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Jackson v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 18, 2004
No. 05-03-01530-CR (Tex. App. Aug. 18, 2004)

Opinion

No. 05-03-01530-CR

Opinion Issued August 18, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-80508-02. Affirm.

Before Chief Justice THOMAS and Justices MOSELEY and MALONEY

The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.


OPINION


The jury convicted Benjamin Jackson of driving while intoxicated and assessed a 180-day sentence and a $2000 fine, suspended the confinement, and recommended appellant's driver's license be suspended. The trial court placed appellant on community supervision for one year and suspended his license for 300 days, less credit for the 180-day suspension already served. In a single issue, appellant complains the court abused its discretion in admitting audio portions of a videotape. We affirm the trial court's judgment. Background Joseph Meno, a Dallas Police Officer, was on patrol in the early morning hours when he saw a pickup truck driving south on Dallas North Parkway. The pickup truck was in the left lane and "jumped the curb" several times. The pickup truck turned right into a gas station. As the pickup truck turned, it "jumped the curb" again. When this happened, Meno attempted to "initiate a traffic stop" by turning on his overhead emergency lights. The pickup truck did not stop. Next, the pickup truck went westbound into the gas station parking lot, turned left onto Gibbons Drive, and turned left into a parking lot across the street from the gas station. The pickup truck then turned right in front of Fuddrucker's restaurant, jumped the curb again, and stopped with two wheels on the curb. When Meno asked appellant for his identification and proof of insurance, he turned off the pickup truck's ignition and "just stare[d] forward." Meno repeated his request and appellant put his key back in the ignition and started the pickup truck. When Meno tried to take appellant's keys, appellant yelled, "What's your problem, I'm just drunk, Jesus Christ." Appellant unsteadily got out of the pickup truck and almost fell down walking toward the back of the pickup truck. Meno attempted no field sobriety test because he feared for appellant's safety. So, Meno took appellant to the Dallas County Jail. On the way to the jail, appellant keep hitting his head against the windshield, trying to take his seat belt off, crying, and repeating "please kill me, someone please kill me." At the jail, another officer videotaped appellant in the intoxilyzer room. Fruit of the Poisonous Tree Appellant argues that the trial court abused its discretion in admitting any audio portion of the videotape before the jury because it "was 'fruit of the poisonous tree' of a primary illegality-the police officers interrogating appellant without proper constitutional or statutory warning." He contends that anything occurring after the initial failure to provide Miranda warnings tainted the entire audio portion of the videotape and was inadmissible. Assuming, without deciding, the initial questioning was "a primary illegality"-a poisonous tree-the complained-of evidence is not "fruit." 1. Applicable Law Evidence discovered as a result of the police exploiting the primary illegality is inadmissible. However, evidence obtained by means distinguishable from the primary illegality has no taint. Wong Sun v. United States, 371 U.S. 471, 488 (1963); Crosby v. State, 750 S.W.2d 768, 780 (Tex.Crim.App. 1987). The trial court need not suppress evidence obtained independent of the initial illegality as "fruit of the poisonous tree." See Crosby, 750 S.W.2d at 780. A videotape associated with a driving-while-intoxicated charge is admissible unless the officers in the tape seek to elicit a testimonial response not normally incident to arrest and custody, or the police conduct is reasonably likely to elicit such a response. Jones v. State, 795 S.W.2d 171, 176 (Tex.Crim.App. 1990). Police may request a suspect to perform sobriety tests, give directions on how to perform the tests, and question a suspect's understanding of his rights. Id.; Kalisz v. State, 32 S.W.3d 718, 721 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). 2. Application of Law to Facts During the trial the State offered the videotape as evidence. Appellant first objected to (1) the initial audio portion in which the police officer questioned appellant without having given Miranda warnings and (2) the audio portion of the videotape showing appellant received his Miranda warnings and the subsequent interview. The court sustained both of these objections. Appellant then objected to the audio portion of the videotape after the initial questions but before Miranda warnings were given. This portion of the videotape depicted the officers identifying themselves, reading statutory warnings to appellant, requesting appellant to provide specimens for a breath and blood test, and questioning appellant on his level of education. After asking appellant about his education, the officer asked appellant to read from a preprinted card and recite the alphabet which appellant refused to do. Finally, the remaining audio portion played for the jury includes more statutory warnings read to appellant. None of these exchanges sought to, or did, elicit a testimonial response. Questioning appellant's education level before asking appellant to read from a preprinted card would have revealed if appellant knew the alphabet and how to read. Regardless, appellant did not respond to this question, thus providing no testimonial response. Appellant only gave his name, acknowledged he understood the statutory warnings, refused to take the tests, inquired as to why he was being asked to perform certain tasks, and requested that the officer "elaborate" concerning the officer's question about his education. We conclude this audio portion of the videotape contained matters "normally accompanying the processing of a D.W.I. arrestee" and does not qualify as interrogation. See Griffith v. State, 55 S.W.3d 598, 603 (Tex.Crim.App. 2001). Because this portion of the videotape is not interrogation and has no relation to the earlier questions, it need not be attenuated. Permissible police requests include asking a suspect to perform sobriety tests, giving directions on how to perform the tests, and questioning a suspect's understanding of his rights. We hold the complained-of audio portion was obtained independent of any earlier illegality. Id.; see Jones, 795 S.W.2d at 176; Crosby, 750 S.W.2d at 780. We resolve appellant's sole issue against him. We affirm the trial court's judgment.

Appellant originally objected to the initial audio portion of the videotape. However, appellant himself later offered that previously-excluded audio portion before the jury. When a party requests a ruling from the court, and the court so rules, the party may not complain of that ruling on appeal. Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App. 1999). Because appellant himself requested the initial portion be admitted, we address only the remaining audio portion played for the jury.

Miranda v. Arizona, 384 U.S. 436 (1966).

The record contains the transcribed audio portion of the videotape played for the jury. Appellant never directs us to the complained-of audio portions in the transcribed record. Instead, he argues the trial court erroneously admitted "the balance" of the tape. Although appellant properly recites the general law on "fruit of the poisonous tree," he barely applies that law to the facts of this case. Additionally, appellant provides no legal analysis directed at any specific audio on the videotape. However, we will construe his brief liberally and address his complaint. See Tex.R.App.P. 38.9.

Appellant argues this previously-excluded audio portion which he later offered himself is the "poisonous tree." We do not address whether appellant's admitting this audio into evidence cured the "poison."


Summaries of

Jackson v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 18, 2004
No. 05-03-01530-CR (Tex. App. Aug. 18, 2004)
Case details for

Jackson v. State

Case Details

Full title:BENJAMIN EUGENE JACKSON, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 18, 2004

Citations

No. 05-03-01530-CR (Tex. App. Aug. 18, 2004)