John Tyler Bice v. State ( 2013 )

NUMBER 13-12-00154-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JOHN TYLER BICE, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 2
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Chief Justice Valdez1
By one issue, appellant, John Tyler Bice, appeals from his conviction for driving
while intoxicated, a class B misdemeanor offense. See TEX. PENAL CODE ANN. §
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The Honorable Rose Vela, former Justice of this Court, did not participate in deciding the case
because her term of office expired on December 31, 2012. “In accordance with the appellate rules, she
was replaced on panel by Justice Nora L. Longoria”. See TEX. R. APP. P. 41.1(a).
49.04(a)–(b) (West Supp. 2011). Appellant argues that the trial court committed
reversible error in denying his two motions to suppress. We affirm.
I. BACKGROUND
The trial court held an evidentiary hearing on appellant’s motions to suppress,
during which the State called as its only witness Officer Jeff Strauss of the Victoria
Police Department.2 Strauss testified that, on April 7, 2011, he was conducting a night
patrol when he observed a pickup truck traveling at an excessive rate of speed. His
handheld radar verified that the truck was traveling 56 mph in a 40 mph zone. Strauss
initiated a traffic stop and followed the truck as it pulled into the parking lot of Shooters
Bar.
Following the stop, appellant exited the truck and started walking toward either
the officer or the club; Strauss could not determine which. Strauss asked appellant to
stop, identified himself as a police officer, and informed appellant of the reason for the
stop. Strauss noticed an odor of alcohol emanating from appellant. Strauss also
noticed that appellant’s eyes were glassy and “a little bit bloodshot.” According to
Strauss, appellant’s speech was “relatively good.” At this point, Strauss was suspicious
that appellant was possibly intoxicated.
Following field sobriety testing, Strauss arrested appellant. Next, Strauss
requested that appellant provide a breath sample. According to Strauss, he made the
request by reading the statutory warning language from a form known as the “DIC-24.”
On direct examination, Strauss testified that he read the DIC-24 “verbatim.” Strauss
testified that the second paragraph of the DIC-24 states as follows:
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Appellant did not testify.
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If you refuse to give the specimen, that refusal may be admissible in the
subsequent prosecution. Your license, permit or privilege to operate a
motor vehicle will be suspended or denied for not less than 180 days,
whether or not you are subsequently prosecuted for this offense.
According to Strauss, after appellant “initially refused” to provide a sample:
I told him we would sign the refusal form at the jail, but then I reiterated
that I wanted to make clear that he understood it was an automatic 180
day suspension of his license, just to make sure that he was clear on the
his refusal. I wanted to make sure that he understood the consequences.
After reviewing a video of the traffic stop, however, Strauss acknowledged that
he deviated from the language of the DIC-24. Specifically, Strauss testified, “I didn’t
state the exact two sentences, but I stated that the refusal could result in a suspension
for 180 days.” Subsequently, Strauss testified that he told appellant that “his license
would be suspended up to 180 days.” According to Strauss, “[appellant] changed his
mind and decided that he would render the sample.” Thereafter, appellant provided a
sample.
The following exchange took place on cross-examination by appellant’s attorney:
Q [A]fter you read him that warning, he refused, correct?
A Yes, sir.
Q He said no.
A Yes, sir.
Q Was there any doubt in your mind that he said the word no?
A Not at all.
Q You even confirmed that with him, didn’t you?
A Yes, sir.
Q Now, you had not Mirandized him yet at this point, had you?
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A No, sir.
Q He was in custody at that point in time, correct?
A Yes, sir.
Q And you felt obliged to ask him some questions, didn’t you?
A I only asked him – or I only reiterated that if he understood the
penalty for not rendering the sample.
Q And how did you do that?
A I asked him if he understood by his refusal that his license would be
suspended for 180 days.
Q Okay. Now we watched that video and you said for up to 180 days.
Do you recall that?
A Oh yes, sir, my mistake, yes, sir.
Q So you reiterated to him that his license would be suspended for up
to 180 days, is that correct?
A Yes, sir.
Q Is that the law?
A There is no law against making sure he understood.
Q Okay. Well, I am talking about you stating the law[ is] that his
license would be suspended for up to 180 days if he refused.
A Yes, sir.
Q Would you read that code again and maybe refresh your memory
about the law?
A I see – I see the point you are making, it is for not less than 180
days.
Q So you didn’t state the law properly, did you?
A No, sir, not verbatim.
Q Not verbatim or not at all?
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A I didn’t tell him – I didn’t tell him for not less than 180 days. I said
up to 180 days.
Q You will agree that up to 180 days and not less than 180 days are
two completely different spectrums, correct?
A Yes, sir.
Q So you misstated the direct statutory consequences arising from a
refusal, is that correct?
A A misstatement, I would . . . agree with that in hindsight.
On re-direct examination by the State, Strauss clarified that the first time he
requested a sample from appellant he read the second paragraph of the DIC-24
“verbatim.”
The trial court denied appellant’s two motions to suppress without entering
findings of fact or conclusions of law. Thereafter, a jury trial was held, and appellant
was found guilty of driving while intoxicated. A final judgment was entered, and this
appeal ensued.
II. ANALYSIS
By one issue, appellant contends that the trial court erred in denying his motions
to suppress.
A. Standard of Review
Whether the trial court properly denied a defendant’s motion to suppress is
reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720,
725 (Tex. Crim. App. 2007); Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—
Corpus Christi 2009, 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,
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214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to a trial
court's determination of historic facts and mixed questions of law and fact that rely upon
the credibility of a witness, but apply a de novo standard of review to pure questions of
law and mixed questions that do not depend on credibility. Martinez v. State, 348
S.W.3d 919, 922–23 (Tex. Crim. App. 2011). We view the evidence in the light most
favorable to the trial court’s ruling. Wiede, 214 S.W.3d at 24. We must uphold the trial
court's ruling if it is reasonably supported by the record and is 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); State v. Dixon, 206
S.W.3d 587, 590 (Tex. Crim. App. 2006). We will overturn the ruling only if it is “outside
the zone of reasonable disagreement.” Martinez, 348 S.W.3d at 922.
B. Applicable Law
Any person who is arrested for DWI is deemed to have given consent to submit
to providing a specimen for a breath or blood test for the purpose of determining alcohol
concentration or the presence of a controlled substance, drug, dangerous drug, or other
substance. See TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011).3 However, a
person retains an absolute right (subject to certain exceptions not relevant here) to
refuse a test. Id. § 724.013 (West 2011). That refusal must be strictly honored.
McCambridge v. State, 712 S.W.2d 499, 504 n.16 (Tex. Crim. App. 1986); Turpin v.
State, 606 S.W.2d 907, 913-14 (Tex. Crim. App. 1980). The Texas Court of Criminal
Appeals has explained this apparent inconsistency: “[C]onsent being implied by law, a
3
See McCambridge v. State, 712 S.W.2d 499, 504 (Tex. Crim. App. 1986) (“[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.”) (internal citation omitted).
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driver may not legally refuse. A driver, however, can physically refuse to submit, and
the implied consent law, recognizing that practical reality, forbids the use of physical
force to compel submission.” Forte v. State, 759 S.W.2d 128, 138 (Tex. Crim. App.
1988).
A driver’s consent to a blood or breath test must be free and voluntary, and it
must not be the result of physical or psychological pressures brought to bear by law
enforcement. Meekins v. State, 340 S.W.3d 454, 458–59 (Tex. Crim. App. 2011); see
Hall v. State, 649 S.W.2d 627, 628 (Tex. Crim. App. 1983). The ultimate question is
whether the person’s “will has been overborne and his capacity for self-determination
critically impaired” such that his consent to search must have been involuntary.
Schneckloth v. Bustamonte, 412 U.S. 218, 225–26 (1973); Meekins, 340 S.W.3d at 459.
We “review the totality of the circumstances of a particular police-citizen interaction from
the point of view of the objectively reasonable person.” Meekins, 340 S.W.3d at 459.
The validity of an alleged consent is a question of fact, and the State must prove
voluntary consent by clear and convincing evidence. State v. Weaver, 349 S.W.3d 521,
526 (Tex. Crim. App. 2011).
Critical to a consent analysis is that the fact finder must consider the totality of
the circumstances in order to determine whether consent was given voluntarily.
Meekins, 340 S.W.3d at 459 (citing Schneckloth, 412 U.S. at 233); Harrison v. State,
205 S.W.3d 549, 552 (Tex. Crim. App. 2006). “The trial judge must conduct a careful
sifting and balancing of the unique facts and circumstances of each case in deciding
whether a particular consent to search was voluntary or coerced.” Meekins, 340
S.W.3d at 459. Accordingly, it follows that, because the fact finder must consider all of
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the evidence presented, no one statement or action should automatically amount to
coercion such that consent is involuntary—it must be considered in the totality. See
Fienen v. State, No. PD-0119-12, 2012 Tex. Crim. App. LEXIS 1597 (Tex. Crim. App.
Nov. 21, 2012).
C. Discussion
Appellant contends that the incorrect statutory warning he was given rendered
his consent to the breath test coerced and involuntary. See TEX. TRANSP. CODE ANN. §
724.015 (West Supp. 2011). On this basis, he argues that the results of the test should
have been suppressed. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005)
(“No evidence obtained by an officer or other person in violation of any provisions of the
Constitution or laws of the State of Texas, or of the Constitution or laws of the United
States of America, shall be admitted in evidence against the accused on the trial of any
criminal case.”).
Appellant relies on Erdman v. State, 861 S.W.2d 890, 894 (Tex. Crim. App.
1993), overruled, Fienen v. State, No. PD-0119-12, 2012 Tex. Crim. App. LEXIS 1597
(Tex. Crim. App. Nov. 21, 2012) for the proposition that the incorrect statutory
information conveyed by the officer automatically rendered his consent involuntary and
coerced. The Court of Criminal Appeals has recently overruled Erdman, noting its
“confused and flawed reasoning.” Fienen, 2012 Tex. Crim. App. LEXIS 1597 at *15.
The Court specifically noted that, based on Erdman, when extra-statutory warnings
relate to the consequences of passing or failing the breath test, the courts of appeals
have required that the defendant show a causal connection between the warning and
the decision to submit to the test. See id. at *16. The Court further noted that “the rules
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developed post-Erdman misapply the relevant burden of proof in addressing warnings
regarding the consequences of passing or failing a breathalyzer test.” Id. at *18. “It is
well established that, when the issue is raised in a motion to suppress, the State must
prove voluntary consent by clear and convincing evidence.” Id. “Contrary to this notion,
the courts of appeals have placed a burden on the defendant to show that he was
coerced, specifically that there was a causal connection between the warning and his
decision to submit to the test.” Id. According to the Court of Criminal Appeals, “[t]his
should not be so—once the defendant has raised the issue in his motion, the burden of
proof is on the State, and it does not shift back to the defendant.” Id.
Thus, the relevant question is whether, based on the totality of the
circumstances, the State met its burden to prove that appellant’s consent was voluntary.
Id. at *19 (“[I]t is the State’s burden to prove voluntary consent by clear and convincing
evidence.”). Here, the State’s evidence included the testimony of the arresting officer,
as well as a video and audio recording of the exchange between appellant and the
officer. The uncontroverted evidence established that appellant was initially given the
correct statutory warnings by the officer and subsequently refused consent. Thereafter,
the officer advised appellant of the consequences of his refusal; however, in doing so,
he misstated the statutory language by saying “up to 180 days” instead of “not less than
180 days.” In other words, the officer understated the consequences of appellant’s
refusal. Appellant then consented to provide the breath sample.
Although appellant consented after he was incorrectly advised, there is no
indication that the consent was induced or coerced by the officer understating the
consequences of a refusal. See Franco v. State, 82 S.W.3d 425, 428 (Tex. App.—
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Austin 2002, pet. ref’d) (“But Franco cannot plausibly argue that his decision to take the
breath test was induced or coerced by the officer understating the consequences of a
refusal.”) (emphasis in original). Moreover, the officer’s second request for a breath
sample—on its own—did not amount to coercion, as appellant contends. See White v.
State, 711 S.W.2d 106, 107 (Tex. App.—Houston [14th Dist.] 1986, no pet.) (“Appellant
contends that the repeated demands of the police officer that he submit to a
Breathalyzer test were somehow coercive in nature. We do not agree.”). Although
appellant changed his mind and agreed to provide a breath sample after the second
request, that fact alone—without evidence that appellant was pressured physically or
psychologically—is insufficient to invalidate consent that was otherwise voluntary. See
State v. Sells, 798 S.W.2d 865, 867 (Tex. Crim. App. 1990) (per curiam) (“If a driver’s
consent is induced by an officer’s misstatement of the consequences flowing from a
refusal to take the test, the consent is not voluntary.”).
Appellant argues that the outcome of this case should be determined by this
Court’s decision in Tex. Dep't of Pub. Safety v. Patel, No. 13-05-775-CV, 2006 Tex.
App. LEXIS 9720 (Tex. App.—Corpus Christi Nov. 9, 2006, pet. denied) (mem. op.) (not
designated for publication). Patel was a civil case involving a license revocation. Id.
The defendant testified that he refused to provide a breath sample because the
arresting trooper told him, after he had been given the required warnings, that if he hired
an attorney, he did not have to provide a breath specimen. Id. at *9–10. We held that
the administrative law judge was free to believe or disbelieve the defendant’s contention
that the arresting trooper’s extra-statutory warnings affected his decision to refuse to
provide a breath specimen. Id. at *11.
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In this case, appellant did not testify, though we note he was not required to.
Consequently, there is no testimony in the record regarding appellant’s reasons for
initially refusing to provide a sample or why he later changed his mind. Furthermore,
unlike the defendant in Patel, appellant did not refuse to provide a sample, despite the
fact that the officer understated the consequences of refusal. Thus, Patel is not
controlling.
Accordingly, the trial court did not abuse its discretion in denying appellant’s
motions to suppress. Appellant’s sole issue is overruled.
III. CONCLUSION
The judgment of the trial court is affirmed.
___________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
10th day of January, 2013.
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