No. 04-03-00721-CR
Delivered and Filed: May 4, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law No. 2, Bexar County, Texas, Trial Court No. 740,838, Honorable H. Paul Canales, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
Opinion by: SARAH B. DUNCAN, Justice.
Megan McGuckin appeals the judgment convicting her of driving while intoxicated and sentencing her to 180 days in jail, probated.
BACKGROUND
At approximately 1:30 a.m. on a November morning, McGuckin drove her truck into a restaurant sign and landscaping. At the scene of the accident, McGuckin refused a police officer's request that she perform field sobriety tests. After she refused to perform the field sobriety tests, McGuckin was arrested and transported to the magistrate's office, where she was asked to take a breath test. After she refused to submit to a breath test, McGuckin was asked to step into the videotape room for the purpose of performing field sobriety tests. McGuckin refused to perform the tests without her attorney's presence, and, on the videotape, she is heard saying she wants to speak with her attorney. Prior to trial, McGuckin filed a motion to suppress the audio portion of the tape. Following the suppression hearing, the trial court then ruled as follows: I understand that. This is the way I see it. All right. You're entitled to use her refusal to take the test against her. I think you're entitled to use the first time she says "I want a lawyer. I don't want to do this." After that, to me, it's continuous, repetitious, and it is an effort on the part of the police officer to try and use her behavior against her in the court. And it is — in my way of thinking — an interrogation of sorts. So you're going to get the first time she says "I don't want to do anything. I want a lawyer." And then after that the video's going to — the audio's going to go off.
During trial, the jury heard McGuckin speaking off-camera, saying she knows she can ask for a lawyer. The police officer asked no questions, except to request that McGuckin step into the video room. McGuckin refused, saying she wanted to stay where she could not be videotaped. At this point, the police officer asked, "Did you not just tell me you wanted to do a videotape?" McGuckin responded that she wanted to speak to her lawyer. The police officer told her she could use a telephone on the wall in the room. McGuckin then entered the room to use the telephone and the audio portion of the tape was stopped. The jury then saw, but did not hear, McGuckin speaking on the telephone and speaking with the police officer, and the officer demonstrating field sobriety tests. During closing arguments, the State mentioned the audio portion of the videotape, stating "She had slurred speech. And I disagree with defense counsel, but I'll let y'all watch that video again in that short portion that you're allowed to hear. Listen to the words she uses. Listen if they make sense and listen to her words and see what you think and what you've heard." The State also explained to the jury that it saw the remainder of the video without audio because the State wanted to demonstrate that McGuckin's arm movements were not indicative of someone who had a shoulder problem or was in need of medical attention. SUPPRESSION OF AUDIO PORTION OF VIDEOTAPE
In her first issue, McGuckin asserts the trial court erred by not suppressing the entire audio portion of the videotape because the video was secured post-arrest and constitutes an "abuse of custodial interrogation." We review a trial court's determination on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). We will uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000). McGuckin first contends that because the trial court stated the videotape was "an interrogation of sorts," the audio portion of the video was inadmissible because the State did not comply with Texas Code of Criminal Procedure article 38.22. Article 38.22 sets forth certain requirements that must be met before a defendant's oral statement, made as a result of custodial interrogation, is admitted against the defendant. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a) (Vernon 2005). However, a police inquiry into whether a defendant will perform field sobriety tests is not an "interrogation" for purposes of article 38.22. See Bass v. State, 723 S.W.2d 687, 691 (Tex.Crim.App. 1986) (defendant's refusal to submit to the breathalyzer test did not come about as the result of "custodial interrogation" for purposes of article 38.22). Therefore, we conclude the provisions of article 38.22 are inapplicable here. McGuckin next argues that evidence of her invoking her right to an attorney is not admissible at trial. Again, we disagree. Evidence of a defendant's impaired ability to speak is circumstantial evidence relevant to the issue of intoxication. Griffith v. State, 55 S.W.3d 598, 601 (Tex.Crim.App. 2001); see Tex. Pen. Code Ann. § 49.01(2) (Vernon 2003) (defining "intoxicated" as "not having normal use of . . . physical faculties"). Evidence of a defendant's refusal to perform field sobriety tests also is admissible and circumstantially relevant to the issue of intoxication. Griffith, 55 S.W.3d at 601 (post-arrest refusal to take breath test relevant); Tex. Transp. Code Ann. § 724.061 (Vernon 1999) (refusal to submit breath or blood specimen may be introduced into evidence); see also Barraza v. State, 733 S.W.2d 379, 381 (Tex.App.-Corpus Christi 1987) (discerning no reason to distinguish between refusal to perform field sobriety test and refusal to take breathalyzer test with regard to admissibility of refusal to perform the tests), aff' d, 790 S.W.2d 654 (Tex.Crim.App. 1990). However, the reason one refuses to submit to a test is irrelevant and inadmissible as a part of the State's case. Griffith, 55 S.W.3d at 601. On the other hand, this same evidence may be probative if it reveals an impaired speech pattern, which itself is circumstantially relevant to whether the defendant was intoxicated at the time. Id. at 601-02. Here, the State offered the audio portion of the video to demonstrate McGuckin's speech pattern. As in Griffith, McGuckin's "request for an attorney . . . was cloaked around [her] refusal to take the [field sobriety tests]. . . ." See Griffith, 55 S.W.3d at 601 (constitutional rights not violated by evidence showing defendant's post-arrest, pre- Miranda request for attorney when asked to take breath test). Her refusal was relevant, as was "[her] speech pattern if it was impaired." Id. Therefore, we cannot conclude the trial court abused its discretion by admitting the audio portion of the videotape as circumstantial evidence of McGuckin's intoxication. Finally, McGuckin complains the trial court erred by telling the jury that she continued to ask for her attorney in the portion of the videotape in which the audio was turned off. During the suppression hearing, the trial court told defense counsel and the prosecutor that it would instruct the jury that the defendant continued to ask for her attorney. Before showing the tape to the jury, the trial court said "Members of the jury, we've had a motion on this video before, and I've granted that the audio portion of the video after she — the first part of the video she says, `I didn't want to talk to you. I want the lawyer.' And after that it's just a continued `I don't want to talk to you. I want a lawyer.' After the first time she says, `I don't want to talk to you. I want a lawyer,' after that I've suppressed the rest of the audio."Although McGuckin objected to the audio portion of the videotape, she did not object, either at the suppression hearing or at trial, to the court's statement to the jury. McGuckin has therefore waived any complaint about the court's statement on appeal. Tex.R.App.P. 33.1(a). GEESA CHARGE
In her second issue, McGuckin asserts the trial court reversibly erred in instructing the jury that "[i]t is not required that the prosecution prove guilt beyond all doubt, it is required that the prosecution's proof excludes all reasonable doubt concerning the defendant's guilt." For the reasons stated in our opinion in Ochoa v. State, 119 S.W.3d 825, 829 (Tex.App.-San Antonio 2003, no pet.), we conclude this language does not constitute a reasonable doubt definition; therefore, the trial court did not err by including this language in the jury charge. We decline McGuckin's request to overrule our holding in Ochoa. CONCLUSION
We overrule McGuckin's issues on appeal and affirm the trial court's judgment.