                                                                                  ACCEPTED
                                                                              03-15-00109-CR
                                                                                      7809772
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                        11/12/2015 5:23:10 PM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK
                        NO. 03-15-00109-CR

                             IN THE                          FILED IN
                                                      3rd COURT OF APPEALS
                                                           AUSTIN, TEXAS
                       COURT OF APPEALS               11/16/2015 3:00:10 PM
                                                          JEFFREY D. KYLE
                     THIRD DISTRICT OF TEXAS                   Clerk


                         AUSTIN, TEXAS


CHELSEA PODOWSKI                 §                         APPELLANT

VS.                              §

THE STATE OF TEXAS               §                           APPELLEE



      APPEAL FROM THE COUNTY COURT OF LAW NUMBER FIVE

                     TRAVIS COUNTY, TEXAS

                   CAUSE NO. C-1-CR-14-205047



                     APPELANT’S REPLY BRIEF




                                     James Gill
                                     1201 Rio Grande, Ste 200
                                     Austin, Texas 78701
                                     Phone: (512) 448-4560
                                     Fax: (512) 308-6780
                                     jgill@austin-criminallawyer.com
                                     Bar Number: 24043692

                              ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL



CHELSEA PODWOSKI
2202 W. Northloop
Austin, Texas 78756
Appellant

JAMES R. GILL
1201 Rio Grande, Ste 200
Austin, Texas 78701
Trial & Appellate Attorney for Appellant

WARD B.B. DAVISON
1201 Rio Grande, Ste 200
Austin, Texas 78701
Appellate Attorney for Appellant

GISELLE HORTON
Travis County Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Appellate Attorney for the State

THE HONORABLE NANCY HOHENGARTEN
County Court at Law #5
P.O. Box 1748
Austin, Texas 78767
Trial Judge




                                     i
TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL……………………………………….i

TABLE OF AUTHORITIES……………………………………………………...iii

STATEMENT OF THE CASE……………………………………………………iv

ISSUES PRESENTED…………………………………………………………......v

STATEMENT OF FACTS…………………………………………………………1

SUMMARY OF THE ARGUMENTS……………………………………………..3

ARGUMENT…………………..…………………………………………………...3

    THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
    TO SUPPRESS THE BREATH TEST EVIDENCE OBTAINED
    THROUGH PSYCHOLOGICAL COERCION OF APPELLANT.

  A) Law	enforcement	officers	may	not	misrepresent	the	law.	

  B) Under	the	totality	of	circumstances,	Podowski’s	ability	to	

    voluntarily	consent	was	overborne.	

  C) The	State	incorrectly	asserts	that	Podowski	consented	twice.		

  D) The	State’s	cases	used	in	support	of	her	argument	are	easily	

    distinguished	from	the	case	at	hand.	

CONCLUSION……………………………………………………………………8

PRAYER…………………………………………………………………………..8

CERTIFICATE OF COMPLIANCE………………………………………………9

CERTIFICATE OF SERVICE……………………………………………………10



                                    ii
                       TABLE OF AUTHORITIES

Cases

Fienen v. State, 390 S.W.3RD 328 (Tx. Crim App., 2013)………………….3,4,5,6

Bice v. State, No. 13-12-00154 CR, 2013 Tex. App. Lexis 218…………………...8

Cook v. State, No. 05-14-00483-CR, 2015 Tex. App. Lexis 5797……………….6,7

Worku v. State, No. 14-13-0047-CR, 2014 Tex. App. Lexis 3621…………………7




                                  iii
                           STATEMENT OF THE CASE


Nature of the case:            On May 2014 the County Attorney presented
                               information alleging that the Appellant committed
                               DWI (1st offense, BAC > .15) on or about March
                               29, 2014.

Course of proceedings:         A pretrial hearing was held on Appellant’s Motion
                               to Suppress was held on November 25th, and
                               December 4th, 2014. Appellant’s Motion denied.

Disposition of the case:       Client pleaded guilty to the offense of DWI on
                               December 4th, 2014. Appellant was sentenced to
                               15 months of probation on a Class B 1st offense,
                               $100 fine, 60 hours of Community Service and 6
                               months of an ignition interlock in her vehicle. The
                               finding of BAC >.15 was waived by the state.




                                       iv
                               ISSUES PRESENTED

Did the trial court err in failing to suppress evidence of the Appellants breath test
when the arresting officer misrepresented the law to Appellant?




                                           v
                              NO. 03-15-00109-CR

                                     IN THE

                             COURT OF APPEALS

                         THIRD DISTRICT OF TEXAS

                                AUSTIN, TEXAS


CHELSEA PODOWSKI                         §                          APPELLANT

VS.                                      §

THE STATE OF TEXAS                       §                             APPELLEE



      APPEAL FROM THE COUNTY COURT OF LAW NUMBER FIVE

                           TRAVIS COUNTY, TEXAS

                         CAUSE NO. C-1-CR-14-205047

TO THE HONORABLE COURT OF APPEALS:

                   ABBREVIATED STATEMENT OF FACTS

      Officer Marler introduced himself to Appellant, Podowski, and performed

the Standardized Field Sobriety Tests after being called to Podowski’s location by

another law-enforcement officer. RR II 20-21. After completing the tests, Marler

read Podowski the DIC 24 warning. RR II 21. Marler read the document at a very

rapid pace, confusing Podowski. RR II 31, RRIII 17. Podowski informed officer

Marler that she didn’t fully comprehend everything and asked, “In which case is



                                         1
my license not going to be suspended at all.” RR II 24. Officer Marler,

misrepresenting the law, responded “None.” RR II 24. Marler then asked, “Is that

a yes or a no?” RR II 24. Podowski responded, “yes” to provide a sample of her

breath. RR II 24. Marler had previously requested a PBT test from Podowski

which Podowski declined to provide after another officer explained to her what a

portable breath test was. RR II 21. On cross-examination Marler estimated that he

had only read the DIC-24 approximately 10-12 times in his entire career. RR II

24-25.

      Podowski testified on direct examination that she didn’t feel like she had a

choice to refuse the breath test from the arresting officer. RR II 29. Podowski

further testified once she arrived at the mobile breath test unit that the man who

administered the breath test told her she had to take the test. RR II 29. The man

who administered the breath test is Keith Wade, a civilian employee and former

peace officer. RR III 2-3.

      Keith Wade had no recollection of performing the breath test on Podowski

even after having been shown a booking photo of Appellant or of any events of

that particular day. RR III 5. When asked on direct examination if Podowski asked

him if she had to take the test he didn’t recall. RR III 8-9. Podowski distinctly

remembers asking Wade if she was required to provide a specimen of her breath

and Wade’s answer in the affirmative. RR II 29.



                                          2
                      SUMMARY OF THE ARGUMENTS


   The trial court erred in denying Appellant’s motion to suppress the breath test

evidence acquired illegally by the police officer. An officer is not allowed to

make misrepresentations of the law. Further, based on the totality of the

circumstances:

   1) Officer Marler read the DIC-24 so rapidly as to make it incomprehensible;

   2) When asked to clarify, misrepresented the law.

   The Appellant’s involuntary acquiescence to the police officer’s request for

evidence was obtained through psychological coercion. By allowing the evidence

to be admitted, the trial court harmed the Applicant beyond a reasonable doubt.

      THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
      TO SUPPRESS THE BREATH TEST EVIDENCE OBTAINED
      THROUGH PSYCHOLOGICAL COERCION OF APPELLANT.

                             Argument and Authorities

      “When determining whether DWI suspects acted voluntarily, courts are to

      look at the totality of the circumstances. Law-enforcement officers may not

      misrepresent the law, but neither are they required to simply repeat the

      statutory warnings.”

             -First and second sentence of the Texas Court of Criminal Appeals’

      conclusion in the unanimously decided Fienen v. State in 2012.




                                         3
         It is the interpretation of these two sentences, and the way in which they

must exist together, that prompts this appeal. The State takes the position that:

         1)      Law-enforcement	officers	may	misrepresent	the	law,	and	

         2)      That	Podowski	failed	to	allege	any	other	supporting	facts	that	lend	

                 credence	to	the	involuntariness	of	Podowski’s	consent	other	than	

                 that	misrepresentation	of	the	law.	

      Both positions are flawed.

      A) Law	enforcement	officers	may	not	misrepresent	the	law.	

      In relying on Fienen, both parties must acknowledge the case in its entirety. A

plain reading of the first clause of the second sentence is clear. The second clause

of that sentence provides context. These cases are often argued on the fact that an

officer strayed from the exact language of the statute, not that the officer

completely misrepresented the law to the Appellant. In Podowski’s case Officer

Marler incorrectly informed Podowski that under no circumstances would her

license not be suspended. That is false. Podowski’s license would not be suspended

if:

         1) Podowski	refused	to	consent	and	it	was	determined	at	an	

              Administrative	hearing	that	the	Officer	lacked	probable	cause	to	

              conduct	a	Field	Sobriety	Test,	or	

         2) Podowski	could	voluntarily	consent	and	pass	the	Breath	Test.	



                                            4
The State provides no argument against the fact that Officer Marler misrepresented

the law, in clear violation of the Criminal Court of Appeals’ conclusion in Fienen.

   B) Under	the	totality	of	circumstances,	Podowski’s	ability	to	

         voluntarily	consent	was	overborne.	

   The State refuses to acknowledge the Trial Court’s assertion that Officer

Marler’s reading of the DIC-24 was “way too fast.” RR II 45. This rapid reading is

what lead to Podowski’s initial confusion and prompted her to ask for a

clarification. Though the Findings of Fact under point 18 states that “ Officer

Marler read Chelsea Podowski the required statutory warning verbatim,” the Court

omitted the fact that the Officer read it “way too fast.” This omission of fact is

converse to Fienen in that it ignores a key fact when assessing the totality of the

facts.

   When a person is read their rights in such a manner as to make that notice

unintelligible and then clarifies with a falsehood, then an objectively reasonable

person’s ability to voluntarily consent is overborne.

   C) The	State	incorrectly	asserts	that	Podowski	consented	twice.		

   The State misinterpreted a vital part of the record. It is only for purposes of

clarification to the Court that Appellant corrects this issue. The State makes much

of the “fact” that Podowski consented to the breath test both before and after the




                                           5
misrepresentation. It is the former consent that we feel has been misread. Below is

the exchange:

2:02:44      Officer Marler:     I am now requesting a specimen of your breath.

2:02:48      Podowski:           Uh, you’re requesting a specimen of my breath?

2:02:52      Officer Marler:     Correct.

2:02:53      Podowski:           Uh…alright.

2:02:55      Officer Marler:     Are you going to give me a specimen of your

             breath?

   The State contends that this is Podowski’s first consent. However, it is simply

acknowledgement of Officer’s Padowski’s request.

   D) The	State’s	cases	used	in	support	of	her	argument	are	easily	

      distinguished	from	the	case	at	hand.	

   These cases all occurred under the color of Fienen. Taking them in turn:

          Cook v. State, No. 05-14-00483-CR, 2015 Tex. App. Lexis 5797.

      An officer read an old DIC-24 that did not have the language regarding the

ability of the officer to obtain a search warrant if Cook failed to consent to a breath

test. Appellant argued that this rendered the consent involuntary. However, Cook

consented so the fact that the refusal language was not read rendered the argument

moot. Cook at 6. “Likewise, there [was] no evidence that the use of the 2005 DIC-




                                            6
24 had any impact on appellant’s decision to consent to providing the breath

specimen.” Id.

      Clearly an omission of language not germane to the consent is not

tantamount to reading the DIC-24 so fast that it causes confusion, and then

compounding that confusion by misrepresenting the law. The technical mistake in

Cook does not rise to the same height of confusion and coercion created by Officer

Marler in the case at hand.

            Worku v. State, No. 14-13-0047-CR, 2014 Tex. App. Lexis 3621.

      Here the appellant was accurately read the DIC-24 twice, once in English by

the arresting officer and a second time by Worku’s friend in his native Amharic.

Worku at 4, 20. The officer also made a statement that he would be able to get a

temporary license to drive, an extra-statutory statement. However, this statement

was made to the translator and not directly to Worku. Id.

      Podowski was never correctly read the DIC-24. The clarification given by

Officer Marler directly contradicted the statutes. When compared to Worku’s being

read the DIC-24 correctly twice and a statement that does not apply to the statutes,

it becomes clear that totality of the circumstances rise to a dramatically higher

level of misrepresentation in Podowski’s fact pattern.




                                          7
          Bice v. State, No. 13-12-00154 CR, 2013 Tex. App. Lexis 218.

      Bice turns on the fact that the appellant did not testify and therefore the court

could not consider the appellant’s reasoning. Id. at 11. Conversely, Podowski

stated that she “didn’t really have a choice” as to consent. RR II 19. Podowski

stated that to her, keeping her license was paramount to her decision-making. RR II

31. Marler’s misrepresentation of the law goes directly to license suspension and

created confusion in her mind. Believing that her license would be suspended

under all circumstances, Podowski consented because she “felt that [refusal] would

just, in general, look like [she] was resisting.” RR II 31.

                                   CONCLUSION

      The trial court failed to consider the speed at which the original DIC-24 was

read to Podowski. Therefore it did not take into account the full context of the

circumstances under which Podowski consented. The unintelligible notice plus the

misrepresentation of the law in an attempt at clarification, would overbear a

reasonable person’s ability to voluntarily, knowledgeably consent to providing a

breath specimen.

                                      PRAYER

      WHEREFORE PROMISES CONSIDERED, Appellant prays that this

Court sustains her point of error, reverse the trial court’s denial of the motion to

suppress & judgment of conviction, and remand for new trial.



                                           8
                                      Respectfully submitted,


                                      ___/s/ James Gill______________________

                                            James Gill
                                            1201 Rio Grande, Ste 200
                                            Austin, Texas 78701
                                            Phone: (512) 448-4560
                                            Fax: (512) 308-6780
                                            jgill@austin-criminallawyer.com
                                            Bar Number: 24043692




                      CERTICFICATE OF COMPLIANCE

Relying on Microsoft Office Word’s word-count function, I certify this this

document complies with the word-count limitations of Texas Rules of Appellate

Procedure 9.4. This document contains 2,110 words.




                                      ___/s/ James Gill______________________

                                            James Gill




                                        9
                             CERTIFICATE OF SERVICE


This is to certify that the above Appellant’s brief has been served on the State’s
attorney via electronic copy to Giselle Horton at TCAppellate@traviscountytx.gov
on November 12, 2015.



                                      ___/s/ James Gill______________________

                                             James Gill




                                        10
