                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-14-00339-CR


ANN BUCARO                                                           APPELLANT

                                           V.

THE STATE OF TEXAS                                                        STATE


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         FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY
                  TRIAL COURT NO. CR-2013-05651-B

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                MEMORANDUM OPINION1 ON REHEARING

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                                     I. Introduction

         Appellant Ann Bucaro filed a motion for rehearing. We deny the motion but

withdraw our prior opinion of June 25, 2015, and substitute the following in its

place.




         1
         See Tex. R. App. P. 47.4.
      In three issues, Bucaro appeals her conviction for driving while intoxicated.

She argues that the trial court erred in overruling her motion to suppress and that

portions of the Implied Consent Law violate the Fourth Amendment. We affirm.

                                   II. Background

      On January 12, 2013, The Colony police pulled Bucaro over for driving her

vehicle off of the roadway, over a curb, and onto a sidewalk. Officer Mark Hamm

was called to the scene to assist in the investigation of the possible offense of

driving while intoxicated (DWI).

      When Officer Hamm arrived, he performed standardized field sobriety tests

on Bucaro and, as a result, concluded that she was intoxicated.           He then

arrested Bucaro and took her to The Colony Jail.

      At the jail, Officer Hamm handed Bucaro a copy of the DIC-242 form and

asked her to follow along as he read it aloud.       After Officer Hamm finished

reading the form, Bucaro collapsed onto the floor. Officer Hamm immediately

called for the paramedics and then helped Bucaro, who told Officer Hamm that

she felt “lightheaded,” into a chair.   During these events, Bucaro never lost

consciousness.




      2
       The DIC-24 is the Texas Department of Public Safety’s standard form
containing the written warnings required by the transportation code to be read to
an individual arrested for a DWI before a peace officer requests a voluntary blood
or breath sample from a person. See Tex. Transp. Code Ann. § 724.015 (West
Supp. 2014); State v. Neesley, 239 S.W.3d 780, 782 n.1 (Tex. Crim. App. 2007).


                                         2
      While waiting for the medics to arrive, Officer Hamm showed Bucaro the

DIC-24 form and asked if she remembered holding it and following along when

he read it to her earlier. She shook her head, indicating that she did not. Just

prior to the paramedic’s arrival, Bucaro’s breathing became very heavy.

However, the medics who evaluated Bucaro determined that she was not in need

of any further medical attention.

      After the medics left, Officer Hamm once again asked Bucaro if she

remembered the DIC-24 form, and she indicated that she did not. Officer Hamm

then read the DIC-24 to Bucaro a second time and afterwards asked if she

understood. Once again, she shook her head, indicating that she did not. When

Officer Hamm asked her if she had a question, Bucaro just shook her head.

When he asked Bucaro what part of the form she did not understand, Bucaro

again just shook her head. Officer Hamm then reread the second paragraph3

and attempted to break it down into simpler terms. He explained to her that he

was going to ask her for a breath specimen and she needed to understand that

“if [she] says no, they can use it against her in court and [her] license will be




      3
      The second paragraph of the DIC-24 form reads as follows: “If you refuse
to give the specimen, that refusal may be admissible in a 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.”


                                       3
suspended for not less than six months.” Officer Hamm read the entire DIC-24

form to Bucaro a third time,4 and she consented to giving a breath specimen.

      At the hearing on the motion to suppress, the trial court heard testimony

from Officer Hamm and Bucaro, viewed the intoxilizer room video footage and

the dashboard camera footage, and listened to the audiotape of Officer Hamm’s

body microphone.

      Officer Hamm testified that Bucaro’s consent was freely and voluntarily

given and that he never got the impression she did not want to give the sample.

He testified that there was no coercion, no force, no intimidation, and no

threats—he asked her to provide a sample, she said yes, and when it was time to

provide the sample she did.

      Bucaro testified that she thought that she had no option but to take the test

because if she refused she would not be able to drive to work and she might lose

her job. However, on cross-examination, Bucaro admitted that she never told

Officer Hamm that she did not want to give a breath specimen and that she never

refused to provide one. She further admitted that she was not threatened or

physically forced.

      The trial court denied the motion to suppress and entered written findings

of fact and conclusions of law.



      4
        Officer Hamm testified that he read the complete DIC-24 form to Bucaro
three times.


                                        4
                              III. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.      Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007); State

v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court

makes explicit fact findings, we determine whether the evidence, when viewed in

the light most favorable to the trial court’s ruling, supports those fact findings.

Kelly, 204 S.W.3d at 818–19.         We then review the trial court’s legal ruling

de novo unless its explicit fact-findings that are supported by the record are also

dispositive of the legal ruling. Id. at 818.

      We must uphold the trial court’s ruling if it is supported by the record and

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.


                                           5
Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

                                    IV. Analysis

      In her first two issues, Bucaro states that the trial court erred in denying

her motion to suppress because (1) Bucaro did not voluntarily consent and (2)

the State failed to sustain its burden of proof.   In her last issue, Bucaro asserts

that portions of the Implied Consent Law are inherently coercive and, therefore,

violate the Fourth Amendment’s prohibition against unreasonable searches and

seizures.

A. Voluntary Consent

      In her first and third issue, Bucaro asserts that she did not voluntarily

consent to provide a breath specimen because she was coerced. In both issues,

Bucaro argues that the Implied Consent Law, i.e., the DWI statutory warnings,

are inherently coercive.    Specifically, she asserts that by “threatening that if

Bucaro refused to provide a specimen . . . she would lose her driving privileges

and . . . her refusal would be used as evidence against her at her trial, the officer

applied psychological pressure . . . that caused her will to be overborne and her

capacity for self-determination to be critically impaired.”

      Any person arrested for DWI is deemed to have given consent to submit to

providing a specimen of breath or blood for determining alcohol concentration or

the presence of a controlled substance. Tex. Transp. Code § 724.011(a) (West

2011). Nevertheless, a person retains an absolute right to refuse a test. Id.


                                          6
§ 724.013 (West 2011). In other words, “‘[C]onsent being implied by law, a driver

may not legally refuse. A driver can, however, physically refuse to submit, and,

in recognition of that practical reality, the implied consent law forbids the use of

physical force to compel submission.’” Forte v. State, 759 S.W.2d 128, 138 (Tex.

Crim. App. 1988) (quoting State v. Spencer, 305 Or. 59, 750 P.2d 147, 153

(1988)), overruled on other grounds by McCambridge v. State, 778 S.W.2d 70,

76 (Tex. Crim. App. 1989).

      A driver’s consent to a breath or blood test must be free and voluntary—

i.e., free from physical or psychological pressure from law enforcement. Meekins

v. State, 340 S.W.3d 454, 458–59 (Tex. Crim. App. 2011). In order to determine

whether consent was given voluntarily, the fact-finder must consider the totality of

the circumstances. Id. at 459. “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.”                Id.

“Accordingly, it follows that, because 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.”

Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012).

      Before an officer may request a breath or blood sample from a person

arrested for DWI, the officer is required to inform the person that a refusal to

provide a specimen (1) may be admissible in subsequent prosecution and (2) will

result in an automatic driver’s license suspension.      Tex. Transp. Code Ann.


                                         7
§ 724.015(1), (2); Schaum v. State, 833 S.W.2d 644, 646 (Tex. App.—Dallas

1992, no pet.). “These warnings emphasize the importance of ensuring that the

consent is given ‘freely and with a correct understanding of the actual statutory

consequences of refusal.’”      Duke v. State, No. 02-02-00290-CR, 2003 WL

1564326, at *1 (Tex. App.—Fort Worth Mar. 27, 2003, no pet.) (mem. op., not

designated for publication) (citations omitted).

      While the court of criminal appeals has not directly addressed the question

of whether the DIC-24 statutory warnings are inherently coercive, the court has

considered whether extra-statutory warnings—warnings that exceed the required

DIC-24 statutory warnings—are inherently coercive. See Fienen, 390 S.W.3d at

335; Erdman v. State, 861 S.W.2d 890, 893–94 (Tex. Crim. App. 1993),

overruled by Fienen, 390 S.W.3d at 335. In Fienen, the court of criminal appeals

held that extra-statutory warnings are not inherently coercive but that any

coercive effect of warnings should be determined by considering the totality of

the circumstances in each particular case, holding,

      . . . No statement—whether it refers to the consequences of refusing
      a breath test, the consequences of passing or failing a breath test, or
      otherwise—should be analyzed in isolation because its impact can
      only be understood when the surrounding circumstances are
      accounted for.

             ....

            . . . Although [the officer] conveyed what would happen in
      more definite terms than suggested by the (present) statute, she
      provided only the most basic information and did not linger or
      prolong the exchange by explaining in detail the intricacies of
      obtaining the search warrant (e.g., that the blood search warrant


                                          8
      must be approved by a neutral and impartial magistrate and that the
      judge may sign the search warrant only if he believes that it is
      supported by probable cause).

390 S.W.3d at 335–36 (holding that under the totality of circumstances, the

statements made by the officer were not coercive, “and if anything, Appellant had

greater information on which to base his decision.”).

      Comparing the case at bar to Fienen, if the giving of the DIC-24 warnings

plus the extra-statutory warnings present in Fienen were not inherently coercive,

then the statutory warnings standing alone could not be inherently coercive.

Applying Fienen, we hold that the giving of the DIC-24 warnings is not inherently

coercive and does not violate the Fourth Amendment. We overrule Bucaro’s first

and third issues.

B. Burden of Proof

      In her second issue, Bucaro argues that based on the totality of the

circumstances the State failed to meet its burden in proving that her consent was

voluntary. Specifically, Bucaro asserts that the evidence shows that

      at the time she agreed to provide a specimen of her breath Ms.
      Bucaro was under arrest, was in a police-dominated atmosphere at
      the jail and in the presence of several uniformed officers,[5] had not
      been warned of her rights under Miranda and article 38.22,[6] had not

      5
       The video indicates that Officer Hamm was the only police officer in the
room; the others were medical professionals.
      6
       Miranda warnings are not required to be given before an individual is
asked to give a breath specimen. Floyd v. State, 710 S.W.2d 807, 809 (Tex.
App.—Fort Worth 1986), pet. dism’d, improvidently granted, 768 S.W.2d 307
(Tex. Crim. App. 1989).


                                         9
      directly and affirmatively been made aware that she could refuse to
      provide a specimen of her breath,[7] had not been made aware of
      legal options available to her whereby she could avoid losing her
      driving privileges, had suffered a panic attack that resulted in several
      minutes of hyperventilation, vacillated about whether to provide the
      specimen,[8] had been threatened with the use of her refusal to
      provide a specimen of breath as evidence of her guilt, in violation of
      her Fourth Amendment rights, and provided the specimen only after
      she had been repeatedly told that her refusal to provide a specimen
      would result in the suspension of her driver’s [license] and would
      result in the use of her refusal as evidence at her trial.

      It is the State’s burden to prove voluntary consent by clear and convincing

evidence. Fienen, 390 S.W.3d at 335. Here, the State introduced video from the

intoxilizer room and testimony from Officer Hamm.         According to the record,

when asked by Officer Hamm if she would give a breath specimen, Bucaro

agreed and then submitted to one. Viewing the evidence in the light most

favorable to the trial court’s findings, the State met its burden, and the trial court

did not err by denying Bucaro’s motion to suppress.          We overrule Bucaro’s

second issue.

                                  V. Conclusion

      Having overruled all of Bucaro’s issues, we affirm the trial court’s

judgment.


      7
       Officer Hamm read the DIC-24 form to Bucaro in full three separate times.
As noted above, the form includes the following admonition: “If you refuse to give
the specimen, that refusal may be admissible in a subsequent prosecution . . . .”
[Emphasis added.]
      8
       The record does not indicate that Bucaro equivocated in her decision to
submit a breath specimen.


                                         10
                                        /s/ Bonnie Sudderth
                                        BONNIE SUDDERTH
                                        JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 27, 2015




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