Garcia v. State

OPINION

MURPHY, Justice.

Appellant was convicted on a plea of guilty of the offense of driving while intoxicated. Punishment was assessed at thirty days in jail, probated for two years, and a fine of $150.00. Appellant raises four points of error on appeal challenging the trial court’s adverse ruling on his motion to suppress the post-arrest videotape made of appellant and the results of the intoxilyzer test. We affirm.

Appellant was arrested for suspicion of driving while intoxicated. He was taken into a videotaping room. There he was read his legal warning: that he had the right to remain silent, that any statement he made could be used against him, that he had the right to a lawyer to advise him prior to and during any questioning and that he could terminate the interview at any time. Appellant asked to consult with an attorney. He was permitted to call his attorney from the videotaping room. During the telephone conversation, three police officers remained in the room and appellant’s portion of the conversation was recorded. Appellant asked if his attorney could call him back and a police officer told him they could not accept in-coming calls. The officer told him to make his conversation brief, that what he needed to discuss with his lawyer was whether he should participate in the motor skill exercises, whether he should answer any questions and whether he should submit to an intoxi-lyzer test. The appellant was told several times to keep the conversation short. He was finally told that he had only two minutes left. Appellant terminated the conversation. He then consented to perform the motor skills exercises, answered questions and consented to the intoxilyzer test. The result of the intoxilyzer test indicated a breath-alcohol concentration of 0.18 percent. The audio portion of the videotape was suppressed by the trial court.

In his first three points of error appellant complains that the trial court erred in admitting the video portion of the videotape, demonstrating his performance on the motor skills exercises and the results of the intoxilyzer test alleging that both were the product of an illegal custodial interrogation under the Fifth and Fourteenth Amendments and under Article I, Section 10 of the Texas Constitution. In support of his contentions appellant cites Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Jamail v. State, 713 S.W.2d 776 (Tex.App. — Houston [14th Dist.] 1986, pet. pending).

In McCambridge v. State, 712 S.W.2d 499 (Tex.Crim.App.1986), the Court of Criminal Appeals, relying on Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1969) and Rodriguez v. State, 631 S.W.2d 515 (Tex.Crim.App.1982), held that providing a breath sample for chemical analysis of alcohol concentration is not a testimonial communication which is protected by the privilege against self-incrimination under the Fifth Amendment to the United States Constitution. See 712 S.W.2d at 506-507. In McCambridge, a driving while intoxicated suspect was unsuccessful in his attempt to contact his attorney. See 712 S.W.2d at 500. After the police ignored his repeated requests for an attorney he consented to the intoxilyzer test. See 712 S.W.2d at 501. Police officers are not required to give a suspect Miranda warnings prior to asking him to provide a breath sample. See 712 S.W.2d at 506-507. The court found that McCambridge had no remedy under Edwards and Miranda. See 712 S.W.2d at 506-507. Appellant argues that McCambridge may be distinguished because the court limited its holding to the facts of the case. See 712 S.W.2d at 507, fn. 18. In McCambridge, the court, with regard to the issues before it, stated that: “A different question might be presented if the police officer, in ignoring appellant’s request for counsel under Miranda, had mixed his request for a breath sample with questions that amounted to interrogation.” 712 S.W.2d at 506, fn. 17.

Appellant argues that the facts of his case fall within the above quoted exception to the holding in McCambridge. A review of the record reveals that appellant’s claim is without merit. The officers did not ignore his request for an attorney and they did not mix their request for a breath sample with questions that amounted to interrogation. Appellant was advised before any questioning that he would be requested to perform motor skills exercises, to answer questions, and to submit to a breath test. He was then permitted to telephone his attorney. At his attorney’s request a police officer explained the consequences of refusing or agreeing to perform the exercises and of refusing or taking the intoxilyzer test. The police officer explained that appellant could only have his attorney present during questioning and that they could not wait for his attorney to allow him to be present during the exercises or the intoxilyzer test. Appellant then consented to perform the motor skills exercises. After the exercises were completed the officer reminded appellant of his legal warning and appellant voluntarily answered the officers questions. The answers to those questions were suppressed by the trial court as part of the audio portion of the videotape. Then the officer read to appellant the statutory warning required by Tex.Rev.Civ.Stat.Ann. art. 6701/ -5, § 2(b) (Vernon Supp.1986), and asked if he understood the warning. Appellant responded by asking what role his attorney could play and the officer informed him that his attorney could only advise him whether or not to take the test. Appellant then consented to the intoxilyzer test.

The conduct of the police did not involve a mixing of the request for a breath sample with questions that amounted to interrogation. There was no coercion by the police. Appellant’s acts were voluntary and there is no indication that he was confused. This case does not come within the exception noted in McCambridge.

Appellant also argues that the holding in Jamail v. State, 713 S.W.2d 776, 779 (Tex.App. — Houston [14th Dist.] 1986, pet. pending), requires that the breath test and videotape be suppressed. In Jamail, this court distinguished McCambridge, stating: “Under the facts of this- case, we are unable to separate the wrongful custodial interrogation from the consent for a breath or blood sample.” Jamail v. State, 713 S.W.2d at 770. We have determined that the McCambridge decision is controlling in this case. Appellant voluntarily answered questions after being informed of his rights and after being permitted to telephone his attorney. Appellant’s consent to perform the exercises and to take the breath test was knowing and voluntary. Jamail is not applicable. We conclude that the admission of the results of the intoxi-lyzer test did not violate appellant’s rights under the Fifth and Fourteenth Amendments to the United States Constitution.

We also hold that appellant’s Fifth and Fourteenth Amendment rights were not violated by admission of the video portion of the videotape. It has been held in Texas that videotaped recordings of a driving while intoxicated suspect are non-testimonial and their admission into evidence does not involve a defendants rights against self-incrimination under the Fifth and Fourteenth Amendments. See House-wright v. State, 154 Tex.Cr.R. 101, 225 S.W.2d 417, 418 (1949) and Delgado v. State, 691 S.W.2d 722, 723-724 (Tex.App.— San Antonio 1985, no pet.) The videotape is similar in character to the breath test results and thus under McCambridge, appellant’s federal constitutional rights are not violated by their admission. See McCambridge, at 507-508.

Appellant further claims that the admission of the breath test results and the videotape violated his rights under Art. I Sec. 10 of the Texas Constitution. The Court of Criminal Appeals held in Rodriguez v. State, 631 S.W.2d 515, 517 (Tex.Crim.App.1982), that the taking of a breathalizer test is not a testimonial communication that Article I, Section 10, of the Texas Constitution or the Fifth Amendment to the United States Constitution seek to protect. The videotape of the motor skills exercises is of the same character as the intoxilyzer test results, therefore we conclude that appellant’s rights under Article I, Section 10 are not greater than those under the Fifth and Fourteenth Amendments. Appellant’s first three points of error are overruled.

In his fourth point of error appellant claims that the trial court erred in admitting the results of the intoxilyzer test over his objection when the proper predicate had not been established by the state.

In Cody v. State, 548 S.W.2d 401 (Tex.Crim.App.1977), the court described the predicate which must be laid before the results of a breath test may be introduced into evidence: (1) the use of properly compounded chemicals; (2) the existence of periodic supervision over the machine by one who understands scientific theory of the machine; (3) proof of the result of the test by a witness qualified to translate and interpret such result so as to eliminate hearsay. Id. at 404.

In his written motion to suppress appellant argued that the operator of the intoxi-lyzer was incompetent, that the chemicals were improperly compounded and the operator was not under reasonable periodic supervision. He also alleged that the result of the intoxilyzer was invalid because the test did not conform to the Texas Chemical Breath Testing Regulations promulgated by the Texas Department of Public Safety. The record indicates that no evidence was presented on the portion of the motion to suppress complained of on appeal and that appellant never secured a final ruling on that portion of the motion to suppress. The trial court indicated, at the time of the motion hearing, that he did not have enough information before him to rule on the merits of the motion and indicated that he would consider the motion at trial. The prosecutor stated that appellant’s eviden-tiary claims on the validity of the intoxilyzer test results would be addressed at trial.

The Court of Criminal Appeals has held that a pre-trial motion to suppress, supported by evidence, is sufficient to preserve error on appeal. See Writt v. State, 541 S.W.2d 424, 426 (Tex.Crim.App.1976) (qualifying the holding in Riojas v. State, 530 S.W.2d 298 (Tex.Crim.App.1975)). The court has also found that oral pre-trial motions to suppress, unsupported by evidence, do not preserve error on appeal when no timely objection is voiced to the admission of the evidence sought to be suppressed at trial on the merits. See Ross v. State, 678 S.W.2d 491, 493 (Tex.Crim.App.1984). We believe the rule stated in Ross v. State is properly applicable to the facts of appellant’s case. Although a written motion to suppress was filed appellant offered no evidence to support his allegations. Additionally, the trial court indicated that it would consider appellant’s objections if raised during the trial on the merits:

THE COURT: for the purpose of the motion to suppress I am ruling it all admissible. On the case in chief it may be something else.

This case involved a plea of guilty pursuant to a plea bargain agreement. Therefore, no further objection was raised to the admission of the breath test. Appellant’s fourth point of error is overruled.

The judgment is affirmed.