IN THE

TENTH COURT OF APPEALS

No. 10-97-158-CR

     PAUL GLEN MCDONALD, JR.,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the County Court at Law

Coryell County, Texas

Trial Court # 96-42629

MEMORANDUM OPINION

      Paul Glen McDonald, Jr. was convicted of driving while intoxicated and sentenced to 45 days in jail plus a $2,500 fine. He appeals pro-se. Although we have requested the statement of facts, he has neglected to see that we receive it. Because we have determined that the statement of facts is not dispositive of any appealed error, we assume the facts of the trial to be as he states them in his brief, and we address his argument accordingly. The crux of McDonald’s complaint is that the trial court erred in admitting the results from his toxicology report because he requested counsel before submitting a breath sample. We will affirm.

      At the time that Officer David Roberts requested a breath sample from McDonald, he had no right to counsel. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Forte v. State, 707 S.W.2d 89, 91 (Tex. Crim. App. 1986). The right to counsel under the Sixth Amendment attaches only upon or after formal initiation of judicial proceedings. Forte, 707 S.W.2d at 91. His Sixth Amendment right to counsel did not attach until the complaint and information were filed. Id. at 92.

      A defendant, when faced with a decision whether to provide a breath or blood sample for chemical analysis of alcohol concentration, may not avoid making a decision by invoking the protection of the Fifth Amendment privilege against self-incrimination or the prophylactic safeguards of Miranda. See South Dakota v. Neville, 459 U.S. 553, 564, n. 15, 103 S.Ct. 916, 923, n. 15, 74 L.Ed.2d 748 (1983).  

      In Schmerber v. California, a blood sample was extracted from a defendant by a physician without the defendant's consent. The defendant claimed that his Fifth Amendment privilege against self-incrimination was violated. The Court held that neither the extraction of blood nor the subsequent chemical analysis of the blood for alcohol concentration required appellant to testimonially incriminate himself in violation of the Fifth Amendment. Schmerber v. California, 384 U.S. 757, 765, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966).

      The Court of Criminal Appeals has followed Schmerber with regard to the collection of a breath sample, holding that providing a breath sample for chemical analysis of alcohol concentration is not a testimonial communication protected by the privilege against self-incrimination under the Fifth Amendment. Rodriguez v. State, 631 S.W.2d 515, 517 (Tex. Crim. App. 1982). The Court further held that police officers are not required to give a suspect Miranda warnings prior to asking him to provide a breath sample. Id.

      We find no denial of appellant's Fifth or Sixth Amendment right to counsel. The judgment is affirmed.

                                                                               BILL VANCE

                                                                               Justice

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Affirmed

Opinion delivered and filed January 21, 1998

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