        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00274-CR




                                 John Milburn Franco, Appellant

                                                  v.

                                   The State of Texas, Appellee



                FROM THE COUNTY COURT AT LAW OF COMAL COUNTY
            NO. 2000CR0743, HONORABLE DON B. MORGAN, JUDGE PRESIDING




                A jury found appellant John Milburn Franco guilty of driving while intoxicated. See

Tex. Pen. Code Ann. § 49.04 (West Supp. 2002). The court assessed punishment at incarceration

for 180 days and a $2000 fine, but suspended imposition of sentence and placed Franco on

community supervision. In two points of error, Franco urges that the court erred by admitting in

evidence the results of alcohol concentration and field sobriety tests.1 We will affirm the conviction.

                Deputy Weldon Campbell stopped Franco’s pickup truck for a traffic violation on May

20, 2000. Based on his observations and Franco’s performance on three field sobriety tests, the

officer arrested Franco for DWI. Franco later took a breath test, which showed that he had an

alcohol concentration of 0.22.




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       The State did not file a brief responding to Franco’s arguments.
               The information alleged that Franco was intoxicated under both statutory definitions:

because he did not have the normal use of his mental or physical faculties by reason of the

introduction of alcohol into the body and because he had an alcohol concentration of 0.08 or more.

Tex. Pen. Code Ann. § 49.01(2)(A), (B) (West Supp. 2002). The jury was authorized to convict

Franco on both allegations and returned a general verdict of guilty.

               By his first point of error, Franco contends the trial court erred by overruling his

motion to suppress the intoxilyzer test results. Franco argues that he did not knowingly and

voluntarily consent to the breath test because he was not admonished regarding the full range of

statutory consequences that flow from a refusal to take the test.

               A person arrested for an offense arising out of acts alleged to have been committed

while operating a motor vehicle in a public place while intoxicated is deemed to have consented to

submit specimens of his breath or blood for alcohol concentration analysis. Tex. Transp. Code Ann.

§ 724.011 (West 1999). A person asked to submit a specimen must be given certain admonishments.

Id. § 724.015 (West Supp. 2002). If a person’s consent to a breath test is induced by an officer’s

misstatement of the consequences flowing from a refusal to take the test, the consent is not voluntary

and the test result is inadmissible in evidence. Erdman v. State, 861 S.W.2d 890, 893-94 (Tex. Crim.

App. 1993); State v. Sells, 798 S.W.2d 865, 867 (Tex. App.—Austin 1990, no pet.); see Tex. Code

Crim. Proc. Ann. art. 38.23(a) (West Supp. 2002).

               As it read in May 2000, section 724.015 required that Franco be informed that if he

refused to give a specimen (1) the refusal might be admissible in a subsequent prosecution and (2)

his driver’s license would be automatically suspended for not less than ninety days. Act of June 1,

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1997, 75th Leg., R.S., ch. 1013, § 34, 1997 Tex. Gen. Laws 3686, 3698 (Tex. Trans. Code Ann.

§ 724.015(1), (2)(A) (since amended)). Franco admits that he was admonished in accordance with

section 724.015. He argues, however, that because he holds a commercial driver’s license, he should

have been admonished that a refusal to submit a specimen would result in his being disqualified from

driving a commercial motor vehicle for at least one year. See Tex. Transp. Code Ann. § 522.103(a)

(West Supp. 2002); see also id. § 522.102(a).2

                Two other courts of appeals have confronted the same contention. The Fort Worth

Court of Appeals concluded that sections 522.102 and 522.103 applied only when a person is arrested

or detained while driving a commercial vehicle. Texas Dep’t of Pub. Safety v. Chavez, 981 S.W.2d

449, 452 (Tex. App.—Fort Worth 1998, no pet.). Thus, a commercial license holder who was

detained while driving a noncommercial vehicle was not entitled to the warnings contained in section

522.103. Id. The Waco Court of Appeals reached the opposite conclusion. Texas Dep’t of Pub.

Safety v. Thomas, 985 S.W.2d 567, 570 (Tex. App.—Waco 1998, no pet.). That court held that a

commercial license holder should have been given the section 522.103 warnings even though he was




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        “A person who drives a commercial motor vehicle in this state is considered to have consented
. . . to the taking of one or more specimens of the person’s breath . . . for the purpose of analysis to
determine the person’s alcohol concentration.” Tex. Transp. Code Ann. § 522.102(a) (West Supp.
2002). When a person is asked to “submit a specimen under Section 522.102,” he must be told that
a refusal will result in his being disqualified from driving a commercial motor vehicle for at least one
year. Id. § 522.103(a). In 2001, section 522.102 was amended to expressly state that it and section
522.103 apply only to a person who is stopped or detained while driving a commercial vehicle. Id.
§ 522.102(c). Franco’s case, and the other cases discussed in this opinion, arose before the 2001
amendment.

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detained while driving a noncommercial vehicle, and that the failure to do so rendered his refusal to

submit a specimen involuntary. Id.

               In both Chavez and Thomas, the drivers refused to submit a specimen. Chavez, 981

S.W.2d at 451; Thomas, 985 S.W.2d at 568. It is reasonable to conclude, as the court did in Thomas,

that a driver cannot knowingly and voluntarily refuse to submit a specimen if he is not told the full

statutory consequences of refusing. Franco, however, agreed to submit a specimen. This is a critical

factual distinction. Even if sections 522.102 and 522.103, as they read before the 2001 amendments,

applied to Franco, the officer’s failure to admonish him pursuant to section 522.103 could not have

rendered his agreement to take the test involuntary.

               In Erdman, a driver agreed to take a breath test after being erroneously told that if he

refused he would be charged with DWI and immediately incarcerated. Erdman, 861 S.W.2d at 891.

Similarly, the driver in Sells agreed to take a breath test after being erroneously informed that if he

refused he “would automatically be charged and incarcerated.” Sells, 798 S.W.2d at 866. In both

cases, the driver’s agreement was induced or coerced by the officer having erroneously exaggerated

the consequences of a refusal. Erdman, 861 S.W.2d at 894; Sells, 798 S.W.2d at 867. In the case

before us, Franco was told that if he refused to submit a specimen of breath or blood, his driver’s

license would be suspended for at least ninety days. Arguably, he also should have been told that a

refusal would result in the loss of his commercial driving privilege for at least one year. But Franco

cannot plausibly argue that his decision to take the breath test was induced or coerced by the officer

understating the consequences of a refusal. If Franco was willing to take a breath test after being told



                                                   4
that he would lose his driver’s license for ninety days if he refused, it logically follows that he would

have been willing to take the test if he had also been told that a refusal would result in the additional

loss of his commercial license for one year.

                We hold that Franco has not shown that his agreement to take the intoxilyzer test was

induced or coerced by the officer’s alleged misstatement of the statutory consequences of a refusal.

Point of error one is overruled.

                In his second point of error, Franco urges that the court erroneously admitted the

results of the horizontal gaze nystagmus (HGN) test because it was not shown to have been properly

administered. See Emerson v. State, 880 S.W.2d 759, 768-70 (Tex. Crim. App. 1994); O’Connell

v. State, 17 S.W.3d 746, 747-48 (Tex. App.—Austin 2000, no pet.); see also Kelly v. State, 824

S.W.2d 568, 573 (Tex. Crim. App. 1992). As previously noted, the jury returned a general verdict

of guilty after being instructed on both statutory definitions of intoxication. The trial court properly

admitted evidence that Franco’s alcohol concentration was 0.22, well above the statutory threshold

for intoxication per se. Tex. Pen. Code Ann. § 49.01(2)(B). With regard to the “normal use of

faculties” definition, the jury heard, in addition to the HGN test results, the officer’s description of

Franco’s intoxicated behavior and saw a videotape of Franco performing the roadside sobriety tests.

The jury also saw a videotape of Franco at the police station following his arrest. Under the

circumstances, any error in the admission of the HGN test results did not affect Franco’s substantial

rights. Tex. R. App. P. 44.2(b); Tex. R. Evid. 103(a). Point of error two is overruled.




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              The judgment of conviction is affirmed.




                                            __________________________________________

                                            Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Puryear

Affirmed

Filed: April 4, 2002

Publish




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