Driving While Intoxicated Case Law Update - Texas District ...

6. FIELD SOBRIETY TESTS ARE NON.TESTIMONIAL
Townsend v. State, 813 S.W.2d 181 (Tex.App.-Houston [14th Dist.] 1991, pet. ref'd).
The Fifth Amendment protects against testimonial communications. A compulsion that makes an
accused a source of real or physical evidence does not violate the Fifth Amendment. Evidence
such as a person's voice. demeanor, or phvsical characteristics is outside the scope of protection
aqainst self incrimination. Quen'es by the custodial officer regarding defendant's name, address.
heiqht. weiqht. place of emplovment. or phvsical disabilities are the type of questions normally
attendant to arrest and custodv and do not constitute interrogation under the Fifth Amendment.
Visual depictions of a sobriety test are not testimonial in nature and therefore do not offend the
federal or the state privilege against self-incrimination.
7. VERBAL FST'S /ALPHABET & COUNTING ARE NOT TESTIMONIAL
Gassawav v. State, 957 S.W.2d 48 (Tex.Crim.App. 1997).
A recitation of ttte atphabet and counting backwards are not testimonial in nature because fhese
communications are physical evidence of the functioning of appellant's mental and physical
faculties. Thepertormanceof thesesobriefyfestsshowstheconditionof a suspecfb body. This
overrules Vickers v. State, 878 S.W.2d 329 (Tex.App.-Fort Worth 1994, pet. ref'd).
8. RIGHT TO COUNSEL . MUST BE CLEARLY INVOKED
Halbrook v. State, 31 S.W.3d 301 (Tex.App.-Fort Worth 2000, pet. refd.).
Granberry v. State ,745 S.W .2d 34 (Tex.App.-Houston [14th Dist.] 1987) pet. refd, per curiam,
758 S.W.2d 284 (Tex.Crim.App. 1988).
Defendantls reguesf fo make phone call to "find out' who his attorney is does n of constitute request
for attorney. No violation of right to counsel when defendant who has sought to terminate interview
is videotaped pertorming FSIs.
9. RIGHT TO REMAIN SILENT MAY NOT BE SELECTIVELY INVOKED
Anderson v. State. 2006 WL 744272 (Tex.App.-Fort Worth 2006, pdr dismissed) (Not designated
for publication).
After receiving Miranda warnings on the DWI videotape, the defendant answered guesftbns
selectively-some he answered and some he refused to answer. He did not terminate the
interuiew. The defense argued the jury should not have been allowed to hear him refuse to answer
certain guesfrbns. The Court held that while it is clear that the prosecution cannot use a
defendant's post-arrest silence to impeach him at his trial, an accused may not selectively invoke
his right to remain silent. Therefore, the Trial Court did not abuse its discretion by admitting the
portion of the videotape in which appeltant refused to answer specific guesfions while answering
others.
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