 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Abernathy v. State1/30/1998
cated at the time he asked one or both of these questions, as emphasized in Appellant's brief, there had been no conveyance of this suspicion from Marcus to Appellant, and viewed from the standpoint of Appellant, the only official action taken by Marcus, at least until the formal arrest, had been Marcus's investigative questioning and the administering of the field sobriety test. Ergo all the measures employed by Marcus until the time of the arrest were in pursuance of a temporary investigation to determine whether or not Appellant was driving a motor vehicle while intoxicated. There was no coercive atmosphere of custodial interrogation as contemplated by Miranda and its progeny. No violations of the Fifth and Fourteenth Amendments have been shown, as Appellant simply was not subjected to custodial interrogation. Accord Pennsylvania v. Bruder, 488 U.S. 9 (1988) (per curiam). Point of error one is overruled, and ipso facto, point of error three is overruled.
In point of error two, Appellant makes the same claims as made in point one above, except he challenges the admissibility of the two statements under Texas Constitution, article I, sections 13 and 19, the so-called "due course of law" clauses. Although not mentioned in his brief, we are assuming that Appellant also meant to invoke article I, section 10 as well, since it is the functional equivalent of the Fifth Amendment to the United States Constitution, and it provides that an accused "shall not be compelled to give evidence against himself." The only case cited by Appellant as authority is Sanchez v. State, 707 S.W.2d 575 (Tex. Crim. App. 1986). The holding in Sanchez however is again predicated upon the threshold question of when a formal arrest has occurred.
In Sanchez, the State at trial attempted to use the defendant's post-arrest silence against him as a form of impeachment. The Court of Criminal Appeals held that once the state has restrained the liberty of the accused to the degree that an arrest has occurred, the privilege against self-incrimination attaches to its fullest extent. See Sanchez, 707 S.W.2d at 579-80. Since this right against self-incrimination arises upon arrest, the defendant's post-arrest silence is presumed to be a part of that right. Id. at 580. That Court went on to hold that pursuant to article I, section 10 of the Texas Constitution, "when the defendant is arrested, he has the right to remain silent and the right not to have that silence used against him, even for impeachment purposes, regardless of when he is later advised of those rights." Id.
The holding in Sanchez is inapplicable to the case at bar for two reasons. First, the holding in Sanchez concerned itself with impeachment of the defendant at trial with the use of his post-arrest silence. Nowhere in Sanchez does the Court concern itself with the issue of when a person is in custody as opposed to temporary detention. Secondly, the Court was confronted with a fact situation in which the defendant had unquestionably been placed under formal arrest and was in custody. There was no claim by the State that the defendant was temporarily detained rather than under arrest and in custody, as the State argues in the case at bar. Thus the whole thrust of the Court's holding in Sanchez assumes that a custodial arrest had occurred. Since we have found in our discussion of point of error one that an arrest had not occurred, the holding in Sanchez is inapplicable to the case at bar. Appellant's second point of error is overruled.
The Judgement of the trial court is affirmed.
CHARLES F. CAMPBELL, FORMER JUDGE
PUBLISH
Page 1 2 3 Texas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|