Linda Louise Bergner v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-266-CR
LINDA LOUISE BERGNER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Linda Louise Bergner appeals her conviction for driving while
intoxicated (DWI). In four points, Bergner contends that the trial court erred by
denying her motion to suppress the results of her breath test and by denying
a jury instruction to disregard any evidence that the jury believed was illegally
obtained. We will affirm.
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… See Tex. R. App. P. 47.4.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
The Roanoke Police Department received a call from an unknown caller
reporting that a possibly intoxicated driver in a yellow truck with no taillights
was driving “all over the roadway.” Sergeant Shannon Perry was dispatched
to the area and saw the truck. Sergeant Perry initiated a traffic stop because
the truck failed to maintain a single lane and its taillights were out. Bergner
was driving the truck.
During the stop, Sergeant Perry detected an odor of alcohol on Bergner’s
breath and observed that Bergner’s eyes were glossy, bloodshot, and slightly
droopy. He also saw a glass of spilled liquid on the floorboard. Although
Bergner initially said that she had not been drinking, she later admitted that she
had been drinking at a friend’s house and that the liquid on the floorboard was
wine. Sergeant Perry performed the horizontal gaze nystagmus test, the walk-
and-turn test, and the one-leg stand test on Bergner. Bergner failed the first
two tests and passed the one-leg stand test. Sergeant Perry arrested Bergner
for DWI.
Sergeant Perry took Bergner to the intoxilyzer room at the police station,
where the following events were videotaped. Sergeant Perry provided Bergner
with a copy of the DIC-24 warnings and read them aloud to her. Bergner then
agreed to submit to a breath test. The officer left the room, and while he was
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out of the room, Bergner used her cell phone to call her friend Jackie Ruis.
Jackie told her to refuse the breath test, and Bergner responded that she would
go to jail if she did not take the test. The officer reentered the room, and a few
minutes later, Bergner asked him, “What happens if I say no?” The officer told
her that she would go to jail if she did not blow. Bergner took the breath test,
and the two results measured .085 and .089, above the legal limit.
Bergner filed a motion to suppress the results of the breath test, and at
the suppression hearing, she claimed that the officer’s extra-statutory warning
that she would go to jail if she failed the breath test made her consent
involuntary. The trial court denied Bergner’s motion to suppress, finding that
Bergner was not coerced into taking the breath test.
III. M OTION TO S UPPRESS
In her first three points, Bergner complains that the trial court erred by
refusing to suppress her breath test results in violation of the United States and
Texas constitutions and Texas statutory law.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under
a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). In reviewing the trial court’s decision, we do not engage in our own
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factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no
pet.). The trial judge is the sole trier of fact and judge of the credibility of the
witnesses and the weight to be given their testimony. Wiede v. State, 214
S.W .3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W .3d 853,
855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195
S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total
deference to the trial court’s rulings on (1) questions of historical fact, even if
the trial court’s determination of those facts was not based on an evaluation of
credibility and demeanor, and (2) application-of-law-to-fact questions that turn
on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;
Montanez v. State, 195 S.W .3d 101, 108–09 (Tex. Crim. App. 2006);
Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when
application-of-law-to-fact questions do not turn on the credibility and demeanor
of the witnesses, we review the trial court’s rulings on those questions de
novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion
to suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
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(Tex. Crim. App. 2006). When the record is silent on the reasons for the trial
court’s ruling, or when there are no explicit fact findings and neither party
timely requested findings and conclusions from the trial court, we imply the
necessary fact findings that would support the trial court’s ruling if the
evidence, viewed in the light most favorable to the trial court’s ruling, supports
those findings. Kelly, 204 S.W.3d at 819; see Amador, 221 S.W.3d at 673;
Wiede, 214 S.W.3d at 25. We then review the trial court’s legal ruling de novo
unless the implied fact findings supported by the record are also dispositive of
the legal ruling. Kelly, 204 S.W.3d at 819.
We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case even if the trial court
gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740
(Tex. Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.
Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
B. Consent to Breath Test
The implied consent statute provides that a person arrested for suspected
DWI is deemed to have consented to providing specimens for a breath or blood
test. Tex. Transp. Code Ann. § 724.011(a) (Vernon 1999). However, the
person retains an absolute right to refuse a test. Id. § 724.013. An adult
person arrested for DWI must be warned that refusal to submit to a breath test
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will result in the following consequences: (1) evidence of the refusal will be
admissible against the person in court, and (2) the person’s driver’s license will
be suspended for not less than 180 days. Id. § 724.015(1)–(2) (Vernon Supp.
2008); Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993)
(applying former version of section 724.015 imposing 90-day suspension). The
person must likewise be informed of the possible consequences if he submits
to the test and the results of the test show a prohibited blood-alcohol level.
See Tex. Transp. Code Ann. § 724.015(3)–(4).
A suspect’s consent to a breath test must be voluntary. Turpin v. State,
606 S.W.2d 907, 914 (Tex. Crim. App. 1980) (applying former version of
section 724.015). For consent to a breath test to be deemed voluntary, a
suspect’s decision must not be the result of physical pressure or psychological
pressure brought to bear by law enforcement officials. See Thomas v. State,
723 S.W.2d 696, 704–05 (Tex. Crim. App. 1986) (recognizing that consent
to breath test is not voluntary if induced by physical force or mental coercion);
Schafer v. State, 95 S.W.3d 452, 455 (Tex. App.—Houston [1st Dist.] 2002,
pet. ref’d) (recognizing that consent to breath test is not voluntary if induced
by misstatement of direct statutory consequences of refusal). A suspect’s
decision to submit to a breath test must be his own, made freely, and with a
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correct understanding of the statutory consequences of refusal. Erdman, 861
S.W.2d at 893.
If the officer requesting the breath sample misstates the law and includes
extra-statutory consequences of a refusal to submit to the breath test, the
consent may be considered to have been involuntarily given. See Erdman, 861
S.W.2d at 893–94; State v. Serrano, 894 S.W.2d 74, 75–76 (Tex.
App.—Houston [14th Dist.] 1995, no pet.); State v. Sells, 798 S.W.2d 865,
866 (Tex. App.—Austin 1990, no pet.). In Erdman, the arresting officer gave
the suspect the statutorily required warnings concerning the consequences of
refusing to submit to a breath test but added additional, extra-statutory
warnings. Erdman, 861 S.W.2d at 893–94. The extra-statutory warnings
included the following: (1) that DWI charges would be filed against the suspect
and (2) that he would be put in jail that night. Id. at 891, 894. The court of
criminal appeals held that the extra-statutory warnings conveyed to the suspect
were of the type that would result in “considerable psychological pressure.”
Id. at 894. Erdman thus stands for the proposition that law enforcement
officials “must take care to warn D.W.I. suspects correctly about the actual,
direct, statutory consequences of refusal.” Id.
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C. Bergner’s Consent to Breath Test
Although Bergner is correct that Sergeant Perry’s extra-statutory
statement is substantially the same as the statement at issue in Erdman,
Erdman is not controlling because here, unlike in Erdman, the record is not
devoid of evidence that the officer’s statement had no bearing on Bergner’s
decision to take the breath test. Compare Erdman, 861 S.W.2d at 893–94
(noting complete absence of evidence showing extra-statutory warning had no
bearing on defendant’s decision to consent), with Urquhart v. State, 128
S.W.3d 701, 705 (Tex. App.—El Paso 2004, pet. ref’d) (distinguishing Erdman
where there was “considerable other evidence” that consent was voluntary).
In Erdman, the court of criminal appeals emphasized that Erdman “consented
to the intoxilyzer test only after the trooper gave him [the extra-statutory
warnings] concerning the consequences of refusal.” Erdman, 861 S.W.2d at
893–94 (emphasis added); see also Thorn v. State, No. 02-95-00872-CR,
1997 WL 672623, at *4 (Tex. App.—Dallas Oct. 30, 1997, pet. ref’d) (not
designated for publication) (distinguishing Erdman and holding that extra-
statutory warnings given after defendant consented to breath test had no
impact on whether she should take the test). Here, Bergner testified at the
suppression hearing that she voluntarily consented to taking the breath test
initially, and our review of the videotape shows that when asked whether she
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would take the test, she replied, “You bet.” At that time, she had received only
the statutory warnings. Bergner testified that after talking with her friend,
however, she decided not to take the test but that because the officer said she
could go to jail if she refused, she ultimately took the breath test. But Bergner
never revoked her consent. The trial court, as the sole trier of fact and judge
of Bergner’s credibility at the suppression hearing, was entitled to disbelieve
Bergner’s testimony concerning a private, unexpressed decision she purportedly
made to not submit a breath specimen after she had voluntarily consented to
the breath test. See Wiede, 214 S.W.3d at 24–25; Ross, 32 S.W.3d at 855;
see also Ness v. State, 152 S.W.3d 759, 763–64 (Tex. App.—Houston 2004,
pet. ref’d) (holding that trial court acted within its discretion by rejecting
appellant’s professed understanding of the officer’s extra-statutory warning).
Additionally, Bergner failed to show a causal connection between the
extra-statutory statement and her consent to the breath test. See Sandoval v.
State, 17 S.W.3d 792, 795–97 (Tex. App.—Austin 2000, pet. ref’d). Bergner
testified on cross-examination that she already knew she would go to jail if she
refused to take the breath test, and the videotape reveals that when her friend
told her not to take the breath test, Bergner responded, “So spend the night in
jail?” Because Bergner already understood the consequences of refusing to
blow, Sergeant Perry’s extra-statutory statement—made after Bergner agreed
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to take the test—could not have caused the “psychological pressures” that case
law is designed to prevent. See Erdman, 861 S.W.2d at 893–94; Serrano, 894
S.W.2d at 75–76; Sells, 798 S.W.2d at 866. Affording almost total deference
to the trial court’s determination of historical facts that are supported by the
record and to the trial court’s credibility determinations, we hold that the trial
court did not err by denying Bergner’s motion to suppress. See Wiede, 214
S.W.3d at 24; Kelly, 204 S.W.3d at 818. We overrule Bergner’s first, second,
and third points.
IV. J URY INSTRUCTION
In her fourth point, Bergner argues that the trial court erred by refusing
her request to instruct the jury to “disregard any evidence that was [obtained]
in violation of the law, specifically the breath specimen.”
A. Standard of Review
Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we
must determine whether error occurred. If so, we must then evaluate whether
sufficient harm resulted from the error to require reversal. Id. at 731–32. Error
in the charge, if timely objected to in the trial court, requires reversal if the error
was “calculated to injure the rights of [the] defendant,” which means no more
than that there must be some harm to the accused from the error. Tex. Code
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Crim. Proc. Ann. art. 36.19 (Vernon 2006); see also Abdnor, 871 S.W.2d at
731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g). In other words, a properly preserved error will require reversal as
long as the error is not harmless. Almanza, 686 S.W.2d at 171. In making this
determination, “the actual degree of harm must be assayed in light of the entire
jury charge, the state of the evidence, including the contested issues and
weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Id.; see also Ovalle
v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000).
B. Article 38.23 Jury Instruction
Under article 38.23 of the code of criminal procedure, no evidence
obtained in violation of the federal or state constitutions or laws may be
admitted in evidence against the accused. Tex. Code Crim. Proc. Ann. art.
38.23(a) (Vernon 2005). W hen the evidence raises an issue regarding a
violation, the jury must be instructed that if it believes, or has a reasonable
doubt, that the evidence was obtained in violation of the law, it must disregard
the illegally obtained evidence. Id. A defendant’s right to the submission of
jury instructions under article 38.23(a) is limited to disputed issues of fact that
are material to her claim of a constitutional or statutory violation that would
render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509–10
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(Tex. Crim. App. 2007). To raise a disputed fact issue warranting an article
38.23(a) jury instruction, there must be some affirmative evidence that puts the
existence of that fact into question. Id. at 513. If there is no disputed factual
issue, the legality of the conduct is determined by the trial judge alone, as a
question of law. Id. at 510. A cross-examiner’s questions do not create a
conflict in the evidence, although the witness’s answers to those questions
might. Id. (citing Garza v. State, 126 S.W .3d 79, 86–87 & n.3 (Tex. Crim.
App. 2004)).
Here, Bergner contends that the videotape and Sergeant Perry’s testimony
present a factual issue regarding Bergner’s consent to take the breath test.
Bergner specifically points to the following exchange on cross-examination of
Sergeant Perry:
[Defense Counsel:] And that’s the DWI law.
Okay. When you asked her if she
blew— she blows. She said sure, right?
And then you left?
[Perry:] Yes.
[Defense Counsel:] She talks to a friend, and it’s clear that she
doesn’t want to take the test at that
point?
[Perry:] Yes. She asked about it, yes.
[Defense Counsel:] Well, if she was just going to say yes, and
if she was going to keep saying yes, why
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would she ask you what would happen if
I said no?
[Perry:] It’s a question. I don’t know, sir. At the
time I hadn’t watched the video and didn’t
know what was going on. I did not know.
I walked in, she asked the question.
[Defense Counsel:] I totally—I’m with you. You’re out of the
room when she’s talking to a friend, and
the friend goes, don’t blow in the machine.
It doesn’t make any sense. She’s, like,
why shouldn’t I? Right? You’ve seen that
now.
[Perry:] Yes. Yes.
[Defense Counsel:] You didn’t know that at the time?
[Perry:] No.
....
[Defense Counsel:] But it was clear, now that you watched
the tape, that she says, well, I’m not going
to blow in the machine. My friend told me
not to, right?
[Perry:] After watching the video tape, yes.
[Defense Counsel:] And I know you didn’t know that, but did
you do something wrong in—in your
opinion when she asked you if she didn’t
blow in the machine what would happen?
[Perry:] I said she would go to jail.
[Defense Counsel:] You’re not supposed to do that, are you?
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[Perry:] It would happen either way. No.
Bergner points only to the above testimony and the videotape as raising
a conflict in the evidence regarding the voluntariness of her consent. The
videotape shows that Sergeant Perry gave the appropriate statutory warnings
before obtaining Bergner’s consent and that Bergner never revoked her consent.
The officer’s answers to trial counsel’s questions on cross-examination were
insufficient to raise a disputed fact issue warranting an article 38.23(a) jury
instruction. See Madden, 242 S.W.3d at 513. The jury was not present for
the suppression hearing, where Bergner testified that she took the breath test
because Sergeant Perry said she could go to jail if she refused, and Bergner did
not testify at trial. No evidence presented to the jury raised a disputed fact
issue related to the voluntariness of her consent. See id. Consequently,
Bergner was not entitled to an article 38.23 jury instruction.
C. Harmless Error
Even assuming that the officer’s testimony during cross-examination is
some evidence in support of Bergner’s contention that she was coerced into
taking the breath test and that, consequently, a fact issue necessitated an
article 38.23 instruction, any error was harmless. Tex. Code Crim. Proc. Ann.
art. 36.19; see also Abdnor, 871 S.W.2d at 731–32; Almanza, 686 S.W.2d at
171. Under the information and the jury charge, the jury was authorized to find
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that Bergner was intoxicated under the per se definition of intoxication—that
her blood alcohol concentration was 0.08 or more—or under the impairment
theory—that she did not have the normal use of her mental or physical faculties
by reason of the introduction of alcohol into her body. See Tex. Penal Code
Ann. § 49.01(2) (Vernon 2003). Bergner’s breath test results “were pieces in
the evidentiary puzzle for the jury to consider” in determining whether she was
intoxicated at the time she drove. Stewart v. State, 129 S.W.3d 93, 97 (Tex.
Crim. App. 2004). The jury had other evidence of Bergner’s intoxication, such
as the arresting officer’s testimony about Bergner’s driving patterns before he
pulled her over, the results of Bergner’s field sobriety tests, Bergner’s admission
to the officer that she had been drinking, the spilled glass of wine on the
floorboard of Bergner’s truck, and the videotape of the encounter. See id.
Sergeant Perry testified that he arrested Bergner based on her driving, the odor
of alcohol on her breath, the alcohol in the truck, and the results of the field
sobriety tests.
Regarding the breath test, the videotape demonstrates that Bergner
received the required statutory warnings and agreed to take the breath test.
Bergner testified at trial that even before asking the officer what would happen
if she refused the test, she knew she would go to jail. We conclude that the
trial court’s denial of the requested jury instruction was not calculated to injure
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Bergner’s rights and that, based on the record, any error was harmless. See
Tex. Code Crim. Proc. Ann. art. 36.19; see also Abdnor, 871 S.W.2d at
731–32; Almanza, 686 S.W.2d at 171. We overrule Bergner’s fourth point.
V. C ONCLUSION
Having overruled Bergner’s four points, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: HOLMAN, GARDNER, and WALKER, JJ
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 30, 2008
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