Miffleton v. State, 626-87

• Decision Date: 24 May 1989
• Docket Number: No. 626-87,626-87
• Citation: 777 S.W.2d 76
• Parties: Charles E. MIFFLETON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 76

777 S.W.2d 76

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

No. 626-87.

Court of Criminal Appeals of Texas,

En Banc.

May 24, 1989.

Rehearing Denied June 28, 1989.

Charles O. Grigson, Austin, for appellant.

Ken Oden, County Atty., Alia Moses, Asst. County Atty., Austin, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BERCHELMANN, Judge.

Appellant, Charles E. Miffleton, was indicted for the misdemeanor offense of driving while intoxicated. Tex.Rev.Civ.Stat.Ann. art. 6701l -1. After trial to the court, appellant was found guilty as indicted, which resulted in appellant's second conviction for driving while intoxicated. The court imposed a probated sentence of one year's confinement in the county jail in addition to a fine of one thousand dollars, and suspended appellant's driver's license for two years. The Court of Appeals for the Third Supreme Judicial District affirmed appellant's conviction. Miffleton v. State, 728 S.W.2d 880 (Tex.App.--Austin, 1987). We granted appellant's petition for discretionary review to determine whether the court of appeals erred in holding that: 1) appellant was not denied his federal and state constitutional right to consult with counsel prior to performing a videotaped sobriety test, and 2) appellant was not denied his federal and state privilege against self-incrimination by the trial court's admission of a videotaped sobriety test of appellant, which was taken after appellant requested an attorney.

Austin Police Officer Tyna Lynn Rodriguez testified at appellant's trial that she observed appellant's automobile speed away from an intersection and subsequently weave back and forth within his lane. When Officer Rodriguez stopped appellant's vehicle, appellant had difficulty exiting his automobile and mumbled when he spoke. Appellant was initially belligerent and uncooperative with Officer Rodriguez. Six beer cans were found in appellant's car; four were unopened, one was empty, and the other half empty.

Over objection, ¹ the trial court admitted into evidence a videotape taken of appellant at the police station. Apparently, the court listened to the audio portion of the tape, as well as viewing the videotape. A review of the videotape reveals that appellant requested an attorney before he agreed to perform physical agility tests. Appellant's girlfriend testified at trial that appellant is inherently somewhat uncoordinated, and that appellant's physical behavior depicted in the videotape is consistent with appellant's behavior when sober.

I.

Appellant's first ground for review complains of a denial of his right to counsel prior to performing videotaped sobriety tests. The physical agility tests were administered immediately upon appellant's arrival to the police station, and before a complaint was filed against appellant. Appellant urges a violation of both state and federal constitutional provisions. When we granted appellant's petition for discretionary review, this Court had already decided that a defendant's right to counsel under the Sixth Amendment to the United States Constitution does not attach until the time a complaint is filed. Forte v. State, 707 S.W.2d 89 (Tex.Cr.App.1986) (remanded on other grounds). After reaching this conclusion, we remanded Forte for the court of appeals to apply a state law analysis of the right to counsel claim. Thereafter, we affirmed the lower court's opinion on remand and held that a defendant's right to counsel under Art. I, Sec. 10, of the Texas Constitution also does not attach until the time the complaint is filed. Forte v. State, 759 S.W.2d 128 (Tex.Cr.App.1988). Although the Forte decisions deal with a defendant's right to consult with an attorney prior to taking a breath test, they are dispositive of appellant's ground for review which complains of his inability to consult with counsel prior to being videotaped performing sobriety tests. Because appellant's right to counsel did not attach until the time the complaint was filed, he was not entitled to consult with an attorney prior to performing the videotaped sobriety tests. Accordingly, appellant's first ground for review is overruled.

II.

Appellant's second ground for review advances a federal and state law claim of self-incrimination concerning the admission of the videotaped sobriety test filmed after appellant requested an attorney. Integral to appellant's contention is the proposition that a videotape of a sobriety test is tantamount to compelled testimony, as denounced in the Fifth Amendment to the United States Constitution and Art. I, Sec. 10, of the Texas Constitution. The court of appeals held that the visual portions of the videotape were not testimonial in nature and therefore did not impinge upon either the federal or state privileges against self-incrimination.

The Fifth Amendment prohibition against self-incrimination, applicable to the states through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 12 L.Ed.2d 653 (1964), states in pertinent part:

No person ... shall be compelled in any criminal case to be a witness against himself ...

U.S. Const. amend. V.

The Texas constitutional counterpart to the Fifth Amendment provides:

In all criminal prosecutions the accused shall ... not be compelled to give evidence against himself ...

Tex. Const. art. I, § 10.

In order to protect the privilege against compulsory self-incrimination, the Supreme Court announced procedural requirements for custodial interrogation of criminal suspects. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Under such circumstances and prior to police questioning, a suspect must be warned of his right to remain silent, that any statement made may be used against him and that he has the right to an attorney, either retained or appointed. The Supreme Court reasoned that these warnings were necessary as a prophylactic device to protect the privilege against compulsory self-incrimination "to assure the exercise of the right will be scrupulously honored ..." Id., at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. Moreover, Miranda requires that when a suspect indicates a desire to consult with an attorney, police questioning must cease.

Interpreting the privilege against self-incrimination, the Supreme Court held that forceably extracting a blood sample from a driving while intoxicated suspect who refuses to consent upon the advice of counsel does not violate the Fifth Amendment. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Therein, the Supreme Court determined that a blood sample is not testimonial in nature, but rather constitutes real or physical evidence which does not violate the Fifth Amendment. Id., at 764, 86 S.Ct. at 1832, 16 L.Ed.2d at 916. See also South Dakota v. Neville, 459 U.S. 553, 559, 103 S.Ct. 916, 920, 74 L.Ed.2d 748, 756 (1983). The Supreme Court noted that the Fifth Amendment typically "offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." Schmerber, 384 U.S. at 764, 86 S.Ct. at 1832, 16 L.Ed.2d at 916 (footnote omitted).

Analogizing a blood sample in Schmerber to the collection of a breath sample, this Court held that breath samples are not testimonial communication protected by the Fifth Amendment. Rodriguez v. State, 631 S.W.2d 515, 517 (Tex.Cr.App.1982). Additionally, this Court held that when a defendant invokes his right to counsel under Miranda the police are not forbidden from seeking a suspect's breath sample because "[n]ot only does the breath testing decision not involve custodial interrogation, it does not involve the privilege against self-incrimination." McCambridge v. State, 712 S.W.2d 499, 506 (Tex.Cr.App.1986) (remanded on other grounds).

Likewise, in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the Supreme Court held that taking a defendant's handwriting exemplar did not violate his Fifth Amendment privilege against self-incrimination because a "mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection." Id., at 266-67, 87 S.Ct. at 1953, 18 L.Ed.2d at 1183 (citation omitted). Addressing Art. I., Sec. 10, this Court likewise reasoned that a handwriting exemplar was not testimonial in nature and did not offend the state privilege against self-incrimination. Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1969).

Analyzing whether communication is "compelled," the Supreme Court held that the Fifth Amendment does not prohibit admission of evidence of a defendant's verbal refusal to take a blood-alcohol test. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748. "[R]efusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination." Id., at 564, 103 S.Ct. at 923, 74 L.Ed.2d at 759. This Court has also held that a defendant's verbal refusal to submit to a breath test does not fall within the state privilege against self-incrimination where the defendant is not physically or mentally compelled to refuse the test. Thomas v. State, 723 S.W.2d 696 (Tex.Cr.App.1986).

The Video Portion of the Tape

In the instant case, appellant separately complains of the admission of the audio and the visual portions of the videotape. Turning to the visual depictions of appellant's sobriety test, we conclude that the videotape is not testimonial in nature and therefore does not offend the Fifth Amendment privilege against self-incrimination. Applying a Fifth Amendment analysis, we find no meaningful distinction between obtaining a film of a...