and federal constitutional arguments in his first ground of error. See generally Eisenhauer v. State, 678 S.W.2d 947 (Tex.Cr.App.1984). However, we must first determine whether appellant's remaining ground of review, based on a Miranda violation, has merit.

II. Violation of Miranda

and Edwards.

The Court of Appeals overruled appellant's third ground of error, which claimed that police officers violated the prophylactic safeguards of Miranda v. Arizona, supra, and Edwards v. Arizona, supra, by continuing to ask appellant for a breath sample despite his request for counsel. In holding that no violation had occurred, the Court of Appeals relied upon, inter alia, Schmerber v. California, supra, and South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983).

In Schmerber v. California, supra, a blood sample was extracted from a defendant by a physician without the defendant's consent. The defendant claimed that his Fifth Amendment privilege against self-incrimination was violated. ¹³ The Supreme Court first noted that, generally, "the privilege is a bar against compelling 'communications' or 'testimony,' but ... compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it." Id., 384 U.S. at 764, 86 S.Ct. at 1832. The Court then held that neither the extraction of blood nor the subsequent chemical analysis of the blood for alcohol concentration required appellant to testimonially incriminate himself in violation of the Fifth Amendment. 384 U.S. at 765, 86 S.Ct. at 1833. In its holding, the Court acknowledged that the defendant was compelled to provide a sample of his blood. Id. However, the Court held that the Fifth Amendment privilege against self-incrimination does not protect all types of compulsion--only compulsion directed at producing evidence from a defendant's own mouth. Id. That Court did not address whether the Miranda warning requirement was affected by the absence of a Fifth Amendment privilege against self-incrimination.

This Court has subsequently analogized the extraction of blood in Schmerber v. California, supra, to the collection of a breath sample. Rodriguez v. State, 631 S.W.2d 515, 517 (Tex.Cr.App.1982). In doing so, we held that providing a breath sample for chemical analysis of alcohol concentration is not a testimonial communication protected by the privilege against self-incrimination under the Fifth Amendment. Id. In the absence of any need to protect a defendant's privilege against self-incrimination, we further held that police officers are not required to give a suspect Miranda warnings prior to asking him to provide a breath sample. Id.

In South Dakota v. Neville, supra, a defendant's refusal to participate in a blood-alcohol test was used as substantive evidence against him at his trial. The defendant argued, inter alia, that the use of the refusal against him at his trial violated his Fifth Amendment privilege against self-incrimination. The Supreme Court avoided the notion that Neville's refusal was a physical act rather than a testimonial act, id., 459 U.S. at 561-62, 103 S.Ct. at 921-22, relying instead on the freedom of the defendant to refuse the test, ¹⁴ and held that his choice of...