Loy v. State

¶1dissenting.

¶2I agree with the majority opinion’s conclusion that evidence showing appellant’s invocation of the right to counsel was inadmissible. The audiotape in the present case contained, however, a small portion during which appellant invoked his right to counsel, or the officer commented upon that invocation, and a much larger portion during which appellant was either being processed routinely as a driving while intoxicated (DWI) suspect or was being given his rights.1 Because the larger portion not relating to invocations of appellant’s rights was admissible, the trial court did not err in overruling appellant’s general objection to the entire audiotape. See Brown v. State, 692 S.W.2d 497, 601 (Tex.Crim.App.1985); Pinkney v. State, 848 S.W.2d 363, 367 (Tex.App.—Houston [1st Dist.] 1993, no pet.) (both standing for the proposition that a general objection to evidence that is only partially inadmissible does not preserve an objection to the inadmissible part). Therefore, I respectfully submit that appellant did not preserve error.

¶3In all fairness to appellant, he was relying on our decision in Cooper v. State, 961 S.W.2d 222 (Tex.App.—Houston [1st Dist.] 1997, pet. ref'd). In Cooper, this same panel addressed a contention very similar to appellant’s; the only difference is that the right invoked was the right to terminate rather than the right to counsel. We held that, once a videotaped DWI arrestee invokes his right to counsel, the entire audiotape thereafter is inadmissible. Id. at 226-27. I believe our holding in Cooperwas overbroad. We ought to take this opportunity to clarify the confusing law applicable to the invocation of rights in videotaped interviews of persons arrested for DWI.

¶4A.No rights to Counsel or to Terminate the Interview

¶5As pointed out in McCambridge v. State, police officers create confusion by giving article 38.22 rights without informing a defendant that those warnings do not apply to his decision to provide a breath sample. 712 S.W.2d 499, 506 (Tex.Crim.App.1986). A defendant’s warnings are required before custodial interrogation, but questions normally accompanying the processing of a DWI ar-restee do not constitute custodial interrogation. Id. at 504.

¶6B. Invocations of Non-Existent Rights Inadmissible

¶7Nevertheless, if a defendant invokes rights to counsel or to terminate the interview, although he does not have these rights, such invocations are inadmissible. See Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991); Cooper, 961 S.W.2d at 226.

¶8C. Correct Remedy

¶9There is no disputing that the correct remedy in the context of custodial interrogation, when rights are invoked but questioning continues, is to eliminate from admissibility all *620matters from the invocation of rights onward. I suggest that the remedy in the context of routine processing of a DWI arrestee is different. The only inadmissible portions of a videotape, for example, containing invocations of rights are the invocations of those rights. They must be deleted. This may involve redacting both the question asking if the defendant wants to invoke the right and the invocation itself. The remainder of the videotape portraying the sights and sounds of normal processing of a DWI arrestee is admissible.

¶10Conclusion

¶11It is important in addressing the error raised in this case that distinctions be made between the baby (here, the. larger portion without invocations of rights) and the bathwater (here, the smaller portion containing invocations). Because appellant’s objection was to the entire contents of the bath, without specifying his objection to only the bathwater, the trial court did not err in overruling the objection and not throwing out the baby with the bathwater.