Opinion issued August 25, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-14-00884-CR
                          ———————————
                    ERIK FORREST FRIEND, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                 On Appeal from County Court at Law No. 3
                         Brazoria County, Texas
                       Trial Court Case No. 203728



                                 OPINION

      Appellant, Erik Forrest Friend, was found guilty by a jury of the

misdemeanor offense of driving while intoxicated.1 The jury assessed Appellant’s

punishment at thirty days in jail and a $750 fine.        Based on the jury’s
1
      See TEX. PENAL CODE ANN. § 49.04(a) (Vernon Supp. 2014).
recommendation, the trial court suspended Appellant’s jail sentence and placed

Appellant on community supervision for fifteen months.

         The dispositive issue that we address is whether the trial court abused its

discretion by admitting evidence of Appellant’s post-arrest invocation of his Fifth

Amendment right against self-incrimination. Because we hold that the trial court

abused its discretion in admitting the evidence, and that such constitutional error

was harmful, we reverse the judgment of conviction and remand the case for a new

trial.

                                        Background

         On July 4, 2013, around 4:00 p.m., Appellant was driving his car on Folletts

Beach in Brazoria County. Because it was a holiday, the beach was crowded with

vehicles and pedestrians. Traffic had been directed to drive only one way on the

beach.

         Brazoria County Sheriff’s Department Officers J. Hodges and R.

McCullough were monitoring traffic on the beach.           The officers were riding

marked police ATVs. Officers Hodges and McCullough were watching traffic on

the beach when they saw Appellant’s car suddenly accelerate, spinning its tires in

the sand. The car swerved, almost hitting a parked truck and then narrowly

missing the two officers. Appellant continued down the beach. He was exceeding

the speed limit and going the wrong way, against traffic. The officers then saw



                                           2
Appellant drive in between two rows of parked vehicles, almost hitting a group of

pedestrians. The officers pursued Appellant’s car and pulled him over.

      As he interacted with Appellant, Officer McCullough noticed that Appellant

smelled like alcohol. The officer also noticed that Appellant’s eyes were red and

watery and that his speech was slurred. When the officer asked him whether he

had been drinking, Appellant said that he had drunk two or three beers.

      Appellant’s girlfriend was in the passenger’s seat. She informed the officers

that she and Appellant had been arguing in the car. The officers determined that

she also had been drinking and arrested her for public intoxication.

      The officers believed that Appellant had been driving while intoxicated.

Because they did not have the capability to videotape a DWI investigation, the

officers called for a state trooper to come to the scene. Texas Department of

Public Safety Trooper J. Gonzalez arrived at the beach around 4:30 p.m. Trooper

Gonzalez noticed that Appellant’s eyes were bloodshot, that his speech was

difficult to understand, and that he smelled of alcohol.

      The dash camera in Trooper Gonzalez’s patrol car recorded his interaction

with Appellant. When asked, Appellant, at first, told Trooper Gonzalez that he had

started drinking at 8:30 that morning, but he then changed his mind and said that

he had started drinking around 10:00 a.m. Appellant stated that, since that time, he




                                          3
had drunk two or three beers. Trooper Gonzalez asked Appellant the current time,

and Appellant incorrectly estimated the time to be around 1:30 or 2:00 p.m.

        Appellant agreed to perform field sobriety tests at the scene.       Trooper

Gonzalez administered five field sobriety tests to Appellant: the Horizontal Gaze

Nystagmus (HGN), the walk-and-turn, the one-leg stand, alphabet recitation, and

finger counting. Trooper Gonzalez had Appellant perform the tests on the beach.

Trooper Gonzalez thought it was a suitable location because the sand was hard and

packed. Appellant’s performance of the tests was recorded on the camera in

Trooper Gonzalez’s vehicle. During the testing, Appellant told Trooper Gonzalez

that his back hurt, he was flat-footed, he had terrible balance, and he had “lazy

eye.”

        When he administered the HGN test to Appellant, Trooper Gonzalez

observed that Appellant displayed all six clues during the test. Each of Appellant’s

eyes showed (1) lack of smooth pursuit, (2) nystagmus or an involuntary jerking

movement at maximum deviation, and (3) onset of nystagmus before forty-five

degrees.

        Trooper Gonzalez then had Appellant perform the walk-and-turn test.

Trooper Gonzalez instructed Appellant to take nine steps, heel to toe, down an

imaginary line, then plant his lead foot, turn around on it, and take nine steps back.

During the test, Trooper Gonzalez observed that Appellant could not maintain his



                                          4
balance, did not take the correct number of steps, turned improperly, and fell off

the imaginary line. Trooper Gonzalez noted that Appellant demonstrated seven out

of eight clues of intoxication.

      Appellant next performed the one-leg stand test.          Trooper Gonzalez

instructed Appellant to stand on one leg, raise it six inches from the ground, and

count while looking at his foot. In administering the one-leg stand test, an officer

is trying to determine whether the person being tested can maintain his balance.

Trooper Gonzalez observed that Appellant exhibited two clues out of two for

intoxication on this test.

      Trooper Gonzalez then asked Appellant to recite the alphabet beginning with

D and ending at R. Appellant indicated he had a condition that causes him to mix

up letters and numbers.      Trooper Gonzalez permitted Appellant to recite the

complete alphabet, which Appellant did successfully.

      Lastly, Appellant performed the finger-count test. Appellant was instructed

to count one to four, while touching each finger to his thumb, starting with his

pinky and then reversing directions. Appellant was able to perform this test,

however, he miscounted on the last set.

      Trooper Gonzalez offered Appellant to submit to a breath-alcohol test, but

he refused. Based on the totality of the circumstances, Trooper Gonzalez arrested

Appellant for the offense of driving while intoxicated. Trooper Gonzalez read



                                          5
Appellant the DIC-24 statutory warnings, informing Appellant of the consequences

of refusing to submit a blood or breath specimen. Trooper Gonzalez then asked

Appellant whether he would provide a breath or blood specimen. Appellant refused

to provide either specimen.

      Trooper Gonzalez transported Appellant to the local police station. When

they arrived, but were still sitting in the patrol car, Trooper Gonzalez read

Appellant the five Miranda-style statutory warnings found in Code of Criminal

Procedure article 38.22. 2    Once inside the station, Trooper Gonzalez asked

Appellant a series of questions from a form entitled, “DWI Interview with Legal

Warnings.” At the top of the form were printed the five article 38.22 warnings,

including the following, which informed Appellant, “You have the right to remain

silent and not make any statement at all and any statement you make may be used

against you at your trial.” Immediately below the statutory warnings was the

following language: “The above legal warnings were either read by me or to me. I

understand each of these rights and agree to waive (give up) these rights and

answer the following questions.”

      Trooper Gonzalez asked Appellant the questions on the interview form and

wrote Appellant’s verbal answers in the spaces provided. Appellant answered the

2
      See TEX. CODE CRIM. PROC. art. 38.22 (Vernon Supp. 2014) (providing statutory
      warnings virtually identical to Miranda warnings, except that article 38.22
      includes warning that accused has right to terminate interview at any time, which
      Miranda does not require).

                                          6
first eleven questions on the form regarding such information as his name, age,

weight, when and what he had last eaten, and where he had been driving to and

from when he was stopped. However, when Trooper Gonzalez asked Appellant

the question “Have you been drinking?” Appellant responded, “Not saying

anything to that one.” The next four questions inquired what Appellant had been

drinking, how much he had been drinking, the time of his first drink, and the time

of his last drink. To each of these questions, Appellant responded, “Not saying,”

which Trooper Gonzalez wrote on the interview form.

      Appellant provided substantive answers to the remaining questions on the

form. Those questions asked for information regarding Appellant’s health, such

as, whether he had been injured recently, whether he was under a doctor’s care,

how much he had slept, and whether he had conditions such as epilepsy or

diabetes. Appellant responded that he had slept five hours the night before and did

not have the medical conditions inquired about on the form. Appellant signed the

bottom of the form.

      Appellant was later charged by information with the misdemeanor offense of

driving while intoxicated.     At trial, the State called Officers Hodges and

McCullough to testify regarding their observations of Appellant.       The State’s

primary witness was Trooper Gonzalez, who testified regarding his interactions

with Appellant, including Appellant’s performance of the field sobriety tests. The



                                        7
State introduced the scene video taken by Trooper Gonzalez’s in-car camera. The

video shows Appellant’s interaction with Trooper Gonzalez, his performance of

the sobriety tests, Trooper Gonzalez’s reading of Appellant’s rights, and

Appellant’s refusal to give a blood or breath specimen.

      Through Trooper Gonzalez, the State also offered the interview form in

which Appellant had answered the five questions regarding whether he had been

drinking by responding, “Not saying.” Appellant objected to the admission of the

interview form on a number of grounds. Among these, Appellant averred that he

had asserted his Fifth Amendment privilege against self-incrimination when he had

stated, “Not saying,” in response to the questions regarding whether he had been

drinking. Appellant asserted that to allow the admission of the interview would be

a comment on Appellant’s invocation of his Fifth Amendment right to remain

silent. Appellant also asserted a relevancy objection to the portion of the form that

contained his “not saying” responses.

      The court conducted a hearing outside the presence of the jury regarding

Appellant’s objections to the interview form. Trooper Gonzalez and Appellant

testified during the hearing. Appellant stated that he remembered exercising his

right to remain silent when he was answering the questions on the form. Appellant

said he exercised that right by stating “not saying.” Appellant testified that he was




                                         8
intending to say that he did not want to talk anymore. When asked what his

responses meant to him he stated, “That I was being silent, but in a vocal way.”

      When the trial court asked the State why the form was relevant evidence, the

State responded that it was relevant to show Appellant’s “state of mind,”

specifically his “deceptiveness.” The State argued that Appellant was not invoking

his constitutional right to remain silent when he refused to answer the questions

about drinking; rather, the prosecutor stated, “It’s him being deceptive.”

      The trial court overruled Appellant’s objections to the admission of the

interview form, including Appellant’s objection that the admission violated his

Fifth Amendment right against self-incrimination. The interview form was then

admitted into evidence as State’s Exhibit 2. The jury was brought back in and the

State continued its examination of Trooper Gonzalez. The State handed Trooper

Gonzalez State’s Exhibit 2 and began questioning him regarding its contents. The

State went through the questions on the interview form and had Trooper Gonzalez

state what Appellant’s responses had been to the questions.           This included

Appellant’s not-saying responses to two of the questions regarding his alcohol

consumption.

      After the State rested, the defense called Appellant’s optometrist, Dr.

J. Farmer, to testify. Dr. Farmer stated that she had examined Appellant’s eyes in

May 2013, two months before he was arrested for DWI. Dr. Farmer testified that



                                          9
her examination showed that Appellant has amblyopia, commonly known as “lazy

eye.” Dr. Farmer testified that, because of the amblyopia, Appellant’s eyes do not

track equally.

      Dr. Farmer also testified that, as part of her examination, she had Appellant

track a target with his eyes. This revealed that Appellant’s amblyopia results in

naturally occurring, latent nystagmus in his eyes when tracking a target. Dr.

Farmer stated that Appellant’s nystagmus is likely congenital, meaning he has had

it since birth. She testified that, of the 10,000 patients that she has seen over the

years, only 10 to 20 of them have the amblyopia and nystagmus abnormality

affecting Appellant.

      Dr. Farmer acknowledged that drinking alcohol can also cause nystagmus;

however, she stated that Appellant has nystagmus regardless of whether he has

been drinking. She testified that she was not surprised that the Trooper Gonzalez

observed nystagmus in Appellant’s eyes during the HGN test. Dr. Farmer also

testified that Appellant’s amblyopia could affect Appellant’s balance and ability to

perform the walk-and-turn test because it affects depth perception.

      Following the parties’ closing arguments, the jury found Appellant guilty of

the offense of driving while intoxicated and assessed Appellant’s punishment at

thirty days in jail and a $750 fine. Based on the jury’s recommendation, the trial




                                         10
court suspended Appellant’s jail sentence and placed him on community

supervision for fifteen months.

      This appeal followed. Appellant presents eight issues.

                          Invocation of Right to Remain Silent

      In his second issue, Appellant asserts, “The trial court erred in overruling

Appellant’s objection to that portion of State’s Exhibit No. 2 in which he exercised

his right to silence, in violation of the Fifth Amendment to the United States

Constitution.”3 See U.S. CONST. amend. V (“No person . . . shall be compelled in

any criminal case to be a witness against himself.”). 4

A.    Standard of Review

      We review a trial court’s decision to admit or to exclude evidence for an

abuse of discretion. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.

3
      The State asserts that Appellant did not preserve his complaints regarding Exhibit
      2 because Trooper Gonzalez testified to its contents immediately after the hearing
      at which the trial court had overruled Appellant’s objections to the document. The
      State claims that, to preserve error, Appellant was required to either object to
      Trooper Gonzalez’s testimony or to obtain a running objection to the document.
      We disagree. If a trial court hears objections to proffered evidence outside the
      jury’s presence, and rules that the evidence is admissible, the objections are
      deemed to apply to the evidence when it is admitted before the jury without the
      necessity of repeating the objections. Haley v. State, 173 S.W.3d 510, 517 (Tex.
      Crim. App. 2005) (citing former Texas Rule of Evidence 103(a), applicable to this
      case). Appellant’s objections to Exhibit 2 were heard by the trial court outside the
      presence of the jury. The trial court ruled that Exhibit 2 should be admitted.
      Thus, Appellant preserved his objections to Exhibit 2. See id.
4
      Appellant also asserts on appeal, as he did in the trial court, that the admission of
      the form violated his privilege against self-incrimination provided by the Texas
      Constitution. See TEX. CONST. art. I, § 10.

                                           11
2010). The test for abuse of discretion is whether the trial court acted arbitrarily or

unreasonably, without reference to any guiding rules or principles. Montgomery v.

State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). An abuse of discretion occurs

if the court’s decision is “so clearly wrong as to lie outside the zone within which

reasonable people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex.

Crim. App. 2008).

B.    Error Analysis

      In Miranda v. Arizona, the United States Supreme Court held that, pursuant

to the Fifth Amendment, an individual subjected to custodial interrogation must be

informed that “he has a right to remain silent, that any statement he makes may be

used as evidence against him, and that he has a right to the presence of an attorney,

either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct.

1602, 1612 (1966). “The guaranty of fundamental fairness in the Due Process

Clause forbids the government from making the Miranda promises and breaking

them by using a suspect’s exercise of a right as evidence against him.” Griffith v.

State, 55 S.W.3d 598, 605 (Tex. Crim. App. 2001) (citing Doyle v. Ohio, 426 U.S.

610, 96 S. Ct. 2240 (1976)); see also Wainwright v. Greenfield, 474 U.S. 284, 295,

106 S. Ct. 634, 640 (1986) (“What is impermissible is the evidentiary use of an

individual’s exercise of his constitutional rights after the State’s assurance that the

invocation of those rights will not be penalized.”). Use of a defendant’s silence for



                                          12
either substantive or impeachment value is constitutionally prohibited; it is

fundamentally unfair to simultaneously afford a suspect a constitutional right to

silence following his receipt of his Miranda warnings and then allow the

implications of that silence to be used against him. Doyle, 426 U.S. at 619, 96 S.

Ct. at 2245. Silence “does not mean only muteness; it includes the statement of a

desire to remain silent.” Wainwright, 474 U.S. at 295 n.13, 106 S. Ct. at 640 n.13.

      Introduction of a defendant’s express invocation of his right to remain silent

is prejudicial to a defendant because the introduction of such evidence invites the

jury to draw an adverse inference of guilt from the exercise of a constitutional

right. See Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991); Ex parte

Skelton, 434 S.W.3d 709, 719 (Tex. App.—San Antonio 2014, pet. ref’d). In other

words, the probable collateral implication of a defendant’s invocation of his right

to remain silent is that he is guilty. See Skelton, 434 S.W.3d at 719. It follows

that, if a defendant invokes his right to remain silent after receiving his post-arrest

Miranda warnings, the State cannot use the defendant’s invocation of his

constitutionally-protected right to remain silent as evidence of his guilt at trial. See

Hardie, 807 S.W.2d at 322; Skelton, 434 S.W.3d at 719. Appellant asserts that is

what happened in this case. He contends that, after he had received his Miranda

warnings, he relied on those rights and expressly invoked his right to remain silent

by responding “not saying” to the potentially inculpatory questions regarding his



                                          13
alcohol consumption.      Citing Doyle and Hardie, Appellant asserts that the

introduction of Exhibit 2—specifically his “not saying” responses to the questions

regarding alcohol consumption—violated his Fifth Amendment right to remain

silent because it revealed to the jury that he had expressly invoked his right to

remain silent after being informed of his Miranda rights. He intimates that the

introduction of Exhibit 2, during the State’s case-in-chief, allowed the jury to make

an adverse inference of guilt from his post-Miranda invocation of his right to

remain silent.

      The State asserts that the rule announced in Miranda—that the government

may not use the defendant’s post-arrest, post-Miranda silence in its case-in-chief—

is not applicable here because Appellant waived his Fifth Amendment privilege to

remain silent both before and during the interview. The State points out that

Appellant signed Exhibit 2, which included the following language: “The above

legal warnings were either read by me or to me. I understand each of these rights

and agree to waive (give up) these rights and answer the following questions.”

One of the listed rights in Exhibit 2 was the right to remain silent. In addition to

the written waiver, the State points out that Appellant did not remain silent;

instead, he voluntarily answered the questions in Exhibit 2, which preceded and

followed the objectionable section in which he responded “not saying.”




                                         14
      A waiver of the right to remain silent can be expressly made, or it can be

impliedly made by the accused’s conduct. See Berghuis v. Thompkins, 560 U.S.

370, 383–85, 130 S. Ct. 2250, 2260–62 (2010); Joseph v. State, 309 S.W.3d 20,

24–27 (Tex. Crim. App. 2010). For purposes of analyzing this issue, we will

presume that the record supports the State’s position that Appellant knowingly and

voluntarily waived his right to remain silent by signing the waiver in Exhibit 2 and

by voluntarily speaking to Trooper Gonzalez. 5

      Once he has waived his right to remain silent, a defendant’s statements to

the police are admissible against him. See Joseph, 309 S.W.3d at 27. But waiver,

in this context, does not always end the inquiry regarding whether the defendant’s

constitutional rights were violated. As the Supreme Court noted in Miranda,

“where in-custody interrogation is involved, there is no room for the contention

that the privilege is waived if the individual answers some questions or gives some

information on his own prior to invoking his right to remain silent when

interrogated.”   384 U.S. at 475–76, 86 S. Ct. at 1628.            The Supreme Court

explained that “[t]he mere fact that [a defendant] answered some questions . . .

does not deprive him of the right to refrain from answering any further inquiries.”

Id. at 445, 86 S. Ct. at 1612. In short, the Court was clear that a detained suspect

5
      In his first issue, Appellant asserts that he did not “knowingly, intelligently, and
      voluntarily” waive his rights pursuant to article 38.33 of the Code of Criminal
      Procedure; however, we need not reach that issue.


                                           15
may change his mind about talking to the police “at any time prior to or during

questioning.” Id. at 473–74, 86 S. Ct. at 1627. Thus, “any waiver, express or

implied, may be contradicted by an invocation [of the privilege] at any time.”

Berghuis, 560 U.S. at 387–88, 130 S. Ct. at 2263.

      Here, Appellant intimates that his not-saying responses constituted a post-

waiver assertion of his right to remain silent, as contemplated by Miranda. The

State disagrees, asserting that Appellant’s not-saying responses were too

ambiguous to inform Trooper Gonzalez that Appellant wanted to terminate the

interview.

      In support of its position, the State relies on cases in which courts held that

the defendant had not invoked his right to remain silent in a manner sufficient to
                                                                     6
inform the police that he wanted to cut off police interrogation.        The courts in

those cases held that the police had not violated the defendant’s constitutional

rights by continuing to interrogate him. However, that is not the issue here. The

issue in this case is whether the State introduced Appellant’s assertion of his right

to remain silent as substantive evidence from which the jury could make an

adverse inference of guilt. As mentioned, the United States Supreme Court and the


6
      The State cites the following cases: Dowthitt v. State, 931 S.W.2d 244, 257 (Tex.
      Crim. App. 1996), Franks v. State, 90 S.W.3d 771, 786–87 (Tex. App.—Fort
      Worth 2002, no pet.), and Esquivel v. State, No. 04–08–00730–CR, 2009 WL
      3222626, at *11 (Tex. App.—San Antonio Oct. 7, 2009, no pet.) (mem. op., not
      designated for publication).

                                         16
Texas Court of Criminal Appeals have been clear that the State cannot use a

defendant’s post-Miranda assertion of a constitutional right as evidence of guilt.

See Doyle, 426 U.S. at 619, 96 S. Ct. at 2245; Hardie, 807 S.W.2d at 322.

      We determine, within the context of this issue, whether Appellant’s not-

saying responses were an assertion of his right to remain silent. A person “who

desires the protection of the [self-incrimination] privilege must claim it at the time

he relies on it.” Salinas v. Texas, 133 S. Ct. 2174, 2179 (2013) (internal quotations

omitted). Here, Appellant did just that. Appellant’s not-saying responses stand in

contrast to the substantive answers to the questions in Exhibit 2 that precede and

follow the objectionable portion. In addition, at the top of Exhibit 2 was printed

the warning, “You have the right to remain silent and not make any statement at all

and any statement you make may be used against you at your trial.” A layperson,

such as 20-year-old Appellant, could hardly have been clearer in expressing his

desire to exercise his right to remain silent—in the face of the potentially

incriminating questions regarding his alcohol consumption—than by answering,

“not saying.” Cf. Connecticut v. Barrett, 479 U.S. 523, 529, 107 S. Ct. 828, 832

(explaining that the words of a request for counsel will be “understood as ordinary

people would understand them”). In other words, when confronted with questions

regarding his alcohol consumption, questions that, by their nature, presented an

actual danger of incrimination, Appellant affirmatively claimed his right to remain



                                         17
silent. Thus, with respect to the topic of alcohol consumption, Appellant invoked

his right to remain silent. By expressly invoking this right, Appellant rescinded his

previous waiver of that right, at least with respect to the potentially incriminating

topic of alcohol consumption. See Berghuis, 560 U.S. at 387–88, 130 S. Ct. at

2263.

        We note courts have held that, after he has waived his right to remain silent,

a defendant’s actual silence, in response to certain questions, can be admitted

against him. See, e.g., United States v. Pando Franco, 503 F.3d 389, 397 (5th Cir.

2007) (concluding that by answering some questions, after having received his

Miranda warnings, the defendant “waived his right to have the entire conversation,

including the implicit references to his silence contained therein, used against him

as substantive evidence of guilt”); United States v. Burns, 276 F.3d 439, 442 (8th

Cir. 2002) (holding that prosecutor’s comment on defendant’s silence in response

to one question and eventual refusal to answer further questions did not violate

Doyle because they were in the context of an otherwise admissible conversation);

Anderson v. State, No. 02–05–00169–CR, 2006 WL 744272, at *2 (Tex. App.—

Fort Worth, July 12, 2006, pet. dism’d) (not designated for publication) (holding

that defendant may not selectively invoke his right to remain silent; therefore, trial

court did not abuse its discretion in admitting portion of videotape in which

defendant refused to answer specific questions while answering others). Yet, in



                                          18
other cases, courts have held that a defendant who selectively remains silent may

not have that silence used against him guilt. See, e.g., United States v. Scott, 47

F.3d 904, 907 (7th Cir. 1995) (“[A] suspect may speak to the agents, reassert his

right to remain silent or refuse to answer certain questions, and still be confident

that Doyle will prevent the prosecution from using his silence against him.”);

United States v. Canterbury, 985 F.2d 483, 486 (10th Cir. 1993) (“This court has

recognized that when a defendant answers some questions and refuses to answer

others, or in other words is ‘partially silent,’ this partial silence does not preclude

him from claiming a violation of his due process rights under Doyle.”); United

States v. Ghiz, 491 F.2d 599, 600 (4th Cir. 1974) (“[I]f, in declining to answer

certain questions, a criminal accused invokes his fifth amendment privilege or in

any other manner indicates he is relying on his understanding of the Miranda

warning, evidence of his silence or of his refusal to answer specific questions is

inadmissible.”).

      This case, however, is distinguishable from any of these cases. Here, to

prove Appellant’s guilt, the State did not rely on Appellant’s actual silence or on

an oblique reference to Appellant’s refusal to answer a question; instead, the State

introduced and relied on Appellant’s actual spoken words used to invoke his post-

Miranda right to remain silent with respect to the topic of alcohol consumption.

This is an important distinction. As the Supreme Court has noted, silence is



                                          19
“insolubly ambiguous.”      Doyle, 426 U.S. at 617, 96 S. Ct. at 2244.            Here,

Appellant was not silent; he expressly asserted his right to remain silent in

response to questions posing a real danger of incrimination.           Unlike silence,

Appellant’s express assertion was not “insolubly ambiguous.”

       We also observe that the record shows the State manifestly intended to use

Appellant’s invocation of Appellant’s right to remain silent as evidence of his

guilt. At the hearing on Appellant’s objections to the exhibit, the State revealed it

would use Exhibit 2 to demonstrate Appellant’s “deceptiveness” as shown by his

refusal to provide answers to the questions regarding his alcohol consumption.

       The State’s manifest intent to use Appellant’s assertion of his right to remain

silent, that is, his not-saying responses, as evidence of his guilt, came to fruition in

its questioning of Trooper Gonzalez, immediately following admission Exhibit 2

into evidence:

       [The State:] Trooper Gonzalez, you testified before we broke that you read

the defendant his Miranda warnings?

       A. Yes.

       Q. And what was the defendant’s response?

       A. That he would talk to me.

....

       [The State:] Now, I want to skip down to the question: Have you been
       drinking? Did you ask the defendant if he had been drinking?

                                          20
       A. Yes.

       Q. And what was his response to you?

       A. Not saying anything to that one.

       Q. Not saying anything to that one. And you had asked him what he
       had been drinking?

       A. Yes.

       Q. And what was his response?

       A. Not saying.

       Q. Trooper, earlier when you asked him how much he had to drink,
       what was his response?

       A. Two to three beers.

       Q. And when you asked him at the station, was it different?

       A. Yes.

       Q. Did you feel that he was being deceptive with you?

       [The Defense]: Objection to leading and calls for speculation.

       THE COURT: Sustained.

....

       [The State:] Did you ask the defendant what was the time of his last
       drink?

       A. Yes.

       Q. And what was his response to your question?

       A. Not saying.

       Q. Is that a question that you previously asked the defendant?


                                         21
      A. Yes.

      Q. Was it a different response?

      A. Yes.

      In its questioning, the State compared and contrasted Appellant’s post-

Miranda, not-saying responses to his earlier pre-Miranda responses in which he

had admitted to drinking two or three beers. The State’s questioning conveyed that

Appellant’s refusal to respond to Trooper Gonzalez’s questions regarding his

alcohol consumption, after he had been arrested for driving while intoxicated and

informed of his Miranda rights, was indicative of Appellant’s deceptiveness. This

sent a message to the jury that Appellant, by his deceptiveness, was hiding

something incriminating regarding his alcohol consumption when he affirmatively

asserted his Fifth Amendment privilege. In other words, the State used Appellant’s

assertion of his right to remain silent, not only as evidence to discredit Appellant,

but as substantive evidence from which Appellant’s guilt could be inferred.

      In sum, regardless of whether the not-saying assertions were sufficient to cut

off the State’s questioning of Appellant, the State was not permitted to use those

assertions—which constituted Appellant’s invocation of his constitutional right to

remain silent with respect to the topic of alcohol consumption—as evidence from

which the jury could infer Appellant’s guilt. See Doyle, 426 U.S. at 619, 96 S. Ct.

at 2245; Hardie, 807 S.W.2d at 322.           We conclude that the admission into



                                         22
evidence of Appellant’s not-saying responses, that is, the admission of his assertion

of his right to remain silent with respect to his alcohol consumption, was

prohibited because it violated Appellant’s right to due process. See Doyle, 426

U.S. at 619, 96 S. Ct. at 2245; Hardie, 807 S.W.2d at 322. Thus, we hold that the

trial court abused its discretion in overruling Appellant’s objections to the

admittance of those portions of Exhibit 2 into evidence.

C.    Harm Analysis

      Because the error in admitting State’s Exhibit 2 impinged on Appellant’s

constitutional rights, Texas Rule of Appellate Procedure 44.2(a) applies. See TEX.

R. APP. P. 44.2(a); Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim. App.

2011); see also; Wyborny v. State, 209 S.W.3d 285, 292 (Tex. App.—Houston [1st

Dist.] 2006, pet. ref’d) (applying Rule 44.2(a) constitutional harm analysis to error

of overruling defendant’s objections to State’s questions and evidence that served

to comment on his right to remain silent). Rule of Appellate Procedure 44.2(a)

requires reversal in constitutional error cases “unless the court determines beyond a

reasonable doubt that the error did not contribute to the conviction or punishment.”

TEX. R. APP. P. 44.2(a). This standard “should ultimately serve to vindicate the

integrity of the fact-finding process rather than simply looking to the justifiability

of the fact-finder’s result.” Snowden, 353 S.W.3d at 820.




                                         23
      In conducting our analysis, we must focus “not upon the perceived accuracy

of the conviction or punishment, but upon the error itself in the context of the trial

as a whole, in order to determine the likelihood that it genuinely corrupted the fact-

finding process.” Id. at 819. We focus not on “whether the jury verdict was

supported by the evidence”; rather, we focus on whether “the error adversely

affected the integrity of the process leading to the conviction.” Langham v. State,

305 S.W.3d 568, 582 (Tex. Crim. App. 2010) (quotation omitted). We focus not

on the weight of the other evidence of guilt, but rather on whether the error at issue

might possibly have prejudiced the jurors’ decision-making. Pollard v. State, 255

S.W.3d 184, 190 (Tex. App.—San Antonio 2008), aff’d, 277 S.W.3d 25, 33 (Tex.

Crim. App. 2009). Error is not harmless “simply because the reviewing court is

confident that the result the jury reached was objectively correct.” Snowden, 353

S.W.3d at 819. Nonetheless, the presence of “overwhelming evidence of guilt is a

factor to be considered.” Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App.

2002). Other factors to consider may include the nature of the error, whether it

was emphasized by the State, the probable implications of the error, and the weight

the jury would likely have assigned to it in the course of its deliberations.

Snowden, 353 S.W.3d at 822. These are neither exclusive considerations nor even

necessary considerations in every case. See id.




                                         24
      “At bottom, an analysis for whether a particular constitutional error is

harmless should take into account any and every circumstance apparent in the

record that logically informs an appellate determination whether ‘beyond a

reasonable doubt [that particular] error did not contribute to the conviction or

punishment.’” Id. (quoting TEX. R. APP. P. 44.2(a)). In making our determination,

we examine the entire record in a neutral, impartial and even-handed manner and

do not make our examination “in the light most favorable to the verdict.”

Hernandez v. State, 80 S.W.3d 63, 65 (Tex. App.—Amarillo 2002, no pet.)

(quoting Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989)).

      We begin the analysis by reviewing the evidence of Appellant’s guilt. To

prove that Appellant committed the offense of driving while intoxicated, the State

had to prove that Appellant was intoxicated while operating a motor vehicle in a

public place.   See TEX. PENAL CODE ANN. § 49.04(a) (Vernon Supp. 2014).

Intoxicated is defined as “not having the normal use of mental or physical faculties

by reason of the introduction of alcohol” or “having an alcohol concentration of

0.08 or more.” TEX. PENAL CODE ANN. § 49.01(2)(A)–(B) (Vernon 2011).

      We agree with the State that the evidence, supporting an inference that

Appellant was intoxicated, when viewed in isolation, was strong. Officers Hodges

and McCullough testified that Appellant was driving in an erratic dangerous




                                        25
manner on the beach. Appellant had been speeding and going the wrong direction;

he nearly hit the officers, a parked truck, and several pedestrians.

      Officer McCullough’s and Trooper Gonzalez’s testimony indicated that (1)

Appellant had blood-shot, red, watery eyes; (2) he smelled of alcohol; and (3) he

had slurred speech. Appellant admitted to the officers that he had drunk two or

three beers that day and that he had started drinking in the morning. The time of

the stop was 4:00 p.m. When asked by Trooper Gonzalez, Appellant estimated the

time to be around 1:30 p.m.

      Trooper Gonzalez testified regarding each of the field-sobriety tests he

administered to Appellant. He described each test in detail and how Appellant had

performed on each test, pointing out Appellant’s deficiencies. Trooper Gonzalez

indicated that Appellant had exhibited a sufficient number of clues on the field-

sobriety tests, which included the HGN, the walk-and-turn, and the one leg stand,

to indicate that Appellant was intoxicated.        According to Trooper Gonzalez,

Appellant had exhibited six clues of intoxication on the HGN test, seven clues on

the walk-and-turn, and two clues on the one-leg stand test. Trooper Gonzalez

testified that Appellant had performed deficiently on the finger-count test. The

scene video of Appellant’s performance of the tests and his interaction with

Trooper Gonzalez was also admitted into evidence and viewed by the jury.




                                          26
      The defense also presented evidence. The strength of the field-sobriety tests,

particularly, the HGN test, was diminished by Dr. Farmer’s testimony.            She

testified that she was Appellant’s optometrist. She had examined Appellant two

months before his arrest for DWI. In her examination, Dr. Farmer had diagnosed

Appellant with amblyopia, otherwise known as lazy eye. She stated that she had

observed in her examination that the amblyopia caused Appellant to have

naturally-occurring nystagmus in his eyes when tracking a target. She testified that

she was not surprised that Trooper Gonzalez saw nystagmus in Appellant’s eyes.

Dr. Farmer also testified that Appellant’s eye condition could affect his

performance of the walk-and-turn test because it affects his depth perception and

balance.   The defense also questioned whether the performance of the field-

sobriety tests on a sunny, sandy beach affected the results.

      The State asserts that its strong evidence pointing to Appellant’s intoxication

“damaged appellant more than any words” found in Exhibit 2. However, our

inquiry is not one simply of weight or sufficiency; rather, we determine the

likelihood that the admission into evidence of Appellant’s refusal to answer

corrupted the fact-finding process, affected the integrity of the process leading to

the conviction, or prejudiced the jurors’ decision-making.       See Snowden, 353

S.W.3d at 819; Langham, 305 S.W.3d at 582; Harris, 790 S.W.2d at 586; see also

Whitehead v. State, 437 S.W.3d 547, 553 (Tex. App.—Texarkana 2014, pet. ref’d)



                                         27
(“The error in this case violates the constitutional right against self-incrimination,

the violation of which adversely affects the integrity of the process leading to a

conviction.”).

          We next turn to whether the State emphasized the error. The record shows

that the State referenced Exhibit 2 during its opening statement, during the

presentation of its case-in-chief, and during closing. In its opening statement, the

State referenced Exhibit 2 by stating: “At that point, [Trooper Gonzalez and

Appellant] make it into the station. There are some questions that are asked of Mr.

Friend, and that’s some evidence that you will be able to see over the course of this

trial.”

          The State introduced the contents of Exhibit 2 into evidence twice during

trial. Exhibit 2 itself was admitted into evidence after the trial court overruled

Appellant’s objections to it.      Then, Trooper Gonzalez testified regarding the

exhibit’s content. It was during its examination of Trooper Gonzalez that the State

characterized Appellant’s refusal to answer the questions regarding his alcohol

consumption as being deceptive. The State contrasted Appellant’s post-Miranda

refusal to answer the questions regarding whether he had been drinking with his

earlier pre-Miranda responses.

          The State’s last reference to Appellant’s refusal to answer occurred during

closing argument. The State told the jury that there are “confessions” in the



                                           28
evidence. The State pointed out that Appellant refused to provide a breath or blood

specimen, even though he knew that his refusal was admissible and could be used

to prosecute him. The State pointed out that the video shows Appellant rereading

the DIC-24 warnings and pondering whether he should submit to a breath test

before he ultimately refused to give a specimen. The State then argued as follows:

       Mr. Friend is thinking of his options and at one point he says, deny it,
       right, because if it’s point—and he stops. Why? Because he is
       worried about it. He is worried about it. He ponders it and he says, I
       am going to keep that evidence. He is keeping that evidence from
       you.

       And if you want more evidence of that, then just look at this State’s
       Exhibit No. 2. He answers all of these questions. His Miranda
       warnings were read to him. He signed it. There is a signature. When
       did you last eat? What did you eat? Have you been drinking?

       Now, it went from two or three drinks to not saying anything.

       [The defense]: We object at this point in time.

       [The State]: Not saying anything.

....

       [The defense]: We’re objecting pursuant to the Fifth Amendment of
       the United States Constitution, Article 1, Section 10 of the Texas
       Constitution.

       THE COURT: Still overruled.

       [The defense]: Thank you.

       [The State]: Not saying anything to that one. Why not? Because he
       knows what that is going to come back as.




                                           29
      Implicit in the State’s remarks is its suggestion that Appellant refused to

answer the questions only because he had something incriminating to hide. If he

had nothing to hide, he would have answered. By its argument, the State invited

the jurors to ask themselves what Appellant was hiding and to infer from his post-

Miranda refusal that he was hiding the fact that he was intoxicated. The jury may

have been left with the impression that, once he was aware of his Miranda rights,

Appellant had used those rights to hide evidence. And, when the trial court

overruled Appellant’s objections, the jurors may have been left with the impression

that it was permissible for them to infer guilt from Appellant’s not-saying

responses.   See Wyborny, 209 S.W.3d at 292 (recognizing that overruling of

objections to State’s evidence implicating appellant’s silence left jury with

impression that it was free to draw inferences of guilt from such silence); Bhakta v.

State, 981 S.W.2d 293, 296 (Tex. App.—San Antonio 1998, pet. ref’d) (noting that

trial court’s overruling of objection to prosecutor’s comment left jury with

impression that it was acceptable to draw inference of guilt from appellant’s

silence).

      The State asserts that, “to secure a conviction,” it did not “rely heavily” on

Appellant’s refusal to answer nor did it emphasize the refusal in its closing

argument. It asserts that it instead relied on the witnesses’ testimony and the scene

video. We agree that the State relied on this evidence. However, the State also



                                         30
relied on Appellant’s refusal to answer the questions regarding his alcohol

consumption. The evidence of Appellant’s refusal to answer stood in contrast to

the scene evidence of Appellant’s intoxication. This contrast was highlighted by

the State during the presentation of its evidence and during its closing argument.

While it may not have occupied much space in the record, it sent a significant

message to the jury, permitting it to infer Appellant’s guilt from his post-Miranda

assertion of his right to remain silent.

      It is not easy to determine what weight a juror would place on an error such

as the one in this case. The contested issue at trial was whether Appellant was

intoxicated. The defense asserted that the State’s scene evidence did not prove,

beyond a reasonable doubt, that he was intoxicated.

      The record shows that the jury received the case at 10:42 a.m. Shortly after

11:00 a.m., the record reflects that the jury requested to see (1) Appellant’s

medical records from Dr. Farmer, (2) the DIC-24 form, and (3) the scene video.

The jury began watching the 52-minute scene video after lunch, around 1:00 p.m.

      At 3:40 p.m. the jury sent a communication to the judge asking to see

Exhibit 2. The note stated, “[W]e would like the Troopers report [sic] that shows

the responses that Erik gave written by Trooper Gonzalez.” The record reflects

that the jury returned its verdict, finding Appellant guilty, at 4:11 p.m.




                                           31
      While we do not know why the jury requested Exhibit 2, we do know that it

was the final piece of evidence requested by the jury. At the time of the request,

the jury had already been engaged in deliberations for several hours. The jury had

received the other items of evidence four-and-one-half hours earlier, before the

majority of its deliberation. We also know that, thirty minutes after requesting

Exhibit 2, the jury found Appellant guilty. 7 At most, the juxtaposition of the

request and the verdict indicates that the error served as the tipping point for the

jury’s guilty verdict. At a minimum, it raises a question whether the jury placed

some weight on the error.

      Given the record, we are unable to conclude, beyond a reasonable doubt, that

the error did not contribute to Appellant’s conviction. We hold that the error was

harmful. See TEX. R. APP. P. 44.2(a).

      We sustain Appellant’s second issue.8




7
      The State avers in its brief that it is unknown whether the jury ever received
      Exhibit 2. The State points out that the trial court had responded in writing to the
      jury when it had requested and received the other pieces of evidence. We note that
      the jury charge informed the jury as follows: “You may, if you wish, examine
      exhibits. If you wish to examine an exhibit, the foreperson will inform the Court
      and specifically identify the exhibit you wish to examine. Only exhibits that were
      admitted into evidence may be given to you for examination.” We have no reason
      to believe that the trial court did not honor the instruction and provide Exhibit 2 to
      the jury as it had provided the other exhibits.
8
      Because of our disposition of issue two, we need not address Appellant’s
      remaining issues. See TEX. R. APP. P. 47.1.

                                            32
                                    Conclusion

      We reverse the judgment of the trial court and remand for a new trial.




                                             Laura Carter Higley
                                             Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




                                        33
