Newberry v. State, 51860

• Decision Date: 14 June 1977
• Docket Number: No. 51860,51860
• Parties: Fred K. NEWBERRY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 457

552 S.W.2d 457

Fred K. NEWBERRY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 51860.

Court of Criminal Appeals of Texas.

June 14, 1977.

Rehearing Denied July 6, 1977.

Tom S. McCorkle, Dallas, for appellant.

Henry Wade, Dist. Atty., Donald H. Flanary, Jr., John R. Roach and Jan E. Potts, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of the misdemeanor offense of driving while intoxicated. Punishment was assessed at a fine of fifty dollars and three days in county jail, probated.

In his first five grounds of error, appellant complains of the introduction in evidence, over objection, of oral statements made by him in response to questions by the arresting officer while he was allegedly under arrest. He contends that the evidence was admitted in violation of his constitutional right to remain silent.

In his sixth ground, appellant makes the same complaint concerning the admission over objection of additional oral statements made by him in response to questions by the officer who, after his arrest, was taking him to the police station.

Sergeant Doyle Bice of the Dallas Police Department testified that shortly after midnight February 19, 1974, while he was travelling in a police car north on Lemmon Avenue in Dallas, he noticed appellant's car going south without lights. He saw appellant make an illegal right hand turn off of Lemmon Avenue onto Douglas Street, a one-way street for east bound traffic. Appellant then drove his car a short distance in a westerly direction on Douglas. Bice turned in behind appellant's car, and turned on his red lights, stopping the other car approximately two car lengths from the next intersection. Bice then got out of the police car, went to the other car, and asked appellant for his driver's license, and asked him to get out of his car. Appellant had difficulty in getting out of the car, and also in finding his license. Bice told appellant that the reason he stopped him was that he "didn't have his lights on . . . and he turned the wrong way on a one-way street." In the meantime, Officer George arrived on the scene, got out of his police car "and came up to where we were standing there talking."

At this stage of Bice's testimony on direct examination, the following proceedings occurred:

"Q Did you have occasion out there to ask the Defendant if he had been drinking?

"A Yes, sir, I did.

"Q Did he reply to that question?

"MR. McCORKLE (Defense Counsel): Your Honor, I object at this time on the grounds that the Defendant was under arrest, and I would like to have a hearing outside the presence of the jury to take up this matter of law.

"THE COURT: Well, I overrule the request to remove the jury. I sustain the objection unless the State establishes the minute and location of where you are asking him about so I can rule on it.

"MR. McCORKLE: Your Honor, may we have this done outside the presence of the jury?

"THE COURT: No, you may not.

"MR. McCORKLE: Note our exception.

"THE COURT: He cannot answer what statement was made until I establish when it was made and then I am going to rule.

"MR. ROACH CONTINUING:

"Q Sergeant Bice, out there at the scene where you stopped the Defendant Fred Newberry, did you have an occasion to ask him if he had been drinking?

"THE COURT: Wait a minute, don't ask him that until you establish how many minutes it was that you are asking that this took place after that time when he first stopped him and that location where he stopped him so I can rule on it.

"MR. ROACH CONTINUING:

"Q Sergeant Bice, did you have any conversation with the Defendant Fred Newberry out there at the scene where you stopped him?

"A Yes, I did.

"Q How soon after you stopped him did you begin having this conversation with him?

"A It was a matter of seconds and I started talking to him first.

"Q And as a part of that conversation did you ask him if he had been drinking?

"A Yes.

"Q And at that time in response to that question did he reply to that?

"MR. McCORKLE: Your Honor, that is what I object to without a hearing out of the presence of the jury.

"THE COURT: I overrule the objection, you may answer the question.

"MR. McCORKLE: Your Honor, I would like to submit that we have the right to have a hearing outside the presence of the jury under Article 38.22 under the rules of Texas Criminal Procedure.

"THE COURT: I overrule that objection and state that you do not, it is a matter for the Court to determine whether it is a res gestae statement or not. The Court rules that it is res gestae, and therefore is not covered by the statutes of Texas.

"MR. McCORKLE: Your Honor, I would like to submit that it is not res gestae.

"THE COURT: I understand that and you are arguing with the Court, and I don't want to have any argument about it, I have ruled and it is in the record. Now, be seated, please.

"MR. McCORKLE: Your Honor, that is why I wanted to take it up out of the presence of the jury. Could we have a conference in Chambers?

"THE COURT: No, sir.

"MR. McCORKLE: Note our exception for the record, please.

"THE COURT: Read the question back and answer the question.

"(The question was read to the witness.)

"MR. McCORKLE: Your Honor, just for the record I would like to restate my grounds.

"THE COURT: You don't have to restate your grounds, that is exactly the reason I had the Court Reporter read it back. If he had asked the question again, then you would have had to restate them. The Court Reporter has read it back and I have already ruled, we have went over it and I don't want to have any more objection on that point. Answer that question.

"THE WITNESS: I am not sure

"THE COURT: Read the question back to him one more time.

"(The question was read to the witness.)

"THE WITNESS: Yes, he did.

"MR. ROACH CONTINUING:

"Q And what did he say in response to that question?

"A He said, 'He had a couple of drinks'.

"Q At the same time did you have occasion to ask him, 'What he had been drinking'?

"A Yes.

"MR. McCORKLE: I object again on the same grounds, a violation of the Miranda ruling.

"THE COURT: And I overrule those objections, you may answer the questions.

"MR. ROACH CONTINUING:

"Q Did he reply to your question?

"A Yes, he did.

"Q What was his answer?

"A 'Scotch'.

"Q Did you have an occasion that same time to ask him, 'How much he had been drinking'?

"MR. McCORKLE: I object again, Your Honor, on the same grounds.

"THE COURT: Overruled, answer the question.

"THE WITNESS: Yes, I did.

"MR. ROACH CONTINUING:

"Q What was his reply to that question?

"A How much he had been drinking?

"Q Yes.

"A He said, 'It was two drinks'.

"Q Did you have an occasion at that same time as a part of that same conversation there at the scene to ask him, 'What he had been doing prior to the time you stopped him'?

"A Yes, I did.

"Q And did he reply to that question?

"A Yes.

"MR. McCORKLE: Objection, Your Honor, same grounds, a violation of miranda.

"THE COURT: Overruled, answer it.

"THE WITNESS: Yes, he did, and he stated he had been, 'Honky-tonking'.

"MR. ROACH CONTINUING:

"Q Are you certain those are the words he used?

"A Yes.

"Q Did you have an occasion to ask him, 'Where he had been honky-tonking'?

"A Yes, sir.

"Q Did he reply to that question?

"MR. McCORKLE: Objection, Your Honor, same grounds.

"THE COURT: Overruled, if it is a part of the same conversation right there within a few minutes after the arrest at the scene of the arrest.

"THE WITNESS: All connected.

"THE COURT: You may answer it.

"THE WITNESS: He stated that he had been, 'To the Lemon Twist Club'.

"Q All right, sir. Did you have an occasion then to tell the Defendant he was under arrest?

"A Yes, I did.

"Q Did you tell him what for?

"A Yes, sir.

"Q And what or how did you tell him?

"A I told him well, I had already explained to him why I stopped him. I also told him or I formerly told him that he was under arrest for those two charges, and that he was also under arrest for driving while intoxicated."

Officer Bice testified additionally:

"Q Now, had Mr. Newberry handed you his driver's license and then taken it back out of your hand and got into his car as though to leave, would you have allowed him to leave?

"A No, sir, not at that time.

"Q Okay. He was in your custody at that time, is that correct?

"A Right.

"Q And at the time he handed you his driver's license, you would not have let him leave, is that correct?

"A Well, I wouldn't have let him leave.

"Q He wasn't free to go?

"A From the time I got him stopped I wouldn't have let him leave."

Bice testified that after the above conversation appellant was handcuffed and placed in Officer George's car. During George's direct examination as a State's witness, the following occurred:

"Q Did you have an occasion to talk to the Defendant at the scene?

"A Yes, I did.

"Q Still in your squad car?

"A Yes, it was.

"Q Prior to the time you left?

"A Yes, it was.

"Q Did the Defendant at any time ever tell you out there at the scene where he had been prior to the time he was stopped?

"A Prior to the time he was stopped by Sergeant Bice?

"Q Yes.

"A Yes, he did.

"Q What did he tell you?

"MR. McCORKLE: Objection, Your Honor, on the same grounds and I would request a hearing outside the presence of the jury.

"THE COURT: I Overrule your objection and I deny your request. Answer it.

"THE WITNESS: He stated he had been having marital problems and that he decided to, 'Tie one on', and that he had, 'Been out honky-tonking at the Lemon Twist Club'."

In Ancira v. State, 516 S.W.2d 924, in reversing the judgment due to the failure of the trial court to suppress evidence acquired as the result of custodial interrogation of defendant without Miranda warnings being given, this Court said "In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the United States Supreme Court held that evidence obtained as the result of a custodial interrogation...