Ramirez v. State , 721 S.W.2d 490 ( 1986 )

OPINION

DUGGAN, Justice.

Following a bench trial, appellant was convicted of felony driving while intoxicated, and his punishment was assessed at three years confinement and a fine of $1,500.

After the trial court overruled appellant’s pre-trial motion to suppress portions of a videotape of appellant made after his arrest, appellant entered a plea of guilty with the agreement that he could appeal the trial court’s order. Tex.Code Crim.P. Ann. art. 44.02 (Vernon 1979). The trial court examined appellant, found him guilty, and assessed punishment in accordance with a plea bargain agreement.

In a single point of error, appellant urges that the trial court erred in overruling his motion to suppress evidence.

After appellant was arrested, he was taken to a videotape room in the police station where a police officer read him the Miranda warnings. Appellant indicated that he desired to call his attorney and was directed to a telephone in a comer of the room. Appellant attempted to call his attorney approximately 10 times, but was unable to reach him. Appellant then called a family member in an attempt to retain counsel. At all times, appellant’s acts were being videotaped.

Appellant’s pretrial motion to suppress sought suppression of

[A]ny and all statements of an incriminatory nature made during video tape after his arrest in this case and specifically any reference to having taken any prescription drugs of any kind for the reason that: Defendant was not accorded the presence of counsel or a meaningful opportunity to have counsel present at said video taping.

Although the wording of appellant’s point of error states no federal or state constitutional or statutory basis for his point, his discussion and argument make clear that he complains of the court’s failure to suppress the videotape as being a denial of his right to counsel under both the Sixth Amendment to the U.S. Constitution and under the Texas Constitution, art. I, sec. 10. It is equally clear that he complains only of a violation of his right to counsel.

He urges that the post-arrest videotape of him by the police at the police station was a “critical stage” of the proceedings against him, citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926,18 L.Ed.2d 1149 (1967). Thus, he reasons, the videotape camera should have been turned off, and questioning of him should have ceased when he indicated his desire to exercise his right to counsel.

Contrary to appellant’s position, the Texas Court of Criminal Appeals has recently interpreted Wade and other federal and state authority to hold that the right to counsel under the Sixth Amendment attaches only upon or after the filing of a complaint and information against a DWI arrestee, Forte v. State, 707 S.W.2d 89, 91 (Tex.Crim.App.1986), and that a “critical stage” of the proceedings arises only after the initiation of formal adversary proceedings. McCambridge v. State, 712 S.W.2d 499, 502 n. 11 (Tex.Crim.App.1986). No complaint was filed against appellant until after the videotape was made. See also Mills v. State, 720 S.W.2d 525 (Tex.Crim.App.1986).

The Texas Constitution’s provision as to right to counsel, article I, section 10, has been construed to afford an accused no greater protection than that given by the United States Constitution’s corresponding provision. Floyd v. State, 710 S.W.2d 807 (Tex.App.—Fort Worth 1986, no pet.); see also Yates v. State, 679 S.W.2d 534 (Tex.App.—Tyler 1984, pet. ref’d).

Appellant’s point of error is overruled.

The judgment is affirmed.

LEVY, J., files a dissenting opinion.