author: PHILLIPS, Judge. ONION, Presiding Judge, DOUGLAS, Judge, ROBERTS, Judge,

text:
    Kenneth Wayne DUDLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 50448.
    Court of Criminal Appeals of Texas.
    March 23, 1977.
    Rehearing Denied April 13, 1977.
    Will Gray, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Marshall M. Arnold, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., for the State.
   OPINION

PHILLIPS, Judge.

Appellant was convicted of the offense of driving while intoxicated, and his punishment was assessed at a fine of $100.00 and 30 days in jail. The jail term was probated for two years.

Appellant’s sole contention on appeal is that the court reversibly erred in permitting the State, over appellant’s objection, to elicit testimony before the jury that appellant had been offered and had refused to take a breath test.

It is the State’s contention that Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Olson v. State, Tex.Cr.App., 484 S.W.2d 756, render said testimony now admissible in Texas, notwithstanding our unbroken line of decisions contrary thereto, notably, Willeford v. State, Tex.Cr.App., 489 S.W.2d 292; Shilling v. State, Tex.Cr.App., 434 S.W.2d 674; Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419; Brown v. State, 165 Tex.Cr.R. 535, 309 S.W.2d 452; Jordan v. State, 163 Tex.Cr.R. 287, 290 S.W.2d 666; Bumpass v. State, 160 Tex.Cr.R. 423, 271 S.W.2d 953; Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702. In Schmerber the Supreme Court of the United States simply held that under the narrowed facts of that particular case proof of the results of a blood test, where the blood had been drawn by a physician in a hospital in excess of two hours after an accident involving the defendant, was admissible though the defendant had not consented thereto. Olson v. State, supra, merely held that the prohibition of the Texas Constitution against the compelling of the defendant to give evidence against himself means the same as the prohibition in the federal constitution against compelling a defendant to be a witness against himself. Olson involved only the question of whether a handwriting sample voluntarily given by the defendant was rendered inadmissible because the defendant was under arrest and without counsel. The Court’s statement in said opinion pertaining to the blood test was dicta and the Court in said case did not consider, by dicta or otherwise, the question of admissibility of defendant’s refusal to take a breathalyzer test or any other chemical test.

Schmerber is not authority for the contention of the State herein, but is strong authority to the contrary. In Schmerber the Supreme Court gave as its reason for holding the results of said blood test beyond the scope of the Fifth Amendment the fact that such was merely a then existing physical characteristic of the defendant and “not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved.” Schmerber at page 765 of 384 U.S., at page 1832 of 86 S.Ct. We interpret the majority opinion in said case in footnote nine to the above quoted statement to say general Fifth Amendment principles including Miranda requirements would apply as to proof of any refusal to take a breathalyzer test.

In said opinion the Court stated:

“We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . . It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications.”

It is stated in 8 Wigmore, Evidence, Sec. 2265 (McNaughton rev. 1961):

“. . . Unless some attempt is made to secure a communication — written, oral or otherwise — upon which reliance is to be placed as involving his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one

Conversely, if a communication, written, oral, or otherwise, involves an accused’s consciousness of the facts and the operations of his mind in expressing it, such is testimonial and communicative in nature. A defendant’s silence or negative reply to a demand or request by an officer made upon him while under the necessary compulsion attendant with custodial arrest, which demand or question reasonably calls for an immediate reply by the defendant, is clearly a tacit or overt expression and communication of the defendant’s thoughts in regard thereto, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The obvious purpose and certain result of proving a person accused of intoxication refused a request to take a breathalyzer test is to show the jury that the accused, with his full knowledge of the true amount he had consumed, thought that he could not afford to take said test. Such was the only reason for its relevancy. Thus, said evidence is without doubt of communicative and testimonial character and not mere factual proof of a then existing physical characteristic. The contention that if the result of the test is admissible that an accused person’s expression of his desire not to submit to said test must also be admissible, is directly contrary to the reasoning of Schmer-ber. This is so because the Constitution simply forbids any compulsory revealing or communication of an accused person’s thoughts or mental processes, whether it is by acts, failure to act, words spoken or failure to speak, and the fact that it does not extend its scope further and forbid compulsory exhibition of physical characteristics does not nullify the extent to which it has extended its protection to an accused.

It has been contended that the appellant’s refusal to submit to a chemical test is the same as flight or escape, but the distinction lies in the fact that escape and flight are not compelled or even requested by the State; whereas, if an accused under custodial arrest is requested or offered a chemical test for intoxication, anything he does other than affirmatively agree to same is a refusal to submit. Thus, escape and flight are not “compelled”, a necessary factor under the Fifth Amendment, but a refusal to take a chemical test by silence or negative reply to a State’s request or offer is compelled.

Art. 38.22, V.A.C.C.P. has been consistently construed by this Court as prohibiting proof of an accused’s oral statements, silence or acts, if made while under arrest and tending to communicate thoughts of the defendant which are of an incriminating nature. Garner v. State, Tex.Cr.App., 464 S.W.2d 111; Butler v. State, Tex.Cr.App., 493 S.W.2d 190; Hubbard v. State, 153 Tex.Cr.R. 143, 217 S.W.2d 1019; Brent v. State, 89 Tex.Cr.R. 544, 232 S.W. 845. Though not expressly stated heretofore, the decisions construing Art. 38.22, supra, reveal that, in practical application, said statute has been held to prohibit any act, silence or oral statement of an accused while in custody which has communicative or testimonial characteristics, substantially the same as the Fifth Amendment.

Therefore, appellant’s objection in the trial court to said testimony upon the grounds of Art. 38.22, supra, as well as the Fifth and Fourteenth Amendments to the Constitution of the United States, should have been sustained and the failure of the trial court to do so was error prejudicial to the rights of the appellant.

Art. 6701/-5, V.A.C.S., does not purport to apply to the question here presented in that same addresses itself to the question of admissibility of the results of a chemical test, but not to an accused’s refusal to submit to same at the request of an officer while under custodial arrest.

For the error stated, the judgment is reversed and the cause remanded.

ONION, Presiding Judge,

concurring.

This appeal presents for reconsideration the question of whether the State may initially elicit from the arresting officer or others the fact that the accused has been offered and refused to take a breath test to determine intoxication. The State urges that reconsideration is long overdue in light of Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972), which overruled Trammell v. State, 162 Tex.Cr.R. 543, 287 S.W.2d 487 (1956). There are, however, several bases for either the admission or exclusion of such evidence that should be discussed.

The conviction in the instant case is for driving a motor vehicle upon a public highway while intoxicated. The offense was shown to have occurred on June 8, 1974. Punishment was assessed at thirty (30) days in the county jail and at a fine of $100.00. The jail term was probated under Article 42.13, Vernon’s Ann.C.C.P.

At the trial the State in its case in chief on direct examination elicited, over proper objection, from the arresting officer that the appellant had been offered and had verbally refused to take a breath test, and still later on cross-examination inquired of the appellant about the same matter.

The only ground of error urged by the appellant is that the trial court erred in admitting such evidence over objection.

The Cardwell Case, Article 38.22, V.A.C.C.P., Etc.

Appellant relies upon Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951), and a line of cases following it which hold such evidence of refusal inadmissible.

The State urges that this court take this opportunity to overrule the Cardwell line of cases in light of the holding in Olson v. State, supra. In holding admissible handwriting exemplars, Olson held that the scope of the privilege against self-incrimination in Article I, § 10, Texas Constitution, is identical to that of the Fifth Amendment, United States Constitution, and that state constitutional provision affords the same but no greater rights than the federal constitutional provision. Olson overruled several cases, including Trammell v. State, supra, which had held that the self-incrimination privilege of the State Constitution prohibited the admission into evidence of the results of a blood test conducted without an accused’s consent. Olson made clear that there was no state constitutional barrier to subjecting an accused, without his consent, to a chemical test for intoxication, if taken under conditions which comport with due process. In effect it made Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), applicable to Texas.

In Schmerber v. California, supra, the United States Supreme Court held admissible the evidence of the results of a test for blood alcohol content made upon a blood sample drawn from a defendant without his consent. The Court reasoned that the Fifth Amendment extends only to testimonial communications from a defendant, not to real or physical evidence. The Court concluded, “Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner’s testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.”

The Schmerber case, however, emphasized that it was not deciding whether the admission of an accused’s verbal refusal to submit to chemical testing would violate any of the accused’s constitutional rights, including the Fifth Amendment. In fact, it warned that the State may well have to forego evidence of testimonial byproduct of compelling an accused to submit to chemical testing. 384 U.S. at p. 765, note 9, 86 S.Ct. at p. 1833.

The State thus contends that since Schmerber is now applicable to Texas and consent is no longer required to subject a defendant to a blood or breath test, etc., his refusal to take such test should be admissible in evidence, particularly in light of the overruling of Trammell. While the holding in Trammell was consistent with the rule that testimony cannot be introduced or comment made on an accused’s refusal to take a blood test, see Olson v. State, supra, footnote # 48 at p. 772, it is interesting to note that Cardwell v. State, supra, and its progeny have never relied upon Trammell and its progeny.

Since Trammell or the line of cases which followed it were never the basis for any of this court’s decisions prohibiting the State from producing evidence of the accused’s refusal to take a sobriety test, the State’s reliance on Trammell is misplaced.

In Cardwell the court, speaking through Judge Woodley, wrote:

“The State cannot avail itself of the silence or refusal of an accused prisoner as a circumstance tending to establish his guilt.”

The opinion did not further discuss the holding, but cited three cases, Carter v. State, 23 Tex.App. 508, 5 S.W. 128 (1887); Elliott v. State, 152 Tex.Cr.R. 285, 213 S.W.2d 833 (1948); Sharp v. State, 153 Tex.Cr.R. 96, 217 S.W.2d 1017 (1949), none of which involved testimony of a refusal to take a chemical test.

The cases after Cardwell almost invariably cite either Cardwell or the opinions which followed it, without a discussion or mention of the confession statute or the rule of evidence discussed. See Bumpass v. State, 160 Tex.Cr.R. 423, 271 S.W.2d 953 (1954); Jordan v. State, 163 Tex.Cr.R. 287, 290 S.W.2d 666 (1956); White v. State, 164 Tex.Cr.R. 416, 299 S.W.2d 151 (1957); Brown v. State, 165 Tex.Cr.R. 535, 309 S.W.2d 452 (1958); Watts v. State, 167 Tex.Cr.R. 63, 318 S.W.2d 77 (1958); Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419 (1962); Shilling v. State, 434 S.W.2d 674 (Tex.Cr.App.1968); Willeford v. State, 489 S.W.2d 292 (Tex.Cr.App.1973). Cf. Sublett v. State, 158 Tex.Cr.R. 627, 258 S.W.2d 336 (1953). The rule announced in Cardwell has been consistently applied where the State initially elicits such testimony. The rule is recognized but not applied where the defendant brings out such testimony or “opens the door” to such testimony being elicited by the State. See, e. g., Hopkins v. State, 162 Tex.Cr.R. 103, 282 S.W.2d 232 (1955); Strickland v. State, 169 Tex.Cr.R. 633, 336 S.W.2d 185 (1960); Radosevich v. State, 171 Tex.Cr.R. 333, 350 S.W.2d 198 (1961); Lee v. State, 170 Tex.Cr.R. 566, 342 S.W.2d 753 (1961); Turner v. State, 371 S.W .2d 891 (Tex.Cr.App.1963); Wright v. State, 396 S.W.2d 127 (Tex.Cr.App.1965); Polk v. State, 490 S.W.2d 853 (Tex.Cr.App.1973); Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App.1974); Birdwell v. State, 510 S.W.2d 347 (Tex.Cr.App.1974). Cf. Story v. State, 502 S.W.2d 764 (Tex.Cr.App.1973).

Shilling v. State, supra, was the first case which reversed a conviction for violation of the Cardwell rule after the effective date of the new Code of Criminal Procedure (January 1, 1966), which included Article 38.22, Vernon’s Ann.C.C.P., as the confession statute and after the decision in Schmerher v. California, supra. Cardwell and Bumpass were cited with approval, but the new confession statute was not mentioned.

In Willeford v. State, supra, decided after Schmerber and Olson, the court reversed for the introduction of that portion of the arresting officer’s report relating to the defendant’s refusal to take a blood test, although the other portion of the report was admissible under Article 38.24, Vernon’s Ann.C.C.P. No mention was made of either Schmerber or Olson. The only authority cited was “Cf Lee v. State, 170 Tex.Cr.R. 566, 342 S.W.2d 735 [753].”

It is clear from the above that this court’s decisions prohibiting the State from eliciting testimony concerning an accused’s refusal to take a sobriety test have rested upon the confession statute as well as the rule of evidence which forbids an accused’s silence to be used against him as tending to establish guilt. In the instant case it appears from the record that the appellant verbally refused to take the breath test, and it was this refusal which the State elicited over objection. The present confession statute, Article 38.22, supra, 1967, as amended, has recently been interpreted, as its forerunners were, as designed to prevent the prosecution from using against the accused the testimony of the officer having him under arrest as to a verbal statement made by the accused which the State seeks to use to prove his guilt, even if that statement does not in and of itself amount to a classical confession. See Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973). See also Garner v. State, 464 S.W.2d 111 (Tex.Cr.App.1971); Easley v. State, 493 S.W.2d 199 (Tex.Cr.App.1973); Smith v. State, 514 S.W.2d 749, 752 (Tex.Cr.App.1974).

In Weaver v. State, 43 Tex.Cr.R. 340, 65 S.W. 534 (1901), it was held proof of defendant’s refusal, while under arrest, to go into the house and look at the body of deceased was inadmissible.

The State in the instant case would not have elicited the evidence of a verbal refusal to take a breath test while under arrest unless the State believed the same to be harmful to the appellant and inculpatory and tended to show his guilt. Even though the refusal itself did not amount to a confession, it was offered as an inference of a guilty mind. It is difficult to see any relevancy in the statement of refusal other than to provide such an inference.

In Garner v. State, supra, it was stated:

“. . .in construing our confession statutes this Court has excluded any act tantamount to or in the nature of a confession and to any unwarned statement even though it lacks the essential elements of a confession. . . . ”

See also Butler v. State, supra, and cases there cited; Smith v. State, supra.

Since the decisions in Garner and Butler giving to Article 38.22, supra, the same interpretation as has been applied to our earlier confession statutes, the Legislature has met and adjourned without amending the statute. It must be presumed that the Legislature approves the interpretation given to the statute by this court. See 82 C.J.S. Statutes § 816, p. 549.

I would adhere to the Cardwell line of cases and reverse the judgment of conviction in the instant case.

Refusal by Silence

While the refusal in the instant case took the form of a verbal refusal to take the test, it would appear that a refusal by silence or by standing mute when offered the test would also be inadmissible. And this would be particularly true after an accused has been given warnings in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or Articles 38.22 and 15.17, Vernon’s Ann.C.C.P.

In Miranda v. Arizona, supra, it was written:

“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” Footnote # 37, 384 U.S. at p. 468, 86 S.Ct. at p. 1625.
“Manifestly, it is intolerable to penalize an accused for remaining silent or refusing to make a statement to police authorities after being advised of his constitutional right to remain silent in the face of accusation. It is elementary that a person arrested upon a charge of crime, and thus accused thereof, has an absolute and inviolable constitutional right under the Fifth Amendment, applicable to the states by operation of the Fourteenth Amendment (Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653), to remain silent. Indeed Miranda mandates, among other things, that an accused be so advised before interrogation by law enforcement officials. It would be an intolerable anomaly if an accused’s exercise of his constitutional right to remain silent, of which he must be informed before any questioning by law enforcement officials concerning the offense for which he was arrested, could thus be turned against him.” Harrison v. State, 532 S.W.2d 566, 571 (Tenn.Cr.App.1975). See also State v. Beck, 289 Minn. 287, 183 N.W.2d 781 (1971). Cf. State v. Roberts, 296 Minn. 347, 208 N.W.2d 744 (1973).

It has long been established in this State that the silence of the accused while under arrest normally cannot be used in evidence against him as a circumstance indicating guilt. De Lira v. State, 164 Tex.Cr.R. 194, 297 S.W.2d 953 (1957); 1 Branch’s Ann.P.C., 2nd ed., § 87, pp. 91-92. See also Hicks v. State, 493 S.W.2d 833 (Tex.Cr.App.1973).

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the question presented was whether a state prosecutor may seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story to the arresting officer after receiving Miranda warnings at the time of his arrest. There the Supreme Court concluded that the use of the defendant’s post-arrest silence in this manner violated the due process clause of the Fourteenth Amendment.

The Court wrote:

“Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S. [171], at 177, 95 S.Ct. [2133, at 2137, 45 L.Ed.2d 99]. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.”

If a defendant’s silence under arrest under these circumstances cannot be used to impeach the defendant at trial, surely his silence cannot be used against him in the prosecution’s case in chief.

It would be highly inconsistent to say that a refusal by silence to take a chemical test cannot be used, but where the law enforcement officials compel a verbal refusal, a testimonial communication, such refusal can be shown. The rule cannot be split in two.

Evidence of Refusal Inadmissible Under Implied Consent Statute

There exists still another reason that appellant’s refusal to take a breath test was inadmissible.

Article 67011-5, Vernon’s Ann.C.S., is the Texas implied consent statute relating to a chemical test or other tests of the breath of any person who operates a motor vehicle upon a public highway of this State to determine the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while a person is driving a motor vehicle while under the influence of intoxicating liquor. The statute provides that if any person under arrest shall refuse to submit to a chemical breath test upon the request of a law enforcement officer “none shall be given.” The statute provides in detail, however, for a procedure whereby a person who refuses such breath test may have his license suspended for as long as a year. This is the statutory penalty for the refusal to take the breath test. The statute makes no provision that the refusal to take the test is admissible into evidence in a criminal prosecution. The statute clearly gives the arrested person the choice of taking the breath test or refusing it, though the refusal carries with it resultant consequences.

Implicit in our implied consent statute is the right to refuse to submit to a test and, a fortiori, the requirement that a choice be made between submitting to the test or suffering the consequences of such refusal. See and cf. State v. Buckingham, 240 N.W.2d 84 (S.D.1976).

Recently the South Dakota Supreme Court wrote:

“Certainly it is unfair to create by statute a right not to submit to a chemical test and to allow the accused to exercise that right and then in open court before a jury to permit testimony concerning that refusal which can all too easily work in the minds of the jury members to the prejudice of the defendant.” State v. Oswald, 241 N.W.2d 566, 569 (S.D.1976).

See also City of Brookings v. Jensen, 243 N.W.2d 71 (S.D.1976).

In State v. Severson, 75 N.W.2d 316 (N.D.1956), the Supreme Court of North Dakota wrote:

“Whether the statute implies that evidence of a refusal to take a test may be not received in evidence against a defendant is a question that is not without difficulty. We are of1 the opinion, however, that when the legislature granted an accused person a choice of whether he would submit to such a test, it intended that the choice should be absolutely free and not encumbered by a liability. If the fact that an accused person chooses not to take a test can be put in evidence and argued to the jury as evidence of guilt, then the statute places the defendant in a position where willy-nilly, he must risk providing evidence for the prosecution by submitting to a test or certainly provide it by refusing to take one, although his reason for refusal may have no relation to the question of guilt or innocence.”

In People v. Hayes, 64 Mich.App. 203, 235 N.W.2d 182, 184, the Michigan Court of Appeals in 1975 wrote:

“Further, and more importantly, the admission of a defendant’s refusal to submit to an intoxication test would render nugatory the choice which the statute provides him. Under § 625a, an individual arrested for drunk driving has a choice. He can either submit to a test the results of which could create a virtually irrefutable presumption of guilt against him, or he can refuse the test and suffer the revocation. If the fact that a defendant has chosen not to submit to a test can be placed before the jury as an inference of his guilt, then he will be put in the position of having to risk providing evidence for the prosecution by submitting to the test or of certainly providing it by refusing to submit. It would be fundamentally unfair to put a defendant in such a ‘damned if he does, damned if he doesn’t’ position. The Legislature provided a definite choice, and we cannot render a decision which would make that choice an illusory one. See e. g., State v. Ingram, 67 N.J.Super. 21, 169 A.2d 860 (1961); State v. Seversen (sic), 75 N.W.2d 316 (N.D.1956) . . . Whether the statute speaks in terms of a ‘right’ to refuse or a ‘choice’ with a resultant penalty, admitting a defendant’s refusal into evidence will vitiate the ability to refuse provided to him by the statute.”

In Duckworth v. State, 309 P.2d 1103 (Okl.Cr.1957), the Oklahoma Court of Criminal Appeals noted:

“. . . the defendant’s refusal to take the test was used by the state in its case in chief for purely prejudicial purposes. The accused’s refusal should have ended the inquiry on the subject. It ill behooves the courts to say you have a right to refuse to do something, which may prove either beneficial or detrimental to you, and yet, notwithstanding your right so to do, we will permit your refusal to be shown and enable the state to destroy your right and achieve indirectly by innuendo what it was prevented by law from accomplishing directly. We can conceive of no greater inconsistency.” See also Howell v. State, 528 P.2d 1392 (Okl.Cr.1974), and People v. Stratton, 286 App.Div. 323, 143 N.Y.S.2d 362 (1955); People v. Paddock, 29 N.Y.2d 504, 323 N.Y.S.2d 976, 272 N.E.2d 486 (1971).

In my opinion we have a Texas statute which grants an absolute right to an arrested person to refuse to submit to breath testing to determine the alcoholic content of his or her blood, albeit not without certain consequences. The consequences of such refusal, however, are provided by statute and they nowhere include the admissibility of evidence of such refusal in the trial of driving while intoxicated case. The Legislature specified license revocation as the consequence of refusing to take a breath test. I cannot find the admission of a defendant’s refusal to be an added consequence in the absence of a definitive legislative provision to that effect.

In the instant case the appellant did what he had an absolute statutory right to do— refuse the breath test — and evidence of that refusal should not be used to create any unfavorable inference against him. See People v. Stratton, supra.

No Evidentiary Basis for Admission of Refusal?

While the foregoing reasons clearly demonstrate my reasons for concurring in the reversal of the instant case, I would note, in passing, that courts in other jurisdictions have found no evidentiary basis for the admission of a defendant’s refusal. This is so because the probative value of a refusal to take a chemical test for intoxication is too low in comparison to its prejudicial effect. See Duckworth v. State, supra; People v. Hayes, supra; Crawley v. State, 219 Tenn. 707, 413 S.W.2d 370 (1967). As pointed out in 78 Yale Law Journal 1074 (Constitutional Limitations on the Taking of Body Evidence) evidence of a refusal to take a test for intoxication is inferior evidence and is in general unduly prejudicial to the defendant. There it was written:

“The evidence of a suspect’s refusal to cooperate is less reliable than the evidence produced by a body evidence examination since a suspect may refuse to cooperate for reasons other than a fear that the examination would yield evidence of guilt. The jury, however, may often regard this deficiency in probative value and ascribe undue weight to the evidence of refusal because of an exaggerated sensitivity to the evidence as an indication that the defendant believes that he is guilty. Moreover, the jury may be tempted to convict the defendant of the substantive offense charged as punishment for the collateral and comparatively minor offense of non-compliance with an examination order. The possibility for prejudice is increased if the suspect had an innocent reason for refusing the examination but cannot personally present his explanation to the jury because for other reasons, he exercises his privilege not to testify.”

Constitutional Basis for Exclusion of Evidence of Refusal?

Since there is an adequate basis for the reversal on nonconstitutional grounds, the question of whether the admission of the verbal refusal also violated the Fifth Amendment and Article I, § 10, Texas Constitution, need not be reached. Courts in three jurisdictions, however, have excluded evidence of a refusal to take chemical test for intoxication on the ground that it is a byproduct of the compulsion to take the test and is testimonial in nature. They concluded, based on the language in Schmerber, that evidence of refusal constitutes compulsory self-incrimination in violation of the Fifth Amendment or state constitutional privileges. Gay v. City of Orlando, 202 So.2d 896 (Fla.Ct.App.1967); Johnson v. State, 125 Ga.App. 607, 188 S.E.2d 416 (1972); State v. Andrews, 297 Minn. 260, 212 N.W.2d 863 (1973). Certainly when a defendant says, “No, I will not take any test,” or “Thanks, but I will refuse that test,” etc., he is testifying against himself and this is clearly testimonial evidence. See and cf. State v. Andrews, supra.

For the reasons stated above, I concur in the reversal of the judgment of conviction.

DOUGLAS, Judge,

concurring.

I concur in the result of the opinion of Judge Phillips in that the conviction must be reversed because the evidence of the refusal to take the breathalyzer test is not admissible because of the decision of the Supreme Court of the United States in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). See also Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

ROBERTS, Judge,

dissenting.

This appeal presents for reconsideration the question of whether the State may initially interject evidence that the accused was offered and refused to take a breathalyzer test. It is contended that Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951), and cases following'it which held such evidence inadmissible, should be overruled in light of Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972).

Appellant was convicted by a jury of driving while intoxicated. In his only ground of error, appellant contends that the trial court erred in admitting, over objection, testimony from the arresting officer on direct examination that appellant had refused an offer to take a breathalyzer test to determine intoxication. The same matter was also inquired of appellant on cross-examination. He relies on the long line of cases following Cardwell v. State, supra, in which this Court wrote:

“The State cannot avail itself of the silence or refusal of an accused prisoner as a circumstance tending to establish his guilt.”

Olson v. State, supra, brought Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) into effect in Texas and held the scope of the privilege against self-incrimination embodied in Art. I, Sec. 10, Texas Constitution, to be coextensive with that of the Fifth Amendment to the United States Constitution. Olson specifically held that there was no constitutional prerequisite of consent to subjecting an accused to a chemical test or other type of test for the purpose of obtaining evidence.

It is clear that the exclusionary rule of Cardwell v. State, is founded not upon the breathalyzer statute, Art. 6701/ -5, V.A. C.S., nor upon the provisions of the federal or state constitutions. Olson v. State, supra. Rather, the rule is based upon the Texas confession statute, Art. 38.22, V.A.C. C.P., and the evidentiary rule prohibiting admissions by silence.

The appellant’s refusal to take the test amounted to a refusal to submit to the lawful exercise of statutory authority. Art. 6701/-5, Sec. 1, V.A.C.S. Such a refusal may take the form of an accused’s holding his breath or turning his head. This is tantamount to withholding or destroying evidence. It is analogous to flight or escape, which are non-testimonial circumstances admissible to show an accused’s guilt. Clearly, then, the fact of refusal, if not the actual words used, would be admissible. For this reason alone, the Supreme Court’s holding in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) is distinguishable.

The case at bar, however, presents more than the mere fact of refusal. The appellant testified, “I was told that I was to stand and that I was about to be given a breath test. I said no thank you.” (Emphasis added). There was a timely objection to this line of questioning. We thus have the actual words used by appellant when he refused to submit to the administration of the test. This raises the problems under Art. 38.22 V.A.C.C.P., upon which the Cardwell line of cases has been based.

I am of the opinion that such verbal evidence of a refusal to submit does not constitute an admission or confession proscribed by said statute, even though it may be introduced against an accused as tending to show his guilt. Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973) (dissenting opinion). Such a refusal is a concrete factual circumstance tending to show guilt, and should be admissible as such. Cohen, “The Case for Admitting Evidence of Refusal to Take a Breath Test,” 6 Tex.Tech.L. Rev. 927 (1975).

In practical terms, it is difficult to square the opinions of the majority — that evidence of refusal to submit to a chemical test for intoxication is inadmissible — with the rule announced in Olson v. State, supra, that evidence of a coerced chemical test (or handwriting exemplar) is admissible. If handwriting exemplars, urine specimens, voice samples and sobriety tests are admissible despite Art. 38.22, recalcitrance in the giving of such evidence should also be admissible. To the extent that Butler v. State, supra; Garner v. State, 464 S.W.2d 111 (Tex.Cr.App.1971); Cardwell v. State, supra (and cases following it), would hold such non-inculpatory post-arrest statements inadmissible under Art. 38.22, they should be overruled.

It follows that evidence of appellant’s refusal to submit to a breathalyzer test was admissible and the trial judge committed no error in so ruling.

Appellant’s ground of error should be overruled and the judgment should be affirmed.

ODOM, J., joins in this dissent.

      . In Olson the defendant argued that the court had improperly admitted his handwriting exemplars into evidence in violation of Article I, § 10, Texas Constitution, which he claimed was broader in scope than the Fifth Amendment. Among the cases cited in support of the contention that the state constitutional provision had been given a broader interpretation was Trammell v. State, 162 Tex.Cr.R. 543, 287 S.W.2d 487 (1956).

      . Olson, in overruling Trammell, held that the Texas constitutional self-incrimination privilege extends its protection only to testimonial compulsion, thus compelling, for example, a blood test, if taken under conditions which comport with due process, does not constitute requiring an accused to “give evidence against himself.” Although there is no longer any state constitutional requirement that a person consent to a blood, breath or urine test to determine intoxication, attention must be given to Article 6701/ -5, Vernon’s Ann.C.S. (former Article 802f, Vernon’s Ann.P.C.), which provides for the implied consent of motorists for the taking of a breath test, but provides that in the taking of all other chemical tests to determine alcoholic content of his blood there is no implied consent though the motorist “may consent.” The Attorney General in Opinion H-736 (Nov. 13, 1975) recognized there was no constitutional limitation, but held the statute above described prohibited a blood sample being taken from a person suspected of a traffic related offense without the consent of such person.

      . In Carter evidence was introduced that after arrest the defendant refused to divulge his name. Citing the confession statute then in effect, Article 750, C.C.P., 1879, the conviction was reversed. In Elliott v. State, supra, the defendant made an oral confession he had stolen the cattle prior to being warned as required by the confession statute (Article 727, Vernon’s Ann.C.C.P., 1925). The conviction was set aside. Sharp involved both a refusal to answer an officer’s question as to whether the defendant was intoxicated and a later statement that he was intoxicated. The case was reversed both on the confession statute (Article 727, Vernon’s Ann.C.C.P., 1925) and the rule of evidence that prohibits admission by silence.

      . In Polk and Nichols, supra, where the rule in Cardwell was recognized but not applied because of the defendant’s action in initiating the inquiry on the sobriety tests, the decision in Olson was merely noted. It was not determinative of the outcome of either case.

      . See 8 J. Wigmore, Evidence, 2272-73 (McNaughton rev. ed. 1951) (failure to produce evidence gives rise to the inference that the evidence is unfavorable).

      . See the very thorough discussion of my Brother Onion further explicating this subject matter.


source: Caselaw Access Project

license: Public Domain

text:
    Tommy Earl CLINARD, Appellant, v. The STATE of Texas, Appellee.
    No. 50538.
    Court of Criminal Appeals of Texas.
    March 23, 1977.

      David Hollingsworth, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Michael Kuhn and Fred E. Reynolds, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ON APPELLANT’S MOTION TO REINSTATE

PHILLIPS, Judge.

On original submission this case was dismissed by per curiam opinion because the record failed to reflect a timely notice of appeal. By supplemental transcript it has been made to appear that notice of appeal was timely given. Accordingly, the appeal is reinstated and will be considered on the merits.

Appellant was convicted of driving while intoxicated; punishment was assessed at a $200.00 fine and 30 days in jail, and appellant was placed on probation for nine months.

In his second ground of error appellant contends the trial court erroneously permitted a police officer to testify that he refused an offer to take a blood test. The record reflects the following:

“Q [PROSECUTOR]: Officer McFad-din, did you offer Mr. Clinard any tests of any sort?
A Yes, sir, he was offered a blood test.
Q And did you allow — did you offer him an opportunity to have this test administered by his own physician?
A Yes, sir.
[DEFENSE COUNSEL]: Your Honor, I object to that as being improper and immaterial.
THE COURT: Overruled.
[DEFENSE COUNSEL]: Note my exception.
THE COURT: Yes, sir.
Q [PROSECUTOR]: Did he refuse the test?
A Yes, sir, he did.”

The State initially contends error was not preserved. Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419, is controlling on this point. See also Smith v. State, 141 Tex.Cr.R. 577, 150 S.W.2d 388; Arnold v. State, 157 Tex.Cr.R. 313, 248 S.W.2d 738; Fowler v. State, 171 Tex.Cr.R. 600, 352 S.W.2d 838; Xanthull v. State, 172 Tex.Cr.R. 481, 358 S.W.2d 631; Etchieson v. State, 172 Tex.Cr.R. 606, 361 S.W.2d 711; and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

It is the State’s contention that Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and Olson v. State, Tex.Cr.App., 484 S.W.2d 756 render said testimony now admissible in Texas, notwithstanding our unbroken line of decisions contrary thereto, notably, Willeford v. State, Tex.Cr.App., 489 S.W.2d 292; Shilling v. State, Tex.Cr.App., 434 S.W.2d 674; Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419; Brown v. State, 165 Tex.Cr.R. 535, 309 S.W.2d 452; Jordan v. State, 163 Tex.Cr.R. 287, 290 S.W.2d 666; Bumpass v. State, 160 Tex.Cr.R. 423, 271 S.W.2d 953; Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702. In Schmerber, the Supreme Court of the United States simply held that under the narrowed facts of that particular case proof of the results of a blood test, where the blood had been drawn by a physician in a hospital in excess of two hours after an accident involving the defendant, was admissible though the defendant had not consented thereto. Olson v. State, supra, merely held that the prohibition of the Texas Constitution against the compelling of a defendant to give evidence against himself means the same as the prohibition in the Federal Constitution against compelling a defendant to be a witness against himself. Olson involved only a question of whether a handwriting sample voluntarily given by the defendant was rendered inadmissible because the defendant was under arrest and without counsel. The Court’s statement in said opinion pertaining to the blood test was dicta and the Court in said case did not consider, by dicta or otherwise, the question of admissibility of defendant’s refusal to take a breathalyzer test or any other chemical test.

Schmerber is not authority for the contention of the State herein, but is strong authority to the contrary. In Schmerber the Supreme Court gave as its reason for holding the results of said blood test beyond the scope of the Fifth Amendment the fact that such was merely a then existing physical characteristic of the defendant and “not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved.” Schmerber at page 765 of 384 U.S., at page 1882 of 86 S.Ct. We interpret the majority opinion in said case in footnote nine to the above quoted statement to say general Fifth Amendment principles including Miranda requirements would apply as to proof of any refusal to take a breathalyzer test.

In said opinion, the Court also stated: “We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature . . . It is clear that the protection of the privilege reaches an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications . . . ”

In 8 Wigmore, Evidence, Sec. 2265 (McNaughton rev. 1961), it is stated:

“. . . unless some attempt is made to secure a communication — written, oral or otherwise — upon which reliance is to be placed as involving his consciousness of the facts and the operations of his mind in expressing it, the demand made upon him is not a testimonial one . . ”

Conversely, if a communication, written, oral, or otherwise, involves an accused’s consciousness of the facts and the operations of his mind in expressing it, such is testimonial and communicative in nature. A defendant’s silence or negative reply to a demand or request by an officer made upon him while under the necessary compulsion attendant with custodial arrest, which demand or question reasonably called for an immediate reply by the defendant, is clearly a tacit or overt expression and communication of the defendant’s thoughts in regard thereto. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The obvious purpose and certain result of proving a person accused of intoxication refused a request to take a blood test is to show the jury that the accused, with his full knowledge of the true amount he had consumed, thought that he could not afford to take said test. Such was the only reason for its relevancy. Thus, said evidence is without doubt of communicative and testimonial character and not mere factual proof of a then existing physical characteristic. The contention that if the result of a test is admissible that an accused person’s expression of his desire not to submit to said test must also be admissible, is directly contrary to the reasoning of Schmerber. This is so because the Constitution simply forbids any compulsory revealing or communication of an accused person’s thoughts or mental processes, whether it be by acts, failure to act, words spoken, or failure to speak, and the fact that it does not extend its scope further and forbid compulsory exhibition of physical characteristics does not nullify the extent to which it has extended its protection to an accused.

It has been contended that the appellant’s refusal to submit to a chemical test is the same as flight or escape, but the distinction lies in the fact that escape and flight are not compelled or even requested; whereas, if an accused under custodial arrest is requested or offered a chemical test for intoxication, anything he does other than affirmatively agree to same is a refusal to submit. Thus, escape and flight are not “compelled’, a necessary factor under the Fifth Amendment, but a refusal to take a chemical test by silence or negative reply to a State’s request or offer is compelled.

Art. 38.22, V.A.C.C.P., has been consistently construed by this Court as prohibiting proof of an accused’s oral statement, silence or acts, if made while under arrest tending to communicate thoughts of the defendant which are of an incriminating nature. Garner v. State, Tex.Cr.App., 464 S.W.2d 111; Butler v. State, Tex.Cr.App., 493 S.W.2d 190; Hubbard v. State, 153 Tex.Cr.R. 143, 217 S.W.2d 1019; Brent v. State, 89 Tex.Cr.R. 544, 232 S.W. 845. Though not expressly stated heretofore, the decisions construing Art. 38.22, supra, reveal that, in practical application, said statute has been held to prohibit any act, silence or oral statement of an accused while in custody which has communicative or testimonial characteristics, substantially the same as the Fifth Amendment.

Art. 67017-5, V.A.C.S., does not purport to apply to the question here presented, in that same addresses itself to the question of admissibility of the results of a chemical test, but not to an accused’s refusal to submit to same at the request of an officer while under custodial arrest.

In this case there is no question presented for decision by this Court as to the admissibility of the results of a blood test and such constitutional question should not be decided by this Court until presented.

For the error stated, the judgment is reversed and the cause remanded.

ONION, Presiding Judge,

concurring.

I concur in the reversal for the reasons stated in my concurring opinion in Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.), this day decided.

DOUGLAS, Judge,

concurring.

I concur in the result of the opinion of Judge Phillips in that the conviction must be reversed because the evidence of the refusal to take the breathalyzer test is not admissible because of the decision of the Supreme Court of the United States in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). See also Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

ROBERTS, Judge,

dissenting.

The majority reverses this conviction because the trial court admitted in evidence a police officer’s testimony that the appellant refused an offer to take a blood test. Although I agree that the alleged error was properly preserved, see Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419 (1962), I cannot agree that the admission of the testimony was error. I would affirm.

I would hold that neither the Fifth Amendment to the United States Constitution, nor Article I, Section 10, of the Texas Constitution, nor Article 38.22 of the Texas Code of Criminal Procedure prohibits the admission of such evidence. See my dissenting opinion in Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977), decided this day.

The judgment should be affirmed.

ODOM, J., joins in this dissent.


text:
    Felipe L. MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 52188.
    Court of Criminal Appeals of Texas.
    March 23, 1977.

      Marvin Miller, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Ted Arevalo, Stephen P. Allison and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal of a conviction by a jury on a not guilty plea for the offense of driving while intoxicated. Punishment was assessed by the court at six months confinement in jail and a $100.00 fine, probated for a period of two years.

Appellant’s sole contention on appeal is that the court reversibly erred in permitting the State, over appellant’s objection, to elicit testimony before the jury that appellant had been offered and had refused to take a breath test.

In Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App., decided this- day), this Court held the admission of testimony concerning refusal to take a breathalyzer test constitutes reversible error. For the reasons set forth in Dudley v. State, supra, the trial court reversibly erred in admitting testimony before the jury that appellant had been offered and had refused to take a breath test.

The judgment is reversed, and the cause remanded.

ONION, Presiding Judge,

concurring.

I concur in the reversal for the reasons stated in my concurring opinion in Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.), this day decided.

DOUGLAS, Judge,

concurring.

I concur in the result of the opinion of Judge Phillips in that the conviction must be reversed because of the evidence of the refusal to take the breathalyzer test is not admissible because of the decision of the Supreme Court of the United States in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). See also Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

ROBERTS, Judge,

dissenting.

For the reasons stated in my dissenting opinion in Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977), decided this day, I dissent. See also the dissenting opinion on appellant’s motion to reinstate in Clinard v. State, 548 S.W.2d 716 (Tex.Cr.App.1977), decided this day.

The judgment should be affirmed.

ODOM, J., joins in this dissent.


author: ONION, Presiding Judge.

text:
    Jesse Robert SUTTON, Appellant, v. The STATE of Texas, Appellee.
    No. 52680.
    Court of Criminal Appeals of Texas.
    March 23, 1977.

      Michael Lackmeyer, Killeen, for appellant.
    Authur C. Eads, County Atty., and Pat Ridley, Asst. County Atty., Belton, Jim D. Vollers, State’s Atty., and David S. MeAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

On original submission this appeal was dismissed in a per curiam opinion because the record did not reflect that notice of appeal was given. By supplemental transcript it has been shown that notice of appeal was timely given. The appeal is reinstated.

This is an appeal from a conviction for driving a motor vehicle on a public highway while intoxicated, where punishment was assessed by the court at thirty (30) days in the county jail and a fine of $250.00 following a guilty verdict. However, appellant was placed on probation for a period of 12 months. See Article 42.13, Vernon’s Ann.C. C.P.

Initially we shall consider appellant’s contention that the trial court erred in overruling his objection and motion for mistrial when the State was allowed to elicit the fact that the appellant had refused to take a breathalyzer test.

Officer Twyman Bowling of the Killeen Police Department was called as a defense witness. He was the backup officer at the time of appellant’s arrest on February 21, 1975 and arrived on the scene after the arresting officer Ford had gotten the appellant out of the automobile. Bowling observed the appellant and talked to him. He expressed the opinion that the appellant was not intoxicated. Appellant’s counsel then asked on direct examination:

“Q. Did you do anything to indicate to the arresting officer that you did not think that he was intoxicated?
“A. I mentioned to Officer Ford that if he -was intoxicated — I can’t remember my exact words — But if he was intoxicated, that it was going to run awfully close. That if he was going to run him on the breath-a-lizer, that it was going to be close. I said that I didn’t think that he was intoxicated. I didn’t come out and flat tell Officer Ford that I didn’t think he was intoxicated at all. Officer Ford was the arresting officer, and I was not going to interfere with his arrest.”

On re-cross examination the witness was asked:

“Q. . . . Did you have a conversation with Jesse (appellant) in regard to any type of sobriety test?
“A. Yes, sir, I did. I asked him just as Officer Ford did to take a breath-a-lizer test.”

Upon objection there was a conference at the bench and then the jury was removed. Appellant then called to the court’s attention that he had filed a motion in limine to prevent the State from inquiring about his refusal to take a breath test which had been granted. He argued that Officer Bowling’s unresponsive answer was not such as to open the door to the State’s inquiry as to the refusal to take the test. His objection and mistrial motion were overruled.

In the presence of the jury, again over objection, the State was permitted to elicit from Officer Bowling that he had suggested to the appellant that he take the “breath-a-lizer” test if he felt he was not intoxicated, and that at first the appellant refused, then agreed, and then refused again to take the test.

Appellant relies upon Cardwell v. State, 156 Tex.Cr.R. 457, 243 S.W.2d 702 (1951), and a line of eases following it holding the evidence of a refusal to take a sobriety test inadmissible. In Cardwell the court stated:

“The State cannot avail itself of the silence or refusal of an accused prisoner as a circumstance tending to establish his guilt.”

Cardwell has frequently been followed. See Bumpass v. State, 160 Tex.Cr.R. 423, 271 S.W.2d 953 (1954); Jordan v. State, 163 Tex.Cr.R. 287, 290 S.W.2d 666 (1956); White v. State, 164 Tex.Cr.R. 416, 299 S.W.2d 151 (1957); Brown v. State, 165 Tex.Cr.R. 535, 309 S.W.2d 452 (1958); Watts v. State, 167 Tex.Cr.R. 63, 318 S.W.2d 77 (1958); Saunders v. State, 172 Tex.Cr.R. 17, 353 S.W.2d 419 (1962); Shilling v. State, 434 S.W.2d 674 (Tex.Cr.App.1968); Willeford v. State, 489 S.W.2d 292 (Tex.Cr.App.1973). Cf. Sublett v. State, 158 Tex.Cr.R. 627, 258 S.W.2d 336 (1953). The rule announced in Cardwell has been applied where the State initially elicits such testimony. The rule is recognized but not applied where the defendant brings out such testimony or “opens the door” to such testimony being elicited by the State. See, e. g., Hopkins v. State, 162 Tex.Cr.R. 103, 282 S.W.2d 232 (1955); Strickland v. State, 169 Tex.Cr.R. 633, 336 S.W.2d 185 (1960); Radosevich v. State, 171 Tex.Cr.R. 333, 350 S.W.2d 198 (1961); Lee v. State, 170 Tex.Cr.R. 566, 342 S.W.2d 753 (1961); Turner v. State, 371 S.W.2d 891 (Tex.Cr.App.1963); Wright v. State, 396 S.W.2d 127 (Tex.Cr.App.1965); Polk v. State, 490 S.W.2d 853 (Tex.Cr.App.1973); Nichols v. State, 504 S.W.2d 462 (Tex.Cr.App.1974); Birdwell v. State, 510 S.W.2d 347 (Tex.Cr.App.1974). Cf. Story v. State, 502 S.W.2d 764 (Tex.Cr.App.1973).

The State takes the position that the appellant opened the door with regard to the refusal to take the test when his witness stated that “if he was going to run him on the breath-a-lizer it was going to be close.” We cannot agree. The answer of Officer Bowling, responsive or not, was merely reciting what he had told the arresting officer as to his opinion of appellant’s condition. His statement did not connote that a breath test was offered or offered and refused. We do not agree that the answer opened the door for the State to elicit testimony which was otherwise inadmissible. In Willeford v. State, supra, this court reversed the conviction as a result of the introduction of that portion of the arresting officer’s report as to the defendant’s refusal to take a blood test, although the other portion of the report was admissible under Article 38.24, Vernon’s Ann.C.C.P.

Only recently we have reconsidered the question here presented at length and have again concluded the admission of the refusal of a defendant to take a breath test for intoxication, over objection, constitutes reversible error. See Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.), this day decided; Martinez v. State, 548 S.W.2d 719 (Tex.Cr.App.), this day decided.

For the error observed, the judgment must be reversed and the cause remanded.

DOUGLAS, J., concurs in the result for the reasons stated in his concurring opinions in Dudley and Martinez.

ROBERTS and ODOM, JJ., dissent on the basis of their dissenting opinions in Dudley and Martinez.


author: DALLY, Commissioner.

text:
    Carol Thomas TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 52860.
    Court of Criminal Appeals of Texas.
    March 23, 1977.
    Rehearing Denied April 13, 1977.
    Carl E. Roberts, Paul F. Carnes, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, William L. Hubbard, Gerald A. Banks and Jim D. Burnham, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of aggravated promotion of prostitution; the punishment is imprisonment for 4 years and a fine of $4,000.

The appellant urges that the evidence is insufficient to support his conviction because:

“A. The evidence is insufficient to show that the Roman Holiday Massage Parlor was a prostitution enterprise as alleged in the indictment.
“B. The evidence is insufficient to prove the knowledge of appellant in connection with the alleged offenses.
“C. The evidence is insufficient to prove that N-E_B_and P_ A_ were prostitutes as alleged in the indictment.”

V.T.C.A. Penal Code, Section 43.04, provides that a person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes. The indictment alleges that the appellant did knowingly own, invest in, finance, control, supervise, arid manage a prostitution enterprise that then and there used two or more prostitutes, to-wit: N_ B_ and P_ A_

The term “prostitution enterprise” is not defined in the new Penal Code. V.T. C.A. Penal Code, Sections 43.01 and 43.-02(a)(1) defines “prostitution” as offering to, agreeing to, or engaging in sexual conduct in return for a fee payable to the actor. Webster’s Third New International Dictionary defines “enterprise” as a plan or design for a venture or undertaking. Combining these definitions, a “prostitution enterprise” as used in V.T.C.A. Penal Code, Section 43.04, means a plan or design for a venture or undertaking in which two or more persons offer to, agree to, or engage in sexual conduct in return for a fee payable to them.

The State’s case depends primarily upon the testimony of K_ K_, who was a masseuse at the Roman Holiday Massage Parlor. She admitted that she had engaged in acts of prostitution there, and she knew that N_ B_ and P_A_had also engaged in acts of prostitution there. V.T.C.A. Penal Code, Section 43.06(d), provides that the uncorroborated testimony of a party to the offense is sufficient to prove the offense under the provisions of V.T.C.A. Penal Code, Section 43.04.

The appellant concedes that he owned and operated the Roman Holiday Massage Parlor, but he urges that the proof does not show that he knew his masseuses engaged in acts of prostitution there, and that the proof did not show that N_B_ and P_ A_ were prostitutes. The massage rooms were equipped with a massage table, and there were king sized water beds in two of them. K_ K_ said she sometimes wore a long nightgown when she was working; N_B_wore a “Shirley Temple” nightgown, and P_ A_ wore a long nightgown when they were working.

Customers who patronized the massage parlor were given a “menu” on which there was a list of the different types of “massages” available. K_K_explained the meaning of the terms used on the “menu.” The “Grandee” was priced at $20.00; the masseuse would sit around nude talking with the customer. The “Beauty and Bubbles” was priced at $40.00; the masseuse would give the customer a light massage and a “local.” K_ K-explained that the term “local” meant masturbation. The “Cleopatra With a French Connection” was priced at $60.00; the masseuse would perform an act of oral sex on the customer. Further descriptive words on the menu said that the “Cleopatra With French Connection” was the real French thing on a king sized water bed, and also “you may be running out of love, but included in the Cleopatra French Connection, there is lots of loving.” The Roman Holiday Special No. One, priced at $50.00, included sexual intercourse. The Roman Holiday Special No. Five, priced at $100.00, included both sexual intercourse and oral sex.

K_ K_ said that she performed, while working at the Roman Holiday Massage Parlor, acts of masturbation, oral 'sex, and sexual intercourse. She placed her fees for these acts in a box, and at the end of the day she received half of the proceeds with the balance going to the appellant.

When K_ K_first started to work at the massage parlor P_ A_, using the appellant's brother as a model, gave a demonstration showing how “to give oral sex without having any problems with it.” The appellant was present and heard the conversation and P_ A.-*_’s instruction prior to the demonstration, but he was not present when P_ A_ actually performed the act upon the appellant’s brother.

K_ K_ testified that once when P_A_had a customer for the “Cleopatra Special,” for which she had received $50.00, she came out of the room to get some mouth wash in the presence of the appellant and Grady Young, who was a co-defendant and the appellant’s manager at the Roman Holiday Massage Parlor. Young commented: “Well, it must have been pretty bad. Uh.” P_A_ stuck her tongue out.

K_ K_ saw N_ B_ having sexual intercourse with a male customer on a water bed in the massage parlor.

K_K_testified that the masseuses, including N_ B_ and P_A_, talked about the acts of prostitution which were performed at the Roman Holiday Massage Parlor and sometimes this was in the presence of appellant.

K_ K_ testified that while working at the Roman Holiday Massage Parlor she made between $1,000 and $1,500 a week. When she was employed in San Antonio and other places in “straight” massage parlors she earned from $100 to $200 per week. In the “straight” massage parlors she did not engage in acts of prostitution. K_K_said there were six girls working at the Roman Holiday Massage Parlor and that they all made about the same amount of money as she did.

We conclude that the evidence is amply sufficient to support each element of the offense and the jury’s verdict.

The judgment is affirmed.

Opinion approved by the Court.


author: DOUGLAS, Judge.

text:
    Glenn Moore RICE, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 54005, 54006.
    Court of Criminal Appeals of Texas.
    March 23, 1977.
    Rehearing Denied April 13, 1977.

      Don E. Kilpatrick, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Robert A. Shults and Tyler Moore, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

These are appeals from orders revoking appellant’s probation in two cases.

On November 8, 1973, appellant pled guilty to the offenses of possession of heroin in Cause No. 193348 and possession of cocaine in Cause No. 193352. Punishment was assessed at ten years in each case, probated. One of the conditions of probation was that he commit no offense against the laws of this State.

On September 12,1975, amended motions to revoke probation were filed alleging that appellant committed the offense of possession of heroin. On October 28,1975, probation was revoked and appellant was sentenced to ten years in each case.

Appellant contends the trial court abused its discretion because the evidence was insufficient to support the revocation order.

At the hearing Officer R. E. Ashwood testified that he was in the narcotics division of the Houston Police Department. On August 27, 1975, he and other officers executed a search warrant at a house located at 510 West Drew in Houston and arrested several people on the premises. While Ash-wood was standing in the living room he observed appellant and Georgianna Knight and her daughter approach the house. After they knocked on the door, Ashwood let them enter and placed Knight and appellant under arrest. One of the officers searched appellant and found approximately $2,000.00 in cash.

Ashwood further testified that appellant’s truck was parked nearby. Ashwood requested permission to search it because appellant seem nervous and had fresh “needle tracks” on his arms. Appellant consented to the search of his vehicle.

Officer K. R. Williamson testified that he saw appellant and Knight and a small child approach the house in appellant’s truck. Appellant was driving.

Williamson testified that he and Officer R. J. Thomas conducted the search of appellant’s truck. They found contraband, including heroin, in the rear of the vehicle.

Officer Thomas testified that he assisted other officers in arresting appellant on the day in question. Appellant told them that “. . . you can search my vehicle. I have nothing to hide.” Thomas took the keys and searched it. He and Williamson discovered an ice chest in the truck’s camper. It contained “one gram of heroin, eleven vials of red hashish oil, one baggie of marihuana, eleven red Seconal capsules, and about twenty unknown white pills.” They also found two marihuana cigarettes in the ashtray inside the cab of the truck.

Thomas testified that he took the contraband into a room of the house where appellant was in custody and told him it was found in the truck. Appellant stated that “. . . all the dope was his and his only and that he didn’t want to get Ms. Knight into trouble because he was just giving her a ride in his pickup truck.”

Thomas further testified that appellant was then taken to the police station. After being warned of his rights, appellant gave a written confession stating that “all of the narcotics found inside my truck belong to me and me alone.”

Peter Christian testified that he was employed as a chemist and toxicologist for the police department. He analyzed the contents of State’s Exhibit No. 8, three-tenths of a gram of white powder found in appellant’s truck. Christian stated that, in his opinion, the powder was eighteen percent heroin.

Georgianna Knight testified in appellant’s behalf. She stated that appellant had given her a ride to 510 West Drew on the day in question and that the contraband belonged to her. She further stated that she hid it in the ice chest to prevent appellant from discovering it.

Appellant argues the evidence does not prove he possessed the heroin. To establish unlawful possession of a controlled substance the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976); Higgins v. State, 515 S.W.2d 268 (Tex.Cr.App.1974).

Appellant’s confession, in conjunction with the testimony that appellant was in control of the truck in which the heroin was found, established these elements. See Terrill v. State, 531 S.W.2d 642 (Tex.Cr.App.1976); Dabbs v. State, 507 S.W.2d 567 (Tex.Cr.App.1974).

Although Georgianna Knight testified that the contraband was in her sole possession, the trial court, as the trier of facts, is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and may accept or reject any part or all of the witnesses’ testimony. Casey v. State, 519 S.W.2d 859 (Tex.Cr.App.1975); Guillory v. State, 487 S.W.2d 327 (Tex.Cr.App.1972). We find that the evidence was sufficient to support the revocation order.

Appellant next contends that the trial court abused its discretion because his arrest was made without probable cause and the confession and contraband obtained as the result thereof should have been suppressed.

The thrust of appellant’s argument is that the search warrant and the authority to arrest incident thereto were restricted to those persons found inside the residence at 510 West Drew. He asserts that he never entered the house until after the search had begun.

The argument is without merit. The warrant directs officers to search the premises at 510 West Drew for marihuana and to arrest a “white male and white female, in their twenties . . . and other persons unknown” at the premises. Thus, the officers in the instant case had the authority to arrest any unnamed person on the premises at the time of the execution of the warrant. Hernandez v. State, 437 S.W.2d 831 (Tex.Cr.App.1968), cert. denied, 395 U.S. 987, 89 S.Ct. 2148, 23 L.Ed.2d 775; Daltwas v. State, 375 S.W.2d 732 (Tex.Cr.App.1964). Moreover, it is well established that there is no meaningful distinction between persons found on the premises by the officers when they initiate their search and persons who enter the premises after the search had begun. Martinez v. State, 504 S.W.2d 897 (Tex.Cr.App.1974); Johnson v. State, 440 S.W.2d 308 (Tex.Cr.App.1969). We conclude that appellant’s confession and consent to search the truck were not obtained as the result of an illegal arrest and overrule his contention.

Next, appellant contends that the trial court abused its discretion because his consent to search the truck was involuntary.

A search conducted pursuant to consent is one of the specifically established exceptions to the Fourth Amendment requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). The protections afforded by Article I, Section 9 of the Texas Constitution against arbitrary invasions of privacy by governmental officers, as well as those afforded by the Fourth Amendment, may be waived by an individual consenting to a search. Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.1976); Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.1972).

The burden of proof is upon the prosecution to show that consent was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Paprskar v. State, supra. The burden requires that the prosecution show that consent given was positive and unequivocal; there must be no duress or coercion, actual or implied. Kolb v. State, supra; Allen v. State, 487 S.W.2d 120 (Tex.Cr.App.1972). Thus, mere acquiescence to a claim of lawful authority cannot constitute consent. Bumper v. North Carolina, supra; Paprskar v. State, supra.

Whether a consent to search was voluntary is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, supra; Kolb v. State, supra. However, the fact of arrest does not prevent consent from being freely and voluntarily given. Weatherly v. State, 477 S.W.2d 572 (Tex.Cr.App.1972); Bennett v. State, 450 S.W.2d 652 (Tex.Cr.App.1969).

In the instant case, the record reflects that appellant was arrested and searched when he entered the house. He was then taken to a back room where Officer Thomas immediately advised him of his constitutional rights in full compliance with Miran da v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant stated that he understood his rights and gave the officers permission to search the truck. The officers did not have their guns drawn nor did they physically abuse appellant while they talked to him, according to their testimony.

Appellant testified at the revocation hearing for the limited purpose of asserting that his confession was involuntary. He stated that he was literate and had completed approximately thirty hours of college. He did not refute the testimony that his consent to search the truck was voluntary.

From the totality of these circumstances, we conclude that appellant’s consent to search his truck was freely and voluntarily given. That he apparently acted out of concern that Georgianna Knight might be charged with a crime does not render the consent involuntary. See and compare Roberts v. State, 545 S.W.2d 157 (Tex.Cr.App.1977). The contention is overruled.

Appellant contends the trial court abused its discretion in admitting the confession into evidence because it was involuntary. Generally, the only question before this Court on appeal from an order revoking probation is whether the trial court abused its discretion in revoking probation. Campbell v. State, 502 S.W.2d 736 (Tex.Cr.App.1973); Isabell v. State, 494 S.W.2d 572 (Tex.Cr.App.1973). Even if we were to hold the confession inadmissible, the evidence is sufficient to show that appellant possessed the heroin. No abuse of discretion is shown. The contention is overruled.

Appellant next contends that the trial court abused its discretion because the revocation was based on a ground not alleged in the motion to revoke.

The record reflects the following oral findings by the trial court:

“Under this evidence, I find that you have violated the conditions of probation that you received by this Court in Cause No. 193,352 and 193,348, in that you committed the offense of unlawfully possessing a controlled substance, to-wit, heroin, in Harris County, Texas, on the 28th of August, 1975, and, further, which is a violation of conditions of probation — further, that you so failed to avoid persons of harmful character, by the testimony in this hearing, and for those two reasons, your probation is revoked in each case.”

The court’s revocation order also recites that appellant committed the offense of possession of heroin and failed to avoid persons of harmful character. The State’s motion to revoke probation did not allege the latter ground. The findings recited in the court’s order are sufficient to show that appellant violated the terms of his probation as alleged by the State in its motion, and the fact that the court unnecessarily made an additional finding of probation violations does not render the order invalid. Houston v. State, 486 S.W.2d 365 (Tex.Cr.App.1972).

We perceive no reversible error in the contention that the trial court abused its discretion because it put the burden of proof upon appellant at the hearing. Such contention is not supported by the record.

Lastly, appellant asserts that his original convictions constitute a violation of the double jeopardy provisions of the state and federal constitutions. He argues that both offenses arose out of the same transaction and thus the State should have been allowed to carve only one offense.

The record reflects the following facts:

(1) Both indictments were returned by the same grand jury on the same day and alleged the same date of offense.
(2) The waivers of trial by jury, stipulations of evidence and judicial confessions in both cases were accepted by the same court and reflect the offenses occurred on the same date.
(3) The judgments in both cases likewise reflect the identical dates and courts.

Ordinarily, a collateral attack on the original conviction is not permitted on appeal from a revocation of probation. Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972); Taylor v. State, 482 S.W.2d 246 (Tex.Cr.App.1972). Appellant’s contention in the instant case would be properly raised in a post-conviction application for writ of habeas corpus under Article 11.07, V.A.C. C.P. However, the State concedes that the entire transaction constituted a single offense under the authority of Ex parte Adams, 541 S.W.2d 440 (Tex.Cr.App.1976). Under these circumstances, to require a separate habeas corpus proceeding to attack the convictions would be to require a useless thing. See Ramirez v. State, supra; Smith v. State, 486 S.W.2d 374 (Tex.Cr.App.1972); Davis v. State, 529 S.W.2d 547 (Tex.Cr.App.1975) (dissenting opinion).

Therefore, we find that the State improperly carved two offenses out of a single transaction and one of the convictions is invalid. The record does not reflect which conviction occurred first. We thus assume appellant’s plea of guilty and conviction for possession of heroin in Cause No. 193348 were valid and prior in time to the conviction for possession of cocaine in Cause No. 193352. See Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977); Ex parte Adams, supra.

The judgment and sentence in Cause No. 193352 are set aside and the indictment in that case is dismissed. We hold that the conviction for possession of heroin in Cause No. 193348 is valid.

The prosecution under indictment in Cause No. 193352 (our Cause No. 54,006) is ordered dismissed. The judgment in Cause No. 193348 (our Cause No. 54,005) is affirmed.


author: BROWN, Commissioner.

text:
    Harold D. BONEY, Appellant, v. The STATE of Texas, Appellee.
    No. 51171.
    Court of Criminal Appeals of Texas.
    March 30, 1977.
    Michael M. Phillips, Angelton, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Kenneth W. Sparks, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was convicted by a jury of driving while intoxicated. The jury assessed punishment at a fine of Five Hundred Dollars and 365 days confinement in jail. The jury further found that appellant was entitled to probation and recommended probation as to the jail time but not the fine. The court pl'.^oU appellant on probation for two years.

Appellant urges four grounds of error, but in view of our disposition of the case, only the first ground will be discussed. Initially, appellant contends that the court erred in permitting the prosecution, over appellant’s objection, to elicit the fact that on the occasion of his arrest appellant was requested to take a breathalyzer test but he refused. We agree and reverse.

Appellant initially filed a motion in li-mine requesting the court to prohibit the prosecution from going into or making mention of the fact that appellant had refused to take a breathalyzer test. This motion the court overruled. Thereafter, in the presence of the jury and over the objections of appellant, such refusal by appellant to take the test was elicited from the arresting officer. We hold that such evidence was prejudicial to the rights of appellant and requires a reversal. Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977); Martinez v. State, 548 S.W.2d 719 (Tex.Cr.App.1977); and Clinard v. State, 548 S.W.2d 716 (Tex.Cr.App.1977).

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

ROBERTS and ODOM, JJ., dissent for the reasons stated in Dudley.


text:
    Marvin FOSTER, Appellant, v. The STATE of Texas, Appellee.
    No. 52960.
    Court of Criminal Appeals of Texas.
    March 30, 1977.
    Burnett & Burnett, John H. Miller, Jr., Sinton, for appellant.
    F. A. Garcia, Dist. Atty., Hebbronville, S. N. Snedeker, Dist. Atty., Brownsville, C. H. Neal Duvall, Asst. Atty. Gen., McAllen, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

The conviction is for theft of property over the value of fifty dollars. Punishment was assessed at nine years. The indictment was under Article 1410 of the 1925 Penal Code which provided:

“ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.”

The indictment in the present case does not allege that the property was taken without the consent of the alleged owner. Under the former penal code, it was well established that “an indictment for theft is bad if it fails to allege the property was taken without the consent of the alleged owner.” 5 Branch’s Ann.P.C.2d, Section 2638, page 86. Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971); McWhorter v. State, 125 Tex.Cr.R. 71, 65 S.W.2d 1101 (1933); Kitchen v. State, 124 Tex.Cr.R. 358, 62 S.W.2d 144 (1933); Swink v. State, 32 Tex.Cr.R. 530, 24 S.W. 893 (1894), and Long v. State, 39 S.W. 674 (Tex.Cr.App.1897).

The same rule was applied even though there was no exception to or motion to quash the indictment. This Court has held under the former penal code that such an indictment will not support a conviction.

For the reasons stated, the judgment is reversed, and the prosecution under this indictment is ordered dismissed.

      . The majority of this Court has also held under the present penal code that the failure to allege “without the owner’s effective consent” causes an indictment for theft to be fundamentally defective. Reynolds v. State, 547 S.W.2d 590 (1976). This writer did not agree and has suggested that legislation be adopted to prevent attacks upon indictments or informations where there has been no motion to quash filed prior to the plea if the accused knows what offense has been charged against him. This should be the rule, but as of the present time it is not. See the dissenting opinion in Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976), and in Reynolds v. State, supra.


author: DAVIS, Commissioner.

text:
    Joe Lee HITT, Appellant, v. The STATE of Texas, Appellee.
    No. 52986.
    Court of Criminal Appeals of Texas.
    March 30, 1977.
    Richard D. Bird, Childress, for appellant.
    John T. Forbis, County Atty., Childress, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for' the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for driving while intoxicated. The jury found appellant guilty and the trial court assessed punishment at a fine of $150.00 and thirty days, probated for nine months.

Appellant in his sole ground of error contends that the trial court erred in permitting the State to elicit testimony before the jury, over appellant’s objection, that appellant had been offered a breathalyzer test and had refused to take the test.

The State contends that Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) and Olson v. State, Tex.Cr.App., 484 S.W.2d 756, render this testimony admissible.

The State’s contention has been answered adversely to it by this Court by Dudley v. State, 548 S.W.2d 706 (No. 50,448, 1977). See also Martinez v. State, 548 S.W.2d 719 (1977) and Clinard v. State, 548 S.W.2d 716 (1977). In Dudley, supra, we stated:

“Schmerber is not authority for the contention of the State herein, but is strong authority to the contrary. In Schmerber the Supreme Court gave as its reason for holding the results of said blood test beyond the scope of the Fifth Amendment the fact that such was merely a then existing physical characteristic of the defendant and ‘not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved.’ Schmerber at page 765 of 384 U.S., at page 1832 of 86 S.Ct. We interpret the majority in said ease in footnote nine to the above quoted statement to say general Fifth Amendment principles including Miranda requirements would apply as to proof of any refusal to take a breathalyzer test.
⅜ * * ⅜ * s£
“A defendant’s silence or negative reply to a demand or request by an officer made upon him while the necessary compulsion attendant with custodial arrest, which demand or question reasonably calls for an immediate reply by the defendant, is clearly a tacit or overt expression and communication of the defendant’s thoughts in regard thereto, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). The obvious purpose and certain result of proving a person accused of intoxicátion refused a request to take a breathalyzer test is to show the jury that the accused, with his full knowledge of the true amount he had consumed, thought that he could not afford to take said test. Such was the only reason for its relevancy. Thus, said evidence is without doubt of communicative and testimonial character and not mere factual proof of a then existing physical characteristic. The contention that if the result of the test is admissible that an accused person’s expression of his desire not to submit to said test must also be admissible, is directly contrary to the reasoning of Schmerber. This is so because the Constitution simply forbids any compulsory revealing or communication of an accused person’s thoughts or mental processes, whether it is by acts, failure to act, words spoken or failure to speak, and the fact that it does not extend its scope further and forbid compulsory exhibition of physical characteristics does not nullify the extent to which it has extended its protection to an accused.”

We hold that the introduction of the testimony violated appellant’s rights under the Fifth and Fourteenth Amendments and under Art. 38.22, V.A.C.C.P.

The judgment is reversed and the cause remanded. «

Opinion approved by the Court.

ROBERTS and ODOM, JJ., dissent for the reasons stated in Dudley v. State, 548 S.W.2d 706 (No. 50,448) (1977).


author: ROBERTS, Judge.

text:
    Harry REYNOLDS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 52995-52998.
    Court of Criminal Appeals of Texas.
    March 30, 1977.

      Duncan F. Wilson, Austin, for appellant.
    Robert O. Smith, Dist. Atty., and Richard E. Banks, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from four convictions for delivery of methamphetamine, a controlled substance. In each case the court assessed punishment at five years.

Appellant contends that because there is a positive conflict between the Texas Controlled Substances Act and the Federal Drug Abuse Prevention and Control Act, a conviction under the Texas Act cannot be sustained; he also contends that his convictions violate our state and federal double jeopardy provisions. We overrule these contentions and affirm.

We turn first to appellant’s contention that the punishment provisions of the Texas Controlled Substances Act, Art. 4476-15, V.A.C.S., are in “positive conflict” with those of the Federal Drug Abuse Prevention and Control Act, 21 U.S.C. Sec. 801, et seq.; see especially 21 U.S.C. Sec. 903.

We overruled this precise contention in Wilson v. State, 525 S.W.2d 30 (Tex.Cr.App.1975), relying on Morse v. State, 502 S.W.2d 805 (Tex.Cr.App.1973), and Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974). See also Miller v. State, 537 S.W.2d 725 (Tex.Cr.App.1976). We decline to overrule the holding in Wilson. Appellant’s contention is overruled.

Appellant’s remaining contention is that because he was previously convicted in federal court for similar offenses, his convictions in these cases are barred by the state and federal constitutional prohibitions against double jeopardy.

Appellant testified in each case. In our No. 52,995, he testified that he had previously been convicted for a federal drug offense which involved the same transaction as that in No. 52,995. Similarly, in No. 52,998 appellant testified that he had been convicted for federal violations which involved the same transactions as those in our Nos. 52,996 and 52,99s. None of this testimony was rebutted by the State, nor was there ever any testimony that appellant had previously been convicted in federal court for the transaction made the basis of conviction in our No. 52,997. Thus, there is no competent evidence to support the plea of jeopardy in No. 52,997, and we will consider the plea of jeopardy only as it regards the three remaining cases.

In Breedlove v. State, 470 S.W.2d 880 (Tex.Cr.App.1971), the defendants were convicted of robbery by firearms. They contended that their prior convictions for the same transaction in federal court barred the subsequent prosecution in our state courts. This Court held, contrary to defendants’ contention, that the decisions of the United States Supreme Court in Benton v. Maryland, 895 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), did not overrule the Court’s earlier holding in Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).

In Bartkus the Supreme Court held that the State was not prohibited from prosecuting a defendant for the same bank robbery for which he had previously been tried in federal court. Faced with the same factual setting in Breedlove, this Court followed the holding of Bartkus; in doing so, we quoted with approval from Hill v. Beto, 5 Cir., 390 F.2d 640, 641:

“It is true that but one act of robbery was involved .... But by committing that robbery appellant violated the statutes of two separate sovereigns and thus committed two separate offenses.”

Clearly, this rule applies to the case before us. By committing these deliveries of methamphetamine, this appellant violated both state and federal law, and under the holdings in Bartkus, Breedlove, and Hill, the State may prosecute and punish him for the same conduct which has been the cause of a similar, previous prosecution in federal court.

The State has not cited any cases which apply Bartkus to narcotics offenses, and our research has revealed none. The apparent reason for this is that most jurisdictions have a statutory prohibition against re-prosecuting narcotics or controlled substances cases which have previously been litigated in federal court. See United States v. Jones, 174 U.S.App.D.C. 34, 527 F.2d 817, at 832-833 (1975) (dissenting opinion).

Such a prohibition was included as Section 24 of our former Texas Narcotic Drug Act [Art. 725b, Y.A.P.C. (1925)]. However, an examination of the Texas Controlled Substances Act (Art. 4476-15, V.A.C.S.) reveals no similar provision. Therefore, we hold that there is no longer any statutory bar to the prosecutions in this case. And, since Bartkus and Breedlove make clear that double jeopardy does not bar such prosecutions, it follows that appellant’s contention must be overruled.

The judgments are affirmed.

      . Of course, this Court may take judicial notice of the record in No. 52,998 to aid us in determining the issue as raised in No. 52,996, since the two cases involve “the same, or related proceedings involving the same or nearly the same parties.” Huffman v. State, 479 S.W.2d 62, 68 (Tex.Cr.App.1972); Ex parte Flores, 537 S.W.2d 458, 460 n. 3 (Tex.Cr.App.1976).

      . Although a hearing was held on appellant’s motion for new trial in each case, the motions were untimely, and therefore “we need not and will not consider the record made on the untimely motion[s].” Jones v. State, 501 S.W.2d 677, 679 (Tex.Cr.App.1973). The record reflects that appellant pleaded guilty to each of the indictments on December 19, 1974, and was found guilty by the court on that date. On January 23, 1975, the court assessed appellant’s punishment in each case at five years’ imprisonment. At that time, appellant in open court waived his time for filing motions for new trial and was sentenced in each case. Then, on February 3, 1975, appellant filed his motion to dismiss the attorney of record and, through his new attorney, filed a motion for new trial in each case; the new trial motions each alleged the same grounds as appellant’s briefs on appeal. The trial court held a hearing on the motions on March 13, 1975, and overruled each motion. Finally, on September 30, 1975, the court entered an order correcting each sentence to allow appellant credit for time spent in jail prior to trial.
      Clearly, appellant’s motion for new trial was not timely and should not have been heard by the trial court; accordingly, we will not consider it. Art. 40.05, Vernon’s Ann.C.C.P.; Jones v. State, supra, and cases there cited.

      . However, see United States v. Jones, 174 U.S.App.D.C. 34, 527 F.2d 817 (1975).


text:
    Wally HICKMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 53045.
    Court of Criminal Appeals of Texas.
    March 30, 1977.
    Fred L. Leach, Amarillo, for appellant.
    Tom Curtis, Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of aggravated robbery; the punishment, enhanced by two prior felony convictions, is imprisonment for life.

This conviction must be reversed because there is no evidence to show that appellant’s second previous felony conviction was for an offense committed after the first previous felony conviction became final.

The indictment alleged that prior to February 20, 1975, the alleged date of the commission of the primary offense, the appellant had been, on November 2, 1962, in Cause No. 2827-B in the 104th District Court of Taylor County, convicted for the felony offense of burglary, and that, after the conviction in Cause No. 2827-B had become final appellant committed the offense of burglary and was convicted for that offense on June 23, 1964, in Cause No. 9926-A in the 42nd District Court of Taylor County.

V.T.C.A. Penal Code, Section 12.42(d), provides:

“If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.” (Emphasis added.)

V.T.C.A. Penal Code, Section 12.-42(d), requires the State to prove that the accused’s second previous felony conviction was committed after the first previous conviction became final. Wiggins v. State, 539 S.W.2d 142 (Tex.Cr.App.1976). This has also been the consistent holding of this Court under our former Penal Code; Article 63, V.A.P.C. (1925). See e. g., Rogers v. State, 168 Tex.Cr.R. 306, 325 S.W.2d 697 (1959); Lee v. State, 400 S.W.2d 909 (Tex.Cr.App.1966); Hutchinson v. State, 481 S.W.2d 881 (Tex.Cr.App.1972); Kessler v. State, 514 S.W.2d 260 (Tex.Cr.App.1974); Tyra v. State, 534 S.W.2d 695 (Tex.Cr.App.1976).

The State introduced the judgment and sentence for each of the two prior felony convictions alleged in the indictment. The appellant’s conviction for the offense of burglary in Cause No. 9926-A was final on June 23, 1964; therefore, this conviction was final before the commission of the primary offense which occurred on February 20,1975. Appellant’s conviction for burglary in Cause No. 2827-B was final on November 2, 1962; however, the record does not show when the offense in Cause No. 9926-A was committed. Therefore, there is no evidence in the record showing that the conviction in Cause No. 2827-B was final when appellant committed the offense in Cause No. 9926-A.

Although the error relates to punishment only, the jury, not the court, assessed punishment. Therefore, we may not reform the sentence or remand for a new trial on punishment only. Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976); Wiggins v. State, supra. Compare Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976), and Tyra v. State, supra, where punishment was assessed by the court.

In the event of another trial the prosecutor should not, as was done by the prosecutor in this ease, speculate before the jury on whether the appellant had committed other offenses that the jury did not know about.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.