                                 NUMBER 13-12-00154-CR

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


JOHN TYLER BICE,                                                                        Appellant,

                                                  v.

THE STATE OF TEXAS,                                                                      Appellee.


                 On appeal from the County Court at Law No. 2
                          of Victoria County, Texas.


                                 MEMORANDUM OPINION

   Before Chief Justice Valdez and Justices Rodriguez and Longoria
           Memorandum Opinion by Chief Justice Valdez1

        By one issue, appellant, John Tyler Bice, appeals from his conviction for driving

while intoxicated, a class B misdemeanor offense.                 See TEX. PENAL CODE ANN. §




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         The Honorable Rose Vela, former Justice of this Court, did not participate in deciding the case
because her term of office expired on December 31, 2012. “In accordance with the appellate rules, she
was replaced on panel by Justice Nora L. Longoria”. See TEX. R. APP. P. 41.1(a).
49.04(a)–(b) (West Supp. 2011).           Appellant argues that the trial court committed

reversible error in denying his two motions to suppress. We affirm.

                                         I. BACKGROUND

        The trial court held an evidentiary hearing on appellant’s motions to suppress,

during which the State called as its only witness Officer Jeff Strauss of the Victoria

Police Department.2 Strauss testified that, on April 7, 2011, he was conducting a night

patrol when he observed a pickup truck traveling at an excessive rate of speed. His

handheld radar verified that the truck was traveling 56 mph in a 40 mph zone. Strauss

initiated a traffic stop and followed the truck as it pulled into the parking lot of Shooters

Bar.

        Following the stop, appellant exited the truck and started walking toward either

the officer or the club; Strauss could not determine which. Strauss asked appellant to

stop, identified himself as a police officer, and informed appellant of the reason for the

stop.   Strauss noticed an odor of alcohol emanating from appellant.           Strauss also

noticed that appellant’s eyes were glassy and “a little bit bloodshot.”        According to

Strauss, appellant’s speech was “relatively good.” At this point, Strauss was suspicious

that appellant was possibly intoxicated.

        Following field sobriety testing, Strauss arrested appellant.        Next, Strauss

requested that appellant provide a breath sample. According to Strauss, he made the

request by reading the statutory warning language from a form known as the “DIC-24.”

On direct examination, Strauss testified that he read the DIC-24 “verbatim.” Strauss

testified that the second paragraph of the DIC-24 states as follows:



        2
            Appellant did not testify.

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      If you refuse to give the specimen, that refusal may be admissible in the
      subsequent prosecution. Your license, permit or privilege to operate a
      motor vehicle will be suspended or denied for not less than 180 days,
      whether or not you are subsequently prosecuted for this offense.

      According to Strauss, after appellant “initially refused” to provide a sample:

      I told him we would sign the refusal form at the jail, but then I reiterated
      that I wanted to make clear that he understood it was an automatic 180
      day suspension of his license, just to make sure that he was clear on the
      his refusal. I wanted to make sure that he understood the consequences.

      After reviewing a video of the traffic stop, however, Strauss acknowledged that

he deviated from the language of the DIC-24. Specifically, Strauss testified, “I didn’t

state the exact two sentences, but I stated that the refusal could result in a suspension

for 180 days.” Subsequently, Strauss testified that he told appellant that “his license

would be suspended up to 180 days.” According to Strauss, “[appellant] changed his

mind and decided that he would render the sample.” Thereafter, appellant provided a

sample.

      The following exchange took place on cross-examination by appellant’s attorney:

      Q      [A]fter you read him that warning, he refused, correct?

      A      Yes, sir.

      Q      He said no.

      A      Yes, sir.

      Q      Was there any doubt in your mind that he said the word no?

      A      Not at all.

      Q      You even confirmed that with him, didn’t you?

      A      Yes, sir.

      Q      Now, you had not Mirandized him yet at this point, had you?



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A   No, sir.

Q   He was in custody at that point in time, correct?

A   Yes, sir.

Q   And you felt obliged to ask him some questions, didn’t you?

A   I only asked him – or I only reiterated that if he understood the
    penalty for not rendering the sample.

Q   And how did you do that?

A   I asked him if he understood by his refusal that his license would be
    suspended for 180 days.

Q   Okay. Now we watched that video and you said for up to 180 days.
    Do you recall that?

A   Oh yes, sir, my mistake, yes, sir.

Q   So you reiterated to him that his license would be suspended for up
    to 180 days, is that correct?

A   Yes, sir.

Q   Is that the law?

A   There is no law against making sure he understood.

Q   Okay. Well, I am talking about you stating the law[ is] that his
    license would be suspended for up to 180 days if he refused.

A   Yes, sir.

Q   Would you read that code again and maybe refresh your memory
    about the law?

A   I see – I see the point you are making, it is for not less than 180
    days.

Q   So you didn’t state the law properly, did you?

A   No, sir, not verbatim.

Q   Not verbatim or not at all?

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      A        I didn’t tell him – I didn’t tell him for not less than 180 days. I said
               up to 180 days.

      Q        You will agree that up to 180 days and not less than 180 days are
               two completely different spectrums, correct?

      A        Yes, sir.

      Q        So you misstated the direct statutory consequences arising from a
               refusal, is that correct?

      A        A misstatement, I would . . . agree with that in hindsight.

      On re-direct examination by the State, Strauss clarified that the first time he

requested a sample from appellant he read the second paragraph of the DIC-24

“verbatim.”

      The trial court denied appellant’s two motions to suppress without entering

findings of fact or conclusions of law. Thereafter, a jury trial was held, and appellant

was found guilty of driving while intoxicated. A final judgment was entered, and this

appeal ensued.

                                        II. ANALYSIS

      By one issue, appellant contends that the trial court erred in denying his motions

to suppress.

A. Standard of Review

      Whether the trial court properly denied a defendant’s motion to suppress is

reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720,

725 (Tex. Crim. App. 2007); Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.—

Corpus Christi 2009, no pet.). The trial judge is the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given their testimony. Wiede v. State,



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214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to a trial

court's determination of historic facts and mixed questions of law and fact that rely upon

the credibility of a witness, but apply a de novo standard of review to pure questions of

law and mixed questions that do not depend on credibility.                      Martinez v. State, 348

S.W.3d 919, 922–23 (Tex. Crim. App. 2011). We view the evidence in the light most

favorable to the trial court’s ruling. Wiede, 214 S.W.3d at 24. We must uphold the trial

court's ruling if it is reasonably supported by the record and is correct under any theory

of law applicable to the case, even if the trial court gave the wrong reason for its ruling.

State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); State v. Dixon, 206

S.W.3d 587, 590 (Tex. Crim. App. 2006). We will overturn the ruling only if it is “outside

the zone of reasonable disagreement.” Martinez, 348 S.W.3d at 922.

B. Applicable Law

        Any person who is arrested for DWI is deemed to have given consent to submit

to providing a specimen for a breath or blood test for the purpose of determining alcohol

concentration or the presence of a controlled substance, drug, dangerous drug, or other

substance. See TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011).3 However, a

person retains an absolute right (subject to certain exceptions not relevant here) to

refuse a test.      Id. § 724.013 (West 2011).              That refusal must be strictly honored.

McCambridge v. State, 712 S.W.2d 499, 504 n.16 (Tex. Crim. App. 1986); Turpin v.

State, 606 S.W.2d 907, 913-14 (Tex. Crim. App. 1980). The Texas Court of Criminal

Appeals has explained this apparent inconsistency: “[C]onsent being implied by law, a


        3
           See McCambridge v. State, 712 S.W.2d 499, 504 (Tex. Crim. App. 1986) (“[A] defendant, when
faced with a decision whether to provide a breath or blood sample for chemical analysis of alcohol
concentration[,] . . . may not avoid making a decision by invoking the protection of the Fifth Amendment
privilege against self-incrimination or the prophylactic safeguards of Miranda.”) (internal citation omitted).

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driver may not legally refuse. A driver, however, can physically refuse to submit, and

the implied consent law, recognizing that practical reality, forbids the use of physical

force to compel submission.” Forte v. State, 759 S.W.2d 128, 138 (Tex. Crim. App.

1988).

         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 v. State, 340 S.W.3d 454, 458–59 (Tex. Crim. App. 2011); see

Hall v. State, 649 S.W.2d 627, 628 (Tex. Crim. App. 1983). 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.

Schneckloth v. Bustamonte, 412 U.S. 218, 225–26 (1973); Meekins, 340 S.W.3d at 459.

We “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.

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 finder must consider the totality of

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

Meekins, 340 S.W.3d at 459 (citing Schneckloth, 412 U.S. at 233); 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. Accordingly, it follows that, because the fact finder must consider all of



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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. See

Fienen v. State, No. PD-0119-12, 2012 Tex. Crim. App. LEXIS 1597 (Tex. Crim. App.

Nov. 21, 2012).

C. Discussion

       Appellant contends that the incorrect statutory warning he was given rendered

his consent to the breath test coerced and involuntary. See TEX. TRANSP. CODE ANN. §

724.015 (West Supp. 2011). On this basis, he argues that the results of the test should

have been suppressed. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005)

(“No evidence obtained by an officer or other person in violation of any provisions of the

Constitution or laws of the State of Texas, or of the Constitution or laws of the United

States of America, shall be admitted in evidence against the accused on the trial of any

criminal case.”).

       Appellant relies on Erdman v. State, 861 S.W.2d 890, 894 (Tex. Crim. App.

1993), overruled, Fienen v. State, No. PD-0119-12, 2012 Tex. Crim. App. LEXIS 1597

(Tex. Crim. App. Nov. 21, 2012) for the proposition that the incorrect statutory

information conveyed by the officer automatically rendered his consent involuntary and

coerced.   The Court of Criminal Appeals has recently overruled Erdman, noting its

“confused and flawed reasoning.” Fienen, 2012 Tex. Crim. App. LEXIS 1597 at *15.

The Court specifically noted that, based on Erdman, when extra-statutory warnings

relate to the consequences of passing or failing the breath test, the courts of appeals

have required that the defendant show a causal connection between the warning and

the decision to submit to the test. See id. at *16. The Court further noted that “the rules



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developed post-Erdman misapply the relevant burden of proof in addressing warnings

regarding the consequences of passing or failing a breathalyzer test.” Id. at *18. “It is

well established that, when the issue is raised in a motion to suppress, the State must

prove voluntary consent by clear and convincing evidence.” Id. “Contrary to this notion,

the courts of appeals have placed a burden on the defendant to show that he was

coerced, specifically that there was a causal connection between the warning and his

decision to submit to the test.” Id. According to the Court of Criminal Appeals, “[t]his

should not be so—once the defendant has raised the issue in his motion, the burden of

proof is on the State, and it does not shift back to the defendant.” Id.

       Thus, the relevant question is whether, based on the totality of the

circumstances, the State met its burden to prove that appellant’s consent was voluntary.

Id. at *19 (“[I]t is the State’s burden to prove voluntary consent by clear and convincing

evidence.”). Here, the State’s evidence included the testimony of the arresting officer,

as well as a video and audio recording of the exchange between appellant and the

officer. The uncontroverted evidence established that appellant was initially given the

correct statutory warnings by the officer and subsequently refused consent. Thereafter,

the officer advised appellant of the consequences of his refusal; however, in doing so,

he misstated the statutory language by saying “up to 180 days” instead of “not less than

180 days.” In other words, the officer understated the consequences of appellant’s

refusal. Appellant then consented to provide the breath sample.

       Although appellant consented after he was incorrectly advised, there is no

indication that the consent was induced or coerced by the officer understating the

consequences of a refusal. See Franco v. State, 82 S.W.3d 425, 428 (Tex. App.—



                                             9
Austin 2002, pet. ref’d) (“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.”) (emphasis in original). Moreover, the officer’s second request for a breath

sample—on its own—did not amount to coercion, as appellant contends. See White v.

State, 711 S.W.2d 106, 107 (Tex. App.—Houston [14th Dist.] 1986, no pet.) (“Appellant

contends that the repeated demands of the police officer that he submit to a

Breathalyzer test were somehow coercive in nature. We do not agree.”). Although

appellant changed his mind and agreed to provide a breath sample after the second

request, that fact alone—without evidence that appellant was pressured physically or

psychologically—is insufficient to invalidate consent that was otherwise voluntary. See

State v. Sells, 798 S.W.2d 865, 867 (Tex. Crim. App. 1990) (per curiam) (“If a driver’s

consent is induced by an officer’s misstatement of the consequences flowing from a

refusal to take the test, the consent is not voluntary.”).

       Appellant argues that the outcome of this case should be determined by this

Court’s decision in Tex. Dep't of Pub. Safety v. Patel, No. 13-05-775-CV, 2006 Tex.

App. LEXIS 9720 (Tex. App.—Corpus Christi Nov. 9, 2006, pet. denied) (mem. op.) (not

designated for publication). Patel was a civil case involving a license revocation. Id.

The defendant testified that he refused to provide a breath sample because the

arresting trooper told him, after he had been given the required warnings, that if he hired

an attorney, he did not have to provide a breath specimen. Id. at *9–10. We held that

the administrative law judge was free to believe or disbelieve the defendant’s contention

that the arresting trooper’s extra-statutory warnings affected his decision to refuse to

provide a breath specimen. Id. at *11.



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       In this case, appellant did not testify, though we note he was not required to.

Consequently, there is no testimony in the record regarding appellant’s reasons for

initially refusing to provide a sample or why he later changed his mind. Furthermore,

unlike the defendant in Patel, appellant did not refuse to provide a sample, despite the

fact that the officer understated the consequences of refusal.      Thus, Patel is not

controlling.

       Accordingly, the trial court did not abuse its discretion in denying appellant’s

motions to suppress. Appellant’s sole issue is overruled.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed.

                                                       ___________________
                                                       ROGELIO VALDEZ
                                                       Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
10th day of January, 2013.




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