Carter Compton, II v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00319-CR
CARTER COMPTON, II APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2013-1350-A
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
A jury convicted Appellant Carter Compton, II of driving while intoxicated
(DWI) and assessed his punishment at 3.75 years’ confinement. In two issues,
Compton argues that the evidence is insufficient to support his conviction and
that the trial court erred by admitting certain evidence. We will affirm.
1
See Tex. R. App. P. 47.4.
II. BACKGROUND
Prior to 2012, Compton was convicted of DWI on two other occasions,
once in Texas and once in Oregon. On September 9, 2012, at approximately
1:00 a.m., a Justin police officer pulled over Compton after noticing that his
vehicle had no visible taillights. When the officer approached the driver’s side
window, he noticed that Compton’s eyes were red and glassy, that his speech
was slurred, and that the car smelled strongly of alcohol. The officer also noticed
a stain on Compton’s pants where he had urinated on himself. The officer asked
Compton to exit the vehicle and perform a variety of standardized field sobriety
tests. Compton showed six clues for the horizontal gaze nystagmus test, four
clues for the walk-and-turn test, and one clue for the one-leg stand test.
The officer also performed two nonstandardized tests on Compton to
further gauge his intoxication level. The officer asked Compton to count down
from sixty-seven to forty-five; Compton was unable to perform this task as
requested. When asked how much alcohol he had consumed, Compton said
that he had consumed three twenty-four-ounce beers earlier that night.
Additionally, when asked how intoxicated he felt on a scale of zero to ten,
Compton responded with a three, indicating that “he felt there was some type of
impairment from alcohol.” Finally, when the officer asked Compton to recite part
of the alphabet, Compton did not do so, and the officer placed him under arrest.
2
The officer then proceeded to read Compton a statutory warning for refusal
and requested a sample of his blood or breath. Compton refused and
immediately asked to speak to his lawyer. After Compton invoked his right to
counsel, the officer did not ask Compton any additional questions. On the way to
the police station, Compton continued questioning and making statements to the
officer; however, the officer only responded four times—to inform Compton of his
name, to tell Compton that he failed the standardized field sobriety tests, to tell
Compton that he would go before a judge, and to tell Compton that he received
information regarding one prior conviction—all in response to questions by
Compton. At trial, the State used Compton’s two prior DWI convictions to prove
the enhancement paragraphs as alleged in the indictment.
III. OREGON DWI CONVICTION
In his first issue, Compton argues that the Oregon judgment was
insufficient to prove beyond a reasonable doubt the existence of Compton’s
Oregon DWI conviction.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
3
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014).
B. Enhancement of Conviction for DWI
DWI becomes a third-degree felony when it is shown on the trial of the
offense that the defendant has been convicted twice before of any other offense
relating to the operation of a motor vehicle while intoxicated. Tex. Penal Code
Ann. § 49.09(b)(2) (West 2014). When proof of a prior conviction is a
jurisdictional element, the existence of the prior conviction and the identity of the
accused must be proven beyond a reasonable doubt. See Flowers v. State, 220
S.W.3d 919, 921 (Tex. Crim. App. 2007); Zimmer v. State, 989 S.W.2d 48, 50
(Tex. App.—San Antonio 1998, pet. ref’d); Maibauer v. State, 968 S.W.2d 502,
507 (Tex. App.—Waco 1998, pet. ref’d).
The jury considers the totality of the evidence to determine if the State
proved both of these elements beyond a reasonable doubt. See Flowers, 220
S.W.3d at 923. No specific document or method of proof is required. See id. at
921. While a prior conviction alleged for enhancement may be established by
certified copies of a judgment and sentence, a prior DWI accusation that has not
resulted in a final conviction may not be used to elevate DWI to a felony offense.
See State v. Wilson, 324 S.W.3d 595, 599 (Tex. Crim. App. 2010); Zimmer, 989
S.W.2d at 50. Other accepted methods of proof include, but are not limited to:
(1) the defendant’s admission or stipulation, (2) testimony by a person who was
4
present when the defendant was previously convicted and can identify the
defendant as that person, or (3) documentary proof that contains sufficient
information to establish the defendant as the person previously convicted.
Zimmer, 989 S.W.2d at 50; see also Beck v. State, 719 S.W.2d 205, 209 (Tex.
Crim. App. 1986); see also Littles v. State, 726 S.W.2d 26, 31 (Tex. Crim. App.
1984).
To support a conviction of felony DWI by using foreign DWI convictions for
enhancement, the State must prove the foreign DWI statute is essentially the
same as the Texas statute. See Langston v. State, 776 S.W.2d 586, 587‒88
(Tex. Crim. App. 1989). In the absence of such proof, the court is to presume
that the foreign law is the same as that of the State of Texas. Id.
C. Proving Prior DWI Conviction
At trial, the State did not prove that the Oregon DWI statute was essentially
the same as the Texas DWI statute.2 For that reason, we will assess the
sufficiency of the evidence in regards to the Oregon conviction in accordance
with Texas law.
Compton argues that the DWI enhancement under section 49.09 of the
Texas Penal Code requires proof of valid and final judgments of at least two prior
DWI convictions. Appearing to rely on reasoning that first appeared in our
2
The State introduced a copy of the Oregon statute as evidence, but it did
not argue the similarities between the Oregon and Texas laws.
5
original opinion in Gaddy v. State, he contends that because the Oregon
judgment fails to comply with some of the requirements of a valid judgment under
article 42.01 of the Texas Code of Criminal Procedure, the State did not provide
sufficient evidence to prove beyond a reasonable doubt the existence of that
conviction. See No. 02-09-00347-CR, 2011 WL 1901972 (Tex. App.—Fort Worth
May 19, 2011) (mem. op. on reh’g, not designated for publication), vacated,
No. PD-1118-11, 2012 WL 4448757 (Tex. Crim. App. Sept. 26, 2012) (not
designated for publication); see also Tex. Code Crim. Proc. Ann. art. 42.01 (West
Supp. 2014). The court of criminal appeals vacated the original opinion in
Gaddy. Therefore, it is no longer binding precedent of this court. Further, insofar
as Compton relies upon the dissenting opinion to the en banc opinion on remand
in Gaddy, we are not bound by any analysis contained therein either. See Gaddy
v. State, 433 S.W.3d 128, 131–135 (Tex. App.—Fort Worth 2014, pet. ref’d)
(Dauphinot, J., dissenting). Instead, we are bound by the decisions of the court
of criminal appeals, which in Flowers confirmed that “Texas substantive law does
not require that the fact of a prior conviction be proven in any specific manner.”
220 S.W.3d at 922. Indeed,
the important issue is not whether [the document] represents a
judgment of conviction or its functional equivalent under article
42.01, but whether a reasonable trier of fact could view the State’s
Exhibits . . . and find beyond a reasonable doubt that 1) the alleged
prior DWI conviction existed and 2) this conviction is linked to [the]
appellant.
6
Id. at 924. Compton’s argument has thus already been expressly foreclosed by
the court of criminal appeals.
Moreover, courts have frequently upheld evidence as sufficient to establish
the existence of a prior DWI conviction when a judgment has not met every
requirement under section 42.01. See Williamson v. State, 46 S.W.3d 463, 466–
67 (Tex. App.—Dallas 2001, no pet.) (“Even if all the procedural requirements of
article 42.01 have not been met, as long as a judgment adjudicates the guilt of
the defendant and assesses his punishment, it may be used under section
49.09(d) to elevate misdemeanor DWI to a felony offense.”); see also Collins v.
State, No. 06-13-00214-CR, 2014 WL 2447599, at *5 (Tex. App.—Texarkana
May 30, 2014, pet. ref’d) (mem. op., not designated for publication) (judgment
lacking attorney’s name and fingerprint was deemed valid for purposes of DWI
enhancement), cert. denied, 135 S. Ct. 2385 (2015); Demers v. State, No. 05-11-
01704-CR, 2013 WL 323446, at *2 (Tex. App.—Dallas Jan. 29, 2013, no pet.)
(not designated for publication) (totality of the evidence was sufficient to prove
prior DWI conviction where judgment failed to find defendant guilty); Gibson v.
State, No. 05-00-00671-CR, 2001 WL 221578, at *4 (Tex. App.—Dallas Mar. 7,
2001, no pet.) (mem. op., not designated for publication) (reasoning that
probation order failing to indicate date of conviction was sufficient to prove prior
conviction when viewed together with fingerprint evidence admitted by the State).
7
Here, the Oregon judgment sufficiently establishes the existence of the
prior conviction because it is a certified document coming directly from the court
in which it was rendered. See Flowers, 220 S.W.3d at 924 (holding that the
State’s exhibits were sufficient to prove the existence of the previous conviction
because they came straight from “the custodian of the original judgment for the
prior DWI conviction”). Furthermore, The Oregon judgment includes the names
of the prosecutor and defense attorneys, the judge’s signature and initials, and
the date the document was filed. The State also provided additional evidence to
show the existence of the prior Oregon conviction and link it to Compton. At trial,
the State submitted a copy of Compton’s driving record, which lists both of
Compton’s prior DWI convictions, and a motion to revoke, which mentions
Compton’s Oregon conviction as well. This differs from the supplemental
materials provided by the State in Gaddy, which were so ambiguous that they
could not help prove the existence and finality of the prior New Mexico
convictions beyond a reasonable doubt. See 2011 WL 1901972, at *6 (“The
documents mention traffic violations but are so deficient that we cannot tell what
they are or what events they seek to memorialize, if, indeed, they do.”). The
additional evidence supplied by the State in the present case supplements the
Oregon judgment by providing further proof that Compton was previously
convicted of DWI in Oregon. See Flowers, 220 S.W.3d at 924–25; Zimmer, 989
S.W.2d at 51.
8
Viewing all the evidence in the light most favorable to the verdict, the jury
could have reasonably determined that the State proved the existence of
Compton’s prior Oregon DWI conviction beyond a reasonable doubt.3 See
Flowers, 220 S.W.3d at 921; Zimmer, 989 S.W.2d at 50; Maibauer, 968 S.W.2d
at 507. Therefore, we overrule Compton’s first issue.
IV. ADMISSIBILITY OF EVIDENCE
In his second point, Compton argues that the trial court erred by admitting
evidence of statements made by him after he requested to speak to an attorney.
While he does not challenge the use of his refusal of a blood-alcohol test as
evidence, he claims that any subsequent statements following this refusal were
inadmissible under the Fifth and Sixth Amendments.
A. Standard of Review
The standard of review for a trial court’s admission of evidence is abuse of
discretion, and wide discretion is afforded to the trial judge. See Green v. State,
934 S.W.2d 92, 101‒02 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200
(1997); Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992); see also
Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). The trial
court’s decision should be reversed on appeal only if there is a showing of a clear
abuse of discretion. See Theus, 845 S.W.2d at 881; Lajoie v. State, 237 S.W.3d
3
The State filed a motion for the court to take judicial notice regarding the
Oregon DWI statute. We deny the motion as moot because Compton’s first
issue is unpersuasive without even considering the Oregon statute.
9
345, 352 (Tex. App.—Fort Worth 2007, no pet.). In other words, only if the
court’s decision falls outside the “zone of reasonable disagreement,” has it
abused its discretion. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.
App. 2003); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)
(op. on reh’g).
B. Admissibility under the Fifth Amendment
Compton argues that the statements he made while in custody were
inadmissible under the Fifth Amendment because he had not yet been
Mirandized. Assuming, without deciding, that this issue was preserved for
appellate review, we cannot agree.
An individual’s right to counsel is “recognized in the Fifth Amendment,
which protects a person from governmental compulsion to be a witness against
himself.” Griffith v. State, 55 S.W.3d 598, 602–03 (Tex. Crim. App. 2001); see
Miranda v. Arizona, 384 U.S. 436, 470, 86 S. Ct. 1602, 1626 (1966). “[T]he
special procedural safeguards outlined in Miranda are required not where a
suspect is simply taken into custody, but rather where a suspect in custody is
subjected to interrogation.” See Rhode Island v. Innis, 446 U.S. 291, 300, 100
S. Ct. 1682, 1689 (1980). Custodial interrogation “must reflect a measure of
compulsion above and beyond that inherent in custody itself” and generally
encompasses express questioning by police or words or actions that the police
should know are likely to elicit an incriminating response. See id. 466 U.S. at
10
300–01, 100 S. Ct. at 1689–90. For this reason, the Fifth Amendment right to
counsel does not extend when there is no interrogation. See Griffith, 55 S.W.3d
at 603. “Volunteered statements of any kind are not barred by the Fifth
Amendment” and are admissible as evidence at trial. Miranda, 384 U.S. at 478,
86 S. Ct. at 1630. “Questions normally accompanying the processing of a D.W.I.
arrestee do not constitute interrogation.” Griffith, 55 S.W.3d at 603; see
McCambridge v. State, 712 S.W.2d 499, 504 (Tex. Crim. App. 1986).
The Texas Code of Criminal Procedure expressly delineates the
requirements of Miranda by requiring officers to inform people of their rights prior
to custodial interrogation in order for resulting statements to be admissible. Tex.
Code Crim. Proc. Ann. art. 38.22, § 3 (West Supp. 2014). Further, article 38.22
does not preclude the admission of res gestae statements or statements made
outside of custodial interrogation. Id. art. 38.22, § 5.
Compton contends that statements he made after invoking his right to
counsel are inadmissible because he had been taken into custody and had not
yet been Mirandized. His argument is without merit, however, because no
custodial interrogation had occurred. See Griffith, 55 S.W.3d at 603 (stating that
defendant’s refusal to submit to blood-alcohol test and corresponding request for
his attorney were admissible because at that point he did not have a Fifth
Amendment right to counsel). In Griffith, the court determined the appellant’s
Fifth Amendment right to counsel had not been implicated when the trial court
11
admitted evidence of statements made by the appellant after he asked for an
attorney. Id. at 602. While the appellant in Griffith was clearly in custody, no
interrogation had occurred. Id. at 603. Likewise, here, Compton was not subject
to custodial interrogation when the statements he is now contesting were made.
He was in no way compelled to make these statements, nor were they a result of
express questioning or acts or words the officer knew would be likely to elicit an
incriminating response. See Innis, 446 U.S. at 300–01, 100 S. Ct. at 1689–90.
Further, even if Compton’s Fifth Amendment right to counsel had been
triggered when he initially asked for an attorney, his subsequent statements were
voluntary and res gestae. As stated in Miranda, the Fifth Amendment does not
protect those in custody against the use of statements made voluntarily. See
384 U.S. at 478, 86 S. Ct. at 1630. After refusing a blood-alcohol test and asking
for an attorney, Compton continued to speak absent any invitation to do so. The
officer refrained from speaking to Compton for the remainder of the video, except
for four instances in which he responded to Compton’s continuous questioning.
Moreover, the Texas Code of Criminal Procedure does not preclude the
admission of res gestae statements or statements made outside of custodial
interrogation. Tex. Code Crim. Proc. Ann. art. 38.22, § 5. As the State argues,
“the statements fit the res gestae exception of article 38.22, section 5, as
[Compton] was in ‘the emotional grip’ of the arrest.” See Graham v. State, 486
S.W.2d 92, 94–95 (Tex. Crim. App. 1972) (reasoning that the exception applies
12
when there is an exciting, emotionally stimulating or physically painful event, the
admission is made so soon after the event that the declarant is still in the
emotional grip of it, and the admission relates to the event); see also Gordon v.
State, 608 S.W.2d 638, 639 (Tex. Crim. App. [Panel Op.] 1980) (stating that
article 38.22 expressly requires the “stimulating” event be the arrest or the
offense). This exception applies here because Compton was arrested, he made
the statements during the commission of that arrest, and those statements
regarded his detainment. Accordingly, even if Compton had been entitled to his
Fifth Amendment right to counsel, his statements would have remained
admissible given their voluntary and res gestae nature. See Tex. Code Crim.
Proc. Ann. art. 38.22, §§ 3, 5.
Compton additionally argues that the trial court’s admission of these
statements implicated his Fifth Amendment right against self-incrimination. In
support of this contention, he cites to Gathwright v. State, in which this court
held:
It is impermissible to penalize an individual for exercising his Fifth
Amendment privilege when he is under police custodial
interrogation. The prosecution may not use at trial the fact that he
stood mute or claimed his privilege in the face of an accusation. To
permit the use of such evidence for purposes of incrimination would
erode the protection guaranteed by both state and federal
constitutions.
698 S.W.2d 260, 261 (Tex. App.—Fort Worth 1985, no pet.) (citations omitted).
However, in Jones v. State, the court of criminal appeals declined to follow this
13
reasoning and instead held “that audio tracks from DWI videotapes should not be
suppressed unless the police conduct depicted expressly or impliedly calls for a
testimonial response not normally incident to arrest and custody or is conduct the
police should know is reasonably likely to elicit such a response.” 795 S.W.2d
171, 176 (Tex. Crim. App. 1990). Like in Jones, the video of Compton’s arrest
and transport helped the State prove that Compton was in fact intoxicated. See
id. at 175 (“[The audio portion of the tape] also provides a physical exemplar of
the suspect’s manner of speech at the time of arrest. A jury may use the quality
of the suspect’s speech as evidence of her degree of intoxication.” (citations
omitted)). Consequently, Compton’s argument under the Fifth Amendment fails
in this regard as well.
C. Admissibility under the Sixth Amendment
Compton contends that the portion of the video in which he requested an
attorney is inadmissible under the Sixth Amendment because his right to counsel
had already attached at that point.
1. Preservation of Error
The State argues that Compton failed to preserve this error because “it
appears from the context of trial counsel’s discourse with the judge that his
argument was that the tape should be stopped after [Compton] invoked his right
to an attorney.” Under the Texas Rules of Appellate Procedure, preservation of
appellate complaints requires that the record show “the complaint was made to
14
the trial court by a timely request, objection or motion that . . . stated the grounds
for the ruling that the complaining party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint.” Tex. R. App. P.
33.1(a)(1)(A). By objecting to the jury’s viewing of a specific portion of
Compton’s arrest video, defense counsel objected with sufficient specificity. The
record demonstrates that defense counsel desired to stop the video at 42:30
based on his client’s Fifth and Sixth Amendment rights. Moreover, video of
Compton’s arrest clearly shows Compton refusing to give a blood or breath
specimen at 42:34 and requesting to speak to his attorney at 42:50.
Additionally, it is necessary for the trial court to have ruled on the request,
objection, or motion, either expressly or implicitly, or for the complaining party to
have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2);
Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). The record
shows the trial court expressly overruled Compton’s objections to the specific
portion of the video and allowed the jury to view the video in its entirety.
Accordingly, Compton’s defense counsel preserved this argument. See Tex. R.
App. P. 33.1.
2. Attachment of the Right to Counsel
Compton contends that because his Sixth Amendment right to counsel
attached as soon as he requested an attorney, the trial court erred by admitting
subsequent statements as evidence. The Right-to-Counsel Clause of the Sixth
15
Amendment protects the right to counsel “only at or after the time that adversary
judicial proceedings have been initiated, whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.” Griffith, 55 S.W.3d
at 603 (citing Kirby v. Illinois, 406 U.S. 682, 688, 92 S. Ct. 1877, 1881 (1972)).
“A person [does] not become an ‘accused’ within the meaning of the Sixth
Amendment simply because he has been detained by the government with the
intention of filing charges against him.” Id. at 603–04 (citing United States v.
Gouveia, 467 U.S. 180, 187‒90, 104 S. Ct. 2292, 2297‒99 (1984)). The Sixth
Amendment right to counsel does not attach until the start of adversary judicial
proceedings; thus any statements made by the arrestee regarding his right to
speak to an attorney are not protected until this point. See id.
Compton argues that he was harmed by the trial court “allowing the jury to
observe [his] invocation of his right to counsel and any portion of the videotape
thereafter.” He cites Hardie v. State to support his contention, quoting from the
opinion: “While the invocation of counsel may have no relevance as regards the
State’s proffer of a defendant’s refusal to take the breath test, a different question
is presented when the State has sought to introduce evidence of the request for
counsel as evidence of guilt.” 807 S.W.2d 319, 321 (Tex. Crim. App. 1991).
Compton argues that the State used his repeated request for an attorney as a
method of proving his intoxication, which directly contradicts the holding in
Hardie. This case is distinguishable from Hardie, however, because, as the
16
State points out, the appellant in Hardie had already been Mirandized and was
being interrogated when the incriminating statements were made. See id. at
323‒24. Here, no adversary judicial proceedings had begun, nor had Compton
been formally charged with an offense when he made the statements. Thus,
Compton’s Sixth Amendment right to counsel was not implicated by the trial
court’s admission of these statements because his right had not yet attached.
See Griffith, 55 S.W.3d at 604 (“Administering a breath-alcohol test to an
arrestee after he has made a request for, but not received, the advice of counsel
does not violate the Sixth Amendment right to counsel . . . because the right has
not attached.”). As such, the trial court did not abuse its discretion by admitting
Compton’s statements. See Montgomery, 810 S.W.2d at 391. Accordingly, we
overrule Compton’s second point.
V. CONCLUSION
Having overruled Compton’s two points, we affirm the trial court’s
judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER, and GABRIEL, JJ.
GABRIEL, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 30, 2015
17