Edward Rene Gomez v. State ( 1999 )

No. 04-97-00911-CR Edward Rene GOMEZ, Appellant v. The State of TEXAS, Appellee From the 290th Judicial District Court, Bexar County, Texas Trial Court No. 96-CR-4832 Honorable Sharon MacRae, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: November 17, 1999

AFFIRMED

Appellant, Edward Rene Gomez, was convicted of the offense of intoxication manslaughter.⁽¹⁾ Trial was before a jury and punishment was assessed by the jury at 16 years confinement within the Texas Department of Criminal Justice/Institutional Division and a fine of $5000. In eight points of error, Gomez makes three basic arguments: first, his consent to draw a blood sample was involuntary; second, the testimony of the State's expert regarding the alcohol content of his blood was unreliable; third, the State improperly commented on his failure to testify during trial and at sentencing. We overrule appellant's points of error and affirm the trial court's judgment.

Background

Gomez was involved in an automobile accident on June 21, 1996. Following the accident, he was taken to a local hospital to be treated for minor injuries. At the hospital he was approached by San Antonio Police Officer Michael Moore. Officer Moore addressed Gomez and read a form stating that he was under arrest for driving while intoxicated. He then requested permission to take a blood sample from Gomez. Gomez orally consented to have his blood drawn.

At the hearing to suppress evidence of Gomez' blood sample, there was conflicting testimony concerning what was said between Officer Moore and Gomez. It is undisputed that Officer Moore read San Antonio Police Department form DIC-24. This form contains the statutorily required warnings that must be administered before a breath or blood sample may be taken from a suspect who has been arrested for an offense involving the operation of a motor vehicle while intoxicated. The form begins with the language "You are under arrest for the offense of driving while intoxicated."⁽²⁾ However, it was undisputed at all phases of trial that Gomez was not under arrest at the time the warnings were administered to him.

Consent for Blood Testing

Gomez' first and fifth points of error involve the implied consent statute, under which a person arrested for DWI is deemed to consent to the taking of a breath or blood sample. See Tex. Transp. Code Ann. 724.011-724.019 (Vernon 1997). Gomez argues correctly that the implied consent provision of the statute cannot be used to supply consent in his case. Because Gomez was not under arrest when he gave the blood specimen, the statutory implied consent provision for taking a blood specimen is not applicable. See id.; Aliff v. State, 627 S.W.2d 166, 168-69 (Tex. Crim. App. 1982); Nottingham v. State, 908 S.W.2d 585, 58 (Tex. App.-Austin 1995, no writ.). Likewise, Gomez' complaint that the technician who took the sample was not qualified under the statute fails because the portions of the statute that mandate certain procedures and personnel who must be involved in drawing blood under the doctrine of implied consent are inapplicable. Appellant's first and fifth points of error are overruled.

Gomez' second, third and fourth points of error involve the effect that Officer Moore's reading of the DIC-24 warning had on him. Gomez argues that his consent was rendered involuntary because he was misinformed about being under arrest at the time he consented to have blood drawn. The State urges that the blood specimen obtained from Gomez without a warrant was lawfully obtained because Gomez gave his consent. Testimony at the hearing on Gomez' motion to suppress was conflicting on this issue.⁽³⁾

Whether consent to a search is in fact voluntary and not the product of duress and coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); see also Erdman v. State, 861 S.W.2d 890, 895 (Tex. Crim. App. 1993) (Baird, J., concurring). The standard applied by Texas courts to determine whether consent is voluntary is proof by clear and convincing evidence. See Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App.1991); Combest v. State, 981 S.W.2d 958, 961 (Tex. App.-Austin 1998, pet. ref'd). Appellate courts should afford almost total deference to a trial court's determination of the historical facts when it involves an evaluation of the credibility and demeanor of the witnesses, because the trial court is in the best position to make that factual determination. See Villareal v. State, 935 S.W.2d 134, 139-41 (Tex. Crim. App. 1996) (McCormick, P.J., concurring); Combest, 981 S.W.2d at 959.

The issue before the trial court at the suppression hearing was whether Gomez' oral consent to give a specimen of blood was voluntary. The form DIC-24 that Officer Moore read to Gomez was not intended for use when a suspect is not under arrest. Although Gomez was not under arrest, the form read to him stated that he was under arrest. Also, that form stated that refusal to give a specimen of blood for analysis would result in the suspension of his drivers license for ninety days and that in any subsequent prosecution his refusal might be admissible.

There are a number of factors that courts use to determine the voluntariness of consent. Among these factors are: (1) a claim of authority, (2) a show of force or coercive surroundings, (3) a threat to seek or obtain a search warrant, (4) an officer's deception of identity or purpose, (5) prior unlawful police action, (6) whether Miranda warnings were given, (7) whether a defendant was aware of his Fourth Amendment rights, (8) a defendant's confession or other cooperation, (9) defendant's denial of guilt, and (10) a defendant's maturity, sophistication, mental or emotional state. 3 Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment 8.2, 643-713 (3d ed.1996); see also Combest, 981 S.W.2d at 961-962.

The facts of this case are almost identical to those in Combest. In fact, we find only three differences worth noting. First, in Combest, the defendant was read his Miranda rights; that was not done in this case. Second, in Combest, the defendant signed a written consent form; here, the consent was oral. Third, in Combest, nothing in the trial record suggested any "hesitation, question, or protest on [the defendant's] part to do what the trooper asked him to do." Combest, 981 S.W.2d at 962. Here, there was conflicting testimony as to whether Gomez questioned whether he had a right to refuse to give the sample.

Because Gomez was not under arrest, the failure to administer Miranda warnings does not render his consent invalid. Nor does the fact that his consent was given orally affect its validity. It is only the question concerning what transpired between Gomez and Officer Moore that might serve to distinguish the outcome of this case from that in Combest. Officer Moore's version of the story is that Gomez consented without protest or hesitation after the DIC-24 form was read to him. Gomez claims that he questioned whether he could refuse to have blood drawn and that Moore told him he could not. We cannot say that it was an abuse of the trial court's discretion to admit the blood sample based on the conclusion that Gomez' consent was voluntary. Appellant's second, third and fourth points of error are overruled.Expert Testimony

In his sixth point of error, Gomez challenges the reliability of the testimony of the State's expert witness, James Garriott, regarding extrapolation of Gomez' blood alcohol level. However, the court's charge to the jury contained an instruction which allowed the jury to find that Gomez was intoxicated while operating his vehicle either because (1) he had a blood alcohol level at or above 0.10 or (2) there was other evidence in the record from which the jury could infer that he did not have normal use of his mental or physical faculties by reason of the introduction of alcohol. See Hartman v. State, 1999 WL 591346, *4 (Tex. App.-San Antonio 1999, pet. filed). Appellant does not complain that the jury charge allowed a finding of intoxication by reason of impairment, nor does he challenge the sufficiency of the evidence on impairment. Therefore, even if we assume the expert testimony was improperly admitted, Gomez cannot show he was harmed by that testimony. See id.

There is sufficient evidence of impairment in the record. Witnesses at the scene testified that Gomez passed them, while they sat at a red light, at such a high rate of speed that their car rattled. He then proceeded through the light and struck the car in the intersection without ever applying his brakes. Officers at the accident scene testified there were no skid marks at the scene, and that the absence of skid marks indicates the driver might have been impaired. There is testimony from Gomez' passenger that he and Gomez drank a dozen beers together over a three hour period just prior to the accident. Gomez told the paramedic at the scene that he and his friend shared "two or three pitchers." From this evidence, a jury could reasonably infer that Gomez was impaired at the time he was operating his vehicle. Because we conclude that any error in admitting the testimony of Garriott was harmless, we overrule the point of error.

Improper Argument

In points seven and eight, Gomez complains of statements made by the State during both the guilt/innocence and punishment phases of trial. In point of error seven, Gomez complains of the following statements made by the State during argument at the guilt/innocence phase of trial:

And you know what, don't go back there and allow yourselves to imagine all various scenarios for why maybe that could be other than intoxication, because you're only allowed to consider what's come from the witness stand and reasonable inferences from that only. You don't get to say I wonder if maybe he fell asleep and his friend grabbed the wheel, or maybe he had a brake failure or all these silly things. You can't do that. That's not in evidence. There's absolutely not an ounce of it to suggest any of those things. So if any of the jurors start to do that, tell them no, you can't. All you can consider is reasonable deductions from what you heard. And bottom line is you heard no explanation for that other than . . .

In order to constitute improper comment on the defendant's failure to testify, the offending language, when viewed from the jury's standpoint, must be manifestly intended or be of such a character that the jury would naturally and necessarily take it as a comment on the accused's failure to testify. Montoya v. State, 744 S.W.2d 15, 35 (Tex. Crim. App. 1987). For an indirect comment to constitute reversible error, it must call for a denial of an assertion of fact or contradictory evidence that only the defendant is in a position to offer. See Livingston v. State, 739 S.W.2d 311, 337 (Tex. Crim. App. 1987). It is not sufficient that the language might be construed as an implicit or direct allusion as to the defendant's failure to testify. See id. at 338. If the language used can reasonably be construed as referring to the defendant's failure to produce testimony or evidence from sources other than himself, reversal is not required. Id. Because the statements of which Gomez complains are indirect comments on his failure to testify, we must determine whether they call for a denial of an assertion of fact or contradictory evidence that only Gomez was in a position to offer.

There is ample testimony in the record from witnesses other than Gomez to which the State's argument could refer. For example, there was testimony from the passenger in Gomez' vehicle, Andrew Cuellar, that he was asleep at the time of the accident. There was also testimony from police officers regarding the absence of skid marks at the scene of the accident. The prosecutor's comments could have reasonably been interpreted as an admonition to the jury to consider only the theories and facts presented by these witnesses, and not to assume facts about the accident not in evidence. Point of error seven is overruled.

In point of error eight, Gomez complains of the following statements made by the State during argument at the punishment phase of trial:

And you know from his prior DWI that he hasn't gotten the picture. His mom and dad have been up here this morning saying that he hasn't learned his lesson. What's it going to take? What's it going to take? One more headline? One more dead body on the street? No. This is punishment. This is not about forgiveness. This is the punishment phase of the trial. And you need to punish the defendant for his own arrogance and his own need for personal convenience. On June 21st, '96, no effort at all to get a designated driver, to get a cab. He was thinking about his own hide. And right now that's all he's thinking about. You can bet he's not thinking about Gabe Stevens. He's thinking about himself.

Here, the prosecutor's argument could have been in reference to several witnesses who testified on behalf of the defendant. Gomez' parents and two pastors all testified at trial. None of these witnesses testified that Gomez made remarks indicating he was thinking about Gabe Stevens (the decedent). The language at issue can be reasonably construed as a reference to Gomez' failure to call any witnesses who could testify that he was concerned about his role in the death of Gabe Stevens. Such evidence is relevant to punishment. Appellant's eighth point of error is overruled.

Conclusion

Having overruled all of Gomez' issues, we affirm the trial court's judgment.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. Paragraphs A & B of the indictment returned against Gomez alleged offenses pursuant to Tex. Penal Code Ann. 49.08, (Vernon 1989), and paragraph C alleged an offense pursuant to Tex. Penal Code Ann. 19.04, (Vernon 1989).

2. San Antonio Police Department form DIC-24 reads (in relevant part) as follows:

You are under arrest for Driving while intoxicated. You will be requested to submit to the taking of a specimen of your breath/blood for the purposes of analysis to determine the alcohol concentration or the presence of a controlled substance, a drug, a dangerous drug, or any other substance in your body.

If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution, and your license, permit, or privilege to operate a motor vehicle will be automatically suspended for not less than ninety (90) days, whether or not you are subsequently prosecuted as a result of the arrest.

If you give a specimen designated by me, and an analysis of the specimen shows that you have an alcohol concentration of a level specified in section 49.01, Texas Penal Code, your license, permit, or privilege to operate a motor vehicle will automatically be suspended for not less than sixty (60) days, whether or not you are subsequently prosecuted as a result of the arrest. . . .

3. Gomez testified that after Officer Moore read him to him from San Antonio Police Department form DIC-24, Gomez said "I guess I have no choice then." Gomez further testified that Officer Moore's response was "In these cases you do not usually have a choice, in a fatality." Officer Moore, however, testified that he never said that anything like "in these kinds of cases, blood is drawn," and that Gomez never said anything to the effect of "I guess I have no choice then." Gomez testified that he would not have consented if he had not been told by Officer Moore that he was under arrest.