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Seifert v. State8/5/1999
The jury convicted John Dupont Seifert of driving while intoxicated (DWI). The trial court assessed 120 days in the county jail, a $750 fine, and suspended the jail sentence. In eight points of error, appellant contends generally that the trial court erred in (1) denying his motion to suppress a portion of the videotape soundtrack and not admitting defensive evidence and (2) the evidence is insufficient because the information did not allege and the State did not prove a culpable mental state. We affirm the trial court's judgment.
BACKGROUND
John Hiney, a Mesquite police officer, testified that he stopped appellant for speeding on LBJ Freeway. When appellant exited his car and approached Hiney, he thought appellant appeared intoxicated so he called for a cover officer. After the cover officer arrived, Hiney walked over to appellant's car. He could smell alcohol through the opened sunroof. Appellant failed the field sobriety tests--the eye gaze nystagmus test and reciting the alphabet. On the head tilt test, appellant swayed and did not keep his head back. Hiney did not administer any further field tests because appellant complained of a back problem. Appellant had bloodshot eyes and poor balance. In Hiney's opinion, appellant was intoxicated.
Hiney arrested appellant. He took appellant to the Mesquite jail. Because there was no intoxilyzer operator on duty, Hiney took appellant to the Garland police station. Once there, Hiney placed appellant in the videotaping room where a Garland police officer videotaped appellant's refusal to take the breathalyzer test and his performance on the sobriety tests.
THE VIDEOTAPE
In his first point of error, appellant contends the trial court erred in denying his motion to suppress the audio portion of the videotape. Specifically, appellant contends the trial court erred in allowing the jury to hear the police officer reading him his Miranda rights.
1. Applicable Law
The jury should never hear a defendant invoke his right to remain silent. Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim . App. 1991). Nor should the jury hear a police officer ask a defendant whether he understands his rights even if the jury does not hear the defendant's response to that question. Dumas v. State, 812 S.W.2d 611, 614 (Tex. App.--Dallas 1991, pet. ref'd). In Dumas, this Court reasoned that deleting the videotape's volume after the officer gave the Miranda warnings and asked the defendant if he understood his rights "led the jury to the inescapable Conclusion that Dumas exercised his constitutional privilege to remain silent." Id. The trial court erred in allowing the jury to hear the officer's question, even without the defendant's response, because the jury may consider evidence of a defendant's invoking a constitutional right as an inference of guilt. Id.
2. Application of Law to Facts
At the motion to suppress hearing, appellant argued that the trial court should suppress the entire audio portion of the videotape. The trial court, however, suppressed the audio portion immediately after the officer read appellant his Miranda rights. The jury did not hear the officer ask appellant whether he understood those rights or appellant's response to that question.
Here, the jury heard the officer give appellant his Miranda warnings. But, unlike Dumas, this jury did not hear the officer ask appellant whether he wanted to waive his rights. Consequently, we conclude the Miranda warnings alone could not have led the jury to the inescapable Conclusion that appellant had exercised his constitutional right to remain silent. We conclude the trial court did not err in allowi
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