Opinion
13-22-00590-CR
07-13-2023
THE STATE OF TEXAS, Appellant, v. OMAR HERNANDEZ A/K/A OMAR GERARDO HERNANDEZ, Appellee.
Do not publish. TEX. R. APP. P. 47.2 (b).
On appeal from the County Court at Law No. 2 of Cameron County, Texas.
Before Chief Justice Contreras and Justices Benavides and Longoria
MEMORANDUM OPINION
NORA L. LONGORIA, JUSTICE
The State of Texas appeals from the trial court's order granting appellee Omar Gerardo Hernandez's motion to suppress evidence. In one issue, the State contends that the trial court erred when it found that Hernandez's consent to submit a breath test was involuntary, and therefore, the motion to suppress should have been denied. We affirm.
I. Background
On March 24, 2017, Hernandez was charged by information with driving while intoxicated (DWI), a Class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04. Hernandez filed a motion to suppress the results of an intoxilyzer breath test administered to him after his arrest because, he argued, he did not voluntarily consent to submit a breath specimen.
On November 28, 2022, the trial court held an evidentiary hearing on Hernandez's motion to suppress. Trooper Carlos Rodriguez of the Texas Department of Public Safety testified that on December 29, 2016, between 4:30 and 5:00 a.m., he observed Hernandez disregard a red stop light at an intersection in Brownsville, Texas. Rodriguez then activated his patrol car's emergency lights and conducted a traffic stop of Hernandez. At the beginning of the stop, while explaining to Hernandez the traffic violation, Rodriguez detected an "o[]dor of an alcoholic beverage lingering inside the vehicle." Rodriguez asked Hernandez to present his driver's license, and Hernandez responded that it was in the back seat. Rodriguez had Hernandez step out of the vehicle to get his driver's license. When Hernandez stepped out, Rodriguez noticed that Hernandez "was unsure of his steps while proceeding to the back . . . side door to open up the door" and had an unsteady balance. Hernandez then obtained his driver's license and provided it to Rodriguez. Rodriguez then asked Hernandez to step toward the back of Hernandez's vehicle where Rodriguez's patrol car was. Rodriguez talked to Hernandez and observed that Hernandez was unbalanced, had slurred speech and bloodshot eyes. Hernandez admitted he had come from Whataburger after being at a party the majority of the night. Hernandez also admitted he had been drinking at the party. Rodriguez noted that he stood two or three feet away from Hernandez and that Hernandez smelled like alcohol when speaking with him.
Rodriguez had Hernandez perform the standardized field sobriety tests, including the horizonal gaze nystagmus test, the walk and turn test, and the one-leg stand test. Regarding the horizontal gaze nystagmus, Rodriguez observed that Hernandez's eyes jerked from side to side when performing the test, exhibiting six clues of intoxication. For the walk and turn, Rodriguez observed that Hernandez failed to follow instructions and exhibited five clues of intoxication. Regarding the one-leg stand, Hernandez exhibited two clues of intoxication. Hernandez also provided a sample of his breath to a portable breath test offered by Rodriguez. According to Rodriguez, the results of the portable breath test indicated a blood alcohol level above .08.
Rodriguez placed Hernandez under arrest for DWI and secured Hernandez inside the front passenger seat of his patrol car. Rodriguez then read Hernandez the DIC-24 statutory warnings and asked Hernandez to submit a sample of his breath. Hernandez agreed to provide a breath sample. Rodriguez then transported Hernandez to the Brownsville Police Department to "offer him the intoxilyzer breath test."
The DIC-24 statutory warning form is a standard Texas Department of Public Safety form containing warnings required to be read to individuals arrested for DWI offenses before a peace officer requests a voluntary blood or breath sample. Bonsignore v. State, 497 S.W.3d 563, 566 n.3 (Tex. App.- Fort Worth 2016, pet. ref'd); see TEX. TRANSP. CODE ANN. § 724.015.
A video recording from a camera inside Rodriguez's patrol unit was admitted into evidence. The video recording depicted Hernandez's traffic violation, the traffic stop and subsequent sobriety tests, as well as the interactions between Hernandez and Rodriguez inside the patrol unit after Hernandez was arrested. Rodriguez continued testifying as follows:
[The State]: Okay. Trooper, so did you-so you asked him for a sample of his breath?
[Rodriguez]: Yes, sir.
[The State]: Did he refuse at any time?
[Rodriguez]: No, sir.
[The State]: Did you tell him the consequences of refusing?
[Rodriguez]: When I explained-when I explained to him the DIC-24, sir.
[The State]: Okay. Did you ever explain it to him another time?
[Rodriguez]: No, sir.
[The State]: Did he ever ask about the consequences of a refusal?
[Rodriguez]: He did ask one question if he-if he did not provide a breath sample.
[The State]: He asked that?
[Rodriguez]: He was asking for some advice.
[The State]: Okay. Could you tell me exactly what he asked?
[Rodriguez]: He asked me what happens if I wouldn't have taken the breath test.
[The State]: Okay. And what was your response to that?
[Rodriguez]: And I told him, well, we have to take a mandatory blood specimen.
[The State]: Okay[.]
[Rodriguez]: To get his blood alcohol concentration.
[The State]: Okay. And is that basically word-for-word the DIC-24?
[Rodriguez]: Yes, sir.
[The State]: So that's part of the statutory warning, what you told him?
[Rodriguez]: Correct, sir.
[The State]: Okay. Did you coerce him in any way to take the breath specimen?
[Rodriguez]: No, sir. ....
[The State]: Trooper, . . . is this the video of that night?
[Rodriguez]: Yes, sir, it is.
[The State]: I'm going to play it from the time when you put him in your squad car, so I'm going to scrub a little forward. .... (Video played)
[The State]: Is this the DIC-24 here, Trooper?
[Rodriguez]: Yes, sir, that's the one I read.
[The State]: Okay. (Video played)
[The State]: Okay. So what happened at the end there, Trooper? Did you ask him for a specimen of his breath?
[The State]: What was his answer?
[Rodriguez]: He said, yes.
[The State]: Okay. I'm going to scrub a little bit forward to the 25-minute mark. (Video played)
[The State]: Okay. So what did he ask you there, Trooper?
[Rodriguez]: He was asking some question about the . . . I believe some kind of question about the breath or the DWI test. I couldn't hear that well from here.
[The State]: What was your response to that?
[Rodriguez]: I just told him I cannot help you.
[The State]: Why did you respond that way?
[Rodriguez]: Because I can't give him any type of legal advice.
[The State]: Okay. So he was asking for legal advice?
[Rodriguez]: He had some kind of question, so we're-we're not authorized to give them any type of information to help them out with an answer.
[The State]: And you stated you would just go with his first answer?
[Rodriguez]: Yes, sir.
[The State]: Okay. I'm going to scrub just one more time, I little bit more forward. (Video played)
[The State]: Okay. What did he ask you there, Trooper?
[Rodriguez]: He was asking something about the-I couldn't hear that well, sir, from here.
[The State]: What was your response?
[Rodriguez]: I said something about having to get some blood. That's all I could hear from here, sir. I couldn't hear that clear.
[The State]: And is that pretty much what's in the DIC-24?
[Rodriguez]: Yes, sir.
[The State]: Your response?
[Rodriguez]: Like I said, I couldn't hear that well from here, I'm sorry.
[The State]: Okay. You got a specimen of his breath?
[Rodriguez]: Yes, sir, I did.
Rodriguez then testified that the results of the intoxilyzer breath test indicated that Hernandez's blood alcohol level was "0.132, 0.137." Regarding the intoxilyzer breath test, Rodriguez stated that he did not force Hernandez to do anything he did not want to, and that Hernandez was not under any duress.
On cross examination, the following exchange occurred:
[Hernandez's Counsel]: Okay. Trooper, now I'd like to bring us back to this-this moment in the car after the-after you read him the DIC-24. And at that point-at one point he says, yes, I'll take the breath test, correct?
[Rodriguez]: Yes, ma'am.
[Hernandez's Counsel]: But then shortly thereafter, just a couple of minutes on the way to the station we hear that he starts asking questions, correct?
[Hernandez's Counsel]: And your response to his questioning regarding what happens if I don't take the breath test, you say-let me give it to you verbatim, actually. He says, "Sir, if I say no to the breath test, like, do you think it will help me,["] correct?[]
[Rodriguez]: Yes, ma'am.
[Hernandez's Counsel]: And you told the Court here today that you couldn't give him legal advice because you're not a lawyer, right?
[Rodriguez]: Yes, ma'am.
[Hernandez's Counsel]: Okay. But then what you say in response is, "Sir, I can't help you out with that kind of information, sir, I'm going on what you told me earlier," correct?
[Rodriguez]: Yes, ma'am.
[Hernandez's Counsel]: And then you go on to say, I have to do what you told me earlier; isn't that true?
[Rodriguez]: Yes, ma'am.
[Hernandez's Counsel]: All right. And then you mentioned that when you're back at the station he asked you some more DWI questions, correct?
[Rodriguez]: Yes, ma'am.
[Hernandez's Counsel]: And would they be along these similar lines of what he was asking and your response in the car?
[Rodriguez]: Yes, ma'am.
[Hernandez's Counsel]: Okay. All right. So there's at least-at least two conversations after the initial, yes, where he's backing out; isn't that right?
[Rodriguez]: Yes, ma'am.
[Hernandez's Counsel]: Okay. And then he-you tell him, well, if-if you don't take it, then we're going to have to go get a warrant and take a blood specimen; isn't that right?
[Rodriguez]: Yes, ma'am.
[Hernandez's Counsel]: Okay. So at that point, these are at least three instances where he's trying to back out; isn't that right?
[Rodriguez]: Yes, ma'am.
On redirect, the State asked Rodriguez if Hernandez ever refused the test, and Rodriguez responded "No, sir."
After Rodriguez completed his testimony, Hernandez argued that his consent to the intoxilyzer breath test was involuntary because there was "vacillation on his part" regarding his consent and requested that the testing results be excluded. The State argued that Hernandez impliedly and affirmatively consented to the intoxilyzer breath test, and that there was no vacillation as Hernandez never refused the test but instead asked for legal help and about the consequences of the refusal. Hernandez responded:
His statement-the trooper's statement is, ["]We're going to [go] by your first answer,["] cuts off anymore discussion of that issue and so I would urge that that-that's what created the involuntary testing. He would not allow him to change his answer, he's going by the first answer, and we would, therefore, urge that it is involuntary.
The trial court then pronounced its ruling:
Very well. The Court will go ahead-I think in listening to the testimony, obviously there's a point where there's a break, so I'm going to go ahead and rule for the defendant in this case, in light of the fact that we have that- I think had there been other dialogue by the defendant, but it's pretty clear
to me where it got cut off, and so it is what it is.
The State then asked the trial court "what was the finding of law . . . on that," and the trial court responded, "Well, the finding is pursuant to the argument presented to the Court and the case that was specifically referenced and then the evidence that was [al]luded [to] here by the trooper, which is the only information I've heard."
On November 29, 2022, the trial court signed and entered its written order granting Hernandez's motion to suppress. This appeal followed. See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5).
II. Motion to Suppress
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford almost total deference to a trial judge's determination of historical facts, particularly when that determination is based on credibility or demeanor. Fienen v. State, 390 S.W.3d 328, 335 (Tex. Crim. App. 2012). The trial court is the sole trier of the facts and judge of the credibility of the witnesses, as well as the weight to be given their testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial judge may believe or disbelieve all or part of the witness's testimony and we recognize that the trial judge is the one who had the opportunity to observe demeanor and appearance. Id. But questions of law and "mixed questions of law and fact" that do not depend on an evaluation of credibility and demeanor are reviewed de novo. Fienen, 390 S.W.3d at 335; Guzman, 955 S.W.2d at 89. When, as here, findings of fact are not entered, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supporting that ruling. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). We will sustain the trial court's ruling if it finds reasonable support in the record and is correct on any theory of law applicable to the case. Valtierra, 310 S.W.3d at 447-48.
"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." Fienen, 390 S.W.3d at 332 (citing TEX. TRANSP. CODE ANN. § 724.011(a)). Nevertheless, subject to certain exceptions not applicable in this case, a person retains an absolute right to refuse a test. Fienen, 390 S.W.3d at 332-33; see TEX. TRANSP. CODE ANN. § 724.013. A person's refusal must be strictly honored. Fienen, 390 S.W.3d at 333; McCambridge, 712 S.W.2d 499, 504 n.16 (Tex. Crim. App. 1986).
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 State v. Schaeffer, 839 S.W.2d 113, 115 (Tex. App.-Dallas 1992, pet. ref'd) ("State law requires that, if an arrested person refuses to give a breath sample, none shall be taken. . . . The consent involved in giving such a sample must be voluntary."). 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. In order to determine whether a person's will was "overborne," a court must "assess[ ] the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation." Schneckloth, 412 U.S. at 226.
"In making a determination of voluntariness, courts consider various factors, including the following: whether the consenting person was in custody, whether he or she was arrested at gunpoint, whether he or she had the option of refusing consent, the constitutional advice given to the accused, the length of detention, the repetitiveness of the questioning, and the use of physical punishment." Flores v. State, 172 S.W.3d 742, 749 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (citing Laney v. State, 76 S.W.3d 524, 532 (Tex. App.-Houston [14th Dist.] 2002), aff'd, 117 S.W.3d 854 (Tex. Crim. App. 2003)). Moreover, a person is free to limit the scope of or even revoke the consent that was given. Florida v. Jimeno, 500 U.S. 248, 252 (1991); Valtierra, 310 S.W.3d at 450. 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 it is the State's burden to prove voluntary consent by clear and convincing evidence. State v. Weaver, 349 S.W.3d 521, 526 (Tex. Crim. App. 2011).
Under Texas law, a person arrested for DWI, if over the age of twenty-one, must be warned orally and in writing that refusal to submit to a breath test 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. See TEX. TRANSP. CODE ANN. § 724.015(1)-(2). The purpose of § 724.015 is "to ensure that a person who refuses to give a requested specimen does so with a full understanding of the consequences." Rowland v. State, 983 S.W.2d 58, 60 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd) (citations omitted). A person over the age of twenty-one must also be warned that if he submits to the test and an analysis of the specimen shows he had an alcohol concentration above the legal limit, the person's license to operate a motor vehicle will be automatically suspended for not less than ninety days, whether or not the person is subsequently prosecuted as a result of the arrest. See TEX. TRANSP. CODE ANN. § 724.015(4).
In the present case, Rodriguez testified that he read Hernandez the required statutory warnings, and the trial court watched the video recording which depicted Rodriguez reading the DIC-24 form with the required statutory warnings. Rodriguez testified that Hernandez consented to submitting a breath specimen, and the trial court watched the video recording and heard Hernandez consent to the breath test. The video recording shows that, a few minutes after he provided consent, Hernandez asked Rodriguez, "sir, if I say no to the blood test, like do you think it will help me, just like, honestly just for me-," and Rodriguez replied, "sir, I can't help you out with that information" and "I have to go by what you told me earlier that you want to take the breath test." A few minutes later, Hernandez asked Rodriguez, "What if I refuse to take the breath test," to which Rodriguez replied, "Then we have to . . . go get a warrant, take you to the hospital, and get the blood, blood out." Though Hernandez's statements were not a withdrawal of consent or an express refusal, they indicated his uncertainty in whether he wanted to consent to giving the breath specimen.
The video recording demonstrated that Rodriguez did not use threats, physical touching, or a demanding tone of voice or language; rather, it shows that Rodriguez's demeanor was consistently professional and accommodating. However, the trial court could have reasonably concluded that Rodriguez's statement indicating that he would "have to go by" Hernandez's earlier consent was a misstatement of the law at best, and deceptive or intentionally dishonest at worst, as this statement indicated that Hernandez lost the oppportunity to refuse or withdraw his consent. See Fienen, 390 S.W.3d at 336 ("When determining whether DWI suspects acted voluntarily, courts are to look at the totality of the circumstances. Law enforcement officers may not misrepresent the law, but neither are they required to simply repeat the statutory warnings."); see also Jimeno, 500 U.S. at 252; Flores, 172 S.W.3d at 749 (holding that one of the factors in determining the validity of a search based on consent is whether the consenting person had the option of refusing consent); Valtierra, 310 S.W.3d at 450. In addition, during cross-examination, Rodriguez agreed that there were three instances where Hernandez was attempting to "back out" of consenting to the test. Furthermore, Hernandez was in custody at the time he was asked to provide consent. See Flores, 172 S.W.3d at 749 (holding that one of the factors in determining the validity of a search based on consent is whether the consenting person was in custody). As such, the trial court could have reasonably determined that the consent to the submission of a breath specimen was involuntary. See Meekins, 340 S.W.3d at 458-59.
Viewing the totality of the circumstances in a light that is most favorable to the trial court's ruling, we conclude the trial court did not abuse its discretion in suppressing the breath test results involved in this case. See Fienen, 390 S.W.3d at 335; Meekins, 340 S.W.3d at 458-60. We overrule the State's sole issue.
III. Conclusion
We affirm the judgment of the trial court.