Miffleton v. State

• Decision Date: 08 April 1987
• Docket Number: No. 3-86-108-CR,3-86-108-CR
• Parties: Charles E. MIFFLETON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 880

728 S.W.2d 880

Charles E. MIFFLETON, Appellant, v. The STATE of Texas, Appellee.

No. 3-86-108-CR.

Court of Appeals of Texas Austin.

April 8, 1987.

Rehearing Denied May 6, 1987.

Charles O. Grigson, Austin, for appellant.

Ken Oden, Co. Atty., Michael E. Denton, Asst. Co. Atty., Austin, for appellee.

Before SHANNON, C.J., and BRADY and CARROLL, JJ.

BRADY, Justice.

Charles E. Miffleton appeals from a judgment of conviction for driving while intoxicated. Tex.Rev.Civ.Stat.Ann. art. 6701l-1 (Supp.1987). Appellant was found to have a prior conviction for DWI, and punishment was assessed at a $1,000.00 fine and confinement for one year in the county jail. The jail sentence was probated but as a condition of that probation, appellant's driver's license was suspended for two years. Appellant presents six points of error.

Appellant contends his arrest and the subsequent search of his car violated his rights under the Fourth Amendment to the United States Constitution. He also asserts a videotape made after his arrest was improperly admitted in violation of his Fifth and Sixth Amendment rights under the United States Constitution and his rights under article I, § 10 of the Texas Constitution. Appellant also challenges the sufficiency of the evidence to support his conviction for DWI. Finally, appellant challenges the suspension of his driver's license as a condition of probation because he was not first given the opportunity to attend an alcohol education program as required by statute. We affirm the judgment of conviction.

FACTS

Appellant was arrested on July 9, 1982, and charged with DWI. At trial, the arresting officer stated that appellant was observed driving his automobile in an erratic manner. According to the officer, appellant was stopped next to her at a traffic light and rapidly accelerated away from that light as soon as it turned green. The officer followed appellant and noticed he was weaving within his own lane. When appellant reached a speed of 53 miles per hour in a 45-mile per hour zone, the officer signaled for appellant to stop.

After appellant pulled over, the officer approached his car and found he was very verbally defiant. The officer eventually ordered appellant out of his car and noticed that he had to lean on the door for support. At this point, the officer testified she noticed that appellant's speech was mumbled, his eyes were bloodshot, and that he had a smell of alcohol on his breath. Based on her observation of these physical characteristics, appellant's demeanor, and his erratic driving, the officer placed appellant under arrest. As an incident of this arrest, the officer searched the passenger compartment of appellant's car and discovered four unopened cans of beer and a half-consumed can under the driver's seat.

After his arrest, appellant was taken to the police station and administered a videotaped sobriety test. During the taping but before the test, appellant was given an opportunity to telephone an attorney. His attempt was thwarted, however, because he was not permitted to make a long distance call from the telephone in the video room. The officer stated that he could make a toll call from another phone in the station. A brief argument then ensued as appellant insisted on speaking with his attorney before any test. The officer eventually stated she would take him to a phone, "as soon as we are finished here." Appellant was never told he did not have to participate in the videotaped test even though he was informed he could terminate any "interview" at any time and that he did not have to consent to a breath test.

The sobriety test administered to appellant consisted of various demonstrations of his present motor skills and balance. He was shown attempting to touch his nose with his eyes closed, attempting to walk a straight line and standing still with his head tilted back. Appellant was also required to count backwards while standing on one foot and to read from a printed card to demonstrate his ability to speak distinctly.

Because appellant made errors in performing the sobriety exercises shown on the tape, we find that this evidence, combined with the testimony of the officer would support a judgment of conviction for DWI. Appellant asserts this tape and the contents of the officer's testimony were both improperly admitted. We disagree.

PROBABLE CAUSE

In his first two points of error, appellant asserts that the police officer lacked probable cause to: (1) stop his car; (2) effect an arrest without a warrant; and (3) search his car after that arrest. While a police officer must have probable cause for a full custodial arrest, a mere stop of an individual for the purposes of investigation does not require such substantial justification. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Because a temporary detention is considered a lesser intrusion than a custodial arrest, a police officer may stop an individual if the officer has a reasonable suspicion the person is engaged in criminal activity. Terry, supra; Ferguson v. State, 573 S.W.2d 516, 522 (Tex.Cr.App.1978). The police officer is deemed to have a reasonable suspicion so long as he can point to specific articulable facts which, in light of his experience and general knowledge, would justify the conclusion that criminal activity is afoot. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.1977); Thompson v. State, 533 S.W.2d 825, 826 (Tex.Cr.App.1976).

An investigatory stop may lead to discovery of facts which justify a full custodial arrest if the officer observes an offense being committed in his presence or view. Tex.Code Cr.P.Ann. art. 14.01(b) (1977). If a police officer has made a full custodial arrest of a driver, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of the car for weapons and evidence of the criminal activity which justified the arrest. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); Corbitt v. State, 445 S.W.2d 184, 186 (Tex.Cr.App.1969).

In this case, the officer testified that appellant was driving in an erratic manner. The officer's observation of appellant's rapid acceleration, weaving, and excessive speed constituted facts upon which she could form a reasonable suspicion that an offense was being committed. After the stop, the officer's suspicion escalated to probable cause to arrest when she noticed appellant smelled of alcohol, had to use the car door for support, mumbled his speech and had bloodshot eyes. These factors were sufficient to justify the officer's conclusion that an offense was being committed in her presence; thus, the officer was authorized to arrest appellant under art. 14.01(b), supra. Because the custodial arrest of appellant was lawful, the subsequent search of the passenger compartment of his car was also proper as a search incident to arrest. Appellant's first two points of error are overruled.

RIGHT AGAINST SELF-INCRIMINATION

Appellant next complains that admission of the videotape into evidence violated his right against self-incrimination under both the Fifth Amendment to the U.S. Constitution and art. I, § 10 of the Texas Constitution. Both the federal and state rights against self-incrimination prohibit compelling an accused to give testimonial evidence against himself but neither right extends to purely physical evidence or evidence of physical characteristics. Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1967); McCambridge v. State, 712 S.W.2d 499, 503 (Tex.Cr.App.1986).

It has been held that a film merely displaying the physical characteristics of the accused is not testimonial, thus may be used as proof the accused was intoxicated at the time of arrest. See Carpenter v. State, 333 S.W.2d 391, 394 (Tex.Cr.App.1960); Housewright v. State, 225 S.W.2d 417, 418 (Tex.Cr.App.1950). The justification for admitting this type of evidence is that a film reveals nothing about the physical condition of the accused that could not be related in testimony by the arresting officer; indeed, a visual recording may well be more accurate than the officer's recollection. Housewright, supra at 416. Furthermore the courts have held many other types of evidence given by an accused which merely demonstrate physical characteristics are not testimonial. See Olson v. State, 484 S.W.2d 756, 763 (Tex.Cr.App.1972) (compilation of numerous cases holding evidence such as fingerprints, footprints, voice samples, fingernail scrapings, etc., were not protected by the right against self-incrimination). In light of Carpenter, supra, and Schmerber, supra, we hold a videotape merely demonstrating the physical condition of the accused at or near the time of arrest is not testimonial evidence protected by the right against self-incrimination. Appellant's third point of error is overruled.

While a visual record of the accused's physical characteristics is not testimonial, oral statements made by the accused during the visual recording are qualitatively different. In several cases dealing with videotaped sobriety tests, the courts of appeals of this State have held the audio portion of the videotape should be suppressed upon motion of the accused. See e.g. Knox v. State, 722 S.W.2d 793 (Tex.App.--Amarillo, 1987); Recaz v. State, 722 S.W.2d 32 (Tex.App.--Dallas, 1986); Jones v. State, 703 S.W.2d 391 (Tex.App.--Eastland 1986 pet. pending); Gaithright v. State, 698 S.W.2d 260, 261 (Tex.App.--Fort Worth 1985 no pet.); Delgado v. State, 691 S.W.2d 722, 723 (Tex.App.--San Antonio 1985, no pet.). In all the above cases, with the exception of Delgado, the accused asserted either his right to counsel or his right to remain silent on the tape. These courts held it was error to inform a jury that the accused asserted his rights because it could be misconstrued as evidence of...