Opinion
NO. 01-11-00212-CR
01-19-2012
DANIEL LEE BUECHMANN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 3
Harris County, Texas
Trial Court Case No. 1710381
MEMORANDUM OPINION
Daniel Lee Buechmann was charged with the offense of driving while intoxicated. After the trial court denied his motion to suppress his breath test results, Buechmann pleaded guilty and was sentenced to 180 days' confinement, probated for one year, and a $300 fine. In a single issue, Buechmann challenges the trial court's ruling on his motion to suppress. We affirm.
Background
University of Houston Police Officer J. Ramos stopped Buechmann for running a red light on the University of Houston campus. Ramos determined that Buechmann presented indications of intoxication and administered a horizontal gaze nystagmus (HGN) test. Ramos testified that he was trained in the administration of the HGN test, and he administered the test pursuant to his training. According to Ramos, Buechmann exhibited signs of intoxication during the HGN test. Ramos then took Buechmann to the "central intox facility" at the Houston Police Department to have other sobriety tests administered by a Houston Police Department (HPD) evidence technician.
At the HPD facility, Ramos read Buechmann the statutory warning aloud while Buechmann followed along in a written copy of the warning. These warnings included information that, if Buechmann refused to give a specimen for the breath test, (1) his refusal could be admissible in a subsequent prosecution, (2) his license to operate a motor vehicle would be suspended for not less than 180 days, and (3) he could be disqualified for driving a commercial vehicle for a period of not less than one year. Buechmann asked Ramos to repeat the consequences of refusing to give a specimen. Ramos responded, "If you refuse to give a specimen or a specimen shows that you have an alcohol concentration .08 or more you may be disqualified from driving a commercial motor vehicle for a period of not less than one year." The HPD evidence technician then asked Buechman if he drove a commercial vehicle, to which Buechmann responded that he did not.
After Buechmann agreed that he understood the warning, he provided a breath sample that registered a blood alcohol content of 0.16—twice the legal limit.
Standard of Review
We review a trial court's ruling on a motion to suppress evidence under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Gette v. State, 209 S.W.3d 139, 142 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Villarreal, 935 S.W.2d at 138 (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). Thus, we view the evidence and all reasonable inferences therefrom in the light most favorable to the trial court's ruling and sustain the ruling if it is reasonably supported by the record and is correct on any applicable theory of law. Id.(citing Romero, 800 S.W.2d at 543). But the trial court has no discretion in determining the law, and we review the trial court's application of the law to the facts under a de novo standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Gette, 209 S.W.3d at 142.
Admissibility of the Breath Test
Section 724.011 of the Transportation Code provides that a person arrested for suspected driving while intoxicated is deemed to have consented to the taking of samples for a breath or blood test for an analysis. TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011). Section 724.015 requires that certain warnings be given to a person arrested for DWI, including warnings that refusal to give a breath specimen for testing will result in the following consequences: (1) evidence of the refusal will be admissible against the person in court, (2) the person's driver's license will be suspended for no less than 180 days, and (3) the officer may apply for a warrant authorizing the State to take a specimen. Id. § 724.015 (West 2011); see also Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993) (applying former version of section 724.015). The warnings Ramos read to Buechmann and provided in writing to Buechmann included not only the consequences for refusal to submit a specimen set forth in section 724.015, but also the consequences set forth in 522.103, relating to a person's qualification to drive a commercial vehicle. See TEX. TRANSP. CODE ANN. § 724.015 (specifying information that must be provided to person, orally and in writing, before requesting person to submit to taking specimen); id. § 522.103 (West 2011) (consequences of refusing to give specimen on qualification for driving commercial motor vehicle).
Buechmann does not deny that Ramos read aloud and provided a copy of the statutory warning to him or challenge the legal correctness of the warnings given to him. Buechmann's complaint is that, when he asked Ramos to "go[] over" the consequences of refusing the breath test, Ramos repeated a consequence that did not apply to Buechmann because he did not drive a commercial vehicle. On this basis, Buechmann contends that his consent to give a breath specimen was coerced and, thus, involuntary.
The statute does not require Ramos to read all of the warnings to Buechmann twice, nor does it require him to determine which of the warnings are most important to Buechmann. See TEX. TRANSP. CODE ANN. § 724.015. Buechmann had a written copy of the warnings, which he was free to re-read. Ramos did not threaten Buechmann with an extra-statutory consequence of refusing to give a specimen. Cf. Erdman v. State, 861 S.W.2d 890, 893-94 (Tex. Crim. App. 1993) (holding that breath specimen was not voluntarily given when trooper warned driver of non-statutory consequence of refusing to give specimen— that he would be taken to jail and prosecuted for DWI). Instead, Ramos repeated one of the statutory consequences potentially applicable to Buechmann without repeating other statutory consequences that were of greater import to Buechmann. While Buechmann's complaint focuses on Ramos's failure to repeat certain potential consequences of refusing to take the test, Buechmann did not refuse to take the test. Even if we assume Buechmann was unaware of the additional statutory consequences previously read to him and provided to him in writing, Buechmann provides no causal connection between not knowing about certain potential consequences of refusing to give a breath sample and his decision to give a breath sample. While a party might mistakenly refuse to give a sample because he was not adequately warned of the consequences of refusal, it is not clear how a party would be induced to give a sample on that basis.
Additionally, the record does not support any implication that Buechmann was induced to give a breath test because he was concerned about losing the right to drive a commercial vehicle. Immediately after the warning regarding a commercial license was repeated, Buechmann asserted that he did not drive a commercial vehicle. Thus, the trial court could have reasonably concluded that Buechmann knew that potential consequence did not apply to him. See Ness v. State, 152 S.W.3d 759, 763 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd) (holding that officer's statement was not coercive because it did not encompass adverse circumstance that would result from defendant's refusal to submit to test).
On this record, the trial court could have reasonably concluded that Buechmann was not coerced into giving a breath specimen by Ramos's actions or inactions. See Urquhart v. State, 128 S.W.3d 701, 705 (Tex. App.—El Paso 2003, pet. ref'd) (stating that, even when extra-statutory warnings are given, party seeking to suppress must show causal connection between improper warnings and decision to give breath specimen); Sandoval v. State, 17 S.W.3d 792, 796 (Tex. App.—Austin 2000, pet. ref'd) (same); cf. Erdman, 861 S.W.2d at 894 (observing that threat of imprisonment and immediate prosecution was of nature "that would normally result in considerable psychological pressure upon a D.W.I. suspect to consent to the taking of a breath sample").
We hold that the trial court did not abuse its discretion in denying Buechmann's motion to suppress. We therefore overrule Buechmann's sole issue.
Buechmann argues that we should not consider one of his trial exhibits, Defense Exhibit 1, on appeal. The State has not asked us to consider this exhibit, and neither party has relied on the exhibit in its briefing. We therefore have not considered the exhibit in reaching our holding.
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown. Do not publish. TEX. R. APP. P. 47.2(b).