      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-09-00402-CR



                                 Harley Allen Belk, Appellant

                                                v.

                                 The State of Texas, Appellee


                   FROM THE COUNTY COURT OF RUNNELS COUNTY
              NO. 24,080, HONORABLE MARILYN EGAN, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Appellant Harley Allen Belk was involved in a one-vehicle rollover accident on

a farm-to-market road north of Ballinger. Belk was transported by EMS to a hospital, where he was

arrested for DWI and had his blood drawn for analysis. Belk was charged by information with the

misdemeanor offense of driving while intoxicated, subsequent offense. See Tex. Penal Code Ann.

§ 49.04 (West 2003), § 49.09(b) (West Supp. 2009). Following the denial of his motion to suppress

evidence of his intoxication, Belk pleaded nolo contendere. The trial court then found Belk guilty

of the offense as charged and assessed punishment at confinement in county jail for one year and

a $1,000 fine. However, the trial court suspended imposition of the confinement and placed Belk

on community supervision for a period of one year. This appeal followed. In two issues on appeal,

Belk asserts that the trial court abused its discretion in denying his motion to suppress because,
according to Belk, (1) his warrantless arrest was not supported by probable cause and (2) his consent

to have his blood drawn for testing was involuntary. We will affirm the judgment.


                                     STANDARD OF REVIEW

                A trial court’s ruling on a motion to suppress is reviewed on appeal for abuse

of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). The trial court is given

almost complete deference in its determination of historical facts, especially if those are based on

an assessment of credibility and demeanor. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim.

App. 2008). The same deference is afforded the trial court with respect to its rulings on application

of the law to questions of fact and to mixed questions of law and fact, if resolution of those questions

depends on an evaluation of credibility and demeanor. Montanez v. State, 195 S.W.3d 101,

108-09 (Tex. Crim. App. 2006). However, for mixed questions of law and fact that do not fall

within that category, a reviewing court conducts a de novo review. Amador v. State, 221 S.W.3d

666, 673 (Tex. Crim. App. 2007).

                The trial judge is the exclusive fact-finder at the suppression hearing. State v. Ross,

32 S.W.3d 853, 855 (Tex. Crim. App. 2000). When the trial court does not make express findings

of fact, an appellate court must view the evidence in the light most favorable to the trial court’s

ruling, assuming that it made any implicit findings of fact that are supported by the record. Id. An

appellate court will sustain the trial court’s decision if it concludes that the decision is correct on any

theory of law applicable to the case. Id. at 855-56.




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                                            ANALYSIS

Probable cause to arrest

               In his first issue, Belk asserts that his warrantless arrest for DWI was not supported

by probable cause. Probable cause for a warrantless arrest exists if, at the moment the arrest is made,

the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably

trustworthy information are sufficient to warrant a prudent man in believing that the person arrested

had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964); Amador

v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). The test for probable cause is an objective

one, unrelated to the subjective beliefs of the arresting officer, and it requires a consideration of

the totality of the circumstances facing the arresting officer. Maryland v. Pringle, 540 U.S. 366,

371 (2003); Amador, 275 S.W.3d at 878. “A finding of probable cause requires ‘more than bare

suspicion’ but ‘less than . . . would justify . . . conviction.’” Amador, 275 S.W.3d at 878 (quoting

Brinegar v. United States, 338 U.S. 160, 175 (1949)).

               In this case, the warrantless arrest was made by DPS Officer Michael Gray, who had

investigated the accident. Gray, who was the State’s sole witness at the suppression hearing, testified

that when he had arrived at the location of the accident, he observed a white Dodge pickup truck

laying on its passenger side. Gray also observed Belk inside the vehicle being attended to by EMS

personnel. According to Gray, Belk “appeared to be sleeping in the truck. He was not conscious.”

Meanwhile, EMS personnel “were trying to get him out, figure out a way to get him out of

the vehicle” and “trying to talk to him.” Gray recalled, “He would come to temporarily, and then

he would either go out of consciousness or go to sleep. I do not know.” Belk was “finally extracted



                                                  3
from the vehicle” and transported to the hospital. Gray testified that he did not have any interaction

with Belk at the accident scene.

               Gray remained at the scene to complete the accident investigation. After the vehicle

had been removed from the ditch, Gray observed a gin bottle nearby. When asked how far the

gin bottle was from where the pickup had been, Gray testified, “I believe it might possibly have

been under the pickup, if not right there close by.” However, Gray admitted that he had no other

facts connecting Belk to the bottle or any information as to whether the bottle even contained an

alcoholic substance.

               After completing the investigation at the scene, Gray went to the hospital to

interview Belk. Gray testified that Belk “appeared to be very disoriented” during the interview.

Gray elaborated:


       There was a strong odor of an alcoholic beverage inside the room that Mr. Belk
       was in. His speech was slurred. His eyes were bloodshot. Very bloodshot, very
       glassy. During my initial interview, during questioning, he appeared to have a hard
       time comprehending the questions that I was asking him and giving answers in
       response to my questions.


Also, according to Gray, Belk “did not remember anything about the wreck.” In Gray’s opinion,

Belk “appeared to be very intoxicated.” When asked what it was about Belk’s appearance that led

him to believe this, Gray answered, “It was a strong odor of alcohol that was coming from

his person, his slurred speech, his inability to answer simple questions. He seemed very confused,

seemed like he did not know exactly what had happened to him.” Gray did not notice any visible

injuries on Belk. Gray recalled that, when he asked Belk if he had been drinking, Belk answered,



                                                  4
“Not that I know of.” At that point, Gray testified, he placed Belk under arrest for DWI. Gray

explained that he did not perform any field sobriety tests because Belk “was on a hospital bed.”

               The defense’s theory at the suppression hearing was that the above facts which

Gray had interpreted as being consistent with intoxication were actually symptoms of Belk having

suffered head trauma during the accident. In his cross-examination of Gray, defense counsel elicited

some testimony to support this theory. Gray agreed that it is not uncommon for people involved in

rollover accidents to suffer concussions and that, when someone suffers from a concussion, that

person may act sleepy, dazed, confused, and be generally nonresponsive. Gray also agreed that such

injuries can cause people to lose consciousness, as Belk appeared to do at the scene. However, Gray

emphasized that he was not a doctor or nurse and thus was unable to determine whether Belk had

suffered from a concussion or any other internal injury. Gray maintained that Belk had not appeared

visibly injured in any way. Additionally, Gray testified that, “later on in the evening,” doctors had

informed Gray that Belk “was free to go, that he was not injured” and that Belk had been released

from the hospital and into Gray’s custody that night.

               Two nurses who had treated Belk that night also testified for the defense. Kay

Schumacher testified that, when Belk arrived at the hospital, “he was pretty much out of it,”

“snoring,” “confused,” and that his words were not intelligible. When asked if she was concerned

that Belk might have suffered a head injury that night, Schumacher testified, “It’s always a concern

when you have a person who has been in a motor vehicle crash.” She also agreed that those concerns

were heightened when the person appears disoriented and confused. Sherry Gonzalez, the nurse

who had taken blood from Belk, was asked if she agreed with Gray’s and Schumacher’s statements



                                                 5
that Belk appeared confused at the hospital. Gonzalez answered that she had not observed Belk

“long enough to comment.”

               Belk also testified for the limited purpose of the suppression hearing. Belk testified

that he did not recall being treated by EMS personnel at the scene of the accident and that he recalled

“very little” of what had happened at the hospital. Belk also testified that he did not remember

receiving any blows to the head during the accident. According to Belk, he had brain surgery in

either 1990 or 1991 and still suffered some side effects from the surgery, specifically sensitivity to

hits to his head. Belk, who also testified that he used hearing aids and that he was not wearing them

on the night of the accident, claimed that he did not recall speaking to Gray and did not understand

or know what was happening at the hospital. On cross-examination, Belk admitted that he had not

been treated for any injuries he had allegedly sustained in the accident.

               On this record, we cannot conclude that the trial court abused its discretion in

finding that Gray had probable cause to arrest Belk for DWI. At the time of arrest, the facts and

circumstances within Gray’s knowledge and of which he had reasonably trustworthy information

included that there was a strong odor of alcohol coming from Belk’s person and permeating

the emergency room in which Belk had been taken following the accident. These facts, furthermore,

inform the inferences that could be drawn from the facts that Belk had been involved in a one-

vehicle rollover accident; that a gin bottle was found near the scene of the accident; that Belk had

bloodshot and glassy eyes; that Belk’s speech was slurred; that Belk did not appear to be injured; that

Belk appeared to be very disoriented; that Belk did not remember anything about the wreck; and that,

during Gray’s questioning, Belk “appeared to have a hard time comprehending the questions that



                                                  6
I was asking him and giving answers in response to my questions.” Considering the totality of the

circumstances facing the arresting officer, the record supports a finding by the trial court that the

facts and circumstances “were sufficient to warrant a prudent man in believing that the person

arrested had committed the offense of driving while intoxicated.”

               In contending otherwise, Belk relies on this Court’s opinion in State v. Williams,

814 S.W.2d 256 (Tex. App.—Austin 1991), aff’d, 832 S.W.2d 52 (Tex. Crim. App. 1992). In

Williams, the defendant, who had been involved in a one-car accident, was taken to the hospital

and later arrested for the offense of driving while intoxicated. Id. at 258. As in this case, the

arresting officer in Williams went to the hospital after investigating the accident scene and observed

that the defendant had an odor of alcohol on his breath, bloodshot eyes, and slurred speech. Id.

Additionally, the officer performed a horizontal gaze nystagmus test and noticed that the defendant’s

eyes “jerked almost immediately.” Id. Despite these facts, the trial court granted the defendant’s

motion to suppress, noting prior to its ruling that “where there is a severe accident, red eyes

and slurred speech may be due to the consumption of alcohol or to the accident.” Id. at 258-59. This

Court affirmed the trial court’s ruling. Id. at 261. Seizing upon the above remark by the trial court

(not by, as Belk suggests, this Court), Belk contends that the facts of this case demand the same

result. We disagree.

               The procedural posture of Williams was different than the case before us. The

trial court in Williams granted the defendant’s motion to suppress, and this Court concluded

that it was not an abuse of discretion to do so. In this case, Belk is asking us to conclude that

the trial court’s denial of the motion to suppress was an abuse of discretion. On this record, as we



                                                  7
have already explained, we cannot do so. In Williams, the trial court did not give much weight to

the opinions and observations of the arresting officer.1 See id. at 260. In contrast, the trial court

in this case, by its ruling, implicitly did. In each case, the trial court, acting as the fact-finder at the

suppression hearing, reasonably exercised its discretion in evaluating the weight and credibility

of the evidence before it. See Nottingham v. State, 908 S.W.2d 585, 589 (Tex. App.—Austin 1995,

no pet.) (“[O]ur holding in Williams that the trial court did not abuse its discretion in finding an

absence of probable cause does not necessarily mean that another trial court, given similar facts,

could not reasonably reach the opposite conclusion.”).2

                Also, we observe that there were additional facts in this case supporting the officer’s

determination that Belk had committed the offense of driving while intoxicated that were not present

in Williams, including the gin bottle found near the scene of the accident, the smell of alcohol “inside

the [emergency] room” (not just on the defendant’s breath), and the conversation between Gray

and Belk, in which Belk “appeared very disoriented,” was unable “to answer simple questions” and



        1
        The trial court in Williams commented that it had found that the arresting officer was “real
ambivalent as to whether [Williams was] under arrest.” State v. Williams, 814 S.W.2d 256, 258
(Tex. App.—Austin 1991), aff’d, 832 S.W.2d 52 (Tex. Crim. App. 1992).
        2
          Belk also cites this Court’s unpublished opinion in Tapper v. State, No. 03-06-00248-CR,
2007 Tex. App. LEXIS 6801 (Tex. App.—Austin Aug. 23, 2007, no pet.) (mem. op., not designated
for publication). In that case, the arresting officer testified that the only reasons he believed the
defendant had committed the offense of driving while intoxicated were “the facts that the appellant
was involved in a single-car collision, smelled like alcohol, and dropped his wallet.” Id. at *15.
Concluding that these factors were not sufficient to establish probable cause to arrest, this Court
reversed the trial court’s denial of the defendant’s motion to suppress. Id. at *16-18. Tapper is
factually distinguishable, however, because in this case, there were additional facts supporting the
probable-cause determination, including Belk’s bloodshot eyes, slurred speech, and “confused” and
disoriented behavior and responses to Gray’s questions.


                                                     8
“seemed like he did not know exactly what had happened to him.” Also, when Gray asked Belk if

he had been drinking, rather than denying that he had been drinking, Belk answered, “Not that I

know of.” While Belk contends that his “confused” behavior and responses were just as consistent

with a head injury as with intoxication, the trial court would not have abused its discretion in

concluding otherwise. Gray testified that Belk did not appear injured at the time of his arrest, and

Belk offered no conclusive evidence establishing that he had in fact been injured. On the contrary,

Belk testified that he did not remember receiving any blows to the head during the accident, and

Gray testified that the doctors had informed him (albeit after the arrest) that Belk was “free to go and

was not injured.”3

                We overrule Belk’s first issue.


Consent to draw blood

                After Gray had arrested Belk, Gray requested a sample of Belk’s blood for analysis.

Belk’s blood was subsequently drawn and tested. In his second issue, Belk asserts that he did not

voluntarily consent to have his blood drawn.

                The withdrawal of blood from a person is considered a search and seizure under

both federal and Texas law. See Schmerber v. California, 384 U.S. 757, 767 (1966); Aliff v. State,

627 S.W.2d 166, 169 (Tex. Crim. App. 1982). Both the United States and Texas Constitutions

protect individuals against “unreasonable” searches and seizures. See U.S. Const. amend. IV;




       3
          While this post-arrest information would not have factored into the officer’s probable-cause
determination, it was relevant to the trial court’s assessment of the weight and credibility of the
officer’s testimony that Belk did not appear injured at the time of the arrest.

                                                   9
Tex. Const. art. I, § 9. A search and seizure “made after voluntary consent is not unreasonable.”

Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). “If voluntariness is challenged at trial,

‘the State must prove the voluntariness of a consent by clear and convincing evidence.’” Harrison

v. State, 205 S.W.3d 549, 552 (Tex. Crim. App. 2006) (quoting Ibarra v. State, 953 S.W.2d 242, 245

(Tex. Crim. App. 1997)). “A trial judge ‘must look at the totality of the circumstances surrounding

the statement of consent in order to determine whether that consent was given voluntarily.’” Id.

(quoting Reasor, 12 S.W.3d at 818).

                Section 724.011 of the transportation code, known as the implied consent statute,

provides, “If a person is arrested for an offense arising out of acts alleged to have been committed

while the person was operating a motor vehicle in a public place . . . while intoxicated . . . the person

is deemed to have consented . . . to submit to the taking of one or more specimens of the person’s

breath or blood for analysis to determine the alcohol concentration or the presence in the person’s

body of a controlled substance, drug, dangerous drug, or other substance.” Tex. Transp. Code Ann.

§ 724.011 (West 1999). This provision creates a statutory presumption of consent. Rodriguez

v. State, 631 S.W.2d 515, 516 (Tex. Crim. App. 1982); State v. Amaya, 221 S.W.3d 797, 800

(Tex. App.—Dallas 2007, pet. ref’d). However, that presumption may be rebutted by evidence

tending to show that consent was not voluntarily given. Amaya, 221 S.W.3d at 801. An arrested

person’s decision to submit to a breath or blood test must be his own and must be freely made with

a correct understanding of the statutory consequences of refusal. Erdman v. State, 861 S.W.2d 890,

893 (Tex. Crim. App. 1993); see Tex. Transp. Code Ann. § 724.015 (West Supp. 2009) (listing

statutory consequences of refusal that officer must inform person of orally and in writing before



                                                   10
requesting consent). To be voluntary and thus consistent with the statutory scheme, the decision

to provide a sample must not result from physical or psychological pressures brought to bear by law

enforcement officials. Erdman, 861 S.W.2d at 893; Thomas v. State, 723 S.W.2d 696, 704-05

(Tex. Crim. App. 1986); Sandoval v. State, 17 S.W.3d 792, 795 (Tex. App.—Austin 2000,

pet. ref’d). Consent is also not voluntary if it is induced by an officer’s misstatement of the

consequences flowing from a refusal to give a specimen. See Erdman, 861 S.W.2d at 894.

               In this case, Gray testified that he “gave Mr. Belk a copy of the statutory warning

for him to read while I read it to him,” and Belk does not contend that Gray misstated or improperly

elaborated upon the statutory consequences of refusal in any way. Instead, Belk asserts that his

consent was involuntary because of his “confused” state of mind at the hospital and because,

according to Belk, Gray “withheld” requested medical attention from Belk until obtaining the

blood specimen.

               As support for his contention that he did not understand what was being asked of him,

Belk relies on an audio recording of Gray’s interview with and arrest of Belk at the hospital that was

admitted into evidence at the suppression hearing. We have listened to a copy of the recording. In

it, Gray can be heard reading Belk the statutory warning and asking Belk, “Will you give a specimen

of your blood?” Belk can be heard responding, “I will.” At no point in the recording is Belk heard

withdrawing that consent. Belk can be heard asking Gray on at least two occasions, “Why are we

doing this?”4 However, the trial court would not have abused its discretion in finding that these




       4
         We note that it is difficult to understand much of what Belk is saying in the recording
because Belk’s speech was slurred throughout.

                                                 11
questions did not render Belk’s consent involuntary. The context of Bell’s questions is unclear from

the audio recording, and Belk provided no testimony to clarify what he meant. Belk’s vague

questions, the trial court could have found, could have been referring to any number of things

incidental or even wholly unrelated to the blood draw. The trial court would not have abused its

discretion in finding that, whatever the questions concerned, they did not indicate that Belk lacked

awareness or understanding of the implications of the blood draw or the statutory consequences

of refusing to provide a specimen. On the contrary, when asked if Belk gave any indication that he

did not understand the statutory warnings that he read to him, Gray testified, “No, sir.” Gray also

testified that Belk did not ask Gray to explain anything to him regarding the contents of the form.

               As for Belk’s contention that Gray withheld requested medical treatment, Gray

testified, “I never withheld medical attention [from] Mr. Belk.” Belk points to two occasions in

the recording in which he asks Gray, “Would you check me right now?” and “Would you check me

right now and see if I’m . . . .” Gray replies, “No, I need a specimen of your blood and that will be

checking you right now,” and, “After I get your blood.” Again, it is difficult to discern from the

audio recording to what Belk was referring, and he did not clarify what he meant during

his testimony. Gray testified that when Belk asked to be “checked,” Gray “didn’t take it as [if] he

was asking for medical attention.” Instead, Gray “thought he was asking for me to check his

blood alcohol concentration right now.” Gray added, “When Mr. Belk asked me if I would check

him it never once entered my mind that he was asking for a doctor.” The trial court would not have

abused its discretion in crediting Gray’s testimony and finding that, rather than requesting medical

treatment, Belk was asking that his blood alcohol level be “checked right now,” especially



                                                 12
considering that Belk’s questions closely followed Gray’s request for a blood specimen. On this

record, we cannot conclude that the trial court abused its discretion in finding from the totality of

the circumstances that Belk’s consent was voluntarily given.

               We overrule Belk’s second issue.


                                         CONCLUSION

               We affirm the judgment of the trial court.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 11, 2010

Do Not Publish




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