The State of Texas v. Ricardo Francisco Acosta--Appeal from County Court at Law No 2 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-97-001-CR

THE STATE OF TEXAS,

Appellant

v.

RICARDO FRANCISCO ACOSTA,

Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court # 410-94

O P I N I O N

The State charged Appellee Ricardo Francisco Acosta by information with the misdemeanor offense of driving while intoxicated. See Act of May 27, 1983, 68th Leg., R.S., ch. 303, 3, 1983 Tex. Gen. Laws 1568, 1575 (former Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b)), repealed by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, 1.15, 1993 Tex. Gen. Laws 3586, 3704. Acosta filed a motion to suppress a videotape which recorded the manner in which he performed sobriety tests at the Brazos County Jail. At a pretrial hearing, the court granted the motion in part and suppressed the audio portion of the videotape in which Acosta attempted to count backwards from thirty to one.

The State brings this interlocutory appeal from the court s suppression order under article 44.01(a)(5) of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 1997). By a single point of error, the State contends that the court erred in granting Acosta s motion to suppress.

The State relies on our decision in Dawkins v. State and later cases citing Dawkins. 822 S.W.2d 668, 672 (Tex. App. Waco 1991), pet. ref d per curiam, 825 S.W.2d 709 (Tex. Crim .App. 1992); accord Vester v. State, 916 S.W.2d 708, 712-13 (Tex. App. Texarkana 1996, no pet.); Branch v. State, 932 S.W.2d 577, 580-81(Tex. App. Tyler 1995, no pet.). These cases were all decided on Fifth Amendment grounds.

Acosta responds that even if the trial court s decision is incorrect under Fifth Amendment principles, we must nevertheless affirm the suppression ruling because the court did not specify whether its ruling was based on the Fifth Amendment, the state constitution, or state statutory grounds.

However, because the trial court did not enter a written order, we abated this appeal because it was premature. See State v. Acosta, No. 10-97-001-CR, slip op. at 2 (Tex. App Waco July 23, 1997, order). Upon abatement, the trial court prepared a written order which also contained findings of fact and conclusions of law. In this order, the trial court states that it suppressed the evidence on the belief that Acosta s Fifth Amendment rights were violated. Thus, because the trial court has expressly set forth the basis upon which it suppressed the evidence, we limit this opinion to a discussion of whether the evidence was properly suppressed under the Fifth Amendment.

Officer Robert Wilson with the Brazos Valley Narcotics Task Force stopped Acosta on November 5, 1993, for suspicion of driving while intoxicated ( DWI ). After observing Acosta s condition and after having Acosta attempt sobriety tests at the scene, Wilson arrested him. At the jail, Acosta attempted additional sobriety tests which Wilson recorded on videotape. One of these tests required Acosta to count backwards from thirty to one. Wilson read Acosta his Miranda warnings after he had completed the sobriety testing at the jail.

At the suppression hearing, Acosta asked the court to suppress the aural evidence of Acosta attempting to count backwards. The court suppressed the evidence by a written order concluding that Wilson s request that Acosta perform the test violated his Fifth Amendment rights. In the order, the court found that by asking [Acosta] to count backwards from thirty, while in police custody and before reading Miranda warnings, [Wilson] was seeking a testimonial response to a custodial interrogation in violation of [Acosta s] 5th Amendment rights.

Acosta argues that the counting exercise which Wilson required him to perform is testimonial in nature and thus, subject to the strictures of the Fifth Amendment. See Pennsylvania v. Muniz, 496 U.S. 582, 598-600, 110 S. Ct. 2638, 2649, 110 L. Ed. 2d 528 (1990); Vickers v. State, 878 S.W.2d 329, 330 (Tex. App. Fort Worth 1994, pet. ref d).

In Dawkins we held that counting is not testimonial in nature because it does not involve an express or implied assertion of fact. Dawkins, 822 S.W.2d at 672; compare Muniz, 496 U.S. at 597, 110 S. Ct. at 2648; but cf. Vickers, 878 S.W.2d at 331. The Supreme Court expressly declined to decide this issue in Muniz. Muniz, 496 U.S. at 603 n.17, 110 S. Ct. at 2651 n.17. Thus we relied on other precedents for our decision. Dawkins, 822 S.W.2d at 672 (citing Jones v. State, 795 S.W.2d 171, 176 (Tex. Crim. App. 1990); Chadwick v. State, 795 S.W.2d 177, 177 (Tex. Crim. App. 1990)).

The Supreme Court has not addressed this question. Acosta cites Vickers as the only authority which disagrees with our analysis in Dawkins. // We continue to believe that Dawkins represents a correct statement of the law. The counting which Wilson requested Acosta to perform did not require an express or implied assertion of fact. Dawkins, 822 S.W.2d at 672. Thus, Wilson s request did not elicit a testimonial response. Id.

Because Acosta s response to the counting test was not testimonial, Wilson had no need to give him his Miranda warnings prior to the test. See Morris v. State, 897 S.W.2d 528, 531 (Tex. App El Paso 1995, no pet.) (citing Jones, 795 S.W.2d at 176). Thus, the court erred in suppressing the aural evidence of Acosta attempting to perform this test.

Because the counting test performed by Acosta was not testimonial and because it was not made pursuant to custodial interrogation, the court erred in suppressing the aural evidence of his performance. Thus, we sustain the State s sole point.

We reverse the suppression order and remand this cause for further proceedings consistent with this opinion.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis

Justice Cummings and

Justice Vance

Reversed and remanded

Opinion delivered and filed September 3, 1997

Publish