      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


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                                         NO. 03-01-00256-CR
                                         444444444444444


                               Joseph Montgomery Reid, Appellant

                                                    v.

                                    The State of Texas, Appellee



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         FROM THE COUNTY COURT AT LAW OF CALDWELL COUNTY
        NO. 27,271, HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING
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                Appellant Joseph Montgomery Reid was convicted of driving while intoxicated. See

Tex. Pen. Code Ann. § 49.04(a) (West Supp. 2002). The court assessed punishment at confinement

in the county jail for 120 days, probated for twenty-four months, and a fine in the amount of $800.

By five points of error, appellant appeals the conviction, alleging that the trial court erred in admitting

(1) incriminating statements made by appellant at the scene of the traffic stop, (2) a videotape

depicting appellant at the scene of the stop and at the jail following his arrest, and (3) a medical

report. We conclude that the trial court erred in admitting that portion of the videotape depicting

appellant’s invocation of his right to counsel and the subsequent questioning of appellant following

this invocation. Because we determine the error was not harmless beyond a reasonable doubt, we

reverse the conviction and remand for a new trial.
                                         BACKGROUND

               During the early morning hours of June 10, 1999, Lockhart Police Officer Anastacio

Cruz and his partner, Officer Armando Val Verde, were pursuing a speeding truck in Caldwell

County. Eventually, they lost sight of the truck. In the nearby vicinity, however, the officers

encountered a similar looking truck that was not speeding; appellant was later identified as the driver

of this vehicle. Upon witnessing the truck make a left-hand turn without a turn signal, Officer Cruz

activated his overhead lights and pulled the driver over. While speaking to appellant, Officer Cruz

observed that appellant’s eyes were watery, his speech was slurred, and he had a strong odor of

alcohol on his breath. In response to questioning, appellant admitted to having had two beers before

leaving his office. Officer Cruz then administered field sobriety tests, which appellant performed

poorly. Responding to Officer Cruz’s request for assistance, Officer Michael Hart appeared and

administered a horizontal gaze nystagmus (HGN) test on appellant; Officer Hart’s observations

indicated to him that appellant was intoxicated. Most of the events described above were recorded

on video by a camera attached to Officer Cruz’s vehicle.

               Officer Cruz placed appellant under arrest and transported him to the county jail,

where he was also videotaped. Once there, appellant alleged that he had been injured by the

handcuffs and requested medical attention. Appellant was subsequently transported to the local

hospital where he was examined by a doctor and released.

               Before trial, appellant filed a motion to suppress, among other things, all written and

oral statements made by appellant to law enforcement officers in connection with this case, claiming

that the statements were obtained in violation of appellant’s Fourth, Fifth, Sixth, and Fourteenth




                                                  2
Amendment rights under the United States Constitution. The trial court denied the motion.

Following a jury trial, appellant was convicted of driving while intoxicated.


                                           DISCUSSION

               By his first two points of error, appellant complains of the trial court’s denial of his

motion to suppress incriminating statements made at the scene of the traffic stop, which, he argues,

were the product of custodial interrogation. Although appellant failed to specify which incriminating

statements he found objectionable, see Tex. R. App. P. 38.1(h) (brief must include appropriate

citations to record), a review of the record reveals that, in response to questioning by Officer Cruz,

appellant admitted to consuming two beers while working late at his office. Assuming this admission

forms the basis of appellant’s points of error, we find no error in the trial court’s admission of this

evidence.

                Appellant argues that the incriminating statements were the result of a custodial

interrogation, and appellant should have been apprised of his Miranda rights before the questioning.

See Miranda v. Arizona, 384 U.S. 436, 477 (1966) (protections against self-incrimination must be

given “when the individual is first subjected to police interrogation while in custody at the station or

otherwise deprived of his freedom of action in any significant way”); see also Tex. Code Crim. Proc.

Ann. art. 38.22, § 3 (West Supp. 2002). Because he was not advised of his rights, he contends his

statements should have been excluded from evidence by the trial court. We disagree with appellant’s

characterization of his exchange with Officer Cruz as a custodial interrogation.

                In reviewing appellant’s contentions, we defer to the trial court’s factual

determinations but review de novo the court’s application of law to those facts. Guzman v. State, 955


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S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellant argues that the presence of three patrol cars at

the scene of the stop indicated that appellant was in police custody and not free to leave.

                Generally, persons detained pursuant to a routine traffic stop are not in custody for

purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 440 (1984); State v. Stevenson, 958

S.W.2d 824, 828 (Tex. Crim. App. 1997). A noncustodial detention, however, may escalate into

custodial interrogation based on subsequent events. Stevenson, 958 S.W.2d at 828. Both Officer

Cruz and appellant testified at the suppression hearing. Their recollection of the presence of

additional patrol vehicles at the time of the stop differed. The record does not disclose how many

patrol vehicles were in the vicinity when Officer Cruz began questioning appellant. Even if all three

vehicles were present at the time appellant admitted to drinking two beers, however, the facts do not

establish that the detention escalated into a custodial interrogation at the time the statements were

made.

                Officer Cruz testified that the reason he stopped appellant was because appellant had

failed to use his turn signal. The detention occurred on a public street. Appellant was not physically

restrained during the detention. Although the record does not disclose how many vehicles were

present during Officer Cruz’s initial questioning of appellant, it is clear that appellant was confronted

initially by Officers Cruz and Val Verde and then later by Officer Hart, who administered the HGN

test. Upon questioning appellant, Officer Cruz observed some indications of alcohol consumption:

watery eyes, slurred speech, and a strong odor of alcohol on appellant’s breath. According to Officer

Cruz’s testimony, although he believed appellant had consumed alcohol, he did not conclude that

appellant was intoxicated until after appellant performed the field sobriety tests and the HGN test.

Only then did Officer Cruz place appellant under arrest. We hold that these circumstances did not

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create a “police-dominated” atmosphere and Officer Cruz’s detention of appellant did not escalate

into a custodial interrogation at the time appellant admitted to drinking two beers. See Berkemer,

468 U.S. at 442 (field sobriety testing and questioning did not convert roadside detention into arrest).

We overrule appellant’s first and second points of error.

                By his third point of error, appellant complains that the trial court erred in admitting

the entire videotape into evidence and playing it for the jury. He argues that the videotape includes

the same incriminating statements—i.e., he drank two beers while at work before he was

stopped—that he found objectionable in points of error one and two. The basis for appellant’s

complaint is again premised on his assertion that he was in custody at the time he made those

statements and consequently, should have been advised of his rights before he was interrogated.

                We have already concluded that appellant’s statements to Officer Cruz were not the

product of a custodial interrogation. Accordingly, the trial court did not err in admitting that portion

of the videotape depicting the roadside detention and questioning of appellant. See id. We overrule

appellant’s third point of error.

                By his fifth point, appellant argues the trial court committed error by overruling his

hearsay objection to the introduction of hospital records. These records were the result of a hospital

emergency room visit by appellant following his complaints that he suffered injuries from the

handcuffs placed on his wrists. The hospital report includes a handwritten comment by the treating

physician indicating that appellant “can come back when sober if pain persists,” suggesting that

appellant was intoxicated. The records were introduced through the testimony of Janice Ohnheiser,

the director of records for Seton Edgar B. Davis Hospital in Luling. Prior to the admission of the

records, appellant objected based on the illegibility of the report and argued that it called for legal

                                                   5
conclusions from the doctor that he was not qualified to express. The trial court overruled the

objections and admitted the records.

                On appeal, appellant complains that the report constituted hearsay and that it was so

prejudicial and inflammatory that it was error to admit it. These complaints on appeal do not comport

with appellant’s objection during the trial, and he has therefore failed to preserve error for our review.

See Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990).

                Even if appellant had preserved his complaint, however, the report was admissible

under the business records exception to the hearsay rule. See Tex. R. Evid. 803(6). Rule 803(6)

expressly allows the admission into evidence of opinions and diagnoses that are written into a

business record by any person who qualifies under the rule to make those entries. Luxton v. State,

941 S.W.2d 339, 342 (Tex. App.—Fort Worth 1997, pet. ref’d). Ohnheiser testified that she was

the custodian of records for the Seton B. Edgar Davis Hospital, that the report was kept in the

regular course of business of the hospital, that an employee or representative of the hospital created

the report or transmitted the information, that the report was created at or near the time of the event,

and that the employee or representative who made the entries had actual knowledge of the event.

No evidence was presented indicating a lack of trustworthiness of the report. Thus, the State satisfied

the requirements under rule 803(6), and the report was properly admitted under the business

exception to the hearsay rule.

                We also cannot agree that the report was so prejudicial that it was error to admit it.

Rule 403 of the Texas Rules of Evidence provides that relevant evidence is admissible, unless the

probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Tex.

R. Evid. 403; Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on rehearing).

                                                    6
The trial court is given wide latitude, and this Court should not reverse the trial court’s ruling if the

ruling is within a reasonable zone of disagreement. Montgomery, 810 S.W.2d at 391. The report

included one phrase that appellant finds objectionable: “can come back when sober if pain persists.”

The jury, however, had already heard the testimony of Officer Cruz, which we held was properly

admitted. Officer Cruz testified that he administered two field sobriety tests, and that appellant failed

them. Based on his observations, Officer Cruz believed appellant was intoxicated. The jury also

viewed appellant on videotape and heard appellant testify that he had consumed two beers while

working late the evening he was stopped. In addition, the State presented the testimony of Officer

Hart, who administered the HGN test to appellant and testified that appellant failed the test. The

complained-of phrase in the report was cumulative of other evidence indicating intoxication. Thus,

we cannot conclude that the probative value of the report was substantially outweighed by the danger

of unfair prejudice. Appellant’s fifth point is overruled.

                By his fourth point, appellant urges that the trial court erred in playing certain portions

of the videotape before the jury. Specifically, appellant directs this Court to the portion of the video

in which he invoked his right to counsel and refused to answer any more questions.

                The State asserts that appellant waived this point of error by affirmatively stating, “We

have no objection,” when the video was offered into evidence before the jury. Appellant filed a

pretrial motion to suppress, alleging a violation of his Fifth Amendment rights and requesting

suppression of any evidence obtained in violation of those rights. The trial court overruled the

motion. When a court overrules a motion to suppress evidence, the defendant need not subsequently

object to the admission of the same evidence at trial to preserve error. Fierro v. State, 969 S.W.2d

51, 55 (Tex. App.—Austin 1998, no pet.). This pretrial objection is waived, however, if the

                                                    7
defendant later affirmatively asserts that he has no objection to the admission of the same evidence.

Id.

               In this case, after the pretrial hearing, the trial court declared that the videotape would

be deemed admissible. During the trial, the State “reoffered” the video and moved to publish it to

the jury. Appellant responded, “I believe [the video is] already admitted. We have no objection.”

The trial court then admitted the video into evidence. Immediately after the trial court announced

that the video was admitted, appellant added, “[M]ay I state for the record, we have no objection

other than those previously.” The trial court responded, “Understood, and those objections are

overruled, sir.” These facts are analogous to those in Fierro v. State, in which this Court held that

although the defendant initially asserted he had no objection to the admission of a videotape, he did

not waive error because immediately after his assertion, he made reference to the previous objection.

Id. at 55. Like Fierro, the appellant in this case alluded to his previous objection to the admission of

the video before the tape was played for the jury. And the trial court acknowledged that it

“understood” appellant’s objections and overruled them. Under the circumstances, we decline to hold

that the claimed error was waived.

               Having determined that appellant preserved this point of error for review, we address

whether the trial court erred in admitting the objectionable portion of the videotape into evidence.

We review a trial court’s decision not to suppress evidence for an abuse of discretion. Williams v.

State, 535 S.W.2d 637, 639-40 (Tex. Crim. App. 1976). Law enforcement officers must cease

questioning a suspect who clearly asserts his right to have counsel present during custodial

interrogation. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Miffleton v. State, 777 S.W.2d 76,

79 (Tex. Crim. App. 1989); Sontag v. State, 841 S.W.2d 889, 893 (Tex. App.—Corpus Christi 1992,

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pet. ref’d). Continued questioning after an accused has requested an attorney violates his rights, and

responses to the continued interrogation are presumptively inadmissible. Miffleton, 777 S.W.2d at

81; Sontag, 841 S.W.2d at 893. Furthermore, “a recorded verbal assertion of these rights raises an

inference of guilt, and cannot be disclosed to the jury.” Sontag, 841 S.W.2d at 893. As the Supreme

Court explained, “[I]t is impermissible to penalize an individual for exercising his Fifth Amendment

privilege when he is under police custodial interrogation. The prosecution may not, therefore, use

at trial the fact that he stood mute or claimed his privilege in the face of accusation.” Miranda, 384

U.S. at 468 n.37.

               In this case, after appellant was taken to jail, Officer Cruz properly read appellant his

Miranda rights, asked him to provide a breath specimen, and furnished the statutory warnings

attendant with the request. See Tex. Transp. Code Ann. § 724.015 (West Supp. 2002). When

appellant refused to provide a breath specimen, Officer Cruz asked appellant to sign a form

memorializing his refusal. Appellant refused to sign the form and added, “I’m not gonna sign

anything until my attorney gets here.” The officer responded, “So, you refuse to sign?” And

appellant again stated, “I refuse to do everything.” A little later in the video, Officer Cruz informed

appellant that he would have another opportunity to perform field sobriety tests in the jail. Appellant

responded, “No. I don’t want to. Let my attorney take care of all this.”1 Following these assertions

by appellant, Officer Cruz read a series of questions off of a form to appellant. Appellant refused to



  1
       We note that police officers are not prohibited from seeking an accused’s breath sample or from
attempting to obtain a recording of an accused performing field sobriety tests, even after the accused
has invoked his right to counsel. See Miffleton v. State, 777 S.W.2d 76, 81 (Tex. Crim. App. 1989).
It is the admission into evidence of appellant’s invocation of his right to counsel following these
requests that we review for error.

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answer any of the questions, stating, “I’m not answering one more word. Nothing.” Officer Cruz

nevertheless proceeded in asking the questions. Although the series of questions included routine,

information gathering questions, they also included questions designed to elicit incriminating

information: “Have you been drinking? What? How much? Last drink?” Thus, not only were the

jurors allowed to hear appellant assert his right to counsel, but they also heard the continued

questioning of appellant following this assertion and observed appellant’s refusal to respond to the

continued interrogation. 2 We therefore hold that the trial court erred in allowing the jury to consider

the portion of the videotape that included appellant’s invocation of his right to counsel, the officer’s




   2
      The State contends that only two to four minutes of the video were played after appellant’s
invocation of his constitutional rights. Because no transcript of the video is included in the record
and because appellant does not specify what portions of the video were played for the jury, the State
argues that we cannot discern the content of the video viewed by the jury and appellant has therefore
failed to preserve error. Our review of the record included viewing the entire videotape along with
the transcript of the trial. It is apparent from defense counsel’s objections during the trial that the
jurors were, at the very least, allowed to hear appellant invoke his right to counsel and his right to
remain silent: “Your Honor, at this point we would enter an objection to any further evidence on the
videotape. Mr. Reid has indicated he does not wish to answer any questions after being Mirandized
and the officer is continuing to ask questions of him. We object to any further video.” The trial
court’s admission of appellant’s invocation of his right to counsel, alone, is error. See Hardie v.
State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991) (evidence of accused invoking right to counsel
may improperly be considered as inference of guilt). Nevertheless, it is evident that the jurors were
allowed to hear more than appellant’s request for counsel. After the trial court overruled the
objection, it asked how much more of the video would be played. The State answered, “Just a couple
of minutes. It’s almost over, your Honor.”

       The State also contends that appellant waived error as to the admission of appellant’s invocation
of his constitutional rights because defense counsel did not object until after the jury was allowed to
hear appellant invoke his rights. As we explained above, because appellant had already asserted his
objections in his motion to suppress, he did not need to reassert his objections to the same evidence
at trial, and, in the context of this record, defense counsel’s statement, “No objection,” did not waive
this preservation of error.

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continued questioning following appellant’s invocation of his right, and appellant’s exercise of his

right to remain silent in response to the questioning.

                Because this error is constitutional in nature, we must now conduct a harm analysis

under Texas Rule of Appellate Procedure 44.2. See Mallory v. State, 752 S.W.2d 566, 570 (Tex.

Crim. App. 1988); Hardie v. State, 787 S.W.2d 89, 91 (Tex. App.—Dallas 1990), aff’d, 807 S.W.2d

319 (Tex. Crim. App. 1991). We will reverse appellant’s conviction unless we determine beyond a

reasonable doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a). In

conducting this analysis, we must consider (1) the source of the error, (2) the nature of the error, (3)

the extent the error was emphasized by the State, (4) its probable collateral implications, (5) the

probable weight a juror would place upon the error, and (6) whether declaring the error harmless

would encourage the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex.

Crim. App. 1989). We must isolate the error and its effect and ask whether a rational trier of fact

might have reached a different result if the error had not occurred and its effects had not resulted.

Id. at 588.

                In this case, the source of the error was the State’s offer of and the trial court’s

admission of the portion of the videotape depicting appellant invoking his right to counsel, the

subsequent questioning of appellant by Officer Cruz, and appellant’s exercise of his right to remain

silent. The error was constitutional in nature. The State did not refer to appellant’s invocation of his

rights or his refusal to respond to Officer Cruz’s subsequent questioning in any way, except to point

out during closing arguments that the videotape revealed appellant’s belligerent attitude.

Nevertheless, the probable implication of appellant’s invocation of his rights and refusal to answer




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is that the jury may have improperly considered them as evidence of guilt. Hardie, 807 S.W.2d at

322.

                Although it is difficult to gauge how much weight the jury might have placed on the

erroneously admitted evidence, we may consider other evidence of guilt in our analysis. Harris, 790

S.W.2d at 588. The State’s evidence consisted of Officer Cruz’s testimony regarding appellant’s

conduct and performance of field sobriety tests as well as his observations of slurred speech, the smell

of alcohol on appellant’s breath, and watery eyes; Officer Hart’s testimony regarding the results of

the HGN test he administered to appellant; and the videotape depicting appellant’s performance of

the field sobriety tests and his general conduct during the stop and at the jail. Although appellant was

able to stand, his performance on the field sobriety tests was poor. Officer Val Verde and the

booking officer at the jail also testified about appellant’s conduct and that it indicated intoxication.

In addition, the State presented the medical report, in which the treating physician suggested that

appellant was intoxicated when he arrived at the hospital. Furthermore, the jury heard the testimony

of appellant, who did not dispute that he had imbibed alcohol the evening he was stopped but claimed

to have only had two beers. Although the State presented compelling evidence of guilt, we conclude

that it is not so overwhelming that the error’s effect upon the jury’s function in determining the facts

dissipated. Id. at 587. As the Court of Criminal Appeals has explained:


        T]he reviewing court should focus not on the weight of the other evidence of guilt,
        but rather on whether the error at issue might possibly have prejudiced the juror’s
        decision-making . . . . If the error was of a magnitude that it disrupted the juror’s
        orderly evaluation of the evidence, no matter how overwhelming it might have been,
        then the conviction is tainted. Again, it is the effect of the error and not the other
        evidence that must dictate the reviewing court’s judgment.




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Id. at 587-88. The jury in this case was asked to consider appellant’s conduct throughout the

videotape. We cannot say that the jury’s consideration of appellant’s invocation of his constitutional

rights did not taint his conviction. See Hardie, 807 S.W.2d at 322 (evidence of accused invoking his

right to counsel may improperly be considered as evidence of guilt).

               As to the last factor of our harm analysis, case law clearly prohibits the admission of

the type of evidence that was admitted here—i.e., appellant’s invocation of his constitutional rights.

We would be remiss in declaring the error harmless and possibly encouraging the repetition of the

error. Accordingly, appellant’s fourth point of error is sustained.


                                          CONCLUSION

               We hold that the trial court erred in allowing the jury to consider the portion of the

videotape depicting appellant invoking his right to counsel, the continued questioning by the officer

following appellant’s assertion of his constitutional right, and appellant’s exercise of his right to

remain silent. We further hold that this error was not harmless beyond a reasonable doubt.

Accordingly, we reverse appellant’s conviction and remand for a new trial.




                                               Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Reversed and Remanded

Filed: April 18, 2002

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Do Not Publish




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