Thomas v. State

• Citation: 723 S.W.2d 696
• Decision Date: 19 November 1986
• Docket Number: No. 267-85,267-85
• Parties: Fred Kenneth THOMAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 696

723 S.W.2d 696 Fred Kenneth THOMAS, Appellant,
v.
The STATE of Texas, Appellee. No. 267-85. Court of Criminal Appeals of Texas,
En Banc. Nov. 19, 1986.

Page 697

Charles W. Tessmer, Dallas, for appellant.

Henry Wade, Dist. Atty. and Michael A. Klein, Asst. Dist. Atty., Dallas, 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 by a jury of the offense of driving while intoxicated. V.A.C.S., Art. 6701l -1 (1977). ¹ Punishment was assessed at 15 days confinement in jail and a $500 fine. The Fifth Court of Appeals, in an unpublished opinion, affirmed appellant's conviction. Thomas v. State, No. 05-84-00010-CR (Tex.App.--Dallas 1/18/85). We granted appellant's petition for discretionary review to decide two questions: 1) whether the admission of appellant's refusal to submit to a breath test violated state law, ² and 2) whether the jury should have been given an instruction on a fact issue involving appellant's refusal to provide a breath sample. We will affirm.

On June 11, 1982, appellant was arrested by Officers Holcomb and Freeze for suspicion of driving while intoxicated on the North Central Expressway in Dallas. After Officer Holcomb placed appellant in his squad car, appellant was informed of his Miranda rights. ³ After taking appellant to the city jail, Officer Holcomb then asked appellant to provide a breath sample for chemical analysis of its alcohol concentration, warning him of the consequences of a

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refusal. ⁴ Appellant refused to submit to the test. Officer Holcomb filed his report of the arrest and presented appellant to the jail guards for booking.

On the first day of his trial, appellant filed a motion in limine that sought to keep the State from introducing any evidence surrounding his refusal to provide a breath sample. See Appendix A, post, at p. 708. Appellant also filed a memorandum in support of the motion that focused the trial court's attention upon the self-incrimination clause of Article I, § 10, of the Texas Constitution. See Appendix B, post, at pp. 709-710. The motion was denied the same day. See id., at p. 709.

Appellant also filed a pre-trial motion, entitled "Trial Objection No. One," that sought to suppress evidence of his refusal to provide a breath sample. See Appendix C, post, at pp. 710-712. The motion also sought to provide a shorthand method for objecting, during trial, to admission of evidence of appellant's refusal to give a breath sample. In pertinent part, the motion stated:

The [appellant], by reference to this Trial Objection No. One, objects to the testimony of the police officers as to whether they offered or the [appellant] refused a breath test which is inadmissible under Art. I, § 10 of the Texas Constitution and Art. 1.05, Tex.Code Crim.Proc.Ann.

WHEREFORE, PREMISES CONSIDERED, the [appellant] prays that this Trial Objection No. One be granted and that he be allowed to object to the introduction of such testimony by reference to this Trial Objection No. One rather than stating each individual ground alleged herein.

Appellant's motion was denied the same day it was filed. See id., at p. 711.

During trial, the State asked Officer Holcomb, on direct examination, to tell the jury which rights appellant was advised of prior to being asked to provide a breath sample. The following colloquy ensued:

MR. TESSMER [Appellant's counsel]: Your Honor, at this time I again renew my trial objection number one that I would call to Your Honor's attention in the interest of time.

THE COURT: Overrule the objection. Note your exception. Go ahead.

Officer Holcomb listed the warnings that he gave to appellant. See n. 4, ante, at p. 698. He then testified that he asked appellant to provide a breath sample. Before Officer Holcomb testified as to appellant's reply, appellant's attorney objected:

MR. TESSMER: Your Honor, I again renew trial objection number one on each and every objection therein and may I have a continuing objection along this line of evidence, Your Honor?

THE COURT: All right. Well, I'll sustain the objection to the exact words that were used, but I'll give you--overrule the objection to the nature of the response in general.

I'll give you the same objection to everything related to this matter.

Officer Holcomb, without repeating the exact words used by appellant, testified that appellant refused to take the breath test. On cross-examination, appellant's attorney

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asked Officer Holcomb if appellant said, when refusing the breath test, "Not without my lawyer being present." Officer Holcomb agreed that appellant had made the statement.

On redirect examination, the State asked Officer Holcomb if appellant made any other statement relating to his refusal to take a breath test. Appellant's attorney objected:

MR. TESSMER: Now, Your Honor, unless he establishes the exact time, unless it is explained in a prior statement, we would object to it as not being res gestae and not being pertinent to the questioning concerning refusal of the test when he's asking for his lawyer to be present.

The trial court sustained appellant's objection. However, later in the trial, on further redirect examination, the State again asked Officer Holcomb whether appellant made any other statements when refusing to take the breath test. Appellant did not object, and Officer Holcomb testified: "He [appellant] said that in--in eight hours when his lawyer got there, he'd be sober as the Judge anyway."

Appellant later testified to the circumstances surrounding his arrest. However, he did not testify as to what statements he made in response to Officer Holcomb's request for a breath sample.

Prior to submission of the charge to the jury, appellant requested that the jury be given the following instruction: "That the Jury is to completely disregard any evidence in this record from police officer or officers concerning the refusal to take a [breath] test." In requesting the charge, appellant made the following objection:

MR. TESSMER: Defendant bases this objection on Article I, Section 10 of the Texas Constitution and Article 105 (sic) of the Texas Code of Criminal Procedure.

The Defendant further objects in that the evidence in this case does not establish the refusal on the part of the Defendant to take the test but only a request that his counsel be present.

The Defendant further says that although this objection would not be good if the Defendant asserted Federal Constitutional grounds only to the aforementioned violation of his Fifth Amendment rights to allowing proof of refusal to take the test, that Defendant relies wholly and totally upon the Texas Constitution and Code of Criminal Procedure heretofore dictated.

I.

In his first ground of review, appellant argues that admission into evidence of his refusal to provide a breath sample violated state law. As we noted earlier, this ground of review presents several separate legal theories. See n. 2, ante, at p. 697. We will address separately each of appellant's claims under his first ground of review, and in doing so we examine the holding of the Court of Appeals.

The Court of Appeals overruled these various claims in a single sentence by citing Gresset v. State, 669 S.W.2d 748 (Tex.App.--Dallas 1983, pet. granted). Thomas, supra, at 2. In Gresset, supra, a defendant challenged the admission at trial of his refusal to provide a breath sample on the basis of the Fifth Amendment privilege against self-incrimination and Article 38.22, § 3, V.A.C.C.P. The Court of Appeals held that Article 38.22, supra, the Fifth Amendment and Article I, § 10, supra, all provide comparable protection against self-incrimination and do not prevent admission of a defendant's refusal to provide a breath sample.

A.

Appellant argues that the admission of evidence of his refusal to provide a breath sample violated Article 38.22, supra, ⁵ citing Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977). In Dudley, two members of this Court relied, in part, on Article 38.22, supra, to prohibit the introduction of evidence

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that a defendant had been offered and had refused to take a breath test. Id., at 708 (Phillips, J.); id., at 709-11 (Onion, P.J., concurring). ⁶

The Court of Appeals summarily rejected appellant's claim by citing Gresset, supra. Thomas, supra, at 2. However, we need not decide whether Gresset, supra, was properly decided on the issue of Article 38.22, supra, because no asserted error was preserved for review.

Generally, to preserve asserted error for review on appeal, a defendant must object in a timely and specific manner at trial. Granviel v. State, 552 S.W.2d 107, 121 (Tex.Cr.App.1976), cert. denied 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977); Hinkle v. State, 442 S.W.2d 728, 732-33 (Tex.Cr.App.1969). In addition, if an objection made in the trial court differs from the complaint made on appeal, a defendant has not preserved any error for review. Hodge v. State, 631 S.W.2d 754, 757 (Tex.Cr.App.1982); Williams v. State, 549 S.W.2d 183, 187 (Tex.Cr.App.1977).

In the instant case, appellant did not object at trial on the basis of Article 38.22, supra. Nothing is preserved for review, and we express no opinion as to the merit of appellant's claim.

B.

Appellant, again citing Dudley, supra, argues that evidence of his refusal to provide a breath sample was inadmissible because Article 6701l -5, supra, did not explicitly provide that such evidence was admissible at his trial. ⁷ In Dudley, one member of this Court suggested that a suspect's refusal to provide a breath sample could not be admissible absent "a definitive legislative provision to that effect." Id., at 714 (Onion, P.J., concurring).

The Court of Appeals summarily rejected appellant's claim by citing Gresset, supra. Thomas, supra, at 2. However, again we need not decide whether Gresset, supra, controls the instant...