Opinion
No. 11-14-00034-CR
02-11-2016
ROGER CHAVEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 8 Tarrant County, Texas
Trial Court Cause No. 1301090
MEMORANDUM OPINION
Roger Chavez entered a plea of guilty to the offense of driving while intoxicated. The trial court assessed a fine of $1,400 and sentenced Appellant to confinement in the Tarrant County Jail for a term of ninety days, but the trial court probated that sentence and placed Appellant on community supervision for two years. Prior to the entry of a plea, the trial court denied Appellant's motion to suppress blood-draw evidence. Appellant challenges the denial of his motion to suppress in two issues. We affirm.
Background Facts
On October 6, 2012, at approximately 2:30 a.m., Officer Gregory Key of the River Oaks Police Department observed Appellant commit several traffic violations. Officer Key initiated a traffic stop of Appellant. The evidence offered at the suppression hearing included an audio/video recording of Officer Key's encounter with Appellant. Appellant immediately acknowledged that he had been drinking. Officer Key requested that Appellant perform field sobriety tests.
Following the field sobriety tests, Officer Key walked back to his vehicle and obtained copies of the DIC-24 statutory warning form. See TEX. TRANSP. CODE ANN. § 724.015 (West Supp. 2015). Officer Key read the entire statutory warning aloud to Appellant while Appellant followed along on his own copy. The first lines of the DIC-24 warning that Officer Key read to Appellant provided as follows:
You are under arrest for an offense arising out of acts alleged to have been committed while you were operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code. You will be asked to give a specimen of your breath and/or blood. The specimen will be analyzed to determine the alcohol concentration or the presence of a controlled substance, drug, dangerous drug or other substance in your body. . . .Officer Key concluded with the last line of the DIC-24 warning form and stated, "I am now requesting a specimen of your blood." Appellant answered, "Okay," and then "Sure."
Officer Key subsequently read Miranda warnings to Appellant and asked him several questions concerning his activities that night. Appellant was then placed in handcuffs, at which time he asked why he was being arrested. Officer Key replied that he was being arrested for suspicion of DWI. Officer Key then stated, "Remember that statutory warning I read to you when I said you were under arrest?" Appellant responded, "Yes, sir." Officer Key then asked, "Then you consented to me giving your blood, so we're gonna go to the hospital, and we're gonna take a blood sample, okay?" Appellant replied, "You bet." Appellant was then taken to the hospital where his blood was drawn. Officer Key testified that Appellant did not withdraw his consent at any time before the blood draw.
Appellant also testified at the suppression hearing. He asserted that he did not feel like he had been arrested until he had been handcuffed and placed into the police car. Appellant further asserted that Officer Key did not ask him for consent for the blood draw after this point. Appellant testified that he would not have consented to the blood draw had he known he could refuse to do so. On cross-examination by the prosecutor, Appellant acknowledged having had a lot to drink that night. He stated that he said "yes" to Officer Key's request for the blood draw as a "general acknowledgement" rather than giving consent for the blood draw. Appellant's testimony concluded with the trial court asking him: "I believe you testified that when the officer read it to you -- read that document to you, you understood it, right?" Appellant responded as follows: "I understood that there would be some kind of repercussion happening."
Analysis
In Appellant's first issue, he asserts that the trial court erred when it denied his motion to suppress evidence of a blood draw taken after his arrest for suspicion of driving while intoxicated because the blood draw was conducted without his consent. He contends that his consent was not voluntary and that actual consent was not given after the time of his arrest.
A trial court's denial of a motion to suppress is reviewed for an abuse of discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). We review a trial court's ruling under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Almost complete deference is given to the trial court's determination of historical facts, especially if those facts are based on an assessment of credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Amador, 221 S.W.3d at 673 (citing Guzman, 955 S.W.2d at 89). We review de novo a trial court's application of the law to the facts. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App. 2013); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Regardless of whether the trial court granted or denied the motion, appellate courts view the evidence in the light most favorable to the ruling. Wade, 422 S.W.3d at 666; State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). We will uphold the trial court's ruling if it is reasonably grounded in the record and correct on any theory of law applicable to the case. Wade, 422 S.W.3d at 667; Valtierra, 310 S.W.3d at 447-48.
Appellant asserts that his consent was not voluntary and knowing because Officer Key read the statutory warning too quickly and because the manner in which Officer Key read the statutory warning was "unintelligible." He contends that he did not understand what Officer Key was asking him with regard to his consent for the blood draw and that he was just being cooperative. However, as reflected in its written findings of fact and conclusions of law, the trial court found that Appellant's consent was given knowingly and voluntarily.
The Court of Criminal Appeals recently examined the issue of consent for a breath or blood test in the context of a DWI arrest in Fienen v. State, 390 S.W.3d 328 (Tex. Crim. App. 2012). 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. 390 S.W.3d at 333 (citing Meekins v. State, 340 S.W.3d 454, 458-59 (Tex. Crim. App. 2011)). "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." Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973); Meekins, 340 S.W.3d at 459). We are to "review the totality of the circumstances of a particular police-citizen interaction from the point of view of the objectively reasonable person." Id. (quoting Meekins, 340 S.W.3d at 459) (internal quotation marks omitted). The validity of an alleged consent is a question of fact, and the State must prove voluntary consent by clear and convincing evidence. Id. (citing State v. Weaver, 349 S.W.3d 521, 526 (Tex. Crim. App. 2011)).
The defendant in Fienen alleged that his consent for a breath specimen was given involuntarily because the arresting officer gave him additional warnings that exceeded the scope of the statutory warnings. Id. at 332. The court rejected the defendant's contention on the basis that the factfinder must consider the totality of the circumstances in order to determine whether consent was given voluntarily. Id. at 333. As noted by the court: "[B]ecause the fact finder must consider all of 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." Id.
The Court of Criminal Appeals held in Fienen that a reviewing court is required to uphold the trial court's finding of voluntariness unless it is clearly erroneous. Id. at 335 (citing Meekins, 340 S.W.3d at 460). Under the applicable standard of review for a motion to suppress, the court in Fienen concluded that the trial court did not abuse its discretion when it determined that the defendant voluntarily consented to providing a breath specimen. Id. Furthermore, we are required to view the totality of the circumstances in the light most favorable to the trial court's ruling. Id.
Unlike the situation in Fienen, Appellant is not asserting that Officer Key exerted any external psychological pressure on him in the form of extra-statutory warnings. Furthermore, he is not asserting that Officer Key was physically intimidating or abusive to him. Instead, Appellant relies on allegations that Officer Key did not adequately convey the statutory warnings to him and that he did not understand what was transpiring based on subsequent comments that he made to Officer Key. However, the recording of Appellant's encounter with Officer Key was offered into evidence for the trial court to review, in addition to the testimony of Officer Key and Appellant about the encounter. As noted previously, Appellant affirmatively responded to Officer Key's request for a blood draw after Officer Key read the statutory warnings to him. Based upon the totality of the circumstances, the trial court's determination that Appellant voluntarily consented to the blood draw is not clearly erroneous. We conclude that the trial court did not abuse its discretion in making this determination.
Additionally, Appellant asserts that his consent was invalid because Officer Key obtained it prior to arresting Appellant. He cites State v. Williams, 814 S.W.2d 256 (Tex. App.—Austin 1991), aff'd, 832 S.W.2d 52 (Tex. Crim. App. 1992), in support of this proposition. He appears to be arguing that Officer Key's use of the DIC-24 statutory warning form was not appropriate because he was not under arrest at the time that he read the form to Appellant. See Nottingham v. State, 908 S.W.2d 585, 589 (Tex. App.—Austin 1995, no pet.). Appellant directs our attention to Officer Key's initial testimony that he did not place Appellant under arrest until after reading him the statutory warnings.
An individual is arrested when he has been actually placed under restraint or taken into custody. TEX. CODE CRIM. PROC. ANN. art. 15.22 (West 2015). "A person is in 'custody' only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest." Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322 (1994)). At least four general situations may constitute custody: (1) the suspect is physically deprived of his freedom of action in any significant way; (2) a law enforcement officer tells the suspect that he cannot leave; (3) law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Id. at 255.
In making the custody determination, the primary question for the court is whether a reasonable person would perceive the detention to be a restraint on his movement "comparable to . . . formal arrest," given all the objective circumstances. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012) (quoting Berkemer v. McCarty, 468 U.S. 420, 441 (1984)) (internal quotation marks omitted). We do not consider the subjective beliefs of the detaining officer when determining whether a suspect is in custody. Id. at 372-73. While Officer Key initially testified that he did not arrest Appellant until after reading the statutory warning, he subsequently clarified that he did not put handcuffs on Appellant earlier because they were in a parking lot in a safe place rather than on the side of the highway. Additionally, we have previously noted that the statutory warning began with the phrase: "You are under arrest . . . ." Officer Key confirmed that he read these words to Appellant.
Other courts have held that an officer's reading of the DIC-24 form's "[y]ou are under arrest" statement resulted in the suspect being under arrest at the point the statement was made to the suspect. See Washburn v. State, 235 S.W.3d 346, 352-53 (Tex. App.—Texarkana 2007, no pet.); Nottingham, 908 S.W.2d at 587-88; Bell v. State, 881 S.W.2d 794, 799-800 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd); Williams, 814 S.W.2d at 259. There is no evidence that Officer Key told Appellant that he was not under arrest or that he was free to leave. We conclude that a reasonable person in Appellant's position would not have believed that he was free to leave after being told that he was under arrest but, instead, would have believed that his freedom of movement was restrained to the degree associated with a formal arrest. See Washburn, 235 S.W.3d at 352-53; Nottingham, 908 S.W.2d at 588. Accordingly, the trial court did not err in determining that Appellant's consent was timely as well as knowing and voluntary. We overrule Appellant's first issue.
In Appellant's second issue, he asserts that his blood was taken without a warrant and that no exception to the warrant requirement was applicable. Under the Fourth and Fourteenth Amendments, a search conducted without a warrant based on probable cause is "per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." Meekins, 340 S.W.3d at 458 (quoting Schneckloth, 412 U.S. at 219) (internal quotation marks omitted). One of those exceptions is a search conducted with the person's voluntary consent. Id. Thus, we overrule Appellant's second issue in light of our disposition of his first issue upholding the trial court's determination that his consent was voluntary.
This Court's Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
JUSTICE February 11, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
Miranda v. Arizona, 384 U.S. 436 (1966).