Timothy Alton Barker v. The State of Texas--Appeal from County Court at Law No 1 of Galveston County

Opinion Issued July 21, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00447-CR

TIMOTHY ALTON BARKER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Court at Law No. 1

Galveston County, Texas

Trial Court Cause No. 222544

MEMORANDUM OPINION

A jury convicted appellant, Timothy Alton Barker, of driving while intoxicated and assessed his punishment at 180 days in the Harris County Jail, suspended for one year of community supervision, and a $500 fine. See Tex. Pen. Code Ann. 49.04 (Vernon 2003). We determine whether the trial court erred in overruling appellant s motion to suppress and in admitting into evidence appellant s unrecorded oral statement made to police. We affirm. Background

On November 16, 2002, Deputy Linda Kindel of the Galveston County Sheriff s Department was stopped at a red light when a vehicle driven by appellant approached her from behind and nearly struck her patrol car. Appellant swerved to miss Deputy Kindel s vehicle and careened off the highway and into a bank parking lot, where he struck an air conditioning unit.

After appellant s vehicle stopped, Deputy Kindel approached appellant and asked if he or his passenger needed medical treatment. Appellant told her that he was not hurt, but that he was unsure about his passenger, who was unconscious. Deputy Kindel noticed a strong odor of alcohol on appellant s breath.

Deputy Kindel asked appellant what had caused the accident. Appellant responded that he had had a tire blow-out. Deputy Kindel noticed, however, that none of the tires on appellant s vehicle was flat. She then asked appellant if he had consumed any alcohol. Appellant said that he had not. Deputy Kindel called for a backup officer, who arrived and took over the accident scene.

Deputy Kindel read appellant his rights and administered three sobriety tests to him, including a horizontal-gaze-nystagmus test, a heel-to-toe test, and a finger- counting test. Appellant failed to perform any of the three tests satisfactorily. Deputy Kindel then took appellant into custody. Appellant refused to take a breath test.

Deputy Kindel transported appellant to jail, where she booked him into the system by asking appellant for his name and vital statistics. During this process, appellant began talking to Deputy Kindel. Appellant told Deputy Kindel that he had been drinking that evening. Deputy Kindel then asked appellant how many beers he had consumed, and appellant answered seven or eight. Appellant also stated that he had not had a blowout on his vehicle, but that he was merely not paying attention to the road and that he was sorry that he had almost hit Deputy Kindel s patrol car.

Motion to Suppress

In two points of error, appellant contends that the trial court erred in overruling his motion to suppress and in admitting into evidence his unrecorded oral statement made to Deputy Kindel because it violated article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 38.22 (Vernon 1997). Specifically, appellant contends that, because his statement was made as a result of custodial interrogation after he had been read his rights, his statement should have been electronically recorded.

A trial court s ruling on a motion to suppress evidence will not be set aside unless there is an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex. App. Houston [1st Dist.] 1997, pet. ref d). We will afford almost total deference to a trial court s determination of historical facts supported by the record, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Spight v. State, 76 S.W.3d 761, 765 (Tex. App. Houston [1st Dist.] 2002, no pet.).

The standard of review for the admissibility of evidence is abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). An abuse of discretion occurs when a trial court s decision lies outside the zone of reasonable disagreement. Id. In determining whether a trial court has abused its discretion, we consider whether the court acted arbitrarily or unreasonably and without reference to guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993).

Article 38.22 generally precludes the use of statements that result from custodial interrogation, absent compliance with its procedural safeguards. Tex. Code Crim. Proc. Ann. art. 38.22, 2 (Vernon 1997); Shiflet v. State, 732 S.W.2d 622, 623 (Tex. Crim. App. 1985); Galloway v. State, 778 S.W.2d 110, 112 (Tex. App. Houston [14th Dist.] 1989, no pet.). Article 38.22, section 3(a)(1) prohibits the admission of oral statements unless an electronic recording is made of the statement. Id. 3(a)(1) (Vernon 1997). However, article 38.22, section 5 specifically exempts statements that do not stem from custodial interrogation, statements that are res gestae of the arrest or of the offense, and all voluntary statements, whether or not they result from custodial interrogation. Id. 5 (Vernon 1997); Shiflet, 732 S.W.2d at 623; Galloway, 778 S.W.2d at 112. Thus, if appellant s statements do not stem from custodial interrogation, neither Miranda // nor article 38.22 requires their suppression. Galloway, 778 S.W.2d at 112; Morris v. State, 897 S.W.2d 528, 531 (Tex. App. El Paso 1995, no pet.).

Interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the individual under suspicion. Rhode Island v. Innis, 446 U.S. 291, 299-302, 100 S. Ct. 1682, 1689-90 (1980); Morris, 897 S.W.2d at 531. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. Rhode Island, 446 U.S. at 300-02, 100 S. Ct. at 1689-90; Morris, 897 S.W.2d at 531. Not all post-arrest police questioning can be classified as interrogation. See Jones v. State, 795 S.W.2d 171, 174 n.3 (Tex. Crim. App. 1990); Morris, 897 S.W.2d at 531. When an accused in custody spontaneously volunteers information that is not in response to earlier interrogation by authorities, the statement is admissible even though not recorded because it is not the product of custodial interrogation. Stevens v. State, 671 S.W.2d 517, 520 (Tex. Crim. App. 1984); Chambliss v. State, 647 S.W.2d 257, 262 (Tex. Crim. App. 1983); Sanchez v. State, 589 S.W.2d 422, 423 (Tex. Crim. App. 1979).
In this case, it is undisputed that appellant was in custody and that his statement that he had consumed seven or eight beers was not electronically recorded. While at the police station being booked into custody, appellant began a conversation with Deputy Kindel. During the conversation, appellant spontaneously told Deputy Kindel that he had been drinking that evening and that he was sorry for almost hitting her patrol car with his vehicle. Deputy Kindel gave the following testimony when questioned by the State about the events after appellant s arrest:

A. When I was booking him in, he started casual conversation. And he stated that he had been drinking. I asked him then how many beers did he have? And he stated

Defense Counsel: Your Honor, I object to any response to and answer

from any question. That clearly is custodial interrogation.

The Court: Overruled. You may answer.

Q. What statement did he make to you at that time?

A. He admitted having several beers. When I asked him how many, he states seven or eight.

Despite the State s assertion, appellant s statement that he had consumed seven or eight beers was made in response to custodial interrogation. We acknowledge that questioning that is normally attendant to arrest and custody does not constitute interrogation. See Jones, 795 S.W.2d at 174. However, the deputy s question to appellant regarding how many beers he had consumed was not a routine question incident to booking. To the contrary, Deputy Kindel s question was calculated to elicit an incriminating response from appellant. Because appellant was under arrest and his oral statement regarding the amount of alcohol that he had consumed was made in response to a question, a recording was required for the statement to be admissible. Wortham v. State, 704 S.W.2d 586, 589 (Tex. App. Austin 1986, no pet.).

Error in the admission of evidence is generally non-constitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that a non-constitutional error not affecting substantial rights must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial injurious effect or influence in determining the jury s verdict. King, 953 S.W.2d at 271. In determining whether an erroneous admission of evidence had a substantial and injurious effect or influence in determining the jury s verdict, we consider everything in the record, including any testimony or physical evidence admitted for the jury s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, the jury instructions, the State s theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. Rich v. State, 160 S.W.3d 575, 577-78 (Tex. Crim. App. 2005).

Applying the standard to this case, we cannot conclude that the improper admission of appellant s oral statement had a substantial and injurious effect or influence in determining the jury s verdict. The disputed issue in the trial concerned whether appellant was intoxicated: the wrongfully admitted oral statement was a piece of the State s evidence establishing appellant s intoxication. Nevertheless, the State also offered, among other evidence, photographs of the scene of the accident and a videotape of appellant performing the field-sobriety tests and his subsequent arrest. The State s additional evidence demonstrating appellant s intoxication included testimony that appellant (1) drove recklessly by almost colliding with Deputy Kindel s patrol car, then swerving and striking an air conditioning unit with his vehicle; (2) smelled of an alcoholic beverage; (3) performed poorly on three sobriety tests; (4) admitted that he had been drinking alcohol; and (5) lied about having had a blown-out tire. Additionally, Deputy Kindel testified that she believed that appellant had lost the normal use of his mental and physical faculties.

Although the State did emphasize appellant s erroneously admitted statement during closing argument, the statement constituted only a small part of the evidence summarized in the State s closing argument. For instance, the State dramatically reiterated the events leading up to appellant s arrest and summarized the evidence that it had presented, including photographs of the damage resulting from the accident, videotape footage of the accident scene, and Deputy Kindel s eyewitness account of the accident and of appellant s failure of the three administered field-sobriety tests. This evidence, excluding the erroneously admitted statement, strongly supports the jury s verdict. Additionally, all six of the jurors during voir dire agreed that a person could have alcohol on his breath without necessarily being intoxicated, and, when two of the six jurors were asked whether a person could have eight beers and the odor of alcohol on his breath without being intoxicated, they responded affirmatively.

Given the evidence in the record as a whole, we conclude that the improper admission of appellant s oral statement did not have a substantial and injurious effect or influence in determining the jury s verdict. See Rich, 160 S.W.3d at 577. The oral statement had little effect, if any, on the jury s decision to convict appellant, and the conviction would have been certain without the erroneously admitted evidence. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Because appellant s substantial rights were not affected, we conclude that the error in admitting the evidence was harmless and must, therefore, be disregarded. See King, 953 S.W.2d at 271.

We overrule appellant s first and second points of error.

Conclusion

We affirm the trial court s judgment.

Tim Taft

Justice

Panel consists of Justices Taft, Alcala, and Higley.

Do not publish. Tex. R. App. P. 47.2(b).