APPELLANT
APPELLEE
PER CURIAM
A jury found appellant guilty of driving while intoxicated. Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568, 1574 (Tex. Rev. Civ. Stats. Ann. art. 6701l-1(b), since amended and codified at Tex. Penal Code Ann. § 49.06). The county court at law assessed punishment, enhanced by a previous conviction for the same offense, at incarceration for fifteen days and a $300 fine.
Appellant was stopped for speeding by Department of Public Safety trooper Richard Fernandez. Appellant got out of his car to speak to the officer, whereupon Fernandez noticed the odor of alcoholic beverage and saw that appellant was unsteady on his feet. Fernandez asked appellant to perform three field sobriety tests, which he failed. The officer then arrested appellant for driving while intoxicated. This encounter between appellant and the officer was videotaped by a camera mounted in the officer's patrol car. The videotape was admitted in evidence and played for the jury.
After appellant's unsuccessful attempt to perform the sobriety tests, Fernandez can be heard on the videotape telling appellant, "It appears you've had too much to drink." Appellant responds, "Yes, I have." In his first point of error, appellant contends this admission was erroneously admitted in evidence because he had not been advised of his rights. Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (West Supp. 1994).
By its terms, section 3(a) applies only to statements that are made as a result of custodial interrogation. "Interrogation" is not limited to express questioning, but includes 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 suspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980); Wortham v. State, 704 S.W.2d 586, 589 (Tex. App.--Austin 1986, no pet.). Article 38.22 does not preclude the admission of a voluntary statement or statement that is not the product of custodial interrogation. Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (West 1979). Appellant asserts that Fernandez's remark that appellant appeared to be intoxicated was calculated to elicit an incriminating statement. Fernandez made the remark immediately before he told appellant he was under arrest. The trial court could reasonably conclude that the statement was made, as Fernandez testified, "so that [appellant] would understand where we stood at that particular time." The record supports the conclusion that appellant's admission was a voluntary statement and not the product of custodial interrogation. Point of error one is overruled.
Appellant's second point of error concerns another portion of the videotape. After handcuffing appellant and placing him in the patrol car, Fernandez advised him of his rights and asked if he understood them. Appellant did not respond. After a period of silence, the officer asked appellant if he had been operating a vehicle. Appellant replied that he wanted to talk to a lawyer. The officer then asked appellant if he wanted to answer any questions. Appellant said that he did not. Appellant contends that it was error to permit the jury to hear appellant exercise his right to remain silent and his right to assistance of counsel.
The prosecution may not use at trial the fact that the defendant stood mute or exercised his Fifth Amendment privilege. Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966). Similarly, evidence of one's invocation of the right to counsel is inadmissible as evidence of guilt. Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991); see also Miffleton v. State, 728 S.W.2d 880, 884 (Tex. App.--Austin 1987), aff'd, 777 S.W.2d 76 (Tex. Crim. App. 1989).
The record reflects that appellant objected to permitting the jury hear him invoke his rights only after the relevant portion of the videotape had been played. Setting aside the timeliness of the objections, appellant did not secure an adverse ruling on the objection with respect to the right to counsel. Tex. R. App. P. 52(a). Insofar as this point of error complains of the jury hearing him request counsel, nothing is presented for review.
Appellant's unsteadiness and inability to perform the sobriety tests were apparent on the videotape, and the jury also heard appellant admit on tape that he had too much to drink. Appellant testified that he had been drinking on the day in question but insisted that his physical condition was the result of fatigue and a bad back. In essence, the credibility of appellant's testimony was the sole issue at the guilt stage. The prosecutor made no mention during trial of appellant exercising his right to remain silent following his arrest. Appellant did not raise this issue in his motion for new trial and there is no evidence that the jury considered appellant's silence on the videotape when deliberating. We conclude that allowing the jury to hear appellant exercise his right to remain silent was harmless beyond a reasonable doubt. Tex. R. App. P. 81(b); Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). Point of error two is overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Aboussie and Jones
Affirmed
Filed: September 14, 1994
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