      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-02-00708-CR



                                  Oscar T. Castillo, Appellant

                                                 v.

                                  The State of Texas, Appellee




             FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
           NO. 62,726, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Oscar T. Castillo of driving while intoxicated, second

offense. Tex. Pen. Code Ann. §§ 49.04(a), .09(a) (West 2003). The court assessed his punishment

at incarceration for one year and a $650 fine, but suspended imposition of sentence and placed him

on community supervision. In his only point of error, appellant contends the court erred by

overruling his objection to the introduction of a videotape made at the county jail following his

arrest. We will overrule this contention and affirm the conviction.

               On the night in question, appellant’s car ran into another car that was stopped for a

red light. Appellant was uncooperative with the emergency medical personnel called to the scene

of the accident and later refused treatment at the hospital. He was then arrested for driving while

intoxicated and transported to the jail. There, after booking, officers attempted to take him to the

video room to conduct sobriety tests. On the videotape, appellant can be heard outside the room
saying, “I am not going to do any of your tests.” The officers can be heard encouraging him to enter

the video room and one tells him that he has no choice but to cooperate. Appellant entered the room

with three officers, two of whom were holding his arms behind his back. He refused to stand in the

spot indicated and after less than a minute, he was allowed to leave the room.1

               Appellant contends the videotape was inadmissible in its entirety because his presence

in the video room was physically coerced and involuntary. He argues that, under the circumstances,

the introduction of the tape violated the constitutional guarantees against unreasonable searches and

seizures and self-incrimination, and denied him due process and due course of law. See U.S. Const.

amends. IV, V, XIV; Tex. Const. art. I, §§ 9, 10, 19.

               Appellant relies on the opinion in Mendoza v. State, 804 S.W.2d 954 (Tex. App.—

Houston [14th Dist.] 1991, pet. ref’d). In that case, the defendant moved to suppress an intoxilyzer

test result and a videotape showing her performing physical sobriety tests at the police station on the

ground that the tests were involuntary. Id. at 955. The trial court agreed with the defendant as to

the intoxilyzer, but found that the evidence did not support her claim that the physical tests had been

coerced and overruled the motion to suppress the videotape. Id. at 956. The court of appeals

affirmed. Id. Appellant infers from Mendoza that a defendant arrested for driving while intoxicated

cannot be videotaped without his consent, and that a videotape made involuntarily is inadmissible

in evidence.




   1
      On the copy of the videotape introduced in evidence and shown to the jury, the audio ends
before appellant leaves the room. The record reflects that this was the moment when appellant asked
to speak to an attorney.

                                                  2
               The defendant in Mendoza argued that she had been forced to perform the “video

skills tests” and therefore that portion of the videotape was inadmissible. Id. Even if we were

willing to read Mendoza as implicitly holding that involuntary physical sobriety tests are

inadmissible, which we are not, it would not benefit appellant. Appellant declined to perform any

sobriety tests. Mendoza does not even implicitly support appellant’s contention that all involuntary

videotaping of a DWI arrestee is unlawful.

               The implied consent law provides that, as a general rule, a specimen of a person’s

blood or breath may not be taken involuntarily. Tex. Transp. Code Ann. § 724.013 (West 1999); see

Sandoval v. State, 17 S.W.3d 792, 795 (Tex. App.—Austin 2000, pet. ref’d). As appellant concedes,

there is no comparable statutory rule with regard to videotaping persons arrested for driving while

intoxicated. The statute requiring counties to provide for the videotaping of DWI suspects does not

speak to that question. See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 24, 1983 Tex. Gen.

Laws 1568, 1605.

               Appellant further argues that by videotaping him against his will, the police forced

him to incriminate himself. He equates videotaping a DWI suspect with custodial interrogation. It

has been held, however, that police requests that a suspect perform sobriety tests and directions on

how to do the tests do not constitute custodial interrogation. Mann v. State, 13 S.W.3d 89, 93 (Tex.

App.—Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001). Moreover, a visual depiction

of a defendant performing sobriety tests does not constitute “testimony” within the meaning of either

the Fifth Amendment or article I, section 10. Miffleton v. State, 777 S.W.2d 76, 80-81 (Tex. Crim.

App. 1989). Appellant was not, therefore, unconstitutionally compelled to incriminate himself.



                                                 3
               Appellant does not offer any argument to support his claim that the videotape was the

product of an unlawful search or seizure. Appellant does not complain that his arrest was unlawful.

We are not persuaded that videotaping appellant at the jail following his DWI arrest violated any

reasonable expectation of privacy.

               There is no evidence in the record that the videotape of appellant at the county jail

was the product of force or coercion exceeding that normally attendant to custodial arrest. Appellant

suggests no basis for concluding that the conduct of the police in this cause violated his due process

or due course of law rights, and we find none in the record.

               The trial court did not err by overruling appellant’s objection to the introduction of

the videotape. The point of error is overruled, and the judgment of conviction is affirmed.




                                               __________________________________________

                                               W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: August 29, 2003

Do Not Publish




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