Opinion
No. 05-08-01230-CR
Opinion Filed April 15, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Court at Law, Rockwall County, Texas, Trial Court Cause No. CR07-2234.
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
MEMORANDUM OPINION
Zachary Jose Baez appeals his conviction for driving while intoxicated. After, the trial court denied appellant's motion to suppress, appellant pleaded guilty with an agreement as to punishment. Pursuant to the agreement, the trial court sentenced appellant to 180 days' confinement in state jail and a $900 fine. The trial court then suspended the order of confinement and placed appellant on community supervision for eighteen months. Appellant brings four issues asserting the trial court erred in denying appellant's motion to suppress the breath-test results. We affirm the trial court's judgment.
BACKGROUND
Shortly after midnight on September 23, 2007, Officer Daniel Garcia with the Rockwall Police Department pulled over appellant on suspicion of driving while intoxicated. After another officer conducted field sobriety tests on appellant, Garcia placed appellant under arrest. While waiting for the tow truck to arrive, Garcia read appellant the "DIC-24" form and requested a sample of appellant's breath. Appellant agreed. After the tow truck left with appellant's vehicle, Garcia drove appellant to the jail. In the sallyport of the jail, Garcia said he was marking "breath" on the DIC-24 form and told appellant to sign "right there." Appellant then stated, "Um, are you going to take blood, or is it the same?" Garcia said, "I asked you to take breath. You can take the breath." Appellant said, "Can I take blood?" and Garcia said, "I've already asked you to take breath, OK? So, if you don't want to take the breath then you're going to be refusing." Appellant said, "All right," and signed the form. Garcia then read appellant his Miranda rights and asked appellant if he "wanted to talk about what happened." Appellant answered, "Only with my attorney." Garcia then turned appellant over to the officer operating the intoxilyzer machine. All of the events to this point were recorded with the video camera in Garcia's police car. There was no video recording of what transpired in the intoxilyzer room, and the officer had no independent recollection of testing appellant. The two test results showed appellant's blood alcohol level was 0.189 and 0.182. After the trial court denied appellant's motion to suppress, appellant pleaded guilty pursuant to the parties' plea agreement.MOTION TO SUPPRESS
All of appellant's issues assert the trial court erred in denying appellant's motion to suppress the breath-test results. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). We give almost total deference to the trial court's determination of historical facts, and we review de novo the trial court's application of law to facts not turning on credibility and demeanor. Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). We do not engage in our own factual review; instead, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. St. George, 237 S.W.3d at 725; Guzman, 955 S.W.2d at 89. We review the record to determine whether the trial court's ruling is supported by the record and is correct under some theory of law applicable to the case. St. George, 237 S.W.3d at 725. In his first and second issues, appellant contends the trial court abused its discretion in denying appellant's motion to suppress the breath-test results because appellant refused to submit a specimen of his breath. Section 724.013 of the Texas Transportation Code provides that, except for certain circumstances not relevant here, a specimen of breath or blood may not be taken if the person refuses to submit to the taking of the specimen designated by the officer. Tex. Transp. Code Ann. § 724.013 (Vernon 1999); McCambridge v. State, 712 S.W.2d 499, 504 n. 16 (Tex.Crim.App. 1986). Appellant asserts that his refusal is shown by his signing the DIC-24 form. Appellant argues that testing his breath after he refused consent to provide a specimen of his breath violated section 724.013 and his due process rights under the United States and Texas Constitutions. On that form, after the warnings about the effect of providing or refusing a specimen for alcohol testing, the form stated:I am now requesting a specimen of your [X] Breath [ ] Blood
[ ]
Subject refused to allow the taking of a specimen and further refused to sign below as requested by this officer.
OR
[ ]
Subject refused to allow the taking of a specimen as evidence by his/her signature below.
[Jose Baez]
Subject's Signature
[Daniel Garcia]
Officer's Signature(Box for certification that subject is a child omitted.) Appellant argues that his signature on the form shows he refused to give a specimen of his breath. Whether a defendant voluntarily consents to provide a specimen is a fact question for the trier of fact. Turpin v. State, 606 S.W.2d 907, 914 (Tex.Crim.App. 1980); State v. Schaeffer, 839 S.W.2d 113, 115 (Tex.App.-Dallas 1992, pet. ref'd). Appellant asserts that the "subject" is supposed to sign the form only if he or she refuses to provide the requested specimen. However, review of the form shows that when neither box is marked, the subject's signature does not prove the subject refused to provide a specimen. Garcia testified appellant was one of his first DWI arrests and that he had since learned that the subject should not sign the form unless he or she is refusing to provide the specimen. Thus, the officer only admitted he would change his approach in the future, not that the form suggested a refusal to take a test. The video recording shows appellant initially agreed to provide a specimen of his breath and that Garcia asked appellant to sign the form before appellant asked if he could provide a blood specimen instead. Garcia testified he asked appellant to sign the form
to protect him and to protect myself in case my video or audio was off that it showed that I marked the breath test and that he signed it giving me his own accord that he would sign it [sic]. If he was going to refuse it, there would be a check mark under "subject refused to allow" or "subject refused to allow the taking of the specimen."Garcia also testified he asked appellant to sign the form "[t]o indicate that I asked him for a breath test and to indicate that he said he would take the breath test." Garcia testified, and the video recording shows, appellant never stated that he refused to provide a specimen of his breath. In this case, the determination of whether appellant consented or refused to provide a specimen of his breath is a question of fact turning on the trial court's evaluation of the credibility and demeanor of the witnesses. After considering all the evidence before the court when it ruled on appellant's motion to suppress and giving almost total deference to the trial court's determination, we conclude the trial court's implied finding that appellant voluntarily consented to provide a specimen of his breath is supported by the record and was not an abuse of discretion. In his fourth issue, appellant asserts the trial court erred in denying his motion to suppress because the affidavit of the officer operating the intoxilyzer stated, "The records show that the test was administered in compliance with the laws of the State of Texas and Regulations of the Breath Alcohol Testing Program." Appellant argues that this statement is false because his signature on the DIC-24 form shows he refused consent to provide a specimen, which made the testing of his breath contrary to the laws of the State of Texas. As discussed above, appellant's signature on the form did not prove he refused to provide a specimen of his breath. In his third issue, appellant asserts the trial court abused its discretion in denying his motion to suppress because appellant had invoked his right to counsel. Appellant asserts his Fifth Amendment right to counsel was violated and his "breath test results must be excluded from evidence as questioning has to have occurred after Appellant invoked his right to counsel." Once a suspect has invoked his right to counsel, all interrogation by the police must cease until counsel is provided or until the suspect himself re-initiates conversation. Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Dinkins v. State, 894 S.W.2d 330, 350 (Tex.Crim.App. 1995). However, the record does not show any interrogation occurred after appellant invoked his right to counsel. Neither the request for a breath or blood specimen nor the giving of a specimen constitutes custodial interrogation. Griffith v. State, 55 S.W.3d 598, 603 (Tex.Crim.App. 2001). Appellant's Fifth Amendment right to counsel was not violated. Appellant also asserts the taking of the breath test after he had invoked his right to counsel violated his Sixth Amendment right to counsel. Under the Sixth Amendment, a defendant has the right to counsel "only at or after the time that adversary judicial proceedings have been initiated, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Griffith, 55 S.W.3d at 603 (quoting Kirby v. Illinois, 406 U.S. 682, 688 (1972) (plurality op.)). When, as in this case, judicial proceedings have not yet been initiated, a defendant has no Sixth Amendment right to counsel for the decision of whether to provide a specimen for alcohol testing. Id. at 604. Appellant's Sixth Amendment right to counsel was not violated. We conclude the record does not show the trial court abused its discretion in denying appellant's motion to suppress the breath-test results. We overrule appellant's first, second, third, and fourth issues. We affirm the trial court's judgment.