Avi David Katz v. State ( 2006 )

Affirmed and Memorandum Opinion filed September 14, 2006

Affirmed and Memorandum Opinion filed September 14, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00186-CR

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AVI DAVID KATZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law Number 7

Harris County, Texas

Trial Court Cause No. 1253288

M E M O R A N D U M   O P I N I O N

A jury convicted Avi David Katz, appellant, of driving while intoxicated.  The trial court assessed punishment at 180 days= imprisonment, probated for one year, a $400 fine, thirty hours= community service, and instituted terms of probation.  Katz appeals his conviction raising one issue of jury charge error.  We affirm.

Factual and Procedural Background

On August 15, 2004, Deputy Carl Smith noticed appellant was driving in an unsafe manner by failing to remain in a single lane of traffic. Deputy Smith, a constable, signaled appellant to stop his vehicle, which he did.  Deputy Smith, along with another constable, Deputy Mark Kalhoefer, began to investigate whether appellant was intoxicated.  Neither had extensive experience with DWI investigations.  Their testimony was that appellant smelled of alcohol, had bloodshot eyes, and may have failed a field sobriety test, the one leg stand test.  Appellant also performed the walk-and-turn test, but Deputy Kalhoefer, who conducted the tests, could not remember how appellant performed on that test.

The constables took appellant to the Houston Police Department. Officer Javier Calvillo, a specialist in DWI investigation, took appellant into the intoxication room and videotaped their interaction.  Appellant refused to give a breath sample or perform any sobriety tests.  He asked to see an attorney and asked to terminate the interview after receiving his Miranda warnings.  The tape was played for the jury, with sound.  Thus, the jury heard appellant invoke his rights. 

Appellant did not object to the playing of the tape, with or without sound.  The State did not reference appellant=s invocation of his rights.  When appellant questioned Officer Calvillo about the invocation, he asked Calvillo if such an invocation evidenced that appellant had the proper use of his mental faculties consistent with sobriety.  At no time did appellant object to the jury hearing the audio portion of the tape or ask for a limiting instruction regarding how the jury could use evidence of appellant=s invocation. 

At the close of evidence and before the jury was charged, appellant asked that the jury be instructed it could not draw an inference of guilt from appellant=s request for counsel and statement that he wanted to terminate the interview.  The trial court denied that request. During closing, the State referenced appellant=s failure to consent to give a breath sample and his invocation of rights.  Specific to appellant=s failure to cooperate and terminate the interview, the State argued, Ayou=re under the suspicion of DWI wouldn=t you want to follow the instructions of the officers,@ and, Ayou=re under the suspicion of DWI why would you not follow the instructions of an officer?@  Appellant did not object to the argument.  On appeal, he argues it was error not to give the jury his proposed instruction. 

Analysis

I.        Appellant=s instruction would be proper if the evidence were limited initially

Invoking one=s right to counsel may be construed negatively to that defendant and may carry an inference of guilt.  Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991). That inference is constitutionally impermissible.  Id.; see also Wainwright v. Greenfield, 474 U.S. 284, 291 (1986) (holding that it is a violation of the Due Process Clause and fundamentally unfair to breach the implied assurance of Miranda that one may be silent and then use that silence against him).  Evidence that an accused invoked his right to counsel is inadmissible as evidence of guilt.  Hardie, 807 S.W.2d at 322.  However, it is admissible when offered by a defendant to rebut an inference of guiltCas was done hereCand to demonstrate sobriety by showing the defendant had the presence of mind to request an attorney.  Id. at 322 n.7.  Thus, the evidence may be used for a defendant, but not against him.  Id. 

However, this general rule does not apply if a defendant chooses to introduce his invocation of his right to counsel without simultaneously asking the trial court to admit it only for the limited purpose of demonstrating sobriety.  See Arana v. State, 1 S.W.3d 824, 829 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  If appellant had properly presented the issue to the trial court, he would have been entitled to the instruction.^[1] See id.; Sutterfield v. State, No. 05-93-01822-CR, 1995 WL 387010, at * 3 (Tex. App.CDallas June 28, 1995, pet. ref=d) (not designated for publication) (determining it was error not to give jury limiting instruction that it could not draw an inference of guilt from appellant=s request for an attorney).  Without a request for a limiting instruction, the evidence below was admitted as general evidence, properly considered for all purposes, and the trial court was correct in denying the request for an instruction.  See Arana, 1 S.W.3d at 829.

Conclusion

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

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed September 14, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Generally, to preserve error for specially requested jury instructions, the party need only object or present a requested charge.  Tex. Code Crim. Proc. Art. 37.15; Arana v. State, 1 S.W.3d 824, 826 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  However, as we explain, when evidence is admitted for all purposes without objection or request for limiting instruction at the earliest possible time, the issue is waived.