                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-407-CR


GEORGE PATRICK RAMBO IV                                          APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

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     FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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                               I. INTRODUCTION

     Appellant George Patrick Rambo IV appeals his conviction for driving

while intoxicated (DWI). In a single point, he complains that the trial court

abused its discretion and violated his constitutional rights by admitting the




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          See Tex. R. App. P. 47.4.
audio portion of his DWI videotape in which a police officer reads him his

Miranda 2 warnings. We will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Officer C.A. Bain of the Fort Worth Police Department saw Rambo run a

stop sign at 2:30 one morning.      He followed Rambo and saw him stop at

another stop sign, travel straight into the middle of the intersection, and then

quickly make a wide right turn without signaling. Officer Bain turned on his

overhead lights and stopped Rambo. Officer Bain noticed a moderate odor of

alcoholic beverage on Rambo. Rambo explained that he was on his way home

from the Fox and Hound, where he had consumed two or three beers. Officer

Bain saw a spot of blood on Rambo’s pants and asked about it. Rambo said he

had been in a fight with his friend at the Fox and Hound. He declined the

officer’s offer to call an ambulance.

      Because Officer Bain did not have a video or audio recorder in his patrol

car, he called for backup to record the remainder of the stop. When backup

arrived, Officer Bain asked Rambo to step out of the car, and the officer began

to administer field sobriety tests. The horizontal gaze nystagmus test showed

that Rambo’s eyes were tracking unequally, which indicated a possible head



      2
       See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612
(1966).

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injury. Officer Bain asked if Rambo had any head injuries or had recently lost

consciousness, to which Rambo responded that he was “knocked out” during

the fight earlier that night.   After Rambo again refused medical attention,

Officer Bain administered the walk-and-turn and one-leg-stand tests, both of

which Rambo failed. 3 Officer Bain also had Rambo recite the alphabet; Rambo

paused between two letters and slurred several letters. Officer Bain arrested

Rambo for DWI and took him to the Fort Worth jail.

      At the jail, Officer Bain took Rambo to the intoxilyzer room, where the

following events were recorded. Officer Bain read Rambo the DIC-24 warnings

and asked if he would give a breath specimen. Rambo asked if he could talk

to his parents first and if he could have a lawyer present; Officer Bain told

Rambo that he had to make the decision on his own. Rambo agreed to take the

breath test, but before performing any tests, he stated, “I’d like to reject unless

I have a lawyer present. I’d like to talk to my parents first.” The intoxilyzer

operator, Officer Martinez, then read Rambo his Miranda warnings and asked




      3
         Officer Bain testified that he did not know whether a recent head
injury would affect a person’s balance and, consequently, the person’s
performance on the walk-and-turn and one-leg-stand tests. The officer said that
his training taught him only that weight and age can affect performance on
these tests.

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if he wanted to waive his rights, to which Rambo responded that he did not.

Officer Martinez concluded the video.

      Officer Bain was the State’s sole witness at trial. Through his testimony,

the State introduced the videotape of the stop and of the events in the

intoxilyzer room.   The jury convicted Rambo of DWI, and the trial court

sentenced him to ninety days’ confinement and a $550 fine. The trial court

suspended imposition of the jail portion of the sentence and placed Rambo on

two years’ community supervision.

                          III. R IGHT TO R EMAIN S ILENT

      In his sole point, Rambo argues that the trial court abused its discretion

by allowing the jury to hear the audio portion of his DWI videotape in which

Officer Martinez read Rambo his Miranda warnings. Rambo argues that this

penalized him for exercising his Fifth Amendment rights because it led the jury

to the inescapable conclusion that he had exercised his constitutional right to

remain silent.

                           A. Standard of Review

      This court reviews the trial court’s decision to admit evidence under an

abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101–02 (Tex.

Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997); Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). As long as the

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trial court’s ruling falls within the zone of reasonable disagreement, we will

affirm its decision. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.

2003).   The mere fact that a trial court may decide a matter within its

discretionary authority in a different manner than an appellate court would in

a similar circumstance does not demonstrate that an abuse of discretion has

occurred. Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).

               B. Law on Invocation of Rights as Inference of Guilt

      It is impermissible to penalize an individual for exercising his Fifth

Amendment privilege when he is under police interrogation. Hardie v. State,

807 S.W.2d 319, 322 (Tex. Crim. App. 1991) (citing Miranda, 384 U.S. at

468, 86 S. Ct. at 1624–25). “The prosecution may not, therefore, use at trial

the fact that he stood mute or claimed his privilege in the face of accusation.”

Miranda, 384 U.S. at 468 n.37, 86 S. Ct. at 1625 n.37 (1966). This is true

even when the right or privilege was erroneously extended to the defendant

because the requirements of a fair trial make it impermissible to tell a defendant

that he has a right, even if he does not, and then use his exercise of that right

against him.    Hardie, 807 S.W.2d at 322. To permit the use of this evidence

for purposes of incrimination would erode the protection guaranteed by both the

state and federal constitutions. Dumas v. State, 812 S.W.2d 611, 614 (Tex.

App.—Dallas 1991, pet. ref’d). The danger lies in the possibility that a jury

                                        5
may adversely or improperly consider such an invocation as an inference of

guilt. See Hardie, 807 S.W.2d at 322.

       The audio portion of a sobriety test videotape, however, is not per se

inadmissible. Jones v. State, 795 S.W.2d 171, 175 (Tex. Crim. App. 1990).

It serves such legitimate purposes as (1) providing a general interpretive aid to

the visual record, (2) allowing the jury to evaluate the quality of the suspect’s

speech and his loss of mental or physical faculties at the time of arrest, and (3)

allowing the jury to hear the suspect’s volunteered statements. Id. at 175.

Moreover, “audio tracks from DWI videotapes should not be suppressed unless

the police conduct depicted expressly or impliedly calls for a testimonial

response not normally incident to arrest and custody or is conduct the police

should know is reasonably likely to elicit such a response.” Id. at 176.

      The Fifth Amendment is not implicated if there is no custodial

interrogation. Griffith v. State, 55 S.W.3d 598, 603 (Tex. Crim. App. 2001);

see Jones, 795 S.W.2d at 176. Thus, in deciding whether to admit the audio

portion of a videotape in a custodial setting, it is necessary to determine

whether the evidence involves compelled testimony resulting from interrogation.

Miffleton v. State, 777 S.W.2d 76, 81–82 (Tex. Crim. App. 1989).           Police

requests to perform sobriety tests, directions on how to perform the tests, and

queries concerning a suspect’s understanding of his rights do not constitute

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interrogation. See Jones, 795 S.W.2d at 176 (noting that requests for breath

specimens seek physical evidence, not testimonial confessions of guilt).

                   C. Audio Portion of Rambo’s DWI Videotape

         Here, the videotape of the events in the intoxilyzer room shows that

when Rambo was asked to provide a breath specimen, he replied that he would

like to talk to his parents first. Officer Bain responded that he could not do so

at that time. Rambo asked if a lawyer could be present; the officer responded

that he had to make this decision on his own. Rambo asked, “So I can’t have

a lawyer?”      Officer Bain again told him that he had to decide on his own

whether to give a breath specimen. Rambo then consented to the breath test.

Officer Martinez asked Rambo to step back against the wall and announced,

“This will be the walk and turn evaluation.” The following exchange then took

place:

         Rambo: Can I ask you a question?

         Officer Martinez: Sure.

         Rambo: Um, if I don’t have a lawyer present, is that ok?

         Officer Martinez: I can’t advise you.

         Rambo: Huh?

         Officer Martinez: I can’t advise you about an attorney.

         Rambo: Can I reject unless I have a lawyer present?

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      Officer Martinez: It’s, uh, it’s totally up to you.

            ....

      Rambo: I mean, I’d like to reject unless I have a lawyer present. I’d
      like to talk to my parents first.

      Officer Martinez: Ok, I need for you to stand on the white “X”
      again.

      Rambo: Yes, sir.

      Officer Martinez: This is the video of George Patrick Rambo IV.
      Date of birth 12/08/84. By intoxilyzer operator [unintelligible]
      Martinez, Jr., ID number 19978. Statutory warning read by Officer
      Bain, initial C. Mr. Rambo, at this time I will be reading to you the
      Miranda warning, which is your rights. . . .


Officer Martinez proceeded to read Rambo the Miranda warnings. He then

asked if Rambo understood his rights; Rambo responded that he did. Officer

Martinez asked if he wished to waive those rights and answer questions

without an attorney present; Rambo responded that he did not.             Officer

Martinez stated, “This concludes the video of George Patrick Rambo IV,” and

he turned off the videotape.

      In a pretrial hearing, Rambo’s defense counsel objected to “the entire

sound on the entire tape.” The trial court ruled that the audio could be played

up until the officer read the Miranda warnings:




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      I’m going to find on this that since he does not have the right to
      counsel at that point until the Miranda is read and at that point they
      will be turning the sound off. But that he doesn’t have a right to
      counsel at that point, and so I’m not going to make them turn the
      video sound off until—




      At trial, and prior to the State playing the tape for the jury, defense

counsel reasserted his objection and requested that the court reporter write

down “the actual word verbiage” that was played to the jury. The trial court

simply responded that the videotape would be available for this court. Thus,

we do not have a transcript of the exact audio that the jury heard. 4

      However, the record does provide some indication of exactly what portion

of the audio the jury heard. After the tape was played at trial, defense counsel

objected,

      Your Honor, the State of Texas played the tape to the point where
      they said, ‘We are now going to read you your Miranda warnings.’
      Your Honor, that is not admissible according to the rule on that. It




      4
        On appeal, Rambo and the State both agree that the record is unclear
as to what portion of the videotape the jury heard; the State argues that,
consequently, Rambo failed to preserve error. But defense counsel’s specific
objection is on the record, and he even requested a written transcript of the
audio played to the jury. We decline to hold that Rambo has not preserved
error. See Lajoie v. State, 237 S.W.3d 345, 352 (Tex. App.—Fort Worth
2007, no pet.) (holding defendant preserved error when record unclear as to
what portions of video jury heard but clear as to what portions defendant
objected to).

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      is an implication to the jury . . . by the State on his invocation of
      his right to remain silent, and we object. [Emphasis added.]

The State responded that the reading of Miranda warnings can be played for the

jury, and the trial court overruled Rambo’s objection. Based on the arguments

of counsel and the trial court’s pretrial ruling, the record demonstrates that the

tape was muted or stopped after Officer Martinez either (1) told Rambo that he

would be reading the Miranda warnings “at this time” or (2) actually read the

Miranda warnings to Rambo. It is undisputed that the jury did not hear the

audio of Officer Martinez asking Rambo if he understood his rights and if he

wanted to waive them or of Rambo answering that he did not wish to waive his

rights.

      We will assume for purposes of our analysis that the tape was muted

after Officer Martinez read Rambo the Miranda warnings. Thus, the issue is

whether the audio portion of Rambo’s DWI videotape that was played for the

jury—up to and including the reading of the Miranda warnings—“led the jury to

the inescapable conclusion that [Rambo] exercised his constitutional privilege

to remain silent.” Dumas, 812 S.W.2d at 614. Applying existing case law, we

hold that it did not.

      Rambo relies on Hardie to support his position. In Hardie, the jury heard

audio of the defendant receiving the Miranda warnings and then requesting to



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speak with an attorney or his mother before he would submit to a breath test.

See 807 S.W.2d at 319. The court of criminal appeals held that a jury should

not be allowed to hear evidence that a defendant has invoked his right to

counsel, even if the right was erroneously extended. See id. at 322. Thus,

Hardie clarified that when police erroneously extend Miranda rights to a DWI

suspect and the suspect invokes those erroneously-granted rights, the State

cannot use the invocation of those rights at trial as an adverse inference of

guilt. See id.

      But here, the jury did not hear the audio of Rambo invoking his Miranda

rights after they had been extended to him. To the extent that the jury heard

Rambo request an attorney prior to being read his Miranda warnings, his Fifth

Amendment right to counsel had not yet attached because, at that time, the

officers’s requests and directives to Rambo had not risen to the level of

custodial interrogation. 5 See Griffith, 55 S.W.3d at 603; Jones, 795 S.W.2d

at 176. The jury did not hear the officer ask Rambo whether he understood his

rights or whether he desired to waive those rights. But cf. Kalisz v. State, 32

S.W.3d 718, 723 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (holding




      5
        Rambo does not challenge on appeal the admissibility of the audio
portion of his DWI videotape documenting his post-arrest, pre-Miranda requests
for counsel.

                                      11
as erroneous admission of audio in which officer asked defendant if he

understood his right to counsel when jury also saw appellant shuffle toward

door after being questioned and then heard officer ask if he was terminating

interview before tape stopped); Dumas, 812 S.W.2d at 614 (finding error when

jury heard audio of officer reading defendant Miranda warnings and asking if he

wished to waive those rights). Based on the facts of this case, we hold that

the videotape played to the jury—including the audio of Officer Martinez reading

Rambo his Miranda warnings—did not lead the jury to the inescapable

conclusion that Rambo had exercised his constitutional privilege to remain

silent. See Mathieu v. State, 992 S.W.2d 725, 729 (Tex. App.—Houston [1st

Dist.] 1999, no pet.) (op. on reh’g) (“[T]he reading of Miranda warnings by

themselves are not suppressible, unless the reading in conjunction with the

turning down of the audio could lead the jury to the conclusion that the

defendant invoked his rights.”); see also Seifert v. State, No. 05-96-01634-CR,

1999 WL 570963, at *2 & n.2 (Tex. App.—Dallas 1999, no pet.) (not

designated for publication) (holding that allowing jury to hear officer giving

Miranda warnings was not erroneous but noting that the “better practice”

would be to exclude warnings). Consequently, we conclude that the trial court

did not abuse its discretion by admitting the audio portion of Rambo's DWI




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videotape during which Officer Martinez read Rambo the Miranda warnings.

See Green, 934 S.W.2d at 101–02. We overrule Rambo’s sole point.




                              IV. C ONCLUSION

     Having overruled Rambo’s sole point, we affirm the trial court’s judgment.




                                                SUE WALKER
                                                JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 25, 2010




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