                               Fourth Court of Appeals
                                        San Antonio, Texas
                                 MEMORANDUM OPINION

                                           No. 04-17-00695-CR

                                         William Leonard SMITH,
                                                Appellant

                                                   v.

                                          The STATE of Texas,
                                                Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CR4620
                           Honorable Lorina I. Rummel, Judge Presiding

Opinion by:       Irene Rios, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Irene Rios, Justice

Delivered and Filed: July 25, 2018

AFFIRMED

           William Leonard Smith pled nolo contendere to intoxication assault pursuant to a plea

bargain agreement. On appeal, Smith challenges the trial court’s orders denying his motion to

suppress, motion to quash, and motion for new trial. We affirm the trial court’s judgment.

                                        PROCEDURAL BACKGROUND

           Smith was charged in a two-count indictment with aggravated assault and intoxication

assault. Both charges arose from an automobile accident caused by Smith driving the wrong way

on a divided highway. Smith filed a pretrial motion to quash the indictment and a pretrial motion
                                                                                      04-17-00695-CR


to suppress the results of a blood draw. The trial court held separate hearings on each motion and

denied them.

       After the trial court denied the motions, Smith pled nolo contendere to the offense of

intoxication assault pursuant to a plea bargain agreement. Smith was sentenced in accordance with

the plea bargain agreement, and the trial court’s certification of defendant’s right of appeal states

the case “is a plea-bargain case, but matters were raised by written motion filed and ruled on before

trial and not withdrawn or waived, and the defendant has the right of appeal.” After sentence was

imposed, Smith filed a motion for new trial which the trial court denied without a hearing. Smith

appeals.

                                      MOTION TO SUPPRESS

       In his first issue, Smith asserts the trial court erred in denying his pretrial motion to

suppress. Smith’s motion to suppress challenged the results of a blood draw. On appeal, Smith

contends the State failed to meet its burden to prove he consented to the draw by clear and

convincing evidence. Although Smith concedes the arresting officer testified he consented, Smith

argues the officer’s testimony is insufficient based on other evidence in the record. We disagree.

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

standard of review.” Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018). “At a

motion to suppress hearing, the trial judge is the sole trier of fact and judge of credibility of

witnesses and the weight to be given to their testimony.” Id. at 190. “Therefore, we afford almost

complete deference to the trial court in determining historical facts.” Id. However, we review the

trial court’s application of the law to the facts de novo. State v. Ford, 537 S.W.3d 19, 23 (Tex.

Crim. App. 2017).

       Any person who is arrested for driving while intoxicated can physically refuse to provide

a specimen for a breath or blood test. Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App.
                                                -2-
                                                                                                   04-17-00695-CR


2012). “The validity of an alleged consent is a question of fact, and the State must prove voluntary

consent by clear and convincing evidence.” Id.

        The arresting officer, Deputy Christopher Morgan, testified he was dispatched to the scene

of a major car accident caused by a wrong way driver at approximately 3:00 a.m. Upon arriving

at the scene, Deputy Morgan observed a black Mercedes with major front-end damage and a blue

Hyundai sports coupe that was damaged beyond recognition. Smith was identified as the driver

of the Hyundai. Deputy Morgan questioned Smith about the accident, and Smith stated he thought

the highway was a two-way road. While Deputy Morgan questioned Smith, he could smell alcohol

emitting from his breath. Deputy Morgan testified Smith appeared very confused and disoriented

but consented to field sobriety tests. Deputy Morgan testified he observed six clues in performing

the HGN test but did not believe Smith was a candidate for other tests requiring physical

movements because Deputy Morgan believed Smith may have sustained a leg or knee injury in

the accident. Smith was able to count and recite the alphabet without any difficulties. Based on

the odor of alcohol, the nature of the accident, and the HGN test, Deputy Morgan arrested Smith

for driving while intoxicated.

        After arresting Smith, Deputy Morgan placed him in the back seat of his patrol vehicle and

showed him where a laminated copy of the DIC-24 statutory warning was affixed to the front of

the seat so he could see it while Deputy Morgan read another copy to him. Deputy Morgan testified

he then asked Smith if he would be willing to submit a specimen of his blood, and Smith said he

would. Deputy Morgan noted Smith’s consent on both the DIC-24 and DIC-25 1 forms but did not




1
  The DIC-25 form provides notice to a driver who refuses to provide a requested specimen that the person’s driver’s
license is suspended and serves as a temporary driving permit for forty days. Deputy Morgan checked the boxes on
the form showing that Smith provided the specimens. Deputy Morgan also checked that Smith’s driver’s license was
not confiscated and typed the explanation “SUSPECT PROVIDED SPECIMEN.”

                                                       -3-
                                                                                     04-17-00695-CR


sign the forms or require Smith to sign them. Copies of both forms containing Smith’s name and

other identifying information were admitted into evidence.

       Deputy Morgan then transported Smith to the hospital where a nurse drew Smith’s blood.

Deputy Morgan testified Smith never objected during the procedure. On cross-examination,

Deputy Morgan testified no videotape of his requesting and obtaining Smith’s consent was

available because an electric storm wiped out the video.

       Judith Rances, the nurse who drew Smith’s blood, testified she recognized her signature

on the affidavit for drawing blood that was admitted into evidence. Although Rances testified she

did not recall the blood draw, she stated she would only draw blood for law enforcement if they

had a warrant or the person consented. Absent a warrant, Rances further testified she always

checked with the patient to ensure the patient consented and would not draw blood without the

consent.

       In his brief, Smith argues the following evidence militates against a finding that the record

contains clear and convincing evidence of consent: “(1) the nurse’s lack of recollection on the

issue of consent; (2) the ambiguities in the DIC-24 & DIC-25 forms, including the officer’s failure

to sign same; (3) the absence of audio or video documenting Smith’s consent; (4) Smith’s injuries

from the car accident; (d) Smith’s fatigue at well after 4:00 a.m.; and (6) the absence of evidence

as to the patrolman’s experience in the consent procedures associated with DWI arrests.” Although

each of these facts could affect the weight to be given Deputy Morgan’s testimony and whether

his testimony was credible, the trial judge is the sole judge of such weight and credibility.

Furthermore, Smith discounts Rances’s testimony that she always checked to ensure the patient

consented before drawing blood. Deferring to the trial court’s findings regarding the credibility

of the witnesses and the weight to be given their testimony, we hold the State met its burden to



                                               -4-
                                                                                      04-17-00695-CR


prove consent by clear and convincing evidence, and the trial court did not err in denying Smith’s

motion to suppress.

                                       MOTION TO QUASH

       In his second issue, Smith challenges the trial court’s denial of his pretrial motion to quash.

In his written motion, Smith argued the indictment did not contain the required certainty because

it failed to identify the penal code provisions with which Smith was charged, “and the plain

language of the indictment does not enable Defendant to infer with what offense he has been

charged. For example, it is unclear whether Defendant has been charged with Aggravated Assault,

pursuant to Section 22.02 of the Texas Penal Code, or Intoxication Assault, pursuant to Section

49.07 of the Texas Penal Code.” In his briefing on appeal, Smith asserts the indictment was

“multiplicitious” because the two counts charged him with the same offense for double jeopardy

purposes.

       In its brief, the State contends Smith did not preserve the argument presented in his brief

for purposes of appellate review. The State asserts defense counsel made the argument that the

indictment presented a “jeopardy issue” for the first time at the hearing on Smith’s motion.

Because defense counsel did not explain the “jeopardy issue” but immediately returned to a

different argument, the State asserts the issue presented in Smith’s brief on appeal “is completely

different from the argument presented to the trial court and is not preserved for review.” The State

acknowledges, however, that the prosecutor responded to defense counsel’s argument at the

hearing by asserting:

              [O]ur understanding of the law and what the [sic] states is that he can be
       convicted of both just not sentenced on both. So we don’t think that there is a
       double jeopardy inherent in this, it’s just he could be — the jury can decide to
       convict on both and then when we come to sentencing we’ll get one sentence
       covering both. So, there is no double jeopardy issue as defense counsel alleges.



                                                -5-
                                                                                                        04-17-00695-CR


In his reply brief, Smith responds, “If an argument lodged in the trial court was articulated with

sufficient specificity for the opposing counsel to argue against it, it is spurious to suggest that the

argument was not properly preserved.”

         Article 27.10 of the Texas Code of Criminal Procedure requires all motions to set aside an

indictment to be in writing. TEX. CODE CRIM. PROC. ANN. art. 27.10 (West 1989). “Two readily

identifiable purposes are furthered by article 27.10’s written requirement.” State v. Abrego, 974

S.W.2d 177, 179 (Tex. App.—San Antonio 1998, no pet.); see also State v. Goldsberry, 14 S.W.3d

770, 775 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). “First, written notification assures

adequate notice to the State either allowing an opportunity for amendment, or at the very least,

providing the State an opportunity to prepare for a hearing on such issue.” Abrego, 974 S.W.2d at

179; see also Goldsberry, 14 S.W.3d at 775. “Second, article 27.10’s written requirement

preserves matters for appellate review.” Abrego, 974 S.W.2d at 179; see also Faulks v. State, 528

S.W.2d 607, 609 (Tex. Crim. App. 1975) (holding oral motion to quash preserves nothing for

review); Goldsberry, 14 S.W.3d at 775 (asserting “written notification preserves any error for

appellate review”). “A trial court errs in granting a motion to quash based on a verbal argument

made at a pretrial hearing that is not included in the written motion.” State v. Murray, No. 04-14-

00328-CR, 2015 WL 574871, at *1 (Tex. App.—San Antonio Feb. 11, 2015, no pet.) (not

designated for publication); see also State v. York, 31 S.W.3d 798, 803 (Tex. App.—Dallas 2000,

pet. ref’d); Goldsberry, 14 S.W.3d at 775; Abrego, 974 S.W.2d at 179. Because Smith’s double

jeopardy argument was a verbal argument made at the pretrial hearing that was not included in his

written motion, he did not preserve this complaint for our review. 2


2
  Even if error had been preserved, we would hold the trial court did not err by denying the motion to quash. The
State is permitted to allege multiple offenses in one indictment, and no double jeopardy issue arises if the jury is later
instructed that it may convict on only one of them. See Crocker v. State, 573 S.W.2d 190, 197 (Tex. Crim. App.
1978); Gonzalez v. State, 516 S.W.3d 18, 23 (Tex. App.—Corpus Christi 2016, pet. ref’d); see also Saenz v. State,

                                                          -6-
                                                                                                        04-17-00695-CR


                                            MOTION FOR NEW TRIAL

         Smith’s third issue challenges the trial court’s denial of his motion for new trial. This is

an appeal from a plea bargain case which is governed by Rule 25.2 of the Texas Rules of Appellate

Procedure. See TEX. R. APP. P. 25.2. Unless a trial court gives a defendant permission to appeal,

Rule 25.2(a)(2) limits a defendant’s right of appeal in a plea bargain case to “matters that were

raised by written motion filed and ruled on before trial.” TEX. R. APP. P. 25.2(a)(2). Because

Smith entered into a plea agreement and his appeal is governed by Rule 25.2(a)(2), this court does

not have jurisdiction to consider Smith’s third issue. See Ramirez v. State, 75 S.W.3d 5, 5-6 (Tex.

App.—San Antonio 2001, pet. ref’d); Morfin v. State, 34 S.W.3d 664, 668 (Tex. App.—San

Antonio 2000, no pet.).

                                                    CONCLUSION

         The trial court’s judgment is affirmed.

                                                            Irene Rios, Justice

DO NOT PUBLISH




166 S.W.3d 270, 272 (Tex. Crim. App. 2005) (“The Fifth Amendment’s multiple punishments prohibition is violated
when a defendant is convicted of more offenses than the legislature intended.”) (internal quotation omitted); Bennett
v. State, 471 S.W.3d 5, 11 (Tex. App.—El Paso 2015, pet. ref’d) (noting “even if the Court in Saenz believed that a
constitutional violation had existed at the charging stage of the proceedings, it clearly believed that any such violation
did not completely taint the proceedings, and that the violation could be remedied by ensuring that only one conviction
stood in the defendant’s case”) (emphasis in original).

                                                          -7-
