No. 08-05-00384-CR
March 22, 2007. DO NOT PUBLISH.
Appeal from the County Criminal Court No. One of El Paso County, Texas (TC# 20040C12207).
Before CHEW, C.J., McCLURE, and CARR, JJ.
KENNETH R. CARR, Justice.
This is an appeal from a conviction for the offense driving while intoxicated. Appellant pleaded guilty and the court assessed punishment at fifteen months community supervision and a fine of $500. We affirm.
I. SUMMARY OF THE EVIDENCE
On January 26, 2005, Appellant filed a motion to suppress the evidence. On May 25, 2005, a hearing was held on the motion to suppress the evidence. Oscar Gomez, a policeman with the El Paso Police Department, testified that, on June 20, 2004, at about 12:30 a.m., he received a call from a police sergeant named Yanez, who directed Officer Gomez to respond to a vehicular collision between a civilian car and a police patrol car. Upon arrival at the scene, Officer Gomez spoke with Sergeant Yanez, who had arrived in a different vehicle. He then spoke with Officer Ponce, the driver of the police vehicle that was involved in the accident, as well as Officer Ontiveros, the passenger in the police vehicle. Officer Ponce stated to Officer Gomez that he had entered the intersection against the red light after "clearing" the intersection with his vehicle's emergency lights and the spotlight. The patrol car struck Appellant's car when it entered the intersection. Officer Ponce told Officer Gomez that, when he had approached Appellant's car, he observed that Appellant had emitted a strong odor of some alcoholic beverage and that his eyes were bloodshot. Since Appellant had already been transported from the scene in an ambulance, Officer Gomez went to the hospital to continue his investigation. At the hospital, Officer Gomez located Appellant on a gurney. He smelled of an alcoholic beverage, and he appeared flushed and lethargic. With regard to Appellant's lethargic appearance, Officer Gomez stated that Appellant's face seemed to have a flat, emotionless visage. Based upon the information provided by Officers Ponce and Ontiveros and his own observations of Appellant, Officer Gomez placed Appellant under arrest prior to the reading of the DIC-24 warning. Officer Gomez read the statutory DIC-24 warning to Appellant, requesting permission to take a blood sample. The officer testified that while Appellant first appeared hesitant to give the blood sample, he eventually gave written consent and provided a blood sample at approximately 1:20 a.m. Officer Gomez stated that he did not coerce Appellant into giving consent, and he did not advise Appellant as to what might happen if he did not consent; the officer stated he only read the statutorily required forms. During cross-examination, it was pointed out that Officer Gomez's report did not state whether Appellant was conscious and was able to understand what the officer was saying to him. Officer Gomez responded that, when the DIC-24 warning was read to Appellant, the latter appeared coherent, and he was able to understand what the officer was saying. Officer Gomez stated that Appellant was fully awake; he did not appear to be on the verge of falling asleep. Officer Gomez testified that he read the DIC-24 form to Appellant several minutes prior to the drawing of the blood. He agreed with defense counsel that the notation of 1:30 on the DIC-24 form probably reflected the time of the arrest and not the time of occurrence of the accident. Notwithstanding the time discrepancy, Officer Gomez reiterated that the warning was read prior to the drawing of the blood. II. DISCUSSION
In Issue Nos. One and Two, Appellant asserts that the court erred in refusing to suppress his blood test results. Specifically, Appellant maintains that the test results were inadmissible, because he was not given the statutory warnings required pursuant to Tex. Code Crim. Proc. Ann. art. 15.17 (Vernon Supp. 2006) and art. 38.22 (Vernon 2005) prior to the taking of the blood sample. Appellant also contends that he did not voluntarily consent to the blood test, because he was not given the statutory warnings pursuant to Tex. Transp. Code Ann. § 724.015 (Vernon Supp. 1999). In his second issue, Appellant argues that his consent to the blood test was involuntary in that he lacked the normal use of his mental faculties in order to understand the nature of his consent. We review a motion to suppress evidence by both abuse of discretion and de novo standards. Guzman v. State, 955 S.W.2d 85, 87-91 (Tex.Crim.App. 1997); Urquhart v. State, 128 S.W.3d 701, 704-05 (Tex.App.-El Paso 2003, pet. ref'd). Purely factual questions, based upon evaluation of credibility and demeanor of witnesses, require application of the abuse of discretion standard. Guzman, 955 S.W.2d at 89. Mixed questions of law and fact, which are not dependent on credibility or demeanor, are reviewed de novo. Id. We review the evidence in the light most favorable to the trial court's ruling. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). In a suppression hearing, the trial court is the sole finder of fact. Pace v. State, 986 S.W.2d 740, 744 (Tex.App.-El Paso 1999, pet. ref'd). The trial judge may believe or disbelieve any of the evidence presented. Id. The totality of circumstances is considered to determine whether the trial court's findings are supported by the record. In re D.A.R., 73 S.W.3d 505, 509 (Tex.App.-El Paso 2002) (citing Brewer v. State, 932 S.W.2d 161, 166 (Tex.App.-El Paso 1996, no pet.)). Regarding the contention that article 15.17 was not complied with, we note that Appellant did not raise this ground in his motion to suppress, and he did not raise it at the suppression hearing. Appellant has therefore waived this contention on appeal. See Pando v. State, 133 S.W.3d 830, 834-36 (Tex.App.-El Paso 2004, no pet.). Next, Appellant contends that the police failed to comply with Tex. Code Crim. Proc. Ann. art. 38.22. However, the question of giving a blood or breath test to determine alcohol concentration does not implicate the privilege against self-incrimination provided under the Fifth Amendment of the United States Constitution or Article I, Section 10, of the Texas Constitution. See Rodriguez v. State, 631 S.W.2d 515, 517 (Tex.Crim.App. 1982). We find no merit in Appellant's contention. Appellant's last contention with regard to Issue No. One is that he did not voluntarily consent to the blood test, because he was not given the statutory warnings pursuant to Tex. Transp. Code Ann. § 724.015 (Vernon Supp. 1999). Also, in Issue No. Two, Appellant contends that he did not have the requisite mental faculties to voluntarily consent to giving the blood specimen. A suspect's blood test must be voluntary. Ness v. State, 152 S.W.3d 759, 762 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd). "Voluntariness" implies that the individual's decision to give the specimen cannot be the result of physical or psychological pressure brought to bear by law enforcement officials. Id. In the present case, notwithstanding the apparent confusion concerning the notation on the DIC-24 form that the arrest occurred at 1:30, Officer Gomez consistently testified that he administered the warning before any blood was drawn. Furthermore, the officer stated that Appellant was awake and was able to talk to and listen to the officer. He appeared to be coherent and seemed able to understand the warning. The trial judge was free to believe all or any part of the officer's testimony. See Ross, 32 S.W.3d at 855. We therefore find that the court did not abuse its discretion in overruling Appellant's motion to suppress the evidence. Issue Nos. One and Two are overruled. We affirm the judgment of the trial court.