TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00566-CR
Richard Joseph Saye, Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF COLLIN COUNTY
NO. 2-83349-93, HONORABLE JERRY LEWIS, JUDGE PRESIDING
A jury found appellant guilty of 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, 1574 (Tex. Rev. Civ. Stat. Ann. art. 6701l-1(b), since amended and codified at Tex. Penal Code Ann. § 49.04). The trial court assessed punishment at confinement for 300 days in the Collin County Jail. Jail time was suspended, and appellant was placed on probation for two years, with a fine of $800 being assessed as a condition of probation. Appellant asserts two points of error, contending the trial court erred (1) in allowing evidence to be admitted of appellant's refusal to take a breath test and (2) in allowing the prosecutor to argue that such refusal supported an inference of guilt. We will overrule appellant's points of error and affirm the judgment of the trial court.
The trial court held a hearing out of the presence of the jury following appellant's objection to the State's introduction of a videotape taken of appellant immediately after his arrest. The basis of appellant's objection was that the audio portion of the tape contained appellant's request for his constitutional right of counsel. The audio portion of the tape reflected that appellant was warned of the consequences of a refusal to give a breath specimen in accordance with statutory requirements. See Tex. Rev. Civ. Stat. Ann. art. 6701l-5, § 2(b) (West Supp. 1995). The tape also contained appellant's reply to the offer of a breath test in which he stated that he would not agree to anything until he had an opportunity to consult with counsel. The trial court permitted the videotape to be shown to the jury with the audio portion excluded. (1)
Appellant urges that testimony of his refusal to take a breath test should not have been admitted because there was no evidence offered in the presence of the jury that he was given his DWI statutory warnings or that he refused a breath test. McKinney Police Officer Pete Copin testified, without objection, that appellant was offered a breath test and that he did not take it. Appellant cites no authority to support his contention that evidence of statutory warnings regarding the consequences of a refusal to take a breath test should have been presented in the presence of the jury prior to the admission of Copin's testimony. Nor are we aware of any authority that would support appellant's position. The matter of whether proper warnings were given was a matter of law to be decided by the trial court.
It also appears that appellant is urging that the officer's testimony that appellant refused to take a breath test is in conflict with the audio portion of the tape that was introduced at the hearing before the trial court. If it be appellant's position that his invocation of the right to counsel before taking a breath test does not constitute a refusal of such test, Jamail v. State, 787 S.W.2d 380 (Tex. Crim. App.), cert. denied, 498 U.S. 853 (1990), is adverse to such contention. In Jamail, the court held that an accused has no right to counsel regarding the taking of a breath test because a breath test is not testimonial. Id. at 381-82. The inference of guilt that accompanies the refusal to take a breath test based on a request for counsel is treated no differently than refusal based on any other reason. Id. at 382. Appellant's first point of error is overruled.
In his second point of error, appellant contends that the trial court erred in overruling his objection to the prosecutor's argument that appellant's failure to take a breath test constituted an inference of guilt because such argument was not supported by the evidence. Since evidence of appellant's failure to take a breath test was properly admitted into evidence, the inference of guilt that accompanies such refusal was a proper subject for the prosecutor to argue before the jury. Appellant's second point of error is overruled.
The judgment is affirmed.
Tom G. Davis, Justice
Before Chief Justice Carroll, Justices Davis* and Dally**
Affirmed
Filed: August 30, 1995
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
** 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).
1. In Hardie v. State, 807 S.W.2d 319 (Tex. Crim. App. 1991), the Court of Criminal Appeals held that the audio portion of a videotape of the defendant's invocation of right to counsel was inadmissible as evidence of the defendant's guilt of driving while intoxicated. The court reasoned that evidence of an accused invoking his right to counsel may improperly be considered as an inference of guilt. Id. at 322.