Affirmed and Memorandum Opinion filed August 22, 2019.




                                       In The

                Fourteenth Court of Appeals
                               NO. 14-17-00781-CR

                 AMBER ORLEAN WILLEMSEN, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 149th District Court
                           Brazoria County, Texas
                       Trial Court Cause No. 79307-CR


                     MEMORANDUM OPINION

      A jury found appellant Amber Orlean Willemsen guilty of the felony offense
of intoxication manslaughter and assessed her punishment at confinement for 32
years. In two issues, appellant contends that the trial court erred in (1) instructing
the jury regarding intoxication by a drug, a dangerous drug, or a combination of
two or more substances in her body when the evidence did not support that
instruction, and (2) denying her motion to suppress blood-test results because the
State failed to prove by clear and convincing evidence that she voluntarily
consented to provide a blood specimen.

       We affirm.

                                          Background

       Around 3 a.m. on June 12, 2016, Officer Endy Ekpanya of the Pearland
Police Department was responding to a call about a noise disturbance when a car
driven by appellant collided with his patrol car. Ekpanya died from injuries he
sustained in the collision. Evidence showed that at the time of the collision,
appellant’s car was speeding and travelling in the wrong lane of traffic. First
responders at the scene noted that appellant was acting abnormally, seemed
detached, and showed signs of intoxication. She was taken to a hospital for
treatment of her injuries. While there, her blood was drawn and sent for testing.

       During the hearing on appellant’s pre-trial motion to suppress blood-test
results, State Trooper Darien Norman testified that after he placed appellant under
arrest, she consented freely and voluntarily to a blood draw. He acknowledged,
however, that appellant said that she was in pain and what she had experienced that
night may have impacted her ability to understand what he was asking of her.1

       Nurse Lindsay Katt, who drew appellant’s blood for testing, stated that
Trooper Norman did not use threats or coercion to obtain appellant’s consent. Katt
further stated that although appellant had received pain medication prior to her
arrival at the hospital, such medicine, in Katt’s experience, did not alter a patient’s
mental state.

       1
         Appellant’s injuries were not comprehensively discussed during the hearing, but she
appears to have had at least an injury to her leg that involved her knee and an injury to one of her
hands. She was apparently strapped to a back board when brought into the emergency room but
was no longer attached to it at the time Trooper Norman sought her consent for the blood
specimen.

                                                 2
       State Trooper Nicolas Gassiott testified that he subsequently obtained
written consent from appellant for the blood draw. He stated that appellant signed
the consent freely and voluntarily and she told him that she had previously orally
consented to the blood draw. Gassiott acknowledged, however, that she seemed
“very confused” and was having trouble answering basic questions.

       Appellant testified that when she was at the hospital, she was in great pain,
was very drowsy, and felt “drugged up.” She remembered someone asking for a
blood sample, but she did not recall saying “yes.” Appellant remembered an officer
reading her legal rights to her, but she didn’t really understand them at the time.
She said that she was confused and in agony, and she did not believe that she freely
and voluntarily consented to a blood draw.

       After the trial court denied appellant’s pre-trial motion to suppress blood-test
results, the case proceeded to trial. The State offered and the trial court admitted
into evidence the blood-test results which showed that on the night of the collision,
appellant had a blood-alcohol concentration of between 0.139 and 0.163 grams of
alcohol per 100 milliliters of blood. Other evidence that appellant was intoxicated
on the night of the collision included her statements that she had consumed several
alcoholic drinks that night, a surveillance videotape recording from the club where
she worked, a videotape recording of her purchasing alcohol at a liquor store,
testimony that alcohol was found in a liquor bottle and a plastic water bottle in her
car, and observations from several witnesses about her demeanor and appearance
on the night of the collision.2

       Appellant’s blood also testified positive for the presence of Sertraline, an


       2
          The liquor store videotape recording and a corresponding receipt showed that appellant
purchased a bottle of vodka at around 6:23 p.m. the night of the collision. Subsequent analysis of
the bottle found in appellant’s car indicated that approximately 7 ounces of vodka were missing.

                                                3
anti-depressant medication commercially known as Zoloft. The toxicologist who
conducted the testing stated that he only tested for the presence of the drug, not the
amount of the drug in appellant’s bloodstream; thus, the toxicologist could not say
whether the drug was present at a level that would have affected appellant.
However, a bottle of Sertraline was found in appellant’s purse after the collision.
On the bottle was a warning label stating: “May cause drowsiness. Taking this
medicine along with alcohol may lessen the ability to drive or perform hazardous
tasks.”

       In its charge, the trial court instructed the jury that it should find appellant
guilty of intoxication manslaughter if the jurors:

       believe[d] from the evidence beyond a reasonable doubt, that
       [appellant] operate[d] a motor vehicle . . . while intoxicated and did
       by reason of such intoxication cause the death of Endy Ekpanya, a
       peace officer in the actual discharge of an official duty, by accident or
       mistake, by causing said motor vehicle to collide with a vehicle
       occupied by Endy Ekpanya.

The trial court defined “[i]ntoxicated” over appellant’s objection as meaning
“either (1) not having the normal use of mental or physical faculties by reason of
the introduction of alcohol, a drug, a dangerous drug, or a combination of two or
more of those substances into the body or (2) having an alcohol concentration of
0.08 or more.”3 As noted above, appellant had previously argued that the evidence
did not support the submission of intoxication by anything other than alcohol.

                                     Jury Instructions

       In her first issue, appellant contends that the trial court erred in instructing
the jury regarding intoxication by a drug, a dangerous drug, or a combination of
       3
          This definition is derived from Texas Penal Code section 49.01(2), which also adds “a
controlled substance” to the list in the loss of faculties option. The trial court amended the
definition to omit “a controlled substance” at appellant’s request.

                                              4
two or more substances in her body because the evidence only supported an
instruction regarding intoxication by alcohol.4

       A jury charge must set forth the law applicable to the case. Tex. Code Crim.
Proc. art. 36.14; Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004). The
trial court is required to fully instruct the jury on the law applicable to the case and
to apply that law to the facts presented. Gray, 152 S.W.3d at 127. It is not enough
for the charge to merely incorporate the allegations in the charging instrument; it
must also apply the law to the facts adduced at trial. Id. Although the trial court is
required to include statutory definitions in the charge that affect the meaning of the
elements of the crime, the charge must be tailored to the facts presented at trial. See
Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011); see also Arteaga
v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). Specifically, in cases such
as this, the “trial court must submit to the jury only the portions of the statutory
definition of ‘intoxicated’ that are supported by the evidence. To do otherwise is
error.” Burnett v. State, 541 S.W.3d 77, 84 (Tex. Crim. App. 2017).

       In both Burnett and Ouellette, the Court of Criminal Appeals grappled with
the question of whether a trial court erroneously instructed a jury that it could
convict a defendant if it found that he or she was intoxicated by reason of the
introduction of something other than just alcohol into his or her system. The Court
concluded that there was no charge error in Ouellette but that there was error under
       4
          The State suggests that appellant failed to preserve her first issue for appellate review
because her counsel at one point clarified his objection and then subsequently did not object
when the final version of the charge was provided to the attorneys. However, it appears clear in
the record that counsel made an objection to the inclusion of substances other than alcohol in the
definition of intoxication, and the judge agreed to remove “a controlled substance” from the
definition but expressly refused to remove the other nonalcohol substances. Counsel therefore
preserved the issue brought on appeal and did not somehow undo that preservation by making an
additional argument and then not objecting again when the final version of the charge was
provided to the attorneys. It is clear from the context that the trial court understood the objection
and expressly denied it in relevant part.

                                                 5
the circumstances in Burnett.

       The defendant in Ouellette was charged with driving while intoxicated after
rear-ending another car. 353 S.W.3d at 868-69. There was evidence that the
defendant showed signs of intoxication and had consumed alcohol near the time of
the collision, but the police also found three different types of pills in the
defendant’s car including Soma. Id. at 369. An officer testified at trial that Soma,
like alcohol, is a central nervous system depressant that could cause symptoms like
those seen when the defendant was administered a horizontal-gaze nystagmus test
after the collision. Id. The defendant told the officer that she had not taken the
medications in over a month, and she initially offered to provide a blood sample
but then retracted the offer when told the test could also be used to determine her
blood-alcohol concentration. Id.

      In rejecting the defendant’s contention that there was no evidence she was
intoxicated by anything other than alcohol, the Court first noted that the DWI
statute focuses on “the state of intoxication not the intoxicant.” Id. The Court then
explained that circumstantial evidence indicated the defendant showed signs of
having ingested a central nervous system depressant, which could include both
alcohol and the medication found in her vehicle. Id. at 870. The Court concluded
that while the evidence the defendant “was intoxicated by drugs was circumstantial
and not obviously overwhelming, it [was] nonetheless present in the record.” Id.
Although there was no direct evidence the defendant consumed the drug, there was
evidence from which the jury could have concluded she did; accordingly, the trial
court did not err in instructing the jury on intoxication by consumption of drugs.
Id.

      The defendant in Burnett was also charged with DWI after rear-ending
another vehicle. 541 S.W.3d at 78. There was evidence the defendant was

                                         6
intoxicated due to alcohol consumption. Id. at 78-9. Pills were also found in
appellant’s vehicle and his jacket pocket. Id. at 79. Although there was speculation
in the record that the pills might have been hydrocodone, the Court emphasized
that there was “no evidence . . . as to what kind of drug hydrocodone is, whether it
can cause intoxicating effects, or whether the symptoms of intoxication [the
defendant] was experiencing were also indicative of intoxication by hydrocodone.”
Id. at 84. The Court further explained that:

      The jury is permitted to consider whether a defendant was intoxicated
      from “any other substance” when there is evidence that the defendant
      ingested a substance that caused him to become intoxicated or there is
      sufficient evidence for a rational juror to infer such. But . . . the record
      here does not support that Burnett ingested a substance other than
      alcohol.

Id. In the absence of any evidence of intoxication by a substance other than
alcohol, the trial court in Burnett erred in instructing the jury on intoxication by
consumption of drugs. Id at 85.

      The instant case presents circumstances that are closer in line with Ouellette
than Burnett, but, here, the evidence that appellant was intoxicated due to the
ingestion of drugs is stronger than the evidence against the defendant in Ouellette.
Most notably, the testing of appellant’s blood after the collision indicated the
presence of the anti-depressant Sertraline in her system, and a bottle of Sertraline
found in her purse had a warning label on it that stated: “May cause drowsiness.
Taking this medicine along with alcohol may lessen the ability to drive or perform
hazardous tasks.” See Murry v. State, 46 Tex. Crim. 128, 130, 79 S.W. 568, 569
(1904) (holding warning labels on bottles constituted evidence defendant had
notice of intoxicating contents in prosecution for illegally selling intoxicating
beverages); Zapien-Garcia v. State, No. 03-17-00779-CR, 2019 WL 2308590, at
*4 (Tex. App.—Austin May 31, 2019, pet. dism’d) (mem. op., not designated for
                                           7
publication) (holding State’s closing argument about medications found in
defendant’s car and their potential impact on his intoxication was arguably
summation of and reasonable deductions from evidence of prescription bottles with
labels warning against taking them with alcohol); Bryant v. State, No. 02-08-294-
CR, 2010 WL 2813494, at *9 (Tex. App.—Fort Worth July 15, 2010, no pet.)
(mem. op., not designated for publication) (holding evidence defendant took
medication on day of arrest and pill bottle bore label warning not to consume
alcohol with medication sufficient to support DWI conviction); Shaffer v. State,
184 S.W.3d 353, 362 (Tex. App.—Fort Worth 2006, pet. ref’d) (holding trial court
did not err in admitting medicine label as proof of contents in medicine).

         Here, the toxicologist who conducted the testing explained that he only
tested for the drug’s presence and not the amount in appellant’s bloodstream. Thus,
he could not say whether the drug was present at a level that would have affected
appellant. However, there was substantial evidence presented that appellant was
intoxicated. To begin with, there was evidence that she caused a fatal collision with
a police car by driving her car on the wrong side of the road at a speed well beyond
the posted limit. Additionally, witnesses described her after the collision as acting
abnormally and detached, having bloodshot eyes, slurred speech, and slow reaction
times.

         Based on this evidence, the jury could have reasonably concluded that on the
night of the collision, appellant was intoxicated by a drug, a dangerous drug, a
combination of two or more substances in her body, or by alcohol alone. See
Burnett, 541 S.W.3d at 84-85; Ouellette, 353 S.W.3d at 870. Accordingly, we hold
that the trial court did not err in submitting such an instruction in the jury charge.
See Gray, 152 S.W.3d at 127.

         We overrule appellant’s first issue.

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                                  Motion to Suppress

      In her second issue, appellant asserts that the trial court erred in denying her
pre-trial motion to suppress blood-test results because the State failed to prove by
clear and convincing evidence that she voluntarily consented to providing a blood
sample. She further argues that she could not have freely and voluntarily consented
to the blood draw because at the time her consent was requested, she was suffering
from the mental and physical strains of a traumatic collision, severe physical
injuries, sleep deprivation, and the effects of medication.

      We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.
App. 2010). We afford almost total deference to the trial court’s determination of
historical facts, provided that those determinations are supported by the record.
State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). We review de
novo the trial court’s application of law to those facts. Valtierra, 310 S.W.3d at
447. When, as here, the trial court makes no findings of fact, we review the
evidence in the light most favorable to the trial court’s ruling and assume the trial
court made implicit findings that support its ruling. Id. We will uphold the trial
court’s ruling unless it is clearly erroneous. Id.

      The Fourth Amendment to the United States Constitution safeguards “[t]he
right of the people to be secure in their persons . . . against unreasonable searches
and seizures.” U.S. Const. amend. IV; see also Tex. Const. art. I, § 9. Taking a
blood specimen constitutes a search and seizure under the Fourth Amendment.
Weems v. State, 493 S.W.3d 574, 577 (Tex. Crim. App. 2016). Courts deem a
search conducted without a warrant per se unreasonable unless the search falls
within an exception. Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App.
                                            9
2012). The State has the burden of proving that a warrantless search falls within an
exception to the warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex.
Crim. App. 2003). Courts recognize voluntary consent to search as an exception to
the warrant requirement. Id. For consent to be voluntary, it must be given freely
and voluntarily. See Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012).
Courts deem consent involuntary if the individual’s will has been overborne and
her capacity for self-determination critically impaired. See id.

      The validity of consent is a question of fact, and the State must prove
voluntary consent by clear and convincing evidence. See id. In determining
voluntariness of consent, the trial court must consider the totality of circumstances.
See id. The court “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.” Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim.
App. 2011). At a suppression hearing, the trial judge is the sole and exclusive trier
of fact and judge of the credibility of the witnesses and their testimony. Rayford v.
State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003). Accordingly, the judge may
believe or disbelieve all or any part of a witness’s testimony, even if that testimony
is not controverted. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

      At the suppression hearing, Trooper Norman testified that before obtaining
appellant’s consent for the blood draw, he read appellant her DIC–24 statutory
warnings. These warnings explain, among other things, some of the potential
consequences of refusing or submitting to a breath or blood test. See Freeman v.
State, 413 S.W.3d 198, 203 n.1 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d)
(citing Tex. Transp. Code § 724.015). Norman stated that after he placed appellant
under arrest, she consented freely and voluntarily to the blood draw and appeared
to be fully aware of what he said and meant. Nurse Katt observed appellant consent

                                          10
to the blood draw, noting that Norman was professional in dealing with her and did
not threaten or coerce her. Trooper Gassiott testified that appellant signed a written
consent for the blood draw freely, voluntarily, and without hesitation. And she
informed him that she had previously orally consented to the blood draw.
Appellant herself recalled being read her legal rights, saying that she understood
them, and comprehending that she was being asked for a sample of her blood. She
also remembered “signing something” at some point. Additionally, Friendswood
Police Department Sergeant Anthony Aprile testified that he arrested appellant in
2011 for DWI and, during that arrest, he read her the DIC-24 warnings. And she
gave free and voluntary consent at that time to providing blood and breath samples.

      Appellant, however, additionally asserted at the hearing that she didn’t fully
understand her rights when they were read to her, was in great pain, was very
drowsy, and felt “drugged up.” She remembered being asked for a blood sample
but did not recall saying “yes.” She said that she was confused and in “agony,” and
she did not believe that she freely and voluntarily consented to a blood draw. Other
witnesses at the hearing also noted appellant’s condition. Norman acknowledged
that when he spoke with her at the hospital, she was lying on a gurney, seriously
injured, and in pain. He further admitted that her ability to understand him could
have been impacted by what she had gone through. Katt also noted appellant’s
injuries, explaining that appellant did not seem to know why she was at the
hospital. Katt further noted that although appellant was on pain medication, it
would not have altered her mental state. Gassiott said that appellant signed the
consent form with her nondominant hand because her dominant hand was injured.
He noted that she seemed very confused and seemed to “not know much” about
what was happening. He further stated that she seemed to be having trouble
answering basic questions.


                                         11
      In sum, the trial judge was presented with conflicting evidence about
whether appellant freely and voluntarily consented to the blood draw. As sole
judge of the credibility of the witnesses, the judge was free to discount appellant’s
testimony. See, e.g., Rayford, 125 S.W.3d at 528; Sanchez v. State, No. 14-14-
00638-CR, 2016 WL 3131639, at *3 (Tex. App.—Houston [14th Dist.] June 2,
2016, no pet.) (mem. op., not designated for publication). The circumstances at the
time appellant gave her consent for the blood draw were certainly far from ideal,
but they were not such that she would not clearly have been able to freely and
voluntarily consent. The witnesses testified that she did so, and appellant herself
acknowledged understanding and responding to certain statements and requests
made to her on the night in question, just not the request for a blood specimen.
Additionally, the evidence that appellant told Gassiott that she had already
consented to the blood draw to Norman suggests that she was aware of what she
was doing. Giving the conflicting nature of the evidence, we defer to the trial court
on the determination of consent. See Fienen, 390 S.W.3d at 333; Woodard, 341
S.W.3d at 410. Accordingly, we hold that the trial court did not err in denying
appellant’s pre-trial motion to suppress blood-test results.

      We overrule appellant’s second issue.

                                        Conclusion

      We affirm the trial court’s judgment.


                                        /s/    Frances Bourliot
                                               Justice


Panel consists of Justices Jewell, Bourliot, and Jennings (Senior Judge, First Court
of Appeals, retired, sitting by assignment).
Do Not Publish — TEX. R. APP. P. 47.2(b).
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