                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00166-CR

ALBERT RAMON GARCIA,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                      From the County Court at Law No. 1
                             Brazos County, Texas
                      Trial Court No. 10-05143-CRM-CCL1


                           MEMORANDUM OPINION

      After the trial court denied his motion to suppress the results of his blood-alcohol

test, Appellant Albert Ramon Garcia pled guilty and was sentenced to 180 days in jail

(probated for one year), assessed a $750 fine and court costs, and was ordered to

perform fifty hours of community service. In his sole issue, Garcia asserts that the trial

court erred in denying his motion to suppress because Garcia did not voluntarily

consent to the blood draw. We will affirm.
        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); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 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.). 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      on

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

demeanor. Amador, 221 S.W.3d at 673. 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

rulings on those questions de novo. Id.

        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. State v. Kelly, 204

S.W.3d 808, 818 (Tex. Crim. App. 2006). The trial judge is the exclusive fact-finder and

the judge of the credibility of the witnesses and the weight to be given their testimony

at the suppression hearing. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

When the trial court does not make express findings of fact, an appellate court must

“presume that the trial court implicitly resolved all issues of historical fact and witness

credibility in the light most favorable to its ultimate ruling.” State v. Elias, 339 S.W.3d

667, 674 (Tex. Crim. App. 2011).         An appellate court will sustain the trial court’s



Garcia v. State                                                                         Page 2
decision if it concludes that the decision is correct on any theory of law applicable to the

case. Ross, 32 S.W.3d at 855-56.

        At the suppression hearing, DPS Trooper Justin Stohler testified that on July 11,

2010, at 4:08 a.m., he was dispatched to a one-vehicle accident in Brazos County. He

arrived at the accident scene at 4:47 a.m.; the driver (Garcia) had already been taken to

the hospital, and the vehicle was in a ditch. At the scene were a deputy and first

responders, and Stohler was told that there had been several passengers who had fled

the scene before anyone arrived. No open containers were found at the scene.

        After concluding his investigation at the accident scene, Stohler went to the

hospital, arriving at 5:45 a.m.    Another trooper told Stohler that he had indicated

alcohol use by Garcia. Stohler located Garcia in the ER and detected alcohol odor on his

breath. Garcia first admitted to having had a “couple” of beers, and then changed his

story to “three to four” beers. Garcia did not indicate that anyone else had been in the

vehicle. Stohler said that Garcia kept changing his stories as they were talking and they

“weren’t making sense,” though he also said that Garcia was “about his wits” and was

able to converse with him. Stohler did not detect a slur in Garcia’s speech, nor did he

have bloodshot or glassy eyes. Garcia had been injured, including a “pretty good gash”

over one eye.

        Because of the injury over the eye, Stohler did not do an HGN eye test on Garcia.

And because Garcia was strapped down to either a backboard or bed, Stohler did not

do field-sobriety tests. Stohler said that he did not place Garcia under arrest because of

his injuries and because he was going to be in the hospital for “some time.” But Stohler

Garcia v. State                                                                       Page 3
did testify that he had probable cause to arrest Garcia for DWI because of the totality of

the circumstances, including the one-vehicle crash, his investigation of the scene, and

Garcia’s admission to consuming alcohol. And in his probable-cause report, Stohler

wrote that Garcia had lost some of his mental and physical faculties due to alcohol in

his system.

        Because Stohler thought that he had probable cause to arrest Garcia for DWI, he

read him the DIC-24 statutory warning and then asked for a blood specimen, which

Garcia consented to. The DIC-24 form begins with “You are under arrest,” but Stohler

admitted that when he read the warning, including the part involving license

suspension, he had not arrested Garcia. Stohler said that Garcia seemed to understand

the DIC-24 warning.

        Garcia testified that he agreed to give a blood specimen because, when Stohler

told him the part about his license being suspended for 180 days, he was worried about

losing his job as a bread truck driver if his license got suspended. He also said that if

Stohler had asked for a blood specimen without telling him about the license

suspension, he would not have agreed to provide a specimen.

        Garcia’s argument is that—because he was not under arrest for DWI and there

was not probable cause for him to be arrested, Stohler’s reading of the DIC-24 for a

person under arrest, with its notice that Garcia’s license would be suspended for 180

days if he refused to provide a specimen—his consent was involuntary because of

Stohler’s misstatement of the law under the totality of the circumstances. See Fienen v.

State, 390 S.W.3d 328, 335 (Tex. Crim. App. 2012).

Garcia v. State                                                                     Page 4
                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. TEX.
        TRANSP. CODE § 724.011(a). However, a person retains an absolute right
        (subject to certain exceptions not relevant here) to refuse a test. Id. §
        724.013. 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). We have explained this apparent
        inconsistency: “‘[C]onsent being implied by law, a 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) (quoting State v. Spencer, 305 Or. 59, 750 P.2d 147,
        153 (1988)), overruled on other grounds by McCambridge v. State, 778 S.W.2d
        70, 76 (Tex. Crim. App. 1989).

               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, 649 S.W.2d at 628. 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, 93 S.Ct. 2041, 36 L.Ed.2d 854 (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).

Id. at 332-33.

        Garcia relies on two factually similar cases—State v. Williams, 814 S.W.2d 256

(Tex. App.—Austin 1991), aff’d, 832 S.W.2d 52 (Tex. Crim. App. 1992), and State v.

Mosely, 348 S.W.3d 435 (Tex. App.—Austin 2011, pet. ref’d)—but the State correctly




Garcia v. State                                                                       Page 5
notes, as has the Austin court for Williams,1 that each of those cases is distinguishable

because the trial court granted the defendant’s motion to suppress.2 Also, the State cites

factually similar cases where the trial court denied the defendants’ motions to suppress

and the rulings were affirmed on appeal: Washburn v. State, 235 S.W.3d 346 (Tex.

App.—Texarkana 2007, no pet.); Nottingham, 908 S.W.2d 585; see also Belk, 2010 WL

3190230.

        Because Stohler’s use of the DIC-24 form with its statutory warnings was

appropriate only if Garcia was under arrest, Nottingham, 908 S.W.2d at 588, we must

first determine whether Garcia was under arrest and Stohler had probable cause to

arrest him. See Washburn, 235 S.W.3d at 350; Nottingham, 908 S.W.2d at 588.

                An individual is arrested when he or she has been actually placed
        under restraint or taken into custody. TEX. CODE CRIM. PROC. ANN. art.
        15.22 (Vernon 2005). “A person is in ‘custody’ only if, under the
        circumstances, a reasonable person would believe that his freedom of
        movement was restrained to the degree associated with a formal arrest.”
        Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing
        Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)).
        At least four general situations may constitute custody: (1) the suspect is
        physically deprived of his or her freedom of action in any significant way,
        (2) a law enforcement officer tells the suspect that he or she cannot leave,

1
   Belk v. State, No. 03-09-00402-CR, 2010 WL 3190230, at *4 (Tex. App.—Austin 2010, no pet.) (mem. op.,
not designated for publication) (“The procedural posture of Williams was different than the case before
us. The trial court in Williams granted the defendant’s motion to suppress, and this Court concluded that
it was not an abuse of discretion to do so. In this case, Belk is asking us to conclude that the trial court’s
denial of the motion to suppress was an abuse of discretion. On this record, as we have already
explained, we cannot do so. In Williams, the trial court did not give much weight to the opinions and
observations of the arresting officer. In contrast, the trial court in this case, by its ruling, implicitly did.”)
(footnote and citation omitted).
2
  In Nottingham v. State, the Austin court subsequently highlighted the deference due the trial court’s
discretion in ruling on a suppression motion and noted, “our holding in Williams that the trial court did
not abuse its discretion in finding an absence of probable cause does not necessarily mean that another
trial court, given similar facts, could not reasonably reach the opposite conclusion.” Nottingham v. State,
908 S.W.2d 585, 589 (Tex. App.—Austin 1995, no pet.).

Garcia v. State                                                                                           Page 6
        (3) law enforcement officers create a situation that would lead a
        reasonable person to believe that his or her freedom of movement has
        been significantly restricted, and (4) there is probable cause to arrest and
        law enforcement officers do not tell the suspect that he or she is free to
        leave. Dowthitt, 931 S.W.2d at 255. The Texas Court of Criminal Appeals
        has explained the fourth situation as follows:

              the officers’ knowledge of probable cause be manifested to the
              suspect.      Such manifestation could occur if information
              substantiating probable cause is related by the officers to the suspect
              or by the suspect to the officers. Moreover, given our emphasis on
              probable cause as a “factor” in other cases, situation four does not
              automatically establish custody; rather, custody is established if the
              manifestation of probable cause, combined with other circumstances,
              would lead a reasonable person to believe that he is under restraint
              to the degree associated with an arrest.

        Id.

Washburn, 235 S.W.3d at 350.

        A law-enforcement officer’s subjective opinion or intent that an arrest has or has

not occurred is a factor to consider, Nottingham, 908 S.W.2d at 588, but it “is irrelevant

unless that intent is somehow communicated or otherwise manifested to the suspect.”

Washburn, 235 S.W.3d at 350 (citing Dowthitt, 931 S.W.2d at 254). In factually similar

scenarios (an injured DWI suspect at a hospital, courts, including Williams, have held

that the officer’s reading the DIC-24 form’s “you are under arrest” statement resulted in

the suspect being under arrest at the point the statement was made to the suspect. See

id. at 352-53; Nottingham, 908 S.W.2d at 587-88; Bell v. State, 881 S.W.2d 794, 799-800 (Tex.

App.—Houston [14th Dist.] 1994, pet. ref’d); Williams, 814 S.W.2d at 259. We similarly

conclude that, because there is no evidence that Stohler told Garcia that was not under

arrest or was free to leave, and with Garcia being strapped down in the hospital, a


Garcia v. State                                                                         Page 7
reasonable person in Garcia’s position would not have believed that he was free to leave

after being told that he was under arrest and would believe that his freedom of

movement was restrained to the degree associated with a formal arrest. Washburn, 235

S.W.3d at 352-53; Nottingham, 908 S.W.2d at 588.

                “Probable cause” for a warrantless arrest exists if, at the moment
        the arrest is made, the facts and circumstances within the arresting
        officer’s knowledge and of which he has reasonably trustworthy
        information are sufficient to warrant a prudent man in believing that the
        person arrested had committed or was committing an offense. Beck v.
        Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). The test for
        probable cause is an objective one, unrelated to the subjective beliefs of the
        arresting officer, id. at 97, 85 S.Ct. 223, and it requires a consideration of
        the totality of the circumstances facing the arresting officer, Maryland v.
        Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). A finding
        of probable cause requires “more than bare suspicion” but “less than ...
        would justify ... conviction.” Brinegar v. United States, 338 U.S. 160, 175, 69
        S.Ct. 1302, 93 L.Ed. 1879 (1949).

Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).

        Under the totality of the circumstances, the trial court could have concluded that

Stohler had probable cause to arrest Garcia for DWI. Garcia was the driver in a single-

vehicle accident around 4:00 a.m. The passengers fled the scene before law enforcement

arrived, and both Stohler and another trooper smelled alcohol on Garcia’s breath almost

two hours later at the hospital. Garcia admitted to having drunk three to four beers and

kept changing his stories such that they “weren’t making sense” to Stohler and could be

evidence of Garcia’s loss of use of his mental faculties from the consumption of alcohol.

See Washburn, 235 S.W.3d at 351; Knisely v. State, 81 S.W.3d 478, 483-84 (Tex. App.—

Dallas 2002, pet. ref’d); Reynolds v. State, 902 S.W.2d 558, 560 (Tex. App.—Houston [1st

Dist.] 1995, pet. ref’d); see also Belk, 2010 WL 3190230, at *2-3.

Garcia v. State                                                                           Page 8
        Because Garcia’s issue of involuntary consent is entirely premised on there being

no arrest or probable cause, and because we have held that the trial court could have

found that there was an arrest and probable cause, we overrule Garcia’s issue and

affirm the trial court’s suppression ruling.




                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 24, 2014
Do not publish
[CR25]




Garcia v. State                                                                    Page 9
