                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-08-00344-CR

THE STATE OF TEXAS,
                                                            Appellant
v.

LAUREN CHRISTINE KLEIN,
                                                            Appellee



                      From the County Court at Law No. 2
                            Johnson County, Texas
                         Trial Court No. M200800627


                          MEMORANDUM OPINION


      Lauren Christine Klein was charged by information with driving while

intoxicated. She filed a motion to suppress the breath test evidence, which the trial

court granted. The trial court made the following findings of fact:

      1.     On February 23, 2008, Officer Brian Hartin, Alvarado Police Department,
             Alvarado, Johnson County, Texas, arrested the Defendant, Lauren
             Christine Klein, without a warrant, for the criminal offense of Driving
             While Intoxicated.

      2.     The said Defendant, Lauren Christine Klein, was 18 years of age on
             February 23, 2008.
        3.       Officer Hartin attempted to comply with §724.015, Information Provided
                 by Officer Before Requesting Specimen, Texas Transportation Code,
                 (Vernon 2001), subsequent to the arrest of the Defendant. Officer Hartin
                 read the Texas Department of Public Safety, Statutory Warning, DIC-24
                 (rev. 9/05), to the Defendant, which tracks the information required by
                 §724.015, Texas Transportation Code, except for paragraph (4).

        4.       Officer Hartin failed to read or orally inform the Defendant of paragraph
                 (4) §724.015, Texas Transportation Code, (Vernon 2001), specifically
                 regarding the information to be provided to a person under 21 years of
                 age.1

        5.       Officer Hartin provided a written copy of the DIC-24 to the Defendant.

        6.       Officer Hartin thereafter requested the Defendant to submit to the taking
                 of a specimen as noted in Chapter 724, Texas Transportation Code,
                 (Vernon 2001).

        7.       Lauren Christine Klein provided a specimen of breath to Officer Hartin.
                 Officer Hartin testified that the breath specimen provided by the
                 Defendant indicated an alcohol concentration of 0.08 or more.

The trial court also made the following conclusions of law:

        1.       Officer Hartin failed to comply with §724.015, Texas Transportation Code,
                 (Vernon 2001).

        2.       The Defendant was not orally informed of the consequences of submitting
                 to the taking, or refusing to the taking, of a specimen, specifically
                 regarding a person under 21 years of age, as provided by §724.015, Texas
                 Transportation Code, (Vernon 2001).

        3.       The specimen of the Defendant’s breath given to Officer Hartin while the
                 Defendant was under arrest for Driving While Intoxicated was not
                 voluntarily given.

        1 Paragraph (4) of section 724.015 provides that
        if 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 if the person submits to the taking of the
        specimen, but that if 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.
TEX. TRANSP. CODE ANN. § 724.015(4) (Vernon Supp. 2009).

State v. Klein                                                                                       Page 2
        4.       The analysis of the alcohol concentration of said specimen is not
                 admissible as evidence in the prosecution of the Defendant in this cause.

In two issues, the State contends that the trial court erred in granting the motion.

        We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007). In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118

S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, 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, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost total deference to the trial

court’s rulings on (1) questions of historical fact, even if the trial court’s determination

of those facts was not based on an evaluation of credibility and demeanor; and (2)

application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But

when application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s ruling on those questions de novo. Amador,

221 S.W.3d at 673; Johnson, 68 S.W.3d at 652-53.

        When reviewing the trial court’s ruling on a motion to suppress, we must view

the evidence in the light most favorable to the trial court’s ruling. Wiede, 214 S.W.3d at

State v. Klein                                                                         Page 3
24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court

makes explicit fact findings, we determine whether the evidence, when viewed in the

light most favorable to the trial court’s ruling, supports those fact findings. Kelly, 204

S.W.3d at 818-19. We then review the trial court’s legal ruling de novo unless its explicit

findings that are supported by the record are also dispositive of the legal ruling. Id. at

819.

        In its first issue, the State argues that the trial court erred in granting the motion

to suppress because Klein provided a voluntary breath sample that was free of any

physical or psychological pressures. The State further contends that Klein provided no

causal connection between her giving of the breath specimen and Officer Hartin’s

failure to read or orally inform her of paragraph (4) of section 724.015.

        The implied-consent statute provides that a person who is arrested for an offense

arising out of acts alleged to have been committed while operating a motor vehicle

while intoxicated is deemed to have consented to the taking of samples for a breath or

blood test. TEX. TRANSP. CODE ANN. § 724.011(a) (Vernon 1999). However, for consent

to be effective, it must be voluntary. Turpin v. State, 606 S.W.2d 907, 914 (Tex. Crim.

App. 1980). A person’s consent to a breath test is voluntary only if it is not the result of

physical or psychological pressures. Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim.

App. 1993).

        Section 724.015 of the Transportation Code provides that “[b]efore requesting a

person to submit to the taking of a specimen, the officer shall inform the person orally

and in writing” of the statutory warnings provided in section 724.015. TEX. TRANSP.

State v. Klein                                                                          Page 4
CODE ANN. § 724.015. If a driver’s consent is induced by an officer’s misstatement of the

law and includes extra-statutory consequences of a refusal to submit to a breath test, the

consent may be considered to have been involuntarily given. See, e.g., Erdman, 861

S.W.2d at 894 (holding extra-statutory warnings conveyed to the suspect were of the

type that would result in “considerable psychological pressure”). However, the fact

that the arresting officer gives a written warning but fails to give an oral warning before

requesting a breath test does not, by itself, render the results of the test inadmissible.

See Lane v. State, 951 S.W.2d 242, 243-44 (Tex. App.—Austin 1997, no pet.). There must

be some showing of a causal connection between the failure to give the oral warning

and the defendant’s consent to submit to the breath test to render the results of the test

inadmissible. See id.; cf. Anderson v. State, No. 2-05-169-CR, 2006 WL 744272, at *1 (Tex.

App.—Fort Worth Mar. 23, 2006, pet. dism’d) (mem. op.) (upholding admissibility of

defendant’s refusal to take breath test because he failed to show causal connection

between his refusal and officer’s failure to give written warnings before asking for

breath sample).

        In this case, Officer Hartin did not misstate the law and include extra-statutory

consequences of a refusal to submit to the breath test such that Klein’s consent is

considered to have been involuntarily given.        See Erdman, 861 S.W.2d at 893-94.

Nevertheless, Officer Hartin’s failure to orally inform Klein of paragraph (4) of section

724.015 of the Transportation Code violated the statute. See TEX. TRANSP. CODE ANN. §

724.015. But there is no evidence that Officer Hartin’s failure to read or orally inform

Klein of paragraph (4) of section 724.015 had any impact on her decision to take the

State v. Klein                                                                       Page 5
breath test. The evidence establishes that Klein was provided the written warnings.

She did not contend at the suppression hearing, nor does she contend on appeal, that

she did not understand the written warnings. Furthermore, before Officer Hartin gave

any warnings to Klein, she admitted that she had been drinking. For these reasons,

Klein has shown no causal connection between her consent to the breath test and

Officer Hartin’s failure to orally inform her of paragraph (4) of section 724.015. See Lane,

951 S.W.2d at 243-44. We sustain the State’s first issue.

        Because the first issue is dispositive, we need not address the State’s second

issue. We reverse the trial court’s grant of Klein’s motion to suppress and remand this

cause to the trial court for further proceedings.



                                                    REX D. DAVIS
                                                    Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurs in the judgment of the court. A separate opinion will
not issue.)
Reversed and remanded
Opinion delivered and filed September 15, 2010
Do not publish
[CR25]




State v. Klein                                                                        Page 6
