                                                                                             ACCEPTED
                                                                                         03-15-00661-CR
                                                                                                 8048215
                                                                              THIRD COURT OF APPEALS
                             N O . 03-15-00661-CR                                        AUSTIN, TEXAS
                                                                                   12/2/2015 10:59:45 AM
                                                                                       JEFFREY D. KYLE
                                                                                                  CLERK
                        I N T H E COURT OF APPEALS

                   OF THE T H I R D DISTRICT OF TEXAS                   FILED IN
                                                                 3rd COURT OF APPEALS
                                                                      AUSTIN, TEXAS
                                                                 12/2/2015 10:59:45 AM
                           T H E STATE OF TEXAS,                     JEFFREY D. KYLE
                                             Appellant                    Clerk


                                           V.

                           TRAVIS LEE WICKSON
                                           Appellee


                     Appeal in Cause No. 42899 in the
             424™ Judicial District Court of Burnet County, Texas



                            Brief    For        Appellant


                     OFFICE OF DISTRICT ATTORNEY
                     33^^ and 424^^ JUDICUVL DISTRICTS

Wiley B. McAfee,                                Gary W. Bunyard
District Attorney                               Assistant District Attorney
1701 E. Polk, Ste. 24                           P. O. Box 725
Burnet, Texas 78643                             Llano, Texas 78643
Telephone           Telecopier                  Telephone           Telecopier
(512) 756-5449      (512) 756-8572              (325) 247-5755      (325) 247-5274
w.mcafee@co.llano.tx.us                         g.bunyard@co.llano.tx.us
State Bar No. 13318020                          State Bar. No. 03353500

                       ATTORNEYS FOR APPELLANT

                                December 2, 2015

                            Otal Argument Requested
                             Identity Of The Parties


Trial Court

      Honorable Evan C. Stubbs
      424'^ Judicial District
      Burnet County Courthouse Annex (North)
      1701 East Polk St., Suite 74
      Burnet, T X 78611


State/Appellant

      Blake Ewing                           (Pre-Trial Counsel)
      Assistant District Attorney
      P. O. Box 725
      Llano, Texas 78643
      (325) 247-5755
      State Bar No. 24076376


      Wiley B. "Sonny" McAfee               (Appellate Counsel)
      District Attorney
      1701 E. Polk St., Suite 24
      Burnet, T X 78611
      (512) 756-5449
      State Bar No. 13318020
      w.mcafee@co.llano.tx.us

      Gary W. Bunyard                       (Appellate Counsel)
      Assistant District Attorney
      P. O. Box 725
      Llano, Texas 78643
      (325) 247-5755
      State Bar No. 03353500
      g.bunyard@co.llano.tx.us

                                       ii
Appellee

     Ray Austin Bass I I I           (Pre-Trial Counsel and)
     120 W. 8*^ St.                    Appellate Counsel
     Georgetown, Texas 78626
     State Bar No. 14242500
     ray@raybass.com




     Travis Lee Wickson              (Appellee)




                               iii
                             Table   Of        Contents

                                                                Page

Index of Authorities                                                   v

Statement of the Case                                                  1

Statement on Oral Argument                                             2

Issues Presented                                                       3

Statement of the Facts                                                 4

Summary of the Argument - Issue No. 1                                  8

      Does a trial court abuse its discretion in suppressing
      evidence of a breath sample and test results by holding
      that the Defendant's decision to give a breath sample,
      without considering the totality of the evidence, was
      involuntary on the basis of the mere mention of the
      trooper's intent to obtain a mandatory blood draw as
      opposed to obtaining a blood search warrant.

Argument on Issue No. 1

   i. 1 Principals ofLaw                                                   9

   1.2 Applicable Facts                                                16

   1.3 Discussion and Conclusion                                        21

Prayer for Relief.                                                     30

Certificate of Word Count                                              31

Certificate of Service                                                 31

                                          iv
                           Index   Of       Authorities


Case Law                                                       Page

Bakntine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002)                  12

Erdman v. State, 861 S.W.2d 890 (Tex. Crim. App 1993)             14,15, 27

Douds V. State, 2015 Tex. Crim. App. LEXIS 1060,

   PD-0857-14 (2015)                                                    26

Fienen v. State, 390 S.W.3d 328 (Tex. Crim. App. 2012)            14,15, 27

Gonzalez v. State, 222 S.W.3d 446 (Tex. Crim. App. 2007)                 13

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997)                    12

Harnson v. State, 205 S.W.3d 549 (Tex. Crim. App. 2006)                  14

Meekins v. State, 340 S.W.3d 454 (Tex. Crim. App. 2011)               13, 14

Missouri V. McNeely,     U.S.   , 133 S.Ct. 1552 (2013)                 25
Montanez v. State, 195 S.W.3d 101 (Tex. Crim. App. 2006)....             13

Schneckbth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041,

   36 L.Ed.2d 854 (1973)                                              13,14

Sherry v. State, memorandum opinion 03-13-00126-CR (2013)                26

State V. Ross, 32 S.W.3d 853 (Tex. Crim. App. 2000)                      13

State V. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011)                   14



                                        V
Constitutions

None cited




Statutes/Rules

Tex. Pen. Code § 49.045              12

Tex. Transp. Code § 724.012        11,25

Tex. Transp. Code § 724.015          10




Treatises/Publications

None cited




                              vi
                        statement         Of TIte      Case

   Appellee was Indicted for the offense of Driving While Intoxicated With A Child

Passenger, CR Vol. 1 Pages 3 - 4 . Counsel for Appellee filed a motion to suppress

the breath test. CR Vol. 1 Pages 6 - 1 1 . The trial court conducted a hearing on the

motion to suppress on September 18, 2015. RRVol. 2 Page 1. On September 28,

2015, at the conclusion of this hearing the trial court granted the motion to suppress

and entered an order suppressing the breath test and the results thereof     RR Vol,

2 Pages 71 - 72; CR Vol. 1 Page 16. The District Attorney timely filed Notice o f

Appeal on behalf of the State of Texas on October 7, 2015. CR Vol, 1 Page 13,




                                          1
                       statement      on Oral       Argument

   The undersigned requests Oral Argument. The undersigned does believe that

Oral Argument will be beneficial for this case for the reason that the issues contain

complex nuances.




                                         2
                          issues         Presented

Issue No. One:      Does a trial court abuse its discretion in suppressing

evidence of a breath sample and test results by holding that the Defendant's

decision to give a breath sample, without considering the totality of the

evidence, was involuntary on the basis of the mere mention of the trooper's

intent to obtain a mandatory blood draw as opposed to obtaining a blood

search warrant.




                                     3
                            statement      Of The       Facts

   On April 11, 2014, DPS Trooper Wilhite stopped Appellee for speeding and for

failure to maintain a single lane. RR Vol. 2 Pages 16 - 18; Vol. 3 State's Exhibit 1.

A check of the license plate on Appellee's vehicle came back as an Alert. RR Vol. 2

Page 19; Vol. 3 State's Exhibit 1.

   While investigating these issues, Trooper Wilhite detected an odor of alcoholic

beverages and observed signs of possible intoxication.     RR Vol. 2 Pages 22 - 24;

Vol. 3 State's Exhibit 1.       Appellee's first response to questioning on alcohol

consumption was that he had one large beer and later changed his answer to a few.

RR Vol. 2 Page 24; Vol. 3 State's Exhibit 1. Trooper Wilhite then conducted the

standardized field sobriety tests. RR Vol. 2 Pages 24 - 27; Vol. 3 State's Exhibit 1.

Upon viewing several clues in the standardized field sobriety tests, Trooper Wilhite

asked Appellee to provide a breath sample into a portable breath tester to which

Appellee declined at first but thereafter agreed when Trooper Wilhite informed

Appellee that the results of a portable breath tester was not admissible in court. RR

Vol. 2 Pages 27 - 28; Vol. 3 State's Exhibit 1.      Appellee was then arrested for

Driving While Intoxicated With A Child Passenger, two counts. RRVol. 2 Page 28;

Vol. 3 State's Exhibit 1.


                                           4
   After securing Appellee in the patrol car, Trooper Wilhite gave Appellee a copy

of the Die - 24 form and also read the DIG - 24 form to Appellee. RR Vol. 2

Pages 29 - 30; Vol. 3 State's Exhibit 1. Upon conclusion of the reading of the form.

Trooper Wilhite requested a sample of Appellee's breath and Appellee declined. RR

Vol. 2 Page 30; Vol. 3 State's Exhibit 1. Trooper Wilhite then stated that because

Appellee had children in the vehicle Trooper Wilhite was going to obtain a

mandatory blood specimen. RR Vol. 2 Page 30; Vol. 3 State's Exhibit 1. Appellee

responded that he was willing to give a breath sample, however. Trooper Wilhite

stated that he could not accept that because Appellee had previously refused. RR

Vol. 2 Page 31, Vol. 3 State's Exhibit 1. Appellee stated again that he wanted to give

a breath sample and Trooper Wilhite acquiesced taking Appellee to the location

where the Intoxilizer 5000 was stored.        RR Vol. 2 Pages 31 - 32; Vol. 3 State's

Exhibit 1. Upon arrival Appellee provided adequate breath samples into the

Intoxilizer 5000 unit for the instrument to perform an accurate test result. RR

Vol. 2 Pages 32 - 33; Vol. 3 State's Exhibit 1. The test result was .097 BAG. RR

Vol. 2 Page 33.

   At the conclusion of the hearing on Appellee's motion to suppress the trial court

stated:



                                          5
  'Well, I don't think Officer Wilhite did anything intentionally wrong or that
  anything he said was necessarily not in line with what DPS policy was at the
  time; however, what I'm going to do, I'm going to deny the motion to suppress
  as to the reasonable suspicion."
RRVol. 1 Pages 7 0 - 7 1 .

   After holding that there was sufficient cause for the detention and the arrest, the

trial court returned to the topic of the breath test stating:

  "However, I'm going to grant the motion to suppress as to the breath test results
  based on the statements of the officer that I believe — I believe the defendant very
  clearly stated that he did not wish to voluntarily provide a sample and I think that
  the officer's statements rose to the level to make his then later provision of the
  breath test involuntary."
RRVol. 1 Page 71.

   The trial court thereafter entered its findings of fact and conclusions o f law

regarding this decision. CR Vol. 1 Pages 22 - 26. Therein the trial court made the

following findings of fact:

   "12. Following the Defendant's refusal to voluntarily provide a sample. Trooper
   Wilhite unequivocally informed the Defendant that he was going to obtain a
   mandatory specimen of blood.

   "13.0nly after being told that a mandatory specimen o f his blood was going to
   be taken with or without his consent, with no mention of seeking a blood
   warrant first, the Defendant then informed the Trooper that he would provide
   a breath sample.

   "15. No evidence of exigent circumstances was offered by the State, and Trooper
   Wilhite testified that he had no intention of attempting to obtain a blood warrant
   prior to subjecting the Defendant to a mandatory blood draw.



                                            6
  "16. The opinion of the United States Supreme Court in Missouri v. McNeely
  had been issued for more than one year at the time of the events of this case."
CR. Vol. 1 Pages 24 - 25.




                                       7
             Summary       Of The Argument          on i s s u e No, i

   Does a trial court abuse its discretion in suppressing evidence of a

   breath sample and test results by holding that the Defendant's

   decision to give a breath sample, without considering the totality of

   the evidence, was involuntary on the basis of the mere mention of the

   trooper's intent to obtain a mandatory blood draw as opposed to

   obtaining a blood search warrant.

   The trial court's determination that the consent given by the Appellee to provide

a sample of his breath was solely focused on the fact that when Appellee first refused

the trooper's request for a breath sample, the trooper then told Appellee that the

trooper would be taking Appellee to a facility to do a mandatory blood draw as

opposed to obtaining a warrant to have a blood sample drawn. The trial court failed

to take into consideration the totality of the circumstances surrounding the

Appellee's decision to change his mind and consent to providing a sample of his

breath and based its decision on the holding of a 1993 case opinion that was

overruled by the Court of Criminal Appeals in 2012.




                                          8
                          Argument      On issue     No. i

1,1   Principals of Law

   Before requesting a person to submit to the taking of a specimen, the officer shall

inform the person orally and in writing that:

   (1)  i f the person refuses to submit to the taking of the specimen, that refusal
   may be admissible in a subsequent prosecution;

   (2)    i f the person refuses to submit to the taking of the specimen, the person's
   license to operate a motor vehicle will be automatically suspended, whether or
   not the person is subsequently prosecuted as a result of the arrest, for not less
   than 180 days;

   (3)    i f the person refuses to submit to the taking of a specimen, the officer may
   apply for a warrant authorizing a specimen to be taken from the person;

   (4)   i f the person is 21 years of age or older and submits to the taking of a
   specimen designated by the officer and an analysis of the specimen shows the
   person had an alcohol concentration o f a level specified by Chapter 49, Penal
   Code, the person's license to operate a motor vehicle will be automatically
   suspended for not less than 90 days, whether or not the person is subsequently
   prosecuted as a result of the arrest;

   (5)    i f the person is younger than 21 years of age and has any detectable amount
   of alcohol in the person's system, the person's license to operate a motor vehicle
   will be automatically suspended for not less than 60 days even i f the person
   submits to the taking of the specimen, but that i f the person submits to the taking
   of the specimen and an analysis of the specimen shows that the person had an
   alcohol concentration less than the level specified by Chapter 49, Penal Code, the
   person may be subject to criminal penalties less severe than those provided under
   that chapter;




                                          9
   (6)    if the officer determines that the person is a resident without a license to
   operate a motor vehicle in this state, the department will deny to the person the
   issuance of a license, whether or not the person is subsequently prosecuted as a
   result of the arrest, under the same conditions and for the same periods that
   would have applied to a revocation of the person's driver's license i f the person
   had held a driver's license issued by this state; and

   (7)   the person has a right to a hearing on the suspension or denial if, not later
   than the 15th day after the date on which the person receives the notice of
   suspension or denial or on which the person is considered to have received the
   notice by mail as provided by law, the department receives, at its headquarters in
   Austin, a written demand, including a facsimile transmission, or a request in
   another form prescribed by the department for the hearing.

Tex. Transp. Code § 724.015.

   The circumstances that involve the taking of a sample of the breath or blood o f

a suspect are:
   (a)    One or more specimens of a person's breath or blood may be taken i f the
   person is arrested and at the request of a peace officer having reasonable grounds
   to believe the person:

      (1) while intoxicated was operating a motor vehicle in a public place, or a
      watercraft; or

      (2) was in violation of Section 106.041, Alcoholic Beverage Code.

   (b) A peace officer shall require the taking of a specimen of the person's breath
   or blood under any of the following circumstances i f the officer arrests the person
   for an offense under Chapter 49, Penal Code, involving the operation of a motor
   vehicle or a watercraft and the person refuses the officer's request to submit to
   the taking of a specimen voluntarily:




                                          10
      (1) the person was the operator of a motor vehicle or a watercraft involved
      in an accident that the officer reasonably believes occurred as a result of the
      offense and, at the time of the arrest, the officer reasonably believes that as a
      direct result of the accident:

          (A) any individual has died or will die;

          (B) an individual other than the person has suffered serious bodily injury;
          or

          ( C) an individual other than the person has suffered bodily injury and
          been transported to a hospital or other medical facility for medical
          treatment;

      (2) the offense for which the officer arrests the person is an offense under
      Section 49.045, Penal Code; or

      (3)   at the time of the arrest, the officer possesses or receives reliable
      information from a credible source that the person:

          (A) has been previously convicted of or placed on community supervision
          for an offense under Section 49.045, 49.07, or 49.08, Penal Code, or an
          offense under the laws of another state containing elements substantially
          similar to the elements of an offense under those sections; or

          (B) on two or more occasions, has been previously convicted of or placed
          on community supervision for an offense under Section 49.04, 49.05,
          49.06, or 49.065, Penal Code, or an offense under the laws of another state
          containing elements substantially similar to the elements of an offense
          under those sections.

   ( c)   The peace officer shall designate the type of specimen to be taken.

   (d) In this section, "bodily injury" and "serious bodily injury" have the
  meanings assigned by Section 1.07, Penal Code.
Tex. Transp. Code § 724.012.


                                          11
   The provision regarding the offense o f Driving While Intoxicated with Child

Passenger is:

   (a)   A person commits an offense if:

   (1)    the person is intoxicated while operating a motor vehicle in a public place;
   and

   (2)   the vehicle being operated by the person is occupied by a passenger who
   is younger than 15 years of age.

   (b)   An offense under this section is a state jail felony.
Tex. Pen. Code § 49.045.

   A trial court's ruling on a motion to suppress evidence for an abuse of discretion.

Bakntine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). An appellate court

will review the evidence in the light most favorable to the trial court's ruling and

assume that the trial court made implicit findings of fact supported in the record. Id.

   When reviewing a trial court's ruling on a motion to suppress evidence, the

reviewing court will give "almost total deference to a trial court's determination o f

the historical facts that the record supports especially when the trial court's fact

findings are based on an evaluation of credibility and demeanor." Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997).




                                          12
   The reviewing court will consider de novo questions of law and "mixed questions

of law and fact" that do not depend upon credibility and demeanor. Montanez v.

State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006).

   On the issue of abuse of discretion, the reviewing court will sustain the trial

judge's decision i f it is correct on any theory of law applicable to the case. State v.

Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

   I f the trial court's decision falls within the zone of reasonable disagreement, it will

be upheld. See Gonzalez v. State, 222 S.W.3d 446 (Tex. Crim. App. 2007).

   A driver's consent to a blood or breath test must be free and voluntary, and it

must not be the result of physical or psychological pressures brought to bear by law

enforcement. Meekins p. State, 340 S.W.3d 454, 458-59 (Tex. Crim. App. 2011).

   The ultimate question is whether the person's "will has been overborne and his

capacity for self-determination critically impaired" such that his consent to search

must have been involuntary. Schneckbth v. Bustamonte, 412 U.S. 218, 225-26, 93

S.Ct. 2041, 36 L.Ed.2d 854 (1973); Meekins, 340 S.W.3d at 459.

   To determine the issue of whether the consent is voluntary the court must

review the totality of the circumstances of a particular police-citizen interaction from

the point of view of the objectively reasonable person. Meekins, 340 S.W.3d at 459.



                                            13
   The validity of an alleged consent is a question of fact, and the State must prove

voluntary consent by clear and convincing evidence. State v. Weaver, 349 S.W.3d 521,

526 (Tex. Crim. App. 2011).

   Critical to a consent analysis is that the fact fmder must consider the totality of

the circumstances in order to determine whether consent was given voluntarily.

Meekins, 340 S.W.3d at 459 (citing Schneckbth v, Bustamonte, All U.S. 218, 225-26,

93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)); Harrison v. State, 205 S.W.3d 549, 552 (Tex.

Crim. App. 2006).

   The trial judge 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, 340 S.W.3d at 459.

   It follows that, because the fact fmder must consider all o f the evidence

presented, no one statement or action should automatically amount to coercion such

that consent is involuntary— it must be considered in the totality. Fienen v. State,

390 S.W.3d 328 (Tex. Crim. App. 2012).

   Under the Erdman {Erdman v. State, 861 S.W.2d 890,894 (Tex. Crim. App 1993))

holding, the Court simply assumed that the non-statutory language conveyed by the

officer regarding the consequences of refusal, in this case being that i f the defendant

failed the test he would be placed in jail that night but i f he passed he could go

                                          14
home, "was of the type that would normally result in considerable psychological

pressure." Fienen v. State, 390 S.W.3d at 334.

   The Erdman Court's analysis focused entirely on that non-statutory language.

In finding that there was no evidence that the non-statutory information, which was

conveyed about the consequences of a refusal, actually had any real bearing on [the

appellant's] decision to consent,   the Erdman Court disregarded other evidence

presented at the hearing on the motion to suppress. Fienen v. State, 390 S.W.3d at

334.

   As a consequence of Erdman's confused and flawed reasoning, its progeny has

focused   on whether the alleged extra-statutory warnings concerned              the

consequences of refusing to take the breath test. Fienen v. State, 390 S.W.3d at 334.

   No statement— whether it refers to the consequences of refusing a breath test,

the consequences of passing or failing a breath test, or otherwise— should be

analyzed in isolation because its impact can only be understood when the

surrounding circumstances are accounted for. Hence, non-statutory language does

not automatically amount to coercion or create an inference thereof Fienen v. State,

390 S.W.3dat335.

   "This Court (Court o f Criminal Appeals) no longer finds the holding or the

reasoning of Erdman persuasive." Fienen v. State, 390 S.W.3d at 334.

                                         15
1,2   Applicable Facts

   Appellee was originally arrested on April 11, 2014, and was charged with the

offense of Driving While Intoxicated with Child Passenger. RR Vol. 2 Pages 16,28.

On September 18, 2015, the trial court conducted a pre-trial hearing on Appellee's

motion to suppress, among other things, the taking of Appellee's breath sample and

the test results thereon. RRVol. 2 Page 1; CR Vol. 1 Pages 6 - 10. The sole witness

called at this hearing was DPS Trooper Mason Wilhite. RR Vol. 2. The sole exhibit

admitted during this hearing was the on-board video recording of Trooper Wilhite's

stop of Appellee, the subsequent investigation and arrest, all discussions regarding

the trooper's request for a breath sample and the responses of Appellee, and the

ultimate submission by Appellee of breath samples into the Intoxilizer 5000. RR

Vol. 3 State's Exhibit 1.

   Trooper Wilhite's attention was drawn to Appellee when the trooper's radar unit

detected Appellee's vehicle traveling 60 miles per hour in a 55 mile per hour zone.

RR Vol. 2 Page 17; Vol. 3 State's Exhibit 1. While following Appellee for a few

moments Trooper Wilhite observed Appellee's vehicle cross over the fog line

multiple times. RRVol. 2 Page 18; Vol. 3 State's Exhibit 1. Trooper Wilhite then

ran Appellee's license plate number through his on-board computer and got an



                                        16
Alert. RRVol. 2 Page 19. At this point Trooper Wilhite stopped Appellee. RRVol.

2 Page 20; Vol. 3 State's Exhibit 1 - video counter 02:10.

   Trooper Wilhite first directed Appellee to exit his vehicle and come to the rear

of the truck to which Appellee complied. RRVol. 3 State's Exhibit 1 - video counter

02:48 to 03:27. Trooper Wilhite explained the purpose of the stop and checked the

VINs on the registration sticker and door plate following which Trooper Wilhite

returned to his unit to determine i f the vehicle was stolen. RR Vol. 3 State's

Exhibit 1 - video counter 03:27 to 05:30.

   After determining that the vehicle was not stolen and after identifying the child

passengers, Trooper Wilhite began explaining to Appellee the reason for his concern

about the truck being stolen. RR Vol. 3 State's Exhibit 1 - video counter 09:30. At

this point Trooper Wilhite began asking about Appellee being a registered sex

offender and whether he was allowed to have the minors with him. RRVol. 3 State's

Exhibit 1 video counter 09:30 to 10:57. During this discussion Trooper Wilhite

detected the odor of alcoholic beverage and inquired of Appellee how much he had

to drink that night. RR Vol. 2 Page 22; Vol. 3 State's Exhibit 1 - video counter

10:57.   Appellee responded that he had one beer three hours earlier. RR Vol. 2

Page 22; Vol. 3 State's Exhibit 1 - video counter 11:01. Trooper Wilhite stated that

he was smelling it and Appellee stated it was a big beer. RR Vol. 2 Page 22; Vol. 3

                                         17
State's Exhibit 1 - video counter 11:08. At this point Trooper Wilhite informed

Appellee that he was going to check Appellee's eyes to see i f Appellee was ok to drive

and pointed to where the trooper wanted Appellee to stand. RR Vol. 3 State's

Exhibit 1-video counter 11:08 to 11:21. This was followed by the H G N test. RR

Vol. 2 Page 24; Vol. 3 State's Exhibit 1 - video counter 11:21 to 12:48. Following

the H G N test Trooper Wilhite asked Appellee i f he was willing to blow in the PBT.

RR Vol. 3 State's Exhibit 1 - video counter 12:50. Appellee declined to do this. RR

Vol. 3 State's Exhibit 1 - video counter 13:03.

   After some further discussion and the trooper repositioning his patrol car,

Trooper Wilhite performed the H G N a second time following which the trooper

began instructing Appellee on the Walk-and-Turn test. RR Vol. 2 Page 26; Vol. 3

State's Exhibit 1 - video counter 14:26 to 20:45. Trooper Wilhite then instructed

and administered the One-Leg-Stand test. RR Vol. 2 Page 27; Vol. 3 State's

Exhibit 1 - video counter 20:45 to 22:08. At the conclusion of these tests. Trooper

Wilhite began instructing Appellee on how to blow into the PBT.        RR Vol. 2 Page

27; Vol. 3 State's Exhibit 1 - video counter 23:10. Appellee again stated he did not

want to do the PBT.         Vol. 3 State's Exhibit 1 - video counter 23:15.      After

explaining to Appellee that the PBT test was not admissible in court. Appellee

complied with the trooper's instructions.         RR Vol. 2 Page 28, Vol. 3 State's

                                          18
Exhibit 1 - video counter 23:15 to 25:40. The results were ".130". RRVol. 2

Page 28.     Trooper Wilhite placed Appellee under arrest for Driving While

Intoxicated with Child Passenger. RR Vol. 2 Page 28, Vol. 3 State's Exhibit 1 -

video counter 26:38.

   Once Appellee was secured in the patrol car. Trooper Wilhite placed a copy of the

DIC-24 form in front of Appellee and read the contents of the form to Appellee. RR

Vol. 2 Pages 29 - 30; Vol. 3 State's Exhibit 1 - video counter 26:38 to 35:52. At this

point Trooper Wilhite requested a breath sample. RR Vol. 2 Page 30; Vol. 3 State's

Exhibit 1 - video counter 35:57. The first response of Appellee was to decline the

request.   RR Vol. 2 Page 30; Vol. 3 State's Exhibit 1 - video counter 36:27.    After

the refusal Trooper Wilhite explained to Appellee that the trooper was going to get

a mandatory blood draw because Appellee had children in the vehicle making this

a felony. RRVol. 2 Page 30; Vol. 3 State's Exhibit 1 - video counter 36:27 to 36:50.

Appellee then asked i f getting breath was better.   RR Vol. 2 Page 30; Vol. 3 State's

Exhibit 1 - video counter 36:51. Trooper Wilhite responded that it was too late, that

he could not make the decision for Appellee, and that Appellee has to make an

informed decision. RR Vol. 2 Page 30; Vol. 3 State's Exhibit 1 - video counter 36:51

to 37:20. This conversation continued at which time Appellee stated he would give

a breath sample. RR Vol. 2 Page 31; Vol. 3 State's Exhibit 1 - video counter 37:20

                                          19
to 37:45. Appellee repeated this three times.     RR Vol. 2 Page 31; Vol. 3 State's

Exhibit 1 - video counter 37:45 to 38:10.

   While awaiting Appellee's wife to arrive to pick up the children and Appellee's

truck, Appellee and Trooper Wilhite were off and on involved in general

conversation.   Vol. 3 State's Exhibit 1 - video counter 38:10 to 1:07:25. At a few

points Appellee started chuckling during the conversation. Vol. 3 State's Exhibit 1 -

video counter 48:24, 50:00, 53:24, 53:45, 58:15, 59:10, 1:00:38, 1:04:20.

   Once Trooper Wilhite started en route to where the Intoxilizer 5000 was located,

Appellee and Trooper Wilhite continued with general conversation. RR Vol. 2

Page 31; Vol. 3 State's Exhibit 1 - video counter 01:16:13 to 01:42:10. Again, the

conversation turned jovial at times.   RR Vol. 3 State's Exhibit 1 - video counter

01:19:45, 01:20:07, 01:21:33,    01:23:24, 01:25:41, 01:27:10, 01:32:56, 01:33:45,

01:40:06, 01:41:07.

   Once at the location of the Intoxilizer 5000, Trooper Wilhite begins by explaining

part of what he is doing as he is preparing the instrument for use. RR Vol. 3 State's

Exhibit 1 - video counter 01:45:15. Again, Appellee is jovial at times. RR Vol. 3

State's Exhibit 1 - video counter 01:45:43, 01:47:45, 01:49:45, 01:51:08. Once the

instrument is warmed up and ready Trooper Wilhite explains that Appellee will not

see the test result on the screen at which time Appellee states that he is ready to

                                         20
blow.   RR Vol. 3 State's Exhibit 1 - video counter 01:52:45 to 01:53:12.       Once

Appellee begins blowing Trooper Wilhite continues prompting Appellee to continue.

RRVol. 3 State's Exhibit 1 - video counter 01:53:12 to 01:53:32. Appellee stopped

too soon on the first attempt and they began again. RR Vol. 3 State's Exhibit 1 -

video counter 01:53:32 to 01:53:39. Appellee gave a proper sample on the second

attempt. RR Vol. 3 State's Exhibit 1 - video counter 01:53:39 to 01:53:53.        The

instrument prepared itself for the second test sample at which time Appellee again

provided a proper sample. RR Vol. 3 State's Exhibit 1 - video counter 01:53:53 to

01:56:12.

   At no time during the transport from the scene of the stop to the location of the

Intoxilizer 5000 did Appellee express that he had changed his mind about providing

a breath sample. RR Vol. 2 Page 32. Upon arrival Appellee provided both of the

requested samples without giving any indication that he did not wish to do so. RR

Vol. 2 Pages 32 - 33.




1.3 Discussion and Conclusion

   In this case the question to be considered is whether the trial court, in light most

favorable to the trial court's ruling, committed an abuse of discretion when it

determined that because Trooper Wilhite told Appellee that the trooper planned on

                                         21
obtaining a mandatory blood draw instead of obtaining a blood search warrant,

approximately one year after the Missouri v. McNeely decision was handed down by

the United States Supreme Court, was sufficient by itself to render Appellee's

subsequent decision to give a breath test involuntary. As will be shown. Appellant

asserts that under these circumstances the answer is no.

   The totality of the circumstances surrounding the police-citizen interaction here

was available to the trial court by way of the testimony of Trooper Wilhite and by

way of State's Exhibit 1, the on-board audio/video recording made by the trooper's

recording device. While this Court does not have the ability to observe the nuances

which can be detected by human senses during live testimony, this Court does have

the full exhibit as well as the trial court's findings of fact and conclusions of law to

consider.

   A full review of the exhibit contained in the Reporter's Record Volume 3 fully

supports the trial court's statements made at the conclusion of the hearing that

Trooper Wilhite did not do anything intentionally wrong or that anything he said

was necessarily not in line with what DPS policy was at the time. As shown in the

exhibit, from the time of the initial contact with Appellee at the traffic stop to the

time that the breath test process was concluded Trooper Wilhite, while being firm

at times like when the trooper challenged Appellee's statement that he has only

                                          22
drank one beer three hours earlier, was always polite and professional to Appellee.

The trooper was patient with Appellee. For example, during the times when

Appellee was not following instructions during the Standardized Field Sobriety

Tests as well as the period when Appellee and the trooper were waiting for

Appellee's wife to arrive to pick up the children and Appellee's pickup. Even when

Appellee failed to provide an adequate breath sample on the first try at the Intoxilizer

5000, Trooper Wilhite professionally guided Appellee through the process to

completion.

   In considering Appellee himself, one will easily note that from start to finish

Appellee was never under any undue physical or psychological distress. Appellee

never argued with the trooper. While attempting to talk the trooper into releasing

Appellee, Appellee never showed an appearance of being angry or crying.        Trooper

Wilhite even considered Appellee's comfort by moving his handcuffed hands from

the back to the front, a move that could have posed a threat to the safety of the

officer i f Appellee had not demonstrated that he could be trusted. While one can say

that toward the point of the actual breath testing. Appellee was in some physical

distress due to the need to urinate. Appellee demonstrated throughout the entire

period of contact with the trooper that Appellee had the mental capability to refuse



                                          23
to provide the breath sample in retaliation for the trooper not allowing Appellee to

urinate, yet Appellee simply chose to cooperate until the test was completed.

   In looking at the conduct and statements of Appellee from start to fmish one

would note that Appellee was polite and reasonably cooperative in his interactions

with Trooper Wilhite. Appellee demonstrated a sufficient knowledge of the system

by describing to the trooper his prior arrest and prison sentence for a sexual type

offense.   Appellee, many times during the period of waiting for his wife to arrive

and during the period of the drive to the Intoxilizer 5000, engaged Trooper Wilhite

in general conversation, both asking the trooper about the trooper's time in the

military and how his work schedule is set and by telling the trooper about Appellee's

work and family life.   Many points during these conversations led to a period of

being jovial with Appellee chuckling. Appellee never stated or gave any indication

that he was ill, afraid, or uncomfortable. I n fact Appellee, at one point, indicated a

matter-of-fact resolve that because of his past he would be doing a lot of time for

this.

   As the trial court noted Appellee did refuse the trooper's request for a breath

sample following the reading of the DIC-24 form.         Trooper Wilhite stated that

because there were minors in the vehicle that this was a felony and because o f this

he was going to do a mandatory blood draw.          Trooper Wilhite testified at the

                                          24
suppression hearing that he was not going to obtain a blood search warrant at that

point.

   One thing to note here is that the tone of voice and surrounding conversation

shows that Trooper Wilhite did not mention mandatory blood draw as any form of

threat or coercion, and this by far did not rise to the level necessary for Appellee's

will was overborne and his capacity for self-determination critically impaired. I n

fact, the first couple of times when Appellee stated he would give a breath sample.

Trooper Wilhite stated that it was too late because Appellee had refused and that the

trooper would have to get a blood search warrant. It was only after Appellee said he

would give a sample multiple times that Trooper Wilhite acquiesced.

   In the trial court's findings o f fact, the trial court noted that this case occurred

more than one year following the opinion of the United States Supreme Court in

the case of Missouri v. McNeely,       U.S.     , 133 S.Ct. 1552 (2013). Because the

trial court noted this case in particular, it should be pointed out that the case on

which McNeely was based was a simple Driving While Intoxicated and did not deal

with any statutes similar to Tex. Transp. Code § 724.012.               Following the

announcement of the McNeely holding there has been a lot of debate in the appellate

field as to whether McNeely would have any impact on § 724.012.



                                          25
   The only case this very Court has had which attempted to raise the impact of

McNeely on § 724.012 was the case of Sherry v. State, a memorandum opinion under

docket number 03-13-00126-CR that was handed down on August 16, 2013. I n

this case this Court held that the appellant had failed to preserve this point for

appellate review and overruled the issue. The issue has still not been fully settled

in Texas as the most recent case, Douds v. State, 2015 Tex. Crim. App. LEXIS 1060

being docketed as PD-0857-14 which was handed down on October 14, 2015, also

held that the issue was not properly preserved for appellate review.

   Yet even assuming that the provisions of § 724.012 can not override the

protections of the Fourteenth Amendment, the mere mention of the mandatory

blood draw can not, at least not yet, be considered a true misstatement of the

consequences flowing from a refusal to give a specimen, as was concluded by the

trial court in its Findings of Fact and Conclusions of Law.   § 724.012 is still today

"on the books" as far as the Court of Criminal Appeals is concerned.

   But even this erroneous conclusion is not the fmal point of consideration. I n its

Findings of Fact and Conclusions of Law, the trial court clearly holds that by making

this misstatement of the consequences flowing from a refusal to give a specimen,

that act, and that act alone, rendered Appellee's subsequent decision to give a breath

sample involuntary. The trial court pointed to no other factor, act of the trooper,

                                         26
or condition of Appellee that, in conjunction with the misstatement, rose to the level

that Appellee's will was overborne and his capacity for self-determination was

critically impaired.

   O f particular note, the trial court cites the holding of Erdman v. State, 861 S.W.2d

890 (Tex. Crim. App. 1993). Under this case the decision the trial court's holdings

could be affirmed.      However, the rule of law in Erdman, meaning that i f a

misstatement of the consequences flowing from a refusal to give a specimen is made,

such misstatement renders a subsequent consent involuntary, was overruled by the

Court of Criminal Appeals in 2012 in the case of Fienen p. State, 390 S.W.3d 328

(Tex. Crim. App. 2012).     I n overruling the Erdman holding, the Court held that

because the fact finder must consider all of the evidence presented, no one statement

or action should automatically amount to coercion such that consent is

involuntary— it must be considered in the totality.

   In the Feinen case, the Court of Criminal Appeals noted that upon the arrival of

the investigating trooper as well as throughout the entire encounter with the

defendant, the defendant conversed with the trooper comfortably and familiarly.

Fienen P. State, 390 S.W.3d at 330. By viewing RR Vol. 3 State's Exhibit 1, the exact

same statement can be made regarding Appellee's interaction with Trooper Wilhite.

In Feinen, as in this case, the trooper read the DIC-24 form exactly and asked for a

                                         27
sample of breath which request was refused.       Fienen v. State, 390 S.W.3d at 330.

Upon hearing the refusal from the defendant (in FemewyAppellee (in this case), the

trooper informed the defendant (in FeiwenyAppellee (in this case) that the trooper

was going to arrange for a blood specimen to be taken. Fienen v. State, 390 S.W.3d

at 330. The only difference between the two cases regarding the trooper's statement

is that in Feinen the trooper stated he was going to obtain a blood search warrant

while in the present case the trooper was going to obtain a mandatory blood sample.

In both cases, upon hearing that the trooper was planning to obtain blood from the

defendant (in Femenj/Appellee (in this case), the defendant (inFemewyAppellee (in

this case) immediately offered to provide a breath specimen.        The defendant in

Feinen expressed a fear of needles while Appellee expressed he wanted to make it

easier.   In this case Appellee just asked i f giving breath would be easier without

clarifying whether he meant i f it would be easier on himself or easier for the trooper.

While the trial court focused simply on the trial court's belief that the McNeely

decision banned mandatory blood draws under § 724.012, there is no evidence that

Appellee had any appreciation that a mandatory blood draw may have been unlawful.

 Based on the evidence in the record it is most likely that Appellee would have

responded in the same way i f Trooper Wilhite had announced his plan to obtain a

blood search warrant.

                                          28
   In conclusion, considering the totality of the circumstances surrounding the

police-citizen encounter in this case, from the point of view of the objectively

reasonable person, it can not be said that this decision by the trial court would fall

within a reasonable zone of disagreement but instead is an abuse of discretion.

   For these reasons the Order on Defendant's Motion to Suppress must be

reversed and the case remanded to the trial court to continue to trial with the

evidence of the breath test and results thereof available to the State of Texas.




                                          29
                          PRAYER FOR RELIEF

  WHEREFORE, PREMISES CONSIDERED, Appellee prays the Court reverse

the Order on Defendant's Motion to Suppress entered on September 28, 2015.

                                   Respectfully submitted,

                                   OFFICE OF DISTRICT ATTORNEY
                                   33^'' and 424^^ JUDICLAL DISTRICTS
                                   Wiley B. McAfee, District Attorney
                                   P. O. Box 725
                                   Llano, Texas 78643
                                   Telephone          Telecopier
                                   (325) 247-5755 j325) 247-5274

                                   By:
                                         Wiley B. McAfee
                                         District Attorney
                                         State Bar No. 13318020
                                         w.mcafee@co.llano.tx.us

                                   By:                  t^^^^
                                      Assistant District Attorney
                                      State Bar No. 03353500
                                      g.bunyard@co.llano.tx.us

                                      ATTORNEYS FOR APPELLEE




                                     30
                     C E R T I F I C A T E OF WORD C O U N T

   This is to certify that the pertinent portion of this brief contains 5,989 words
printed in Aldine401BT 14 font, according to the WordPerfect™ X7 word count
tool.




                         C E R T I F I C A T E OF SERVICE

   This is to certify that a true copy of the above and foregoing instrument, together
with this proof of service hereof, has been forwarded on the 2nd day of December
2015, to Ray Thomas Bass I I I , Attorney for Appellee, by email and by EServe.

                                                             <:^^
                                           . . ^ r y W . Burf^^rd
                                                                        .
                                               Assistant District Attorney




                                         31
