James Milton Fleming v. The State of Texas--Appeal from County Court at Law No. 7 of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00458-CR
James Milton Fleming, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 7 OF TRAVIS COUNTY
NO. 406297, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

Appellant James Milton Fleming was convicted in a jury trial of the misdemeanor offense of driving a motor vehicle in a public place while intoxicated. Act of May 27, 1983, 68th Leg., R.S., ch. 303, 3, 1983 Tex. Gen. Laws 1568, 1575 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), since amended and codified at Tex. Penal Code Ann. 49.04). The trial court assessed appellant's punishment at confinement in the county jail for forty-five days and a fine of $100.00.

Appellant presents six points of error in which he asserts that the trial court erred in admitting portions of an audiotape and in amending the jury instructions after the jury had retired to deliberate. He also urges that the evidence is insufficient to support the verdict because of a fatal variance between the information and the original jury instructions. We will affirm the judgment.

In his first and second points of error, appellant urges that the jury was allowed to hear an audiotape in which he invoked his right to counsel while under arrest thus violating both his federal and state constitutional right to counsel. U.S. Const. amends. V, VI, & XIV; Tex. Const. art. I, 10. Appellant concedes that his state right to counsel is no greater than his federal right. The Court of Criminal Appeals has observed that evidence of an accused invoking his or her right to counsel may be construed adversely as an inference of guilt. Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991). Therefore, that court held that evidence of a defendant invoking his or her right to counsel while under arrest is inadmissible as evidence of guilt. Id. at 322; see Miffleton v. State, 728 S.W.2d 880 (Tex. App.--Austin 1987), aff'd, 777 S.W.2d 76 (Tex. Crim. App. 1989); Rezac v. State, 722 S.W.2d 32 (Tex. App.--Dallas 1986), rev'd on other grounds, 782 S.W.2d 869 (Tex. Crim. App. 1990).

The State stoutly maintains that appellant failed to preserve the alleged error for review. We disagree. A fair interpretation of the record shows the error was preserved for review. Appellant filed but failed to obtain a formal ruling on his motion to suppress the evidence of his invocation of the right to counsel. However, after the jury was selected and just before evidence was offered, the court and the parties agreed that the jury should not hear certain portions of the audiotape. The record shows:

 
(JURY OUT.)

THE COURT: Pursuant to, I guess, the defendant's oral motion to suppress that we heard outside the presence of the jury regarding the videotape that the State is seeking to admit, these are the following portions of that tape, from the counter on the tape that are not admitted.

 

From 3 -- I am assuming that's 3 minutes 12 seconds, the videotape is off.

 

From 4 minutes 26 seconds to 4 minutes 32 seconds, the videotape is off.

 

From 5 minutes 39 seconds to 5 minutes 44 seconds, the video tape is off.

 

[PROSECUTOR]: We have some discrepancy.

 

I am sorry, Your Honor. You said off from 4:26 to 4:32?

 

THE COURT: Correct.

 

[PROSECUTOR]: Okay.

 

THE COURT: On -- or actually 4:34.

 

[PROSECUTOR]: And then we have off 5:39, on 5:44.

 

The court and the parties were referring to the time track on the tape in designating the portions of the tape which should not be heard by the jury. The court and the parties decided that the time counter on the television set would be used to silence the audiotape at the times decided inadmissible. Unfortunately, the time counter on the television set and the time track on the tape did not match. Therefore, when the tape was played in the presence of the jury, appellant could be heard invoking his right to counsel, and the arresting officer could be heard telling appellant that he would be charged with carrying a prohibited weapon. The trial court explained:

 

THE COURT: Let me state for the record that I don't think we have had any pretrial rulings prior to today on this case, have we not? We did not have a pretrial hearing?

 

[PROSECUTOR]: No, we did not, Your Honor.

 

THE COURT: What happened in this instance is that you all told me there were certain portions of the tape that you thought should not be played in front of the jury. And I said, "Okay, we will watch that before the jury trial begins." Then the three of us, myself, the State, and the defense, went into the jury room and pretty much wrote down and agreed to what portions of the tape should not be viewed. I did not formally address any motions and have not to this point. But on our agreement, we had agreed that certain portions of that tape would not be played in front of the jury.

Then, and you-all correct me if I am wrong, we decided that since the display was working on the television, that we would use that display to track those portions of the tape which we read earlier into the record before we even started today.

 

And as I explained earlier, apparently that is not constant. So there was a problem. And now we have redone that. That is what has happened up to this point. So it is actually through no fault of anyone, I should say, that that was done. But the tape itself just did not function the way we thought it was going to, the tape player.

 

So, anyway, your request at this time was for a mistrial. And I am going to deny that request for a mistrial. I am willing, however, prior to doing that, to call the jurors in individually and ask them exactly what they heard on the tape, if you wish me to do so.

 

[DEFENSE COUNSEL]: If you will do it individually, I think you should see what they did hear.

 

In these circumstances, we hold that the alleged error was preserved for review.

We must now determine whether the error was so harmful as to require reversal of the judgment. Tex. R. App. P. 81(b)(2); Hardie, 807 S.W.2d at 322; Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989); Johnson v. State, 841 S.W.2d 562, 565 (Tex. App. Eastland 1992), rev'd on other grounds, 869 S.W.2d 347 (Tex. Crim. App. 1994).

In an apparent attempt to determine the harm done and to mitigate harm from the tape playing fiasco, each juror's testimony was recorded. Two jurors testified they heard appellant ask for counsel, while four jurors testified they did not hear appellant ask for counsel. Although appellant argues the court's admonition to the jury to disregard the inadmissible evidence was not precise and was insufficient, there was an attempt to instruct the jury to disregard the inadmissible evidence.

The inadmissible evidence admitted before the jury was not the result of overzealous prosecution, but resulted from an unfortunate misunderstanding of how the counter on the television set worked. Other evidence proved overwhelmingly that appellant was intoxicated while driving his truck in a public place.

Benny James Black, an assistant manager of a Church's Fried Chicken restaurant noticed that appellant had difficulty entering the restaurant. Appellant stumbled on the threshold and when he placed his order, Black smelled a strong odor of an alcoholic beverage on appellant's breath. Appellant slurred his words, needed help ordering, fumbled for his money, and offered Black one dollar to pay for more than five dollars worth of food. When appellant left Church's, he bumped into the divider between the doors and attempted to open the door on the hinge side. After having difficulty opening the door, appellant got in his truck and drove around the restaurant to leave. Black, concerned that appellant was too intoxicated to drive, notified Tom Lawrence Sweeney, a City of Austin police officer who was on duty nearby. Sweeney found it difficult to stop appellant. After he stopped appellant, the officer asked him to get out of his truck. Appellant stumbled and grabbed the truck to maintain his balance. Sweeney testified that appellant fumbled with his wallet and drivers license and that appellant's breath had the strong odor of an alcoholic beverage. Appellant's eyes were bloodshot, his speech was slurred, and he could not keep his balance without touching his truck. Appellant failed the field sobriety tests administered by Sweeney. Sweeney arrested and handcuffed appellant, who became belligerent and used profanity. At the police station, appellant refused to perform sobriety tests or to take an intoxilizer test. On the video-audiotape exhibited to the jury, appellant appeared uncooperative, belligerent, and slurred his speech.

Police officer Allen P. Anderson, a veteran with twenty-three years of service, was on the scene as a back-up officer when appellant was arrested. Anderson observed appellant's failure of the field sobriety tests, and in Anderson's opinion, appellant was "beyond intoxicated" and did not have the normal use of his mental and physical faculties.

Appellant testified in his defense that before being arrested he was tired from making a four-hour drive from the coast where he and two of his children had been fishing. He testified that he had been up since early morning and that while he drank several "beers" earlier, he was not intoxicated at the time he was arrested. George Erwin, who was incarcerated in the city jail, testified he met appellant in jail. In Erwin's opinion, appellant was not intoxicated when he met him.

We have followed the dictates of the Court of Criminal Appeals by isolating the error and focusing on the integrity of the process to determine whether the error was of the magnitude that it might have disrupted the jury's evaluation of the evidence to the extent that appellant did not receive a fair trial. See Harris, 790 S.W.2d at 587-88. The error in playing the inadmissible portion of the tape within the hearing of the jury was accidental not intentional. The error is not likely to be repeated. The State did not emphasize the error. Four of the jurors testified they did not even hear the inadmissible portion of the tape. Applying the Harris standard, we recognize, as did the Harris Court, that overwhelming evidence can be a factor in our consideration. Id. We find that a rational trier of fact would not have reached a different result in the absence of the error and its effects. We conclude beyond a reasonable doubt that the accidental admission of the inadmissible evidence did not contribute to appellant's conviction or his punishment. Points of error one and two are overruled.

In points of error three and four, appellant asserts that the trial court erred in allowing the jury to hear the audiotape that was recorded after he invoked his federal and state constitutional rights. U.S. Const. amend. V & XIV; Tex. Const. art. I, 10. When a suspect, while in custody, invokes his right to counsel, police are not prohibited from obtaining videotapes of the suspect performing sobriety tests. Visual depiction of a suspect's physical condition does not fall within the federal or state privilege against self-incrimination. Miffleton v. State, 777 S.W.2d 76, 80-81 (Tex. Crim. App. 1989). The state privilege against self-incrimination, like its federal counterpart, only applies to testimonial compulsion. Id. at 81; Olson v. State, 484 S.W.2d 756, 772 (Tex. Crim. App. 1972). A defendant's taped statements made in response to custodial interrogation after invocation of the right to counsel are not admissible, and on proper, timely objection, such statements should be suppressed. Miffleton, 777 S.W.2d at 81. However, the portions of audiotaped sobriety tests recorded after a defendant's request for counsel are not inadmissible per se. Jones v. State, 795 S.W.2d 171, 175 (Tex. Crim. App. 1990). Portions of an audiotape, other than the response to custodial interrogation, may be admitted in evidence. Id. Those portions of the audiotape may serve as a general interpretive aid to the visual record, and the audiotape also provides a physical exemplar of the suspect's manner of speech at the time of his arrest. Id. A jury may use the quality of a suspect's speech as evidence of the suspect's degree of intoxication, and the inability to enunciate words clearly can be probative of the loss of normal use of mental and physical faculties which the State must prove. Id. Moreover, an audiotape allows a jury to hear a suspect's volunteered statements because volunteered statements are not constitutionally barred. Miranda v. Arizona, 384 U.S. 436, 478 (1966); Jones v. State, 795 S.W.2d 171, 176 (Tex. Crim. App. 1990).

The State insists the error alleged in points three and four was not preserved for review and we agree based on our review of the entire record. Appellant points out paragraphs in his pretrial motion to suppress in which he requested suppression of all "statements, written or oral of defendant" and "any testimony concerning the action of the defendant" after his arrest. These parts of the motion to suppress are not specific enough to designate the matter complained of in these points of error. Moreover, the record shows that the motion to suppress was not ruled on by the trial court. Our reading of the record does not reveal that these matters were the subject of agreement of the court and counsel as were those matters raised in points of error one and two.

During trial, counsel moved for a mistrial, but he did not articulate a specific objection that comports with his grounds and argument on appeal. Also, because some portions of the audiotape made after appellant requested counsel are admissible, it was incumbent on appellant to separate the portions he believed were inadmissible from the admissible portions of the audiotape and to articulate his grounds for objection to the portions of the tape he believed were inadmissible. The record does not show that the trial court had a fair opportunity to rule on the admissibility of the portions of the tape which appellant now claims were inadmissible. Points of error three and four are overruled.

In his fifth point of error, appellant asserts that the trial court erred when, after the jury retired to deliberate, the trial court amended the jury instructions over appellant's objection. The jury instructions originally submitted required the jury to find the offense was committed on "a street or highway." The information charged that the offense was committed "in a public place . . . a parking lot." Proof supported this allegation. The trial court amended the jury instructions, after jury arguments, to conform to the information's allegation that the offense was committed in a public place on "a parking lot." The Code of Criminal Procedure provides that after argument begins, no further instruction shall be given the jury, and provides some exceptions not applicable in this case. Tex. Code Crim. Proc. Ann. art. 36.16 (West 1981). However, the Court of Criminal Appeals has consistently held that this provision of the code does not prevent the amendment of jury instructions even after jury deliberation has commenced. See, e.g., Nowlin v. State, 175 S.W. 1070, 1072 (Tex. Crim. App. 1915); Bustillos v. State, 464 S.W.2d 118, 125-26 (Tex. Crim. App. 1971). The Court of Criminal Appeals has recently reviewed, approved, and reaffirmed these authorities. Robert Smith v. State, No. 71 433, slip. op. at 24-27 (Tex. Crim. App. Mar. 8, 1995). This line of cases controls our decision. The trial court did not err in amending the jury instructions. Appellant's fifth point of error is overruled.

In his sixth point of error, appellant urges that because of the variance between the information's allegations and the original jury instructions the evidence is insufficient to support the jury's verdict and that he is therefore entitled to an acquittal. We have held the original jury instructions were properly amended. Therefore, this point of error is without merit. Appellant's sixth point of error is overruled.

The judgment is affirmed.

 

Carl E. F. Dally, Justice

Before Chief Justice Carroll, Justices B. A. Smith and Dally*

Affirmed

Filed: July 12, 1995

Do Not Publish

 

* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (West 1988).