Hromadka, Darlene U. v. State ( 2004 )

Affirmed and Opinion filed _____________, 2003

Affirmed and Memorandum Opinion on Remand filed February 10, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-99-00685-CR

____________

DARLENE U. HROMADKA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law Number Fourteen

Harris County, Texas

Trial Court Cause No. 98,40646

M E M O R A N D U M   O P I N I O N   O N R E M A N D

            Appellant Darlene Hromadka appealed her misdemeanor conviction for driving while intoxicated (“DWI”).  This Court affirmed her conviction.[*]  But the Court of Criminal Appeals reversed that judgment in holding: (1) appellant did not fail to preserve error in her claim of jury charge error, and (2) appellant did not waive the right to a jury instruction on the issue of voluntary consent in performing field sobriety tests by her failure to object to the admissibility of the evidence.  See Hromadka v. State, No. 1329-00, 2003 WL 1845067 (Tex. Crim. App. April 9, 2003).  The Court of Criminal Appeals remanded the case to this Court to resolve whether appellant was entitled to the requested instruction based upon the requirement provided in Article 38.23(a) of the Texas Code of Criminal Procedure.[†] Id. at *2.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1.  We affirm.

            Appellant argues the trial court erred in denying her requested jury instruction on voluntary consent in the performance of field sobriety tests pursuant to Article 38.23(a).  In reviewing the denial of a requested jury instruction, we must determine whether error actually exists and, if so, the extent of that error.  See Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998).

Implicit in appellant’s argument is the assumption that involuntary performance of field sobriety tests yields illegally obtained evidence.  But a suspect may be compelled to give physical evidence of intoxication without implicating the constitutional protection against self-incrimination.  Jones v. State, 795 S.W.2d 171, 175 (Tex. Crim. App. 1990). A field sobriety test yields physical evidence of a suspect’s mental and physical faculties. Gassaway v. State, 957 S.W.2d 48, 51 (Tex. Crim. App. 1997).  In the present case, appellant complains of the evidence obtained from her performance of a battery of field sobriety tests administered by Houston police officer Kevin O’Brien, including: (1) the horizontal gaze nystagmus test, (2) the Romberg (divided attention) test, (3) the “one-leg-stand” test, and (4) the “walk-and-turn” test. Therefore, no constitutional violation occurred when the State obtained evidence of appellant’s intoxication through her performance of the field sobriety tests.

Appellant cites Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993), and Bell v. State, 881 S.W.2d 794, 801-02 (Tex. App.—Houston [14^th Dist.] 1994, pet. ref’d), for the proposition that DWI suspects are entitled to an Article 38.23(a) jury instruction if a factual issue is raised involving voluntary consent to a breath test or a blood test.  She argues it would be unreasonable not to extend this entitlement to voluntary consent issues involving field sobriety tests such as those performed in the present case.

But issues involving consent to tests of a suspect’s breath and blood are governed by statute.  See Tex. Transp. Code §§ 724.011-.015. Appellant refers us to no statute with similar provisions that would apply to field sobriety tests, and we are unaware of any.  See Martin v. State, 97 S.W.3d 718, 720 (Tex. App.—Waco 2003, pet. ref'd).  Since we cannot say the evidence from the field sobriety tests was obtained illegally, appellant was not entitled to a voluntary consent instruction. Accordingly, appellant’s sole issue on remand is overruled.

The judgment is affirmed.

                                                                        /s/        Paul C. Murphy

                                                                                    Senior Chief Justice

Judgment rendered and Memorandum Opinion on Remand filed February 10, 2004.

Panel consists of Justices Anderson, Seymore and Senior Chief Justice Murphy.*

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

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[*] See Hromadka v. State, No. 14-99-00685-CR, 2000 WL 977623 (Tex. App.—Houston [14^th Dist.] May 18, 2000).

[†] That section provides in pertinent part: “In any case where the legal evidence raises an issue [as to whether admitted evidence was obtained in violation of federal or state law], the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.”

* Senior Chief Justice Paul C. Murphy sitting by assignment.