                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-266-CR


LINDA LOUISE BERGNER                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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      FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                I. INTRODUCTION

      Appellant Linda Louise Bergner appeals her conviction for driving while

intoxicated (DWI). In four points, Bergner contends that the trial court erred by

denying her motion to suppress the results of her breath test and by denying

a jury instruction to disregard any evidence that the jury believed was illegally

obtained. We will affirm.


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          … See Tex. R. App. P. 47.4.
                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      The Roanoke Police Department received a call from an unknown caller

reporting that a possibly intoxicated driver in a yellow truck with no taillights

was driving “all over the roadway.” Sergeant Shannon Perry was dispatched

to the area and saw the truck. Sergeant Perry initiated a traffic stop because

the truck failed to maintain a single lane and its taillights were out. Bergner

was driving the truck.

      During the stop, Sergeant Perry detected an odor of alcohol on Bergner’s

breath and observed that Bergner’s eyes were glossy, bloodshot, and slightly

droopy. He also saw a glass of spilled liquid on the floorboard. Although

Bergner initially said that she had not been drinking, she later admitted that she

had been drinking at a friend’s house and that the liquid on the floorboard was

wine. Sergeant Perry performed the horizontal gaze nystagmus test, the walk-

and-turn test, and the one-leg stand test on Bergner. Bergner failed the first

two tests and passed the one-leg stand test. Sergeant Perry arrested Bergner

for DWI.

      Sergeant Perry took Bergner to the intoxilyzer room at the police station,

where the following events were videotaped. Sergeant Perry provided Bergner

with a copy of the DIC-24 warnings and read them aloud to her. Bergner then

agreed to submit to a breath test. The officer left the room, and while he was

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out of the room, Bergner used her cell phone to call her friend Jackie Ruis.

Jackie told her to refuse the breath test, and Bergner responded that she would

go to jail if she did not take the test. The officer reentered the room, and a few

minutes later, Bergner asked him, “What happens if I say no?” The officer told

her that she would go to jail if she did not blow. Bergner took the breath test,

and the two results measured .085 and .089, above the legal limit.

      Bergner filed a motion to suppress the results of the breath test, and at

the suppression hearing, she claimed that the officer’s extra-statutory warning

that she would go to jail if she failed the breath test made her consent

involuntary. The trial court denied Bergner’s motion to suppress, finding that

Bergner was not coerced into taking the breath test.

                            III. M OTION TO S UPPRESS

      In her first three points, Bergner complains that the trial court erred by

refusing to suppress her breath test results in violation of the United States and

Texas constitutions and Texas statutory law.

                            A. 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). In reviewing the trial court’s decision, we do not engage in our own

                                        3
factual review.   Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W .3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W .3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).            Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W .3d 101, 108–09 (Tex. Crim. App. 2006);

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

application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      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, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

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(Tex. Crim. App. 2006). When the record is silent on the reasons for the trial

court’s ruling, or when there are no explicit fact findings and neither party

timely requested findings and conclusions from the trial court, we imply the

necessary fact findings that would support the trial court’s ruling if the

evidence, viewed in the light most favorable to the trial court’s ruling, supports

those findings. Kelly, 204 S.W.3d at 819; see Amador, 221 S.W.3d at 673;

Wiede, 214 S.W.3d at 25. We then review the trial court’s legal ruling de novo

unless the implied fact findings supported by the record are also dispositive of

the legal ruling. Kelly, 204 S.W.3d at 819.

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

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

                          B. Consent to Breath Test

      The implied consent statute provides that a person arrested for suspected

DWI is deemed to have consented to providing specimens for a breath or blood

test. Tex. Transp. Code Ann. § 724.011(a) (Vernon 1999). However, the

person retains an absolute right to refuse a test. Id. § 724.013. An adult

person arrested for DWI must be warned that refusal to submit to a breath test

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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. Id. § 724.015(1)–(2) (Vernon Supp.

2008); Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993)

(applying former version of section 724.015 imposing 90-day suspension). The

person must likewise be informed of the possible consequences if he submits

to the test and the results of the test show a prohibited blood-alcohol level.

See Tex. Transp. Code Ann. § 724.015(3)–(4).

      A suspect’s consent to a breath test must be voluntary. Turpin v. State,

606 S.W.2d 907, 914 (Tex. Crim. App. 1980) (applying former version of

section 724.015). For consent to a breath test to be deemed voluntary, a

suspect’s decision must not be the result of physical pressure or psychological

pressure brought to bear by law enforcement officials. See Thomas v. State,

723 S.W.2d 696, 704–05 (Tex. Crim. App. 1986) (recognizing that consent

to breath test is not voluntary if induced by physical force or mental coercion);

Schafer v. State, 95 S.W.3d 452, 455 (Tex. App.—Houston [1st Dist.] 2002,

pet. ref’d) (recognizing that consent to breath test is not voluntary if induced

by misstatement of direct statutory consequences of refusal). A suspect’s

decision to submit to a breath test must be his own, made freely, and with a




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correct understanding of the statutory consequences of refusal. Erdman, 861

S.W.2d at 893.

      If the officer requesting the breath sample misstates the law and includes

extra-statutory consequences of a refusal to submit to the breath test, the

consent may be considered to have been involuntarily given. See Erdman, 861

S.W.2d at 893–94; State v. Serrano, 894 S.W.2d 74, 75–76 (Tex.

App.—Houston [14th Dist.] 1995, no pet.); State v. Sells, 798 S.W.2d 865,

866 (Tex. App.—Austin 1990, no pet.). In Erdman, the arresting officer gave

the suspect the statutorily required warnings concerning the consequences of

refusing to submit to a breath test but added additional, extra-statutory

warnings. Erdman, 861 S.W.2d at 893–94. The extra-statutory warnings

included the following: (1) that DWI charges would be filed against the suspect

and (2) that he would be put in jail that night. Id. at 891, 894. The court of

criminal appeals held that the extra-statutory warnings conveyed to the suspect

were of the type that would result in “considerable psychological pressure.”

Id. at 894.   Erdman thus stands for the proposition that law enforcement

officials “must take care to warn D.W.I. suspects correctly about the actual,

direct, statutory consequences of refusal.” Id.




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                   C. Bergner’s Consent to Breath Test

     Although Bergner is correct that Sergeant Perry’s extra-statutory

statement is substantially the same as the statement at issue in Erdman,

Erdman is not controlling because here, unlike in Erdman, the record is not

devoid of evidence that the officer’s statement had no bearing on Bergner’s

decision to take the breath test. Compare Erdman, 861 S.W.2d at 893–94

(noting complete absence of evidence showing extra-statutory warning had no

bearing on defendant’s decision to consent), with Urquhart v. State, 128

S.W.3d 701, 705 (Tex. App.—El Paso 2004, pet. ref’d) (distinguishing Erdman

where there was “considerable other evidence” that consent was voluntary).

In Erdman, the court of criminal appeals emphasized that Erdman “consented

to the intoxilyzer test only after the trooper gave him [the extra-statutory

warnings] concerning the consequences of refusal.” Erdman, 861 S.W.2d at

893–94 (emphasis added); see also Thorn v. State, No. 02-95-00872-CR,

1997 WL 672623, at *4 (Tex. App.—Dallas Oct. 30, 1997, pet. ref’d) (not

designated for publication) (distinguishing Erdman and holding that extra-

statutory warnings given after defendant consented to breath test had no

impact on whether she should take the test). Here, Bergner testified at the

suppression hearing that she voluntarily consented to taking the breath test

initially, and our review of the videotape shows that when asked whether she

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would take the test, she replied, “You bet.” At that time, she had received only

the statutory warnings. Bergner testified that after talking with her friend,

however, she decided not to take the test but that because the officer said she

could go to jail if she refused, she ultimately took the breath test. But Bergner

never revoked her consent. The trial court, as the sole trier of fact and judge

of Bergner’s credibility at the suppression hearing, was entitled to disbelieve

Bergner’s testimony concerning a private, unexpressed decision she purportedly

made to not submit a breath specimen after she had voluntarily consented to

the breath test. See Wiede, 214 S.W.3d at 24–25; Ross, 32 S.W.3d at 855;

see also Ness v. State, 152 S.W.3d 759, 763–64 (Tex. App.—Houston 2004,

pet. ref’d) (holding that trial court acted within its discretion by rejecting

appellant’s professed understanding of the officer’s extra-statutory warning).

      Additionally, Bergner failed to show a causal connection between the

extra-statutory statement and her consent to the breath test. See Sandoval v.

State, 17 S.W.3d 792, 795–97 (Tex. App.—Austin 2000, pet. ref’d). Bergner

testified on cross-examination that she already knew she would go to jail if she

refused to take the breath test, and the videotape reveals that when her friend

told her not to take the breath test, Bergner responded, “So spend the night in

jail?” Because Bergner already understood the consequences of refusing to

blow, Sergeant Perry’s extra-statutory statement—made after Bergner agreed

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to take the test—could not have caused the “psychological pressures” that case

law is designed to prevent. See Erdman, 861 S.W.2d at 893–94; Serrano, 894

S.W.2d at 75–76; Sells, 798 S.W.2d at 866. Affording almost total deference

to the trial court’s determination of historical facts that are supported by the

record and to the trial court’s credibility determinations, we hold that the trial

court did not err by denying Bergner’s motion to suppress. See Wiede, 214

S.W.3d at 24; Kelly, 204 S.W.3d at 818. We overrule Bergner’s first, second,

and third points.

                               IV. J URY INSTRUCTION

      In her fourth point, Bergner argues that the trial court erred by refusing

her request to instruct the jury to “disregard any evidence that was [obtained]

in violation of the law, specifically the breath specimen.”

                              A. Standard of Review

    Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we

must determine whether error occurred. If so, we must then evaluate whether

sufficient harm resulted from the error to require reversal. Id. at 731–32. Error

in the charge, if timely objected to in the trial court, requires reversal if the error

was “calculated to injure the rights of [the] defendant,” which means no more

than that there must be some harm to the accused from the error. Tex. Code

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Crim. Proc. Ann. art. 36.19 (Vernon 2006); see also Abdnor, 871 S.W.2d at

731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.

on reh’g). In other words, a properly preserved error will require reversal as

long as the error is not harmless. Almanza, 686 S.W.2d at 171. In making this

determination, “the actual degree of harm must be assayed in light of the entire

jury charge, the state of the evidence, including the contested issues and

weight of probative evidence, the argument of counsel and any other relevant

information revealed by the record of the trial as a whole.” Id.; see also Ovalle

v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000).

                       B. Article 38.23 Jury Instruction

      Under article 38.23 of the code of criminal procedure, no evidence

obtained in violation of the federal or state constitutions or laws may be

admitted in evidence against the accused. Tex. Code Crim. Proc. Ann. art.

38.23(a) (Vernon 2005). W hen the evidence raises an issue regarding a

violation, the jury must be instructed that if it believes, or has a reasonable

doubt, that the evidence was obtained in violation of the law, it must disregard

the illegally obtained evidence. Id. A defendant’s right to the submission of

jury instructions under article 38.23(a) is limited to disputed issues of fact that

are material to her claim of a constitutional or statutory violation that would

render evidence inadmissible. Madden v. State, 242 S.W.3d 504, 509–10

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(Tex. Crim. App. 2007). To raise a disputed fact issue warranting an article

38.23(a) jury instruction, there must be some affirmative evidence that puts the

existence of that fact into question. Id. at 513. If there is no disputed factual

issue, the legality of the conduct is determined by the trial judge alone, as a

question of law. Id. at 510. A cross-examiner’s questions do not create a

conflict in the evidence, although the witness’s answers to those questions

might. Id. (citing Garza v. State, 126 S.W .3d 79, 86–87 & n.3 (Tex. Crim.

App. 2004)).

      Here, Bergner contends that the videotape and Sergeant Perry’s testimony

present a factual issue regarding Bergner’s consent to take the breath test.

Bergner specifically points to the following exchange on cross-examination of

Sergeant Perry:

      [Defense Counsel:]       And that’s the DWI law.
                               Okay.    When you asked her if she
                               blew— she blows. She said sure, right?
                               And then you left?

      [Perry:]                 Yes.

      [Defense Counsel:]       She talks to a friend, and it’s clear that she
                               doesn’t want to take the test at that
                               point?

      [Perry:]                 Yes. She asked about it, yes.

      [Defense Counsel:]       Well, if she was just going to say yes, and
                               if she was going to keep saying yes, why

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                     would she ask you what would happen if
                     I said no?

[Perry:]             It’s a question. I don’t know, sir. At the
                     time I hadn’t watched the video and didn’t
                     know what was going on. I did not know.
                     I walked in, she asked the question.

[Defense Counsel:]   I totally—I’m with you. You’re out of the
                     room when she’s talking to a friend, and
                     the friend goes, don’t blow in the machine.
                     It doesn’t make any sense. She’s, like,
                     why shouldn’t I? Right? You’ve seen that
                     now.

[Perry:]             Yes. Yes.

[Defense Counsel:]   You didn’t know that at the time?

[Perry:]             No.

                     ....

[Defense Counsel:]   But it was clear, now that you watched
                     the tape, that she says, well, I’m not going
                     to blow in the machine. My friend told me
                     not to, right?

[Perry:]             After watching the video tape, yes.

[Defense Counsel:]   And I know you didn’t know that, but did
                     you do something wrong in—in your
                     opinion when she asked you if she didn’t
                     blow in the machine what would happen?

[Perry:]             I said she would go to jail.

[Defense Counsel:]   You’re not supposed to do that, are you?


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      [Perry:]                It would happen either way. No.

      Bergner points only to the above testimony and the videotape as raising

a conflict in the evidence regarding the voluntariness of her consent.      The

videotape shows that Sergeant Perry gave the appropriate statutory warnings

before obtaining Bergner’s consent and that Bergner never revoked her consent.

The officer’s answers to trial counsel’s questions on cross-examination were

insufficient to raise a disputed fact issue warranting an article 38.23(a) jury

instruction. See Madden, 242 S.W.3d at 513. The jury was not present for

the suppression hearing, where Bergner testified that she took the breath test

because Sergeant Perry said she could go to jail if she refused, and Bergner did

not testify at trial. No evidence presented to the jury raised a disputed fact

issue related to the voluntariness of her consent.     See id.   Consequently,

Bergner was not entitled to an article 38.23 jury instruction.

                              C. Harmless Error

      Even assuming that the officer’s testimony during cross-examination is

some evidence in support of Bergner’s contention that she was coerced into

taking the breath test and that, consequently, a fact issue necessitated an

article 38.23 instruction, any error was harmless. Tex. Code Crim. Proc. Ann.

art. 36.19; see also Abdnor, 871 S.W.2d at 731–32; Almanza, 686 S.W.2d at

171. Under the information and the jury charge, the jury was authorized to find

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that Bergner was intoxicated under the per se definition of intoxication—that

her blood alcohol concentration was 0.08 or more—or under the impairment

theory—that she did not have the normal use of her mental or physical faculties

by reason of the introduction of alcohol into her body. See Tex. Penal Code

Ann. § 49.01(2) (Vernon 2003). Bergner’s breath test results “were pieces in

the evidentiary puzzle for the jury to consider” in determining whether she was

intoxicated at the time she drove. Stewart v. State, 129 S.W.3d 93, 97 (Tex.

Crim. App. 2004). The jury had other evidence of Bergner’s intoxication, such

as the arresting officer’s testimony about Bergner’s driving patterns before he

pulled her over, the results of Bergner’s field sobriety tests, Bergner’s admission

to the officer that she had been drinking, the spilled glass of wine on the

floorboard of Bergner’s truck, and the videotape of the encounter. See id.

Sergeant Perry testified that he arrested Bergner based on her driving, the odor

of alcohol on her breath, the alcohol in the truck, and the results of the field

sobriety tests.

      Regarding the breath test, the videotape demonstrates that Bergner

received the required statutory warnings and agreed to take the breath test.

Bergner testified at trial that even before asking the officer what would happen

if she refused the test, she knew she would go to jail. We conclude that the

trial court’s denial of the requested jury instruction was not calculated to injure

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Bergner’s rights and that, based on the record, any error was harmless. See

Tex. Code Crim. Proc. Ann. art. 36.19; see also Abdnor, 871 S.W.2d at

731–32; Almanza, 686 S.W.2d at 171. We overrule Bergner’s fourth point.

                              V. C ONCLUSION

     Having overruled Bergner’s four points, we affirm the trial court’s

judgment.




                                               SUE WALKER
                                               JUSTICE

PANEL: HOLMAN, GARDNER, and WALKER, JJ

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

DELIVERED: October 30, 2008




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