John Guardado Hernandez v. State ( 2009 )

Affirmed and Memorandum Opinion filed August 13, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00319-CR

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JOHN GUARDADO HERNANDEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Court at Law No. 4

Montgomery County, Texas

Trial Court Cause No. 07-226523

M E M O R A N D U M   O P I N I O N

Following the denial of his motion to suppress, appellant entered a plea of no contest to driving while intoxicated. The jury found appellant guilty and on February 5, 2008, the trial court sentenced appellant to confinement for 180 days in the Montgomery County Jail and assessed a fine of $500.  Appellant=s sentence was suspended, and he was placed under community supervision for one year.  In five issues, appellant challenges the trial court=s denial of his motion to suppress a videotape and sufficiency of the evidence to support his conviction.  Because all dispositive issues are settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background

Appellant was stopped for speeding and, after exiting his vehicle, informed the officer he had consumed three beers that night.  The officer conducted the horizontal gaze nystagmus test, and appellant demonstrated all six clues of intoxication.  When the officer instructed him to perform the walk-and-turn test, appellant stated he wanted to talk to an attorney.  Subsequently, the officer arrested appellant, informed him of his rights, and placed him in the patrol car.  The officer also arrested appellant=s wife when he discovered there was an outstanding warrant and placed her in the patrol car with appellant.

II.  Admission of Evidence

In his first issue, appellant claims the trial court erred by finding as a matter of law that he did not invoke his right to counsel.  In his second issue, appellant asserts the trial court erred in failing to grant his motion to suppress the audio portion of the videotape of his stop and arrest, in which he requested an attorney.  Appellant=s argument for both issues is that, once he invoked his right to counsel, the audio portion of the videotape from that point forward should have been redacted.

        The record reflects the trial court found appellant did not have a right to counsel at the time he requested an attorney.  Appellant relies on Opp v. State, 36  S.W.3d 158, 160 (Tex. App.CHouston [1st Dist] 2000, pet. ref=d), wherein the court held that, regardless of whether the defendant had the right to an attorney when he invoked it, evidence showing the defendant invoking his right to counsel was inadmissible at trial.  The Opp court stated, Aappellant clearly invoked his right to counsel.  Evidence showing his invoking his right to counsel was inadmissible at trial.@  Id. (citing Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991); Loy v. State, 982 S.W.2d 616, 617 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d)).  Appellant also cites Loy, in which the court stated, A[a]ppellant clearly invoked his right to counsel.  Evidence showing that was inadmissible.@  Loy, 982 S.W.2d at 617 (citing Hardie, 807 S.W.2d at 322).

Both Opp and Loy cite Hardie in support of their holdings.  In Hardie, the court acknowledged that evidence of an accused=s invoking his right to counsel may be construed against him and may improperly be considered as an inference of guilt.  807 S.W.2d at 322.  The court recognized it is constitutionally impermissible to adversely use evidence that a defendant invoked a right or privilege which has been granted him, even if the right or privilege was erroneously extended.  Id.  The court then held Aevidence of one=s invocation of the right to counsel is inadmissible as evidence of guilt.@  Id. (emphasis added).  The court noted that A[a]lthough the State did not specifically state it was offering the audio portion of the videotape as evidence of guilt, no other basis for its admission was propounded by the State and no other basis is apparent from the context of the record.@  Id. at 322 n.6.  The Hardie court found the evidence inadmissible not simply because the defendant invoked his right to counsel, but because the State sought to use that invocation against the defendant to infer guilt.  Hardie does not stand for the broad proposition that evidence of the request for counsel is inadmissible, as stated in Opp and Loy, and Hardie did not address whether evidence following such a request is inadmissible. 

Neither Opp nor Loy indicate the basis for admitting evidence the defendant invoked his right to counsel. However, in both cases, as in Hardie, the videotape in question was made at the police station, after the defendant had been arrested.  The case directly on point with the present case is Jones v. State, 795 S.W.2d 171 (Tex. Crim. App. 1990).

In Jones, as in this case, the videotape showed a DWI suspect performing field sobriety tests.  Id. at 172.  On the tape, the suspect requested to have counsel present.  Id. She claimed the trial court erred by refusing to suppress her oral statements from that point forward.  Id.  The court found the suspect had invoked her Miranda right to counsel, did not subsequently revoke that right by her actions, and was in custody.  Id.  However, the court found she had not been interrogated.  The court held the audio portion of a DWI videotape is admissible Aunless the police conduct depicted expressly or impliedly calls for a testimonial response not normally incident to arrest and custody or is conduct the police should know is reasonably likely to elicit such a response.@  Id. at 176 (emphasis in original).

In the case at bar, the video reveals the officer asked fact-finding questions and attempted to conduct field sobriety tests.  The video does not depict police conduct that expressly or impliedly solicits a testimonial response not normally incident to arrest.  See id. Further, it does not show conduct the officer should have known was reasonably likely to elicit a testimonial response.  See id.  It Ais merely another example of the collection of physical evidence, both visual and aural.@  Id. at 175.  Accordingly, we find the trial court did not err in refusing to suppress the audio portion of the videotape.  Issues one and two are overruled.

In his third issue, appellant complains about admission of a portion of the videotape revealing his wife, Becca Gomez, had previously been charged with larceny.  In his fourth issue, appellant argues the trial court erred by allowing the taped conversation between appellant and his wife to be played for the jury.  In both instances, appellant claims the evidence was not relevant to whether he was intoxicated and was more prejudicial than probative.  See Tex. R. Evid. 403.  The State argues the videotape demonstrates appellant failed to understand his wife was arrested on an outstanding warrant, not because she was intoxicated, and that his speech was slurred.

Evidence that appellant did not comprehend the reasons for his wife=s arrest and that his speech was slurred would tend to make it more probable that appellant was intoxicated. Accordingly, the evidence is relevant.  See Tex. R. Evid. 401, 402.

Under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  See Tex. R. Evid. 403.  Regarding prejudice, appellant only asserts the jury might infer guilt as a result of his association with his wife.  Appellant does not explain why a jury would infer he was intoxicated because his wife had been arrested for larceny.  Appellant does not attempt to demonstrate the evidence was unfairly prejudicial, confused the issues, misled the jury, caused undue delay, or was cumulative.  See Tex. R. Evid. 403.  Accordingly, appellant has not shown the trial court abused its discretion in refusing to exclude the evidence.  See Montgomery v. State, 810 S.W.2d 372, 391B92 (Tex. Crim. App. 1990).

Appellant also claims the conversation with his wife was protected under spousal privilege.  See Tex. R. Evid. 504.  Under Rule 504(a)(1), the privilege applies to confidential communications made privately by any person to the person=s spouse.  Id. There is no reasonable expectation of privacy in the back seat of a police car.  See Meyer v. State, 78 S.W.3d 505, 508 (Tex. App.CAustin 2002, pet. ref=d).  Accordingly, the conversation between appellant and his wife was not protected by spousal privilege.

Appellant also claims there was no evidence he or his wife were aware they were being recorded.  Appellant cites no authority that would require him or his wife to be so informed.  Moreover, the videotape reveals both appellant and his wife were in the patrol car when the officer turned the video camera to face them and appellant looked directly into the camera.  The record does not support appellant=s claim that he was unaware of being recorded.  Appellant=s third and fourth issues are overruled.

III.  Sufficiency of the Evidence

In his fifth issue, appellant claims his plea of no contest was insufficient to support the jury=s verdict.  In a misdemeanor case, a defendant who pleads guilty, nolo contendere, or no contest admits every element of the offense charged, leaving only the issue of punishment before the jury or the trial court.  See Brown v. State, 507 S.W.2d 235, 238 (Tex. Crim. App. 1974);  LeBlanc v. State, 679 S.W.2d 544, 547 (Tex. App.CBeaumont 1984, pet. ref=d).  In such cases, the State is not required to present any evidence of guilt.  See Estrada v. State, 148 S.W.3d 506, 509 (Tex. App.CEl Paso 2004, no pet.).   We overrule issue five.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/      Charles W. Seymore

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do not publish - Tex. R. App. P. 47.2(b).