MARK LEE NEWFIELD, Appellant v. THE STATE OF TEXAS, Appellee

REVERSED and REMANDED Opinion issued October 3, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-00944-CR
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MARK LEE NEWFIELD, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the County Criminal Court No. 9
Dallas County, Texas
Trial Court Cause No. MB87-31231-K
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O P I N I O N
Before Justices McClung, Thomas and Whittington
Opinion By Justice McClung
        Mark Lee Newfield appeals from his conviction of driving while intoxicated. Following a jury trial, the court assessed punishment at sixty days in jail, probated for two years, and a fine of $300.
        In five points of error, Newfield complains of the following: the trial court erred in overruling his request for a mistrial, in refusing to rule on his motion to suppress, and in refusing to strike the testimony of a police officer after Newfield requested the officer's affidavit and the affidavit was not produced; the trial court improperly allowed the jury to hear the audio portion of a videotape containing incriminating questions and responses as well as Newfield's request for counsel.        Because the trial court improperly allowed the jury to hear the videotape in which Newfield requested counsel, we reverse the judgment below.
        On August 20, 1987, at 12.55 a.m., a Highland Park police officer observed a car approaching with its headlights on bright. The officer signaled the driver to dim his lights, but the driver failed to respond and the officer stopped the car. Newfield, who was driving, exited and walked to the rear of the car. The officer observed Newfield stagger and use the vehicle as support; Newfield's body swayed, his eyes were bloodshot and he smelled strongly of alcohol. He did not have a driver's license and had not been wearing a seat belt. The officer testified that Newfield was uncooperative, combative, and cocky. Newfield refused to give his name or to answer any of the officer's questions. He was arrested and taken to jail. At the jail, Newfield was taken to the videotaping room where he refused to take a breath test or to perform field sobriety tests.
        In his second point of error, Newfield maintains that, over objection, the trial court erroneously allowed the jury to listen to the videotape in which he invoked his right to counsel. The videotape reflects that the police officer who served as the intoxilyzer operator asked Newfield for a breath specimen and warned him of the statutory consequences if he refused. See Tex. Rev. Civ. Stat. Ann. art. 6701 l-5, §§ 1 & 2 (Vernon Supp. 1989). Newfield requested an attorney and the officer responded that Newfield was not entitled to an attorney at that time. Newfield continued to seek clarification of his rights and to assert his request for an attorney throughout the taped proceedings. The officer repeatedly told Newfield that he was not entitled to cousel prior to deciding whether to take the DWI test.
        Evidence of Newfield exercising his constitutional right to counsel was before the jury at the guilt/innocence stage of the trial. Because the invocation of constitutional rights, such as assistance of counsel, may not be relied upon as evidence of guilt, the trial court erred in allowing the jury to hear the audio portions of the tape wherein Newfield claimed his right to an attorney. Miffleton v. State, 728 S.W.2d 880, 884 (Tex. App.--Austin 1987), aff'd, S.W.2d _____, No. 626-87, slip. op. at 13 (Tex. Crim. App. May 24, 1989); Rezac v. State, 722 S.W.2d 32, 33 (Tex. App.--Dallas 1986, pet granted); see Gathright v. State, 698 S.W.2d 260, 261 (Tex. App.--Fort Worth 1985, no pet.); Powell v. State, 660 S.W.2d 842, 845 (Tex. App.--El Paso 1983, no pet.).
        We must now determine whether this error was harmless. The judgment must be reversed unless we can conclude beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. Tex. R. App. P. 81(b)(2). Here, we are unable to determine beyond a reasonable doubt that the error made no contribution to the conviction. During the course of the ten minute videotape, the jury heard Newfield invoke his right to counsel eight different times. Therefore, the jury could easily have believed Newfield's insistence on an attorney indicated his guilt. Additionally, we note that the officer testified that Newfield swayed, smelled of alcohol, and used his vehicle for support; however, he also testified that Newfield drove his car without weaving, maintained a single lane and did not speed. He stated that balance alone does not indicate that Newfield was intoxicated and that you cannot tell how much a person had to drink by the odor of an alcoholoc beverage. Newfield did not sway or stagger while being videotaped. Thus, we cannot conclude that there was overwhelming evidence of Newfield's guilt. In view of the above, Newfield's second point of error is sustained.
        In the event there is a retrial of this case, we feel it necessary to address point of error three, wherein Newfield contends that the trial court erred in admitting the audio portion of the video tape which allegedly contained "incriminating questions and answers" after he invoked his right to counsel. He bases this contention on the Miranda decision which requires that interrogation cease immediately upon an accused's demand for an attorney. See Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).
        The purpose of the Miranda warnings is to inform a suspect who may be faced with coersive interrogation of the procedural tools available to him. McCambridge v. State, 7l2 S.W.2d 499, 505 (Tex. Crim. App. l986). Among those tools is the right to request a lawyer, thus allowing a defendant to end the interrogation or guarantee him assistance by a third party. However, police activity normally attendant to arrest and custody does not constitute interrogation. South Dakota v. Neville, 459 U.S. 551, 564 n.15 (1983), citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980); Jones v. State, 742 S.W.2d 398, 407 (Tex. Crim. App. 1987).
        In the specific context of an arrest for driving while intoxicated (DWI), the United States Supreme Court has held that "a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda." South Dakota v. Neville, 459 U.S. at 564 n.15. This reasoning has also been followed by the court of criminal appeals which has concluded that when a defendant invokes his right to counsel under Miranda, the police are not forbidden from seeking a suspect's breath sample because "[n]ot only does the breath testing decision not involve custodial interrogation, it also does not involve the privilege against self-incrimination." McCambridge, 712 S.W.2d at 506; see Miffleton v. State, __ S.W.2d __, No. 626-87, slip op. at 9 (Tex. Crim. App. May 24, 1989); see also Schmerber v. California, 384 U.S. 757, 764 (l966) (taking blood sample, finger printing, photographing, measuring, standing, walking, gesturing, writing or speaking for identification, not testimonial); McCambridge, 7l2 S.W.2d at 504 (breath and blood sample not interrogation); Rodriguez v. State, 63l S.W.2d 5l5, 5l7 (Tex. Crim. App. l982) (breathalyzer not testimonial). Neither does the Fifth Amendment prohibit the admission into evidence of a defendant's verbal refusal to take a blood-alcohol test. South Dakota v. Neville, 459 U.S. at 564; Thomas v. State, 723 S.W.2d 696, 701-02 (Tex. Crim. App. 1986).
        Recently, this Court has concluded that sobriety tests, such as recitation of the alphabet and counting numbers, do not involve "interrogation" and are not testimonial communications protected by the Fifth Amendment. Chadwick v. State, 766 S.W.2d 8l9, 821 (Tex. App.--Dallas l988, pet. granted). Rather, in the context of an arrest for DWI, these types of inquiries are considered "normally attendant to arrest and custody." Id.
        During the videotape session, the police officer gave Newfield both his statutory DWI warnings and his Miranda warnings. The officer asked Newfield to walk a straight line drawn on the floor, to take a breath and blood test, to read from a card and to recite the alphabet. Newfield declined to do any of the above. Therefore, we conclude that the questions asked of Newfield did not constitute interrogation within the meaning of Miranda. Moreover, the questions did not result in any incriminating responses by Newfield. Point of error three is overruled.
        We need not address the remaining points of error. The judgment of the trial court is reversed and the cause remanded for a new trial.
 
 
 
 
                                                          PAT McCLUNG
                                                          JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
88-0944F..UO5
 
 
File Date[10-02-89]
File Name[880944]