          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-01-00544-CR



                                    The State of Texas, Appellant

                                                     v.

                                        Jeremy Jones, Appellee




                 FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
               NO. 60,991, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING




                The State appeals an order granting appellee=s motion to suppress evidence. Tex.

Code Crim. P. Ann. art. 44.01 (a)(5) (West 2002). In a prosecution for driving while intoxicated, the

trial court suppressed evidence of appellee=s breath test and the audio portion of the DWI video. We

will reverse the order and remand the cause for further proceedings.


                                                  FACTS

                On December 10, 2000, appellee was stopped by an officer of the San Marcos Police

Department for an alleged traffic violation. At the conclusion of the traffic stop, appellee was arrested for

driving while intoxicated (DWI). Appellee was taken to the Hays County Jail where he was videotaped and

asked to submit a specimen of his breath for analysis. The arresting officer read appellee his Miranda rights

and asked appellee if he would give up his right to remain silent and answer questions. Appellee declined to
answer any questions until he could Amake a phone call.@ Therefore, the officer did not ask any of the DWI

interview questions. The officer also read appellee the statutory warning contained in the DIC-24 form and

requested a specimen of appellee=s breath. Appellee agreed to provide a breath specimen. The officer then

requested that appellee perform field sobriety tests on video, which appellee agreed to perform. The

videotaped interview concluded and appellee provided a breath sample.

                Appellee testified in a pretrial hearing regarding the suppression of the results from the

breath test and suppression of the audio portion of the videotaped DWI interview. According to appellee,

he was illegally coerced into providing a breath sample. Appellee testified regarding a conversation he had

with the officer on the way to the jail. Appellee testified that he told the officer, AThis is really

embarrassing.@ Appellee said that in response, the officer went over an agenda regarding the procedures at

the jail and also stated, AAs long as you go along with the program everything will work itself out.@ Appellee

testified that he took this to mean that appellee should be cooperative and that the officer would Ahelp me

[appellee] out as much as he could . . . [m]aybe lessen the blow . . . . I don=t know.@ After this time, no

other conversation took place between the officer and appellee until they arrived at the jail.

                Appellee testified that but for the arresting officer=s statement in the car, he would not have

taken the breath test. The officer, who also testified, could not recall whether he made the statement to

appellee.

                The trial court found that the officer had offered verbal inducements which were understood

by appellee to be to his advantage if appellee cooperated and took the breath test. The court also found

that these verbal inducements were Ain addition to, and outside of, the statutorily permissible language


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outlined in Erdman v. State, 861 S.W.2d 890 (Tex. Crim. App. 1993).@ Based on the finding that

appellee=s consent to the test had not been voluntary, the court granted appellee=s motion to suppress the

results of the appellee=s breath test as well as the audio portion of the DWI video. The State now appeals.

                 By two points of error, the State challenges the suppression of the breath test and the audio

portion of the videotaped interview. In its first point of error, the State asserts that the trial court erred in

suppressing the results of the breath test because the statement attributed to the arresting officer was not

specifically directed at the consequences of taking or refusing a breath test. In its second point of error, the

State argues that the trial court erred in suppressing the entire audio portion of the videotaped interview

because appellee=s performance of sobriety tests were non-testimonial in nature and therefore are not

subject to the state and federal protections against compelled self-incrimination.


                                        STANDARD OF REVIEW

                 As a general rule, appellate courts should afford almost total deference to a trial court=s

determination of the historical facts that the record supports, especially when the trial court=s fact findings

are based on an evaluation of credibility and demeanor. Combest v. State, 981 S.W.2d 958, 959 (Tex.

App.CAustin 1998, pet. ref=d); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

The appellate courts should afford the same amount of deference to trial courts= rulings on Aapplication of

law to fact questions,@ also known as Amixed questions of law and fact,@ if the resolution of those ultimate

questions turns on an evaluation of credibility and demeanor. Combest, 981 S.W.2d at 959. The appellate

courts may review de novo Amixed questions of law and fact@ not falling within this category. Id. at 960;

see Villarreal v. State, 935 S.W.2d 134, 139 (Tex. Crim. App. 1996) (McCormick, P.J., concurring) (if

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the trial court Ais not in an appreciably better position@ than the appellate court to decide the issue, the

appellate court may independently determine the issue while affording deference to the trial court=s findings

on subsidiary factual questions). Since the trial court was in no better a position than we are to judge the

coercive nature of the arresting officer=s statement and since resolution of the issues does not turn on an

evaluation of credibility and demeanor, we review the trial court=s decision de novo.


                                               DISCUSSION

                 Section 724.015 of the transportation code mandates that before an officer may request a

breath specimen from a person arrested for driving while intoxicated, the officer must inform the person of

two consequences of refusing to submit a specimen: (1) the refusal may be admissible in a subsequent

prosecution, and (2) the person=s driver=s license will be automatically suspended. See Tex. Transp. Code

Ann. ' 724.015(1)-(2) (West 1999). Implicit in the requirement of these warnings is the importance of

ensuring that the suspect=s decision to submit is Amade freely and with a correct understanding of the actual

statutory consequences of refusal.@ Texas Dept. of Pub. Safety v. Rolfe, 986 S.W.2d 823, 825 (Tex.

App.BAustin 1999, no pet.) (quoting Erdman, 861 S.W.2d at 893). A decision to submit to a breath test

is voluntary only if it is not the result of physical or psychological pressures. See id.

                 The State argues in its first point of error that the statement made by the arresting officer

does not amount to a verbal inducement that falls outside the permissible language outlined in Erdman

because the statement was not specifically directed at the consequences of taking or refusing a breath test.

In Erdman, the defendant was given the proper statutory warnings before giving a breath specimen, but

was also given two additional warnings: that failure to provide the specimen would result in DWI charges

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being filed against him, and that he would be placed in jail that night. Erdman, 861 S.W.2d at 892-94. It

was not until the suspect received these additional warnings that he consented to the breath test. Id. at 893-

94. The court expressed its concern that giving extra-statutory warnings could coerce a suspect into giving

a specimen and thus undermine the statute=s purpose of ensuring that the decision is made freely without the

influence of psychological pressure. Id. at 893. Applying this concern to the specific facts before it, the

court concluded that the trial court abused its discretion by refusing to suppress the breath-test results. Id.

at 894. The court=s basis for its holding was twofold: (1) the non-statutory warnings given were of a type

that would Anormally result in considerable psychological pressure@ to agree to give a breath sample, and (2)

the record was devoid of evidence that the extra information had no bearing on the suspect=s decision to

consent. Id.


Did Appellee Receive Non-Statutory Warnings?

                 Appellee argues that his consent to the breath test was involuntary because he was verbally

induced by the arresting officer to take the breath test. Appellee complains that these inducements went

beyond the permissible statutory language set forth in Erdman. Appellee claims that the arresting officer

made two statements to appellee during the arrest which coerced the appellee into taking a breath test.




                 First, appellee claims that at the time he was arrested, he did not intend to take the breath

test.1 It was only after the arresting officer=s alleged statement in the car that Aas long as you go along with


        1
          During his testimony at the suppression hearing, the following exchange took place between
appellee and his attorney:

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the program everything will work itself out@ that appellee decided he would submit to a breath test. In his

brief, appellee claims the above statement meant that appellee was expected to submit to a breath test and

therefore, his consent was involuntary. However, there is nothing in the record to support that that was

appellee=s understanding of the statement. In fact, according to appellee=s own testimony, he interpreted the

officer=s statement only to mean that appellee should be cooperative and give the officer any information

appellee could and that the officer would help appellee out as much as the officer could.

                In Sandoval v. State, this Court emphasized that when extra-statutory warnings of

consequences of a refusal to submit to the breath test are given, consent may be considered to have been

involuntary. Sandoval v. State, 17 S.W.3d 792, 795 (Tex. App.CAustin 2000, pet. ref=d) (citing Rolfe,




          Attorney: Were you going to take a breath test?

          Appellee: I did not plan on it, no, sir.

          Attorney: Did you have any desire to take a breath test at that point in time?

          Appellee: No, sir.

          Attorney: All right. What was said by Officer Palermo to persuade you or cause
                    you to change your mind?

          Appellee: Well, after I made the comment of this is embarrassing he kind of B said B
                    he kind of just went over the little agenda, first we=ll do this and then we=ll
                    do this, and I go okay. And then he goes, AAs long as you go along with
                    the program everything will work itself out.@

          Attorney: What did you take that to mean?

          Appellee: Basically I B I would be as cooperative and I would give him any
                    information he can B or that I can and he would help me out as much as he
                    could.

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986 S.W.2d at 827). In fact, case law generally focuses only on extra-statutory warnings of consequences

of refusing a breath test. See, e.g., Erdman, 861 S.W.2d at 893-94; Rolfe, 986 S.W.2d at 826; see also

Ewerokeh v. State, 835 S.W.2d 796, 796 (Tex. App.CAustin 1992, pet. ref=d); State v. Sells, 798

S.W.2d 865, 866 (Tex. App.C Austin 1990, no pet.) (pre-Erdman cases also considering extra-statutory

warnings of refusal to take test). In Erdman, the court of criminal appeals focused its analysis exclusively

on the extra-statutory warnings concerning the consequences of refusing the test. See Erdman, 861

S.W.2d at893-94. The Erdman court indicated that a warning of additional, non-statutory consequences

of refusal was inherently coercive and would give rise to the inference that the consent was coerced, shifting

the burden to the State to present evidence that the consent was in fact voluntary. See id. However, in

Sandoval and Rolfe, this Court said it is not enough simply to show extra-statutory warnings of any kind

were given; in the absence of an extra-statutory warning that is inherently and necessarily coercive, the

defendant must also show a Acausal connection between [the] improper warning and the decision to submit

to a breath test.@ Sandoval, 17 S.W.3d at 796; Rolfe, 986 S.W.2d at 827. If the extra-statutory warning

is not related to the consequences of refusing a breath test, the burden remains on the appellant to show the

extra-statutory warnings actually coerced his consent.

                At the time the arresting officer made the statement Aas long as you go along with the

program everything will work itself out,@ it was not made in the context of taking a breath test. The

statement was made in the officer=s car on the way to the jail. It was a response to appellee=s comment that

A[t]his is really embarrassing.@ The officer had not asked appellee if he wished at that time to submit to a

breath test. Furthermore, the officer was not informing appellee of the two statutory consequences that may

result when a person refuses to submit a breath specimen (i.e., the refusal may be admissible in a

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subsequent prosecution and the person=s driver=s license will be automatically suspended). Appellee=s own

testimony indicated that the entire conversation during the drive back to the jail consisted of his statement

that this was embarrassing and Officer Palermo=s response that Aas long as you go along with the program

everything will work itself out.@ Additionally, when asked what he took that to mean, appellee stated that AI

would be as cooperative and I would give him any information he canBor that I can and he would help me

out as much as he could.@ The officer=s first statement was not an extra-statutory warning concerning the

consequences of refusing a breath test, as indicated by appellee=s own testimony.


If given, was the non-statutory warning actually coercive?

                 Even if we assume that the only reasonable construction of the exchange between the officer

and appellee in the car is that the officer improperly gave appellee an extra-statutory warning, that fact,

standing alone, does not automatically invalidate appellee=s consent to the breath test. Since the warning

was not in relation to the refusal to take a breath test, appellee=s consent was invalid only if the additional

warning actually coerced him into submitting to the test. Appellee has the burden to show a causal

connection between an extra-statutory warning and the decision to submit to a breath test. See Sells, 798

S.W.2d at 867; see also Rolfe, 986 S.W.2d at 827. The record contains no evidence that appellee was in

any way affected by the alleged coercive statement. The statement was not made in the context of

preparing to take a breath test nor was it made in the context of giving appellee statutory warnings. We find

no causal connection between the extra-statutory warning and the decision to submit to a breath test.

Therefore, we hold that the trial court erred in suppressing the results of the breath test.




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                 Appellee states in the fact section of his brief that the arresting officer made a second

statement which coerced appellee into submitting to the breath test. Appellee claims that the officer

indicated that if he would take the test the officer would help him out as much as he could and would note in

his report that appellee was polite and cooperative. Although appellee refers to this statement, he does not

provide an argument with respect to the statement. Tex. R. App. P. 38.1(h). Thus, this argument is

inadequately briefed and the complaint is therefore waived. However, assuming appellee had provided an

argument in his brief, there is nothing in the record to support appellee=s assertion. 2 Appellee failed to clarify

who made the statement, when it was made, and what Atest@ appellee was referring to. The Atest@ that

appellee was referring to could have been a field sobriety test or a breath test. As a result of appellee=s lack

of clarification with respect to the statement, at most we have the statement occurring at some point in the

evening, requiring an unreasonable inference that the statement was made in the context of giving a breath

test or in the context of informing appellee of proper statutory warnings.

                 Additionally, after a review of the record, it appears appellee negates and undermines the

effect of the second statement on his consent to take a breath test. When questioned at the suppression

hearing by his attorney about what influenced his decision to take the breath test, appellee responded that it

        2
            On redirect examination, the defense attorney asked the following, AIt=s my understanding also
that prior to the breath test being given there was some type of discussion between you and Officer Palermo
about, >If you do the test I=ll make sure that I include some words . . . to your advantage,= or something like
that. Do you know what I=m talking about?@ In response, appellee answered, AIf you do this test I=ll make
sure I put in my report that you were polite and cooperative.@




                                                        9
was the first statement, Aas long as you go along with the program everything will work itself out@ that made

him change his mind. Therefore, we hold the second statement was not an extra-statutory warning

concerning the consequences of refusing a breath test. Even assuming it to be a warning of some kind,

appellee did not carry his burden of showing a causal connection between the improper warning and the

decision to submit to a breath test.


Did the trial court err in suppressing the entire audio portion of the videotape?

                 In its second point of error, the State argues that the trial court erred in suppressing the

entire audio portion of the videotaped interview because the appellee=s performance of sobriety tests is non-

testimonial in nature and therefore not subject to the state and federal protections against compelled self-

incrimination. The State does not take issue with the court=s suppression of the audio portion of the video

that relates to appellee=s invocation of the right to counsel or any questions that would constitute custodial

interrogation. To the extent the trial court suppressed the entire video, appellee stipulates that the State may

introduce into evidence the audio portion of the video for all but appellee=s invocations of counsel and any

interrogation that occurred thereafter.

                 The trial court=s suppression of the entire audio conflicts with decisions by the court of

criminal appeals. See Gassaway v. State, 957 S.W.2d 48 (Tex. Crim. App. 1997); Jones v. State, 795

S.W.2d 171 (Tex. Crim. App. 1990). In both Gassaway and Jones, the court of criminal appeals held

that audio tracks from DWI videotapes should not be suppressed unless the police conduct calls for a

testimonial response not normally incident to arrest and custody. The court went on to say that police

requests that a suspect perform sobriety tests and directions on how to perform the tests do not constitute



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Ainterrogation.@ Gassaway, 957 S.W.2d at 50; Jones, 795 S.W.2d at 176. Additionally, the court

concluded that recitation of the alphabet and counting backwards are not testimonial. They are physical

evidence of the functioning of the defendant=s mental and physical faculties, providing a physical exemplar of

the suspect=s manner of speech at the time of arrest. Gassaway, 957 S.W.2d at 50; Jones, 795 S.W.2d at

175. We hold that it was error for the trial court to suppress the entire audio portion of the videotape; the

only portions of the audio that should have been suppressed are appellee=s invocation of the right to counsel

and any interrogation that occurred thereafter.


                                             CONCLUSION

                 Having concluded that the trial court erred in suppressing the results of the breath test and

suppressing the entire audio portion of the videotape, we reverse the order and remand the cause for further

proceedings consistent with this opinion.




                                                  David Puryear, Justice

Before Justices Kidd, Patterson and Puryear

Reversed and Remanded

Filed: September 26, 2002

Do Not Publish




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