                                                                                             ACCEPTED
                                                                                         03-15-00109-CR
                                                                                                 6860163
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                   9/10/2015 10:03:50 AM
                                                                                       JEFFREY D. KYLE
                             No. 03-15-00109-CR                                                   CLERK




                                                                        FILED IN
                        In the Third Court of Appeals            3rd COURT OF APPEALS
                                                                      AUSTIN, TEXAS
                                Austin, Texas                    9/10/2015 10:03:50 AM
                                                                     JEFFREY D. KYLE
                                                                          Clerk


                         CHELSEA PODOWSKI,
                                              Appellant,

                                         v.

                         THE STATE OF TEXAS,
                                              Appellee.


                 On appeal from the County Court-at-Law Number Five,
                                   Travis County, Texas
                            Trial Cause No. C-1-CR-14-205047




                               STATE’S BRIEF

                                       DAVID A. ESCAMILLA
                                       TRAVIS COUNTY ATTORNEY

                                       GISELLE HORTON
                                       ASSISTANT TRAVIS COUNTY ATTORNEY
                                       State Bar Number 10018000
                                       Post Office Box 1748
                                       Austin, Texas 78767
                                       Telephone: (512)854-9415
                                       TCAppellate@traviscountytx.gov

September 10, 2015                     ATTORNEYS FOR THE STATE OF TEXAS



                        ORAL ARGUMENT IS NOT REQUESTED
                                           TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE STATE’S ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT

         Reply Point: The trial court’s finding of voluntary consent to the
         intoxilyzer was not clearly erroneous. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

         Podowski’s contentions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

         Governing legal principles and the standard of review.. . . . . . . . . . . . 6

         Officer Marler’s one-word response did not render
         Podowski’s consent involuntary, as Podowski contends. . . . . . . . . . . 8

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

APPENDIX:
    The trial court’s findings and conclusions


                                                             i
                                        INDEX OF AUTHORITIES

CASES                                                                                                PAGE
Anderson v. State, 932 S.W.2d 502
     (Tex. Crim. App. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Bartlett v. State, 249 S.W.3d 658
      (Tex. App.—Austin 2008, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Bice v. State, No. 13-12-00154-CR, 2013 Tex. App. LEXIS 218
      (Tex. App.—Corpus Christi Jan. 10, 2013, pet. ref’d)
      (mem. op., not designated for publication). . . . . . . . . . . . . . . . . . . . . . . 9

Cook v. State, No. 05-14-00483-CR, 2015 Tex. App. LEXIS 5797
      (Tex. App.—Dallas June 9, 2015, no pet.)
      (mem. op., not designated for publication). . . . . . . . . . . . . . . . . . . . . . . 9

Fienen v. State, 390 S.W.3d 328
      (Tex. Crim. App. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8

Florida v. Bostick, 501 U.S. 429
      (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Meekins v. State, 340 S.W.3d 454
     (Tex. Crim. App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Robinson v. State, 851 S.W.2d 216
     (Tex. Crim. App. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Schneckloth v. Bustamonte, 412 U.S. 218
     (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6



                                                            ii
Worku v. State, No. 14-13-00047-CR, 2014 Tex. App. LEXIS 3621
     (Tex. App.—Houston [14th Dist.] April 3, 2014, no pet.)
     (mem. op., not designated for publication). . . . . . . . . . . . . . . . . 9, 10, 11




                                            iii
                         STATEMENT OF THE CASE

      Podowski was charged by information with driving while

intoxicated with a blood-alcohol concentration greater than 0.15, a Class A

misdemeanor alleged to have been committed on March 29, 2014. CR 11.

After the trial court overruled her suppression motion, Podowski entered a

plea of no contest. CR 29. On February 5, 2015, the trial court sentenced her

to 180 days in jail and a $2,000 fine, but suspended imposition of this

sentence and placed Podowski on community supervision for fifteen

         1
months. Podowski gave written notice of appeal on the day of sentencing.

CR 38.

                             ISSUE PRESENTED

      Was Podowski’s consent to take the intoxilyzer test rendered

involuntary as a matter of law after the arresting officer incorrectly told her

that her license would be suspended whether she took the test or not?



  1
       As conditions of probation, Podowski is required to comply with an
ignition interlock program, complete 60 hours of community-service restitution,
undergo a drug and alcohol assessment, and attend counseling or treatment.
CR 33–36.
                                       1
                              BACKGROUND

      The trial court’s findings and conclusions, which may be found

between pages 25 and 27 of the clerk’s record, are appended. On March 29,

2014, Kyle Jennings of the Austin Police Department stopped the car

Podowski was driving around 1:00 a.m. after he saw it make several lane

changes without signaling intent, fail to maintain a single lane, hesitate

before proceeding after a red light turned green, and swerve dangerously

close to two curbs. 2 RR 4–8; CR 25.

      After Jennings made the stop, Officer Marler arrived to investigate

intoxication. 2 RR 18. Podowski originally agreed to take a portable breath

test, but when it arrived, she refused. 2 RR 23. After administering field

sobriety tests, Officer Marler arrested her for DWI. 2 RR 20–21. He then

read her the DIC-24 statutory warning form. 2 RR 21; CR 26. The DIC-24

explains an individual’s rights regarding whether to consent to give a

sample of her breath or blood.




                                       2
     Afterwards, the following exchange took place, and the officer’s

answer of “None” is what motivates this appeal. This transcription of the

exchange is taken from State’s Exhibit #1, an on-scene DVD recording.

2:02:44    OFFICER MARLER:        I am now requesting a specimen of your
                                  breath.

2:02:48    PODOWSKI:              (Laughs) Uh, you’re requesting a
                                  specimen of my breath?

2:02:52    OFFICER MARLER:        Correct.

2:02:53    PODOWSKI:              Okay . . . alright.

2:02:55    OFFICER MARLER:        Are you going to give a specimen of
                                  your breath?

2:02:57    PODOWSKI:              Uh, what are the consequences if I
                                  don’t? I’m sorry, I know that you just
                                  read that all to me, but it was very, like,
                                  not . . . [indistinguishable].

2:03:06    OFFICER MARLER:        It extends the amount of time in which
                                  your license is suspended.

2:03:10    PODOWSKI:              Oh, okay. Uh, in which case is my
                                  license not going to be suspended at all?

2:03:15    OFFICER MARLER:        None.

2:03:16    PODOWSKI:              Oh, okay.
                                     3
2:03:17      OFFICER MARLER:         So I am asking for a sample of your
                                     breath. Are you willing to give a sample
                                     of your breath? It’s a yes or a no.

2:03:23      PODOWSKI:               Yes. I’m willing to do that.

4 RR State’s Exhibit #1 @ 2:02:44–2:03:25; CR 26. Officer Marler then drove

Podowski to the breath-alcohol testing (BAT) bus. 2 RR 22.

        Podowski testified that the intoxilyzer operator told her that the

breath test was not optional, and that she felt that she did not “really have

a choice” as to whether to submit to it. 2 RR 29. She also testified, however,

that she took the breath test because she thought that cooperating would

redound to her advantage. 2 RR 30–31. The trial court found that Podowski

thought that the consequences “would be less” if she took the breath test.

CR 26. The trial court also found that the intoxilyzer operator, who did not

remember Podowski, typically tells arrestees who ask that they do not

have to take the intoxilyzer test. CR 26.

        Breath testing an hour and a half after the stop produced a .165/.164

result. 4 RR State’s Exhibit #2 (the breath slip). The trial court concluded

that:
                                        4
•    Officer Marler’s incorrect response to Podowski’s question “In what
     case will my license not going to be suspended” did not render her
     breath test compliance involuntary because a reasonable person
     under these circumstances would not have believed that compliance
     would lead to a more favorable result; and

•    Podowski’s confusion regarding the DWI statutory warning was not
     a result of coercion but rather of her own mental impairment by
     alcohol intoxication.

CR 27.

                SUMMARY OF THE STATE’S ARGUMENT

     In Fienen, the Court of Criminal Appeals held that no one statement

or action should automatically amount to coercion such that consent is

rendered involuntary. Podowski disregards the totality test that Fienen

requires for these voluntariness inquiries, and attempts to breathe life back

into Erdman, which Fienen overruled. But viewing the totality of the

circumstances with the “almost total deference” that the law requires, the

trial court properly found that Podowski’s will was not overborne or

critically impaired such that her consent to the intoxilyzer must have been

involuntary. The arresting officer read Podowski the statutory warning

verbatim, and provided her with a written copy to follow as he read. The

                                      5
officer’s answer to Podowski’s first question was correct: refusing the

intoxilyzer would mean a longer license suspension. 4 RR 2:03:06; CR 26.

      Nothing points to the officer’s mistaken answer of “none” as having

induced Podowski’s giving of a breath specimen. The trial court’s denial of

suppression relief therefore was not clearly erroneous.

                               ARGUMENT

      Reply Point: The trial court’s finding of voluntary consent to
      the intoxilyzer was not clearly erroneous.

      Podowski’s contentions

      Podowski contends that Officer Marler’s one-word misrepresentation

of the law “created a deception that coerced Appellant P[o]dowski into an

involuntary acquiescence[.]” Podowski’s Brief, p. 9.

      Governing legal principles and the standard of review

      A consensual warrantless search is valid if the consent is voluntarily

given. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); Fienen v. State,

390 S.W.3d 328, 333 (Tex. Crim. App. 2012). Whether consent was

voluntarily given is a question of fact. Fienen, 390 S.W.3d at 333.


                                       6
Consequently, reviewing courts afford “almost total deference to a trial

court’s determination of [voluntariness] that the record supports[,]

especially when the trial court’s fact findings are based on an evaluation of

credibility and demeanor.” Id. at 335. Reviewing courts will uphold the

trial court’s finding of voluntariness unless it is clearly erroneous. Id. A

finding is clearly erroneous when the reviewing court is “left with a firm

conviction that a mistake has been committed.” Robinson v. State, 851

S.W.2d 216, 226 (Tex. Crim. App. 1991).

      Courts gauge voluntariness from the perspective of a reasonable

person in the defendant’s position, “without regard for the subjective

thoughts or intent of either the officer or the citizen.” Meekins v. State, 340

S.W.3d 454, 459 (Tex. Crim. App. 2011). The reasonable person test

“presupposes an innocent person.” Florida v. Bostick, 501 U.S. 429, 438

(1991); see Anderson v. State, 932 S.W.2d 502, 505 (Tex. Crim. App. 1996);

Bartlett v. State, 249 S.W.3d 658, 669 (Tex. App.—Austin 2008, pet. ref’d).

Consent is involuntary if a reasonable actor’s will would have been

“overborne” or “critically impaired” such that consent “must have been

                                        7
involuntary.” Fienen, 390 S.W.3d at 333. No single police action or

statement amounts to coercion, because voluntariness must be decided

based upon the totality of the circumstances. Id. On appeal, these

circumstances are viewed in the light most favorable to the trial court’s

ruling. Id. at 335.

      Officer Marler’s one-word response did not render
      Podowski’s consent involuntary, as Podowski contends.

      No one statement, examined outside the totality of the circumstances,

can render consent involuntary. Id. at 333.

      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 surrounding
      circumstances are accounted for. In other words, allowing any
      statement by itself to control a voluntariness analysis
      contradicts the basic rule that voluntariness is to be determined
      based upon a case-specific consideration of all the evidence.

Id. at 335.

      Since the 2012 Fienen decision, intermediate courts have applied the

Fienen rule in the context of technically inaccurate warnings, holding that

an inaccurate warning, alone, without any evidence that the appellant was

                                      8
pressured physically or psychologically, is insufficient to invalidate a

voluntary consent. Cook v. State, No. 05-14-00483-CR, 2015 Tex. App. LEXIS

5797, at *6 (Tex. App.—Dallas June 9, 2015, no pet.) (mem. op., not

designated for publication); Worku v. State, No. 14-13-00047-CR, 2014 Tex.

App. LEXIS 3621, at *21 (Tex. App.—Houston [14th Dist.] April 3, 2014, no

pet.) (mem. op., not designated for publication); Bice v. State, No. 13-12-

00154 CR, 2013 Tex. App. LEXIS 218, at * 13 (Tex. App.—Corpus Christi

Jan. 10, 2013, pet. ref’d) (mem. op., not designated for publication).

      In Worku, for instance, the defendant had been arrested for driving

while intoxicated after failing field sobriety tests. Worku, 2014 Tex. App.

LEXIS 3621, at *3. The officer read the DWI statutory warning in English,

which Worku understood. Id. at *4. A friend of Worku’s also translated the

warnings into Worku’s native Amharic. Id. at * 20. Afterwards, the officer

told Worku that if he agreed to a breath test, his license would be

suspended for 90 days, but he would be able to get a temporary license to

drive to and from work. Id. at *21.



                                       9
     Worku argued at trial that his consent to the breath test was made

involuntary by the officer’s failing to translate the warnings into Amharic,

by giving an extra-statutory warning, and by misstating the law on the

length of time his license could be suspended. Id. at *20. The Fourteenth

Court observed that Worku had been correctly advised twice before the

complained-of statements were made. Id. at *21. And, although Worku

consented after hearing the inaccurate warnings, “that fact alone, without

evidence that appellant was pressured physically or psychologically, is

insufficient to invalidate an otherwise voluntary consent.” Id.

     Podowski was read the statutory warning verbatim and given a

written copy to read, just as the Worku defendant was. 2 RR 21. Afterwards,

Officer Marler requested a specimen of Podowski’s breath, to which she

consented. 4 RR State’s Exhibit #1 @ 2:02:44–2:02:53. Officer Marler asked

once more to confirm her consent. 4 RR State’s Exhibit # 1 @ 2:02:55. This

time, she asked about the consequences of refusing. 4 RR State’s Exhibit # 1

@ 2:02:57. Officer Marler correctly responded that refusing to give a breath

specimen would extend the amount of time her license would be

                                     10
suspended. 4 RR State’s Exhibit # 1 @ 2:03:06. Like Worku, Podowski had

been correctly advised prior to the incorrect one-word answer, and had

even consented to the breath test before the inaccurate statement was

made. And, Podowski testified that she believed that the license-

suspension consequences would be less if she took the breath test. 2 RR 30.

This belief was correct.

      Nothing in the totality of the circumstances shows that Podowski’s

will was overborne or critically impaired such that her consent must have

been involuntary. Instead, the record shows that Podowski’s judgment was

critically impaired by extreme intoxication. The trial court’s finding of

voluntary consent therefore was not clearly erroneous. Worku, 2014 Tex.

App. LEXIS 3621, at *22.

                                   PRAYER

      For these reasons, the Travis County Attorney, on behalf of the State

of Texas, asks this Court to overrule the point of error and affirm the

judgment of conviction for driving while intoxicated.



                                      11
                             Respectfully submitted,

                             DAVID A. ESCAMILLA
                             TRAVIS COUNTY ATTORNEY




                             Giselle Horton
                             Assistant Travis County Attorney
                             State Bar Number 10018000
                             Post Office Box 1748
                             Austin, Texas 78767
                             Telephone: (512) 854-9415
                             TCAppellate@traviscountytx.gov

                             ATTORNEYS FOR THE STATE OF TEXAS

                        CERTIFICATE OF COMPLIANCE

     Relying on Corel WordPerfect’s word-count function, I certify that

this document complies with the word-count limitations of TEX. R. APP. P.

9.4. The document (counting all of its parts except for the appendices)

contains 2,366 words.




                             Giselle Horton



                                     12
                          CERTIFICATE OF SERVICE

        I certify that I have sent a complete and legible copy of this State's

Brief via electronic transmission, to Ms. Podowski’s attorney of record, Mr.

James Gill, at jgill@austin-criminallawyer.com, on or before September 17,

2015.




                                Giselle Horton
                                Assistant Travis County Attorney




                                         13
     The trial court’s
findings and conclusions
25
26
27
