                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00054-CR

THE STATE OF TEXAS,
                                                          Appellant
v.

LINDSEY BRYNNE SOUTHWELL,
                                                          Appellee


                     From the County Court at Law No. 1
                            Brazos County, Texas
                     Trial Court No. 11-00340-CRM-CCL1


                         MEMORANDUM OPINION


       Lindsey Brynne Southwell was charged with the offense of driving while

intoxicated. TEX. PENAL CODE ANN. § 49.04 (West Supp. 2012). She took a breath test.

The day of her trial, the trial court granted her motion to suppress the breath test

results.   The trial court placed the burden on the State to show Southwell’s

“unequivocal consent” to the breath test.      The State appealed.    We reverse the

suppression order and remand the proceeding to the trial court.

       When reviewing a trial court's ruling on a motion to suppress, we view the
evidence in the light most favorable to the ruling. State v. Robinson, 334 S.W.3d 776, 778

(Tex. Crim. App. 2011). If the trial court makes findings of fact, we determine whether

the evidence supports those findings. Id. We then review the trial court's legal rulings

de novo unless the “supported-by-the-record explicit fact findings are also dispositive

of the legal ruling.” State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

           The trial court concluded that unequivocal consent must be given before a breath

test could be admitted and that the State did not show Southwell gave unequivocal

consent. The trial court based these conclusions on the Court of Criminal Appeals

opinion in Erdman. Erdman v. State, 861 S.W.2d 890 (Tex. Crim. App. 1993). Erdman

does not stand for the proposition that unequivocal consent must be given or that the

State would have the burden to prove such. Erdman is a voluntariness of the consent

case. This is not.1 As the trial court stated at the beginning of its findings of fact and

conclusions of law, “The sole issue during the motion to suppress was whether the

Defendant gave consent to the breath test.”

           Because section 724.011 of the Texas Transportation Code provides that a person

arrested for DWI is "deemed to have given his consent" to the taking of a blood or

breath specimen, a statutory presumption of consent exists. TEX. TRANSP. CODE ANN. §

724.011 (West 2011); Rodriguez v. State, 631 S.W.2d 515, 516 (Tex. Crim. App. 1982). The

presumption of consent is so strong that "a person who is dead, unconscious, or


1   The trial court found that the officer did not coerce Southwell into taking a breath test.

State v. Southwell                                                                               Page 2
otherwise incapable of refusal is considered not to have withdrawn the consent

provided by Section 724.011." TEX. TRANSP. CODE ANN. § 724.014 (West 2011); State v.

Amaya, 221 S.W.3d 797, 800-801 (Tex. App.—Fort Worth 2007, pet. ref’d). Thus, the

defendant, not the State, bears the initial burden at the suppression hearing to show that

evidence exists rebutting the statutory presumption that she voluntarily consented to

submit a breath specimen. Id.; see, e.g., Kelly v. State, 204 S.W.3d 808, 819 n.22 (Tex.

Crim. App. 2006) (recognizing that defendant "had the initial burden to produce

evidence to support a finding that she did not consent to [the] blood draw"); see also

State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011) (suspect had burden of showing

blood draw was not reasonable); State v. Robinson, 334 S.W.3d 776 (Tex. Crim. App.

2011) (defendant had burden to prove person who drew blood was not qualified).

        This case is much like the Kelly case where the defendant acquiesced in the blood

draw taken at the emergency room. The Court in Kelly held that acquiescence to the

blood draw also constituted consent to the blood draw. Kelly, 204 S.W.23d at 821. Here,

Southwell vacillated in whether she would take the breath test. Several times, she

indicated that she would take it. After she told the officer she would take the test, and

while he was talking on the radio to dispatch, Southwell quietly, as if to herself, stated

she did not “want to do that.”2 The officer stated that he did not recall hearing this

statement at the time it was made. He believed she consented to take the breath test.

2 It is noted that even as expressed by her statement, it was not a withdrawal of consent or an express
refusal. It was another statement indicating her continued vacillation in her decision.

State v. Southwell                                                                              Page 3
The trial court found the officer’s testimony to be credible. In the end, without any

further expression that could be characterized as a refusal, Southwell submitted to the

breath test when it was presented to her. The record shows that Southwell did not

rebut the presumption that she consented to take the breath test.

        The trial court applied the incorrect burden of proof to the issue in Southwell’s

motion to suppress thus causing the trial court to erroneously suppress the breath test

evidence. The State’s first and third issues are sustained. Because of our disposition of

these issues, the remainder of the State’s issues and argument need not be addressed.

See TEX. R. APP. P. 47.1.

        The trial court’s Order Granting Defendant’s Motion to Suppress is reversed.

This proceeding is remanded to the trial court.




                                            TOM GRAY
                                            Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Judge Gallagher3
Reversed and remanded
Opinion delivered and filed August 30, 2012
Do not publish
[CR25]




3 Hon. George William Gallagher, Judge of the 396th District Court of Tarrant County, sitting by
assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the
Government Code. See TEX. GOV'T CODE ANN. § 74.003(h) (West 2005).

State v. Southwell                                                                       Page 4
