                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00319-CR


CARTER COMPTON, II                                                      APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

          FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F-2013-1350-A

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

                                  I. INTRODUCTION

      A jury convicted Appellant Carter Compton, II of driving while intoxicated

(DWI) and assessed his punishment at 3.75 years’ confinement. In two issues,

Compton argues that the evidence is insufficient to support his conviction and

that the trial court erred by admitting certain evidence. We will affirm.

      1
       See Tex. R. App. P. 47.4.
                                 II. BACKGROUND

      Prior to 2012, Compton was convicted of DWI on two other occasions,

once in Texas and once in Oregon. On September 9, 2012, at approximately

1:00 a.m., a Justin police officer pulled over Compton after noticing that his

vehicle had no visible taillights. When the officer approached the driver’s side

window, he noticed that Compton’s eyes were red and glassy, that his speech

was slurred, and that the car smelled strongly of alcohol. The officer also noticed

a stain on Compton’s pants where he had urinated on himself. The officer asked

Compton to exit the vehicle and perform a variety of standardized field sobriety

tests. Compton showed six clues for the horizontal gaze nystagmus test, four

clues for the walk-and-turn test, and one clue for the one-leg stand test.

      The officer also performed two nonstandardized tests on Compton to

further gauge his intoxication level. The officer asked Compton to count down

from sixty-seven to forty-five; Compton was unable to perform this task as

requested. When asked how much alcohol he had consumed, Compton said

that he had consumed three twenty-four-ounce beers earlier that night.

Additionally, when asked how intoxicated he felt on a scale of zero to ten,

Compton responded with a three, indicating that “he felt there was some type of

impairment from alcohol.” Finally, when the officer asked Compton to recite part

of the alphabet, Compton did not do so, and the officer placed him under arrest.




                                         2
      The officer then proceeded to read Compton a statutory warning for refusal

and requested a sample of his blood or breath.              Compton refused and

immediately asked to speak to his lawyer. After Compton invoked his right to

counsel, the officer did not ask Compton any additional questions. On the way to

the police station, Compton continued questioning and making statements to the

officer; however, the officer only responded four times—to inform Compton of his

name, to tell Compton that he failed the standardized field sobriety tests, to tell

Compton that he would go before a judge, and to tell Compton that he received

information regarding one prior conviction—all in response to questions by

Compton. At trial, the State used Compton’s two prior DWI convictions to prove

the enhancement paragraphs as alleged in the indictment.

                           III. OREGON DWI CONVICTION

      In his first issue, Compton argues that the Oregon judgment was

insufficient to prove beyond a reasonable doubt the existence of Compton’s

Oregon DWI conviction.

      A.     Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.




                                         3
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014).

      B.     Enhancement of Conviction for DWI

      DWI becomes a third-degree felony when it is shown on the trial of the

offense that the defendant has been convicted twice before of any other offense

relating to the operation of a motor vehicle while intoxicated. Tex. Penal Code

Ann. § 49.09(b)(2) (West 2014).        When proof of a prior conviction is a

jurisdictional element, the existence of the prior conviction and the identity of the

accused must be proven beyond a reasonable doubt. See Flowers v. State, 220

S.W.3d 919, 921 (Tex. Crim. App. 2007); Zimmer v. State, 989 S.W.2d 48, 50

(Tex. App.—San Antonio 1998, pet. ref’d); Maibauer v. State, 968 S.W.2d 502,

507 (Tex. App.—Waco 1998, pet. ref’d).

      The jury considers the totality of the evidence to determine if the State

proved both of these elements beyond a reasonable doubt. See Flowers, 220

S.W.3d at 923. No specific document or method of proof is required. See id. at

921. While a prior conviction alleged for enhancement may be established by

certified copies of a judgment and sentence, a prior DWI accusation that has not

resulted in a final conviction may not be used to elevate DWI to a felony offense.

See State v. Wilson, 324 S.W.3d 595, 599 (Tex. Crim. App. 2010); Zimmer, 989

S.W.2d at 50. Other accepted methods of proof include, but are not limited to:

(1) the defendant’s admission or stipulation, (2) testimony by a person who was




                                         4
present when the defendant was previously convicted and can identify the

defendant as that person, or (3) documentary proof that contains sufficient

information to establish the defendant as the person previously convicted.

Zimmer, 989 S.W.2d at 50; see also Beck v. State, 719 S.W.2d 205, 209 (Tex.

Crim. App. 1986); see also Littles v. State, 726 S.W.2d 26, 31 (Tex. Crim. App.

1984).

      To support a conviction of felony DWI by using foreign DWI convictions for

enhancement, the State must prove the foreign DWI statute is essentially the

same as the Texas statute. See Langston v. State, 776 S.W.2d 586, 587‒88

(Tex. Crim. App. 1989). In the absence of such proof, the court is to presume

that the foreign law is the same as that of the State of Texas. Id.

      C.    Proving Prior DWI Conviction

      At trial, the State did not prove that the Oregon DWI statute was essentially

the same as the Texas DWI statute.2          For that reason, we will assess the

sufficiency of the evidence in regards to the Oregon conviction in accordance

with Texas law.

      Compton argues that the DWI enhancement under section 49.09 of the

Texas Penal Code requires proof of valid and final judgments of at least two prior

DWI convictions.    Appearing to rely on reasoning that first appeared in our


      2
       The State introduced a copy of the Oregon statute as evidence, but it did
not argue the similarities between the Oregon and Texas laws.



                                         5
original opinion in Gaddy v. State, he contends that because the Oregon

judgment fails to comply with some of the requirements of a valid judgment under

article 42.01 of the Texas Code of Criminal Procedure, the State did not provide

sufficient evidence to prove beyond a reasonable doubt the existence of that

conviction. See No. 02-09-00347-CR, 2011 WL 1901972 (Tex. App.—Fort Worth

May 19, 2011) (mem. op. on reh’g, not designated for publication), vacated,

No. PD-1118-11, 2012 WL 4448757 (Tex. Crim. App. Sept. 26, 2012) (not

designated for publication); see also Tex. Code Crim. Proc. Ann. art. 42.01 (West

Supp. 2014).    The court of criminal appeals vacated the original opinion in

Gaddy. Therefore, it is no longer binding precedent of this court. Further, insofar

as Compton relies upon the dissenting opinion to the en banc opinion on remand

in Gaddy, we are not bound by any analysis contained therein either. See Gaddy

v. State, 433 S.W.3d 128, 131–135 (Tex. App.—Fort Worth 2014, pet. ref’d)

(Dauphinot, J., dissenting). Instead, we are bound by the decisions of the court

of criminal appeals, which in Flowers confirmed that “Texas substantive law does

not require that the fact of a prior conviction be proven in any specific manner.”

220 S.W.3d at 922. Indeed,

      the important issue is not whether [the document] represents a
      judgment of conviction or its functional equivalent under article
      42.01, but whether a reasonable trier of fact could view the State’s
      Exhibits . . . and find beyond a reasonable doubt that 1) the alleged
      prior DWI conviction existed and 2) this conviction is linked to [the]
      appellant.




                                        6
Id. at 924. Compton’s argument has thus already been expressly foreclosed by

the court of criminal appeals.

      Moreover, courts have frequently upheld evidence as sufficient to establish

the existence of a prior DWI conviction when a judgment has not met every

requirement under section 42.01. See Williamson v. State, 46 S.W.3d 463, 466–

67 (Tex. App.—Dallas 2001, no pet.) (“Even if all the procedural requirements of

article 42.01 have not been met, as long as a judgment adjudicates the guilt of

the defendant and assesses his punishment, it may be used under section

49.09(d) to elevate misdemeanor DWI to a felony offense.”); see also Collins v.

State, No. 06-13-00214-CR, 2014 WL 2447599, at *5 (Tex. App.—Texarkana

May 30, 2014, pet. ref’d) (mem. op., not designated for publication) (judgment

lacking attorney’s name and fingerprint was deemed valid for purposes of DWI

enhancement), cert. denied, 135 S. Ct. 2385 (2015); Demers v. State, No. 05-11-

01704-CR, 2013 WL 323446, at *2 (Tex. App.—Dallas Jan. 29, 2013, no pet.)

(not designated for publication) (totality of the evidence was sufficient to prove

prior DWI conviction where judgment failed to find defendant guilty); Gibson v.

State, No. 05-00-00671-CR, 2001 WL 221578, at *4 (Tex. App.—Dallas Mar. 7,

2001, no pet.) (mem. op., not designated for publication) (reasoning that

probation order failing to indicate date of conviction was sufficient to prove prior

conviction when viewed together with fingerprint evidence admitted by the State).




                                         7
      Here, the Oregon judgment sufficiently establishes the existence of the

prior conviction because it is a certified document coming directly from the court

in which it was rendered. See Flowers, 220 S.W.3d at 924 (holding that the

State’s exhibits were sufficient to prove the existence of the previous conviction

because they came straight from “the custodian of the original judgment for the

prior DWI conviction”). Furthermore, The Oregon judgment includes the names

of the prosecutor and defense attorneys, the judge’s signature and initials, and

the date the document was filed. The State also provided additional evidence to

show the existence of the prior Oregon conviction and link it to Compton. At trial,

the State submitted a copy of Compton’s driving record, which lists both of

Compton’s prior DWI convictions, and a motion to revoke, which mentions

Compton’s Oregon conviction as well.        This differs from the supplemental

materials provided by the State in Gaddy, which were so ambiguous that they

could not help prove the existence and finality of the prior New Mexico

convictions beyond a reasonable doubt. See 2011 WL 1901972, at *6 (“The

documents mention traffic violations but are so deficient that we cannot tell what

they are or what events they seek to memorialize, if, indeed, they do.”). The

additional evidence supplied by the State in the present case supplements the

Oregon judgment by providing further proof that Compton was previously

convicted of DWI in Oregon. See Flowers, 220 S.W.3d at 924–25; Zimmer, 989

S.W.2d at 51.




                                        8
      Viewing all the evidence in the light most favorable to the verdict, the jury

could have reasonably determined that the State proved the existence of

Compton’s prior Oregon DWI conviction beyond a reasonable doubt.3              See

Flowers, 220 S.W.3d at 921; Zimmer, 989 S.W.2d at 50; Maibauer, 968 S.W.2d

at 507. Therefore, we overrule Compton’s first issue.

                          IV. ADMISSIBILITY OF EVIDENCE

      In his second point, Compton argues that the trial court erred by admitting

evidence of statements made by him after he requested to speak to an attorney.

While he does not challenge the use of his refusal of a blood-alcohol test as

evidence, he claims that any subsequent statements following this refusal were

inadmissible under the Fifth and Sixth Amendments.

      A.    Standard of Review

      The standard of review for a trial court’s admission of evidence is abuse of

discretion, and wide discretion is afforded to the trial judge. See Green v. State,

934 S.W.2d 92, 101‒02 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200

(1997); Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992); see also

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). The trial

court’s decision should be reversed on appeal only if there is a showing of a clear

abuse of discretion. See Theus, 845 S.W.2d at 881; Lajoie v. State, 237 S.W.3d

      3
        The State filed a motion for the court to take judicial notice regarding the
Oregon DWI statute. We deny the motion as moot because Compton’s first
issue is unpersuasive without even considering the Oregon statute.



                                         9
345, 352 (Tex. App.—Fort Worth 2007, no pet.). In other words, only if the

court’s decision falls outside the “zone of reasonable disagreement,” has it

abused its discretion. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim.

App. 2003); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)

(op. on reh’g).

      B.      Admissibility under the Fifth Amendment

      Compton argues that the statements he made while in custody were

inadmissible under the Fifth Amendment because he had not yet been

Mirandized.       Assuming, without deciding, that this issue was preserved for

appellate review, we cannot agree.

      An individual’s right to counsel is “recognized in the Fifth Amendment,

which protects a person from governmental compulsion to be a witness against

himself.” Griffith v. State, 55 S.W.3d 598, 602–03 (Tex. Crim. App. 2001); see

Miranda v. Arizona, 384 U.S. 436, 470, 86 S. Ct. 1602, 1626 (1966). “[T]he

special procedural safeguards outlined in Miranda are required not where a

suspect is simply taken into custody, but rather where a suspect in custody is

subjected to interrogation.” See Rhode Island v. Innis, 446 U.S. 291, 300, 100

S. Ct. 1682, 1689 (1980). Custodial interrogation “must reflect a measure of

compulsion above and beyond that inherent in custody itself” and generally

encompasses express questioning by police or words or actions that the police

should know are likely to elicit an incriminating response. See id. 466 U.S. at




                                        10
300–01, 100 S. Ct. at 1689–90. For this reason, the Fifth Amendment right to

counsel does not extend when there is no interrogation. See Griffith, 55 S.W.3d

at 603.    “Volunteered statements of any kind are not barred by the Fifth

Amendment” and are admissible as evidence at trial. Miranda, 384 U.S. at 478,

86 S. Ct. at 1630. “Questions normally accompanying the processing of a D.W.I.

arrestee do not constitute interrogation.” Griffith, 55 S.W.3d at 603; see

McCambridge v. State, 712 S.W.2d 499, 504 (Tex. Crim. App. 1986).

      The Texas Code of Criminal Procedure expressly delineates the

requirements of Miranda by requiring officers to inform people of their rights prior

to custodial interrogation in order for resulting statements to be admissible. Tex.

Code Crim. Proc. Ann. art. 38.22, § 3 (West Supp. 2014). Further, article 38.22

does not preclude the admission of res gestae statements or statements made

outside of custodial interrogation. Id. art. 38.22, § 5.

      Compton contends that statements he made after invoking his right to

counsel are inadmissible because he had been taken into custody and had not

yet been Mirandized.      His argument is without merit, however, because no

custodial interrogation had occurred. See Griffith, 55 S.W.3d at 603 (stating that

defendant’s refusal to submit to blood-alcohol test and corresponding request for

his attorney were admissible because at that point he did not have a Fifth

Amendment right to counsel). In Griffith, the court determined the appellant’s

Fifth Amendment right to counsel had not been implicated when the trial court




                                          11
admitted evidence of statements made by the appellant after he asked for an

attorney. Id. at 602. While the appellant in Griffith was clearly in custody, no

interrogation had occurred. Id. at 603. Likewise, here, Compton was not subject

to custodial interrogation when the statements he is now contesting were made.

He was in no way compelled to make these statements, nor were they a result of

express questioning or acts or words the officer knew would be likely to elicit an

incriminating response. See Innis, 446 U.S. at 300–01, 100 S. Ct. at 1689–90.

      Further, even if Compton’s Fifth Amendment right to counsel had been

triggered when he initially asked for an attorney, his subsequent statements were

voluntary and res gestae. As stated in Miranda, the Fifth Amendment does not

protect those in custody against the use of statements made voluntarily. See

384 U.S. at 478, 86 S. Ct. at 1630. After refusing a blood-alcohol test and asking

for an attorney, Compton continued to speak absent any invitation to do so. The

officer refrained from speaking to Compton for the remainder of the video, except

for four instances in which he responded to Compton’s continuous questioning.

      Moreover, the Texas Code of Criminal Procedure does not preclude the

admission of res gestae statements or statements made outside of custodial

interrogation. Tex. Code Crim. Proc. Ann. art. 38.22, § 5. As the State argues,

“the statements fit the res gestae exception of article 38.22, section 5, as

[Compton] was in ‘the emotional grip’ of the arrest.” See Graham v. State, 486

S.W.2d 92, 94–95 (Tex. Crim. App. 1972) (reasoning that the exception applies




                                       12
when there is an exciting, emotionally stimulating or physically painful event, the

admission is made so soon after the event that the declarant is still in the

emotional grip of it, and the admission relates to the event); see also Gordon v.

State, 608 S.W.2d 638, 639 (Tex. Crim. App. [Panel Op.] 1980) (stating that

article 38.22 expressly requires the “stimulating” event be the arrest or the

offense). This exception applies here because Compton was arrested, he made

the statements during the commission of that arrest, and those statements

regarded his detainment. Accordingly, even if Compton had been entitled to his

Fifth Amendment right to counsel, his statements would have remained

admissible given their voluntary and res gestae nature. See Tex. Code Crim.

Proc. Ann. art. 38.22, §§ 3, 5.

        Compton additionally argues that the trial court’s admission of these

statements implicated his Fifth Amendment right against self-incrimination. In

support of this contention, he cites to Gathwright v. State, in which this court

held:

        It is impermissible to penalize an individual for exercising his Fifth
        Amendment privilege when he is under police custodial
        interrogation. The prosecution may not use at trial the fact that he
        stood mute or claimed his privilege in the face of an accusation. To
        permit the use of such evidence for purposes of incrimination would
        erode the protection guaranteed by both state and federal
        constitutions.

698 S.W.2d 260, 261 (Tex. App.—Fort Worth 1985, no pet.) (citations omitted).

However, in Jones v. State, the court of criminal appeals declined to follow this




                                         13
reasoning and instead held “that 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.” 795 S.W.2d

171, 176 (Tex. Crim. App. 1990). Like in Jones, the video of Compton’s arrest

and transport helped the State prove that Compton was in fact intoxicated. See

id. at 175 (“[The audio portion of the tape] also provides a physical exemplar of

the suspect’s manner of speech at the time of arrest. A jury may use the quality

of the suspect’s speech as evidence of her degree of intoxication.” (citations

omitted)). Consequently, Compton’s argument under the Fifth Amendment fails

in this regard as well.

      C.     Admissibility under the Sixth Amendment

      Compton contends that the portion of the video in which he requested an

attorney is inadmissible under the Sixth Amendment because his right to counsel

had already attached at that point.

             1.     Preservation of Error

      The State argues that Compton failed to preserve this error because “it

appears from the context of trial counsel’s discourse with the judge that his

argument was that the tape should be stopped after [Compton] invoked his right

to an attorney.” Under the Texas Rules of Appellate Procedure, preservation of

appellate complaints requires that the record show “the complaint was made to




                                       14
the trial court by a timely request, objection or motion that . . . stated the grounds

for the ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint.”        Tex. R. App. P.

33.1(a)(1)(A).    By objecting to the jury’s viewing of a specific portion of

Compton’s arrest video, defense counsel objected with sufficient specificity. The

record demonstrates that defense counsel desired to stop the video at 42:30

based on his client’s Fifth and Sixth Amendment rights.          Moreover, video of

Compton’s arrest clearly shows Compton refusing to give a blood or breath

specimen at 42:34 and requesting to speak to his attorney at 42:50.

      Additionally, it is necessary for the trial court to have ruled on the request,

objection, or motion, either expressly or implicitly, or for the complaining party to

have objected to the trial court’s refusal to rule.     Tex. R. App. P. 33.1(a)(2);

Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). The record

shows the trial court expressly overruled Compton’s objections to the specific

portion of the video and allowed the jury to view the video in its entirety.

Accordingly, Compton’s defense counsel preserved this argument. See Tex. R.

App. P. 33.1.

             2.    Attachment of the Right to Counsel

      Compton contends that because his Sixth Amendment right to counsel

attached as soon as he requested an attorney, the trial court erred by admitting

subsequent statements as evidence. The Right-to-Counsel Clause of the Sixth




                                         15
Amendment protects the right to counsel “only at or after the time that adversary

judicial proceedings have been initiated, whether by way of formal charge,

preliminary hearing, indictment, information, or arraignment.” Griffith, 55 S.W.3d

at 603 (citing Kirby v. Illinois, 406 U.S. 682, 688, 92 S. Ct. 1877, 1881 (1972)).

“A person [does] not become an ‘accused’ within the meaning of the Sixth

Amendment simply because he has been detained by the government with the

intention of filing charges against him.” Id. at 603–04 (citing United States v.

Gouveia, 467 U.S. 180, 187‒90, 104 S. Ct. 2292, 2297‒99 (1984)). The Sixth

Amendment right to counsel does not attach until the start of adversary judicial

proceedings; thus any statements made by the arrestee regarding his right to

speak to an attorney are not protected until this point. See id.

      Compton argues that he was harmed by the trial court “allowing the jury to

observe [his] invocation of his right to counsel and any portion of the videotape

thereafter.” He cites Hardie v. State to support his contention, quoting from the

opinion: “While the invocation of counsel may have no relevance as regards the

State’s proffer of a defendant’s refusal to take the breath test, a different question

is presented when the State has sought to introduce evidence of the request for

counsel as evidence of guilt.” 807 S.W.2d 319, 321 (Tex. Crim. App. 1991).

Compton argues that the State used his repeated request for an attorney as a

method of proving his intoxication, which directly contradicts the holding in

Hardie.   This case is distinguishable from Hardie, however, because, as the




                                         16
State points out, the appellant in Hardie had already been Mirandized and was

being interrogated when the incriminating statements were made. See id. at

323‒24. Here, no adversary judicial proceedings had begun, nor had Compton

been formally charged with an offense when he made the statements. Thus,

Compton’s Sixth Amendment right to counsel was not implicated by the trial

court’s admission of these statements because his right had not yet attached.

See Griffith, 55 S.W.3d at 604 (“Administering a breath-alcohol test to an

arrestee after he has made a request for, but not received, the advice of counsel

does not violate the Sixth Amendment right to counsel . . . because the right has

not attached.”). As such, the trial court did not abuse its discretion by admitting

Compton’s statements. See Montgomery, 810 S.W.2d at 391. Accordingly, we

overrule Compton’s second point.

                                 V. CONCLUSION

      Having overruled Compton’s two points, we affirm the trial court’s

judgment.

                                                   /s/ Bill Meier
                                                   BILL MEIER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER, and GABRIEL, JJ.

GABRIEL, J., concurs without opinion.

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

DELIVERED: July 30, 2015



                                        17
