Willard Fowler v. The State of Texas--Appeal from County Court At Law No 2 of Guadalupe County

MEMORANDUM OPINION
No. 04-06-00777-CR
Willard Boaz FOWLER,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 2, Guadalupe County, Texas
Trial Court No. CCL-04-2830
Honorable Frank Follis, Judge Presiding

Opinion by: Karen Angelini, Justice

 

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: August 15, 2007

 

AFFIRMED

Appellant, Willard Boaz Fowler, was charged with the offense of Driving While Intoxicated, a Class B Misdemeanor. Fowler filed several pre-trial motions that were heard by the court on March 2, 2006 and April 12, 2006; however, the trial judge subsequently denied Fowler's motion to suppress his breath tests and their results, as well as Fowler's motion to suppress his pre-Miranda and post-Miranda custodial statements. The trial court granted Fowler's motion to suppress any and all evidence arising from the police use of a portable breath test ("PBT") device"as to any quantitative value allegedly given," but denied the motion as to evidence that alcohol was detected. Fowler then entered his plea of nolo contendere and was sentenced to 120 days in jail, probated for nine months, and a $1500.00 fine.

Background and Procedural Facts

On December 20, 2004, Corporal Cenotti, a Texas Department of Public Safety ("TDPS) officer, was on duty and traveling 45 m.p.h. in a marked patrol vehicle when he observed a pick up truck following his patrol vehicle too closely. The officer then observed the truck cross the double yellow stripe in the road as it went around a curve; in order to avoid a potential accident, the officer pulled over and allowed the truck to pass. Corporal Cenotti then proceeded to effect a traffic stop by activating his emergency overhead lights.

As the driver exited his vehicle, the officer observed him to be unsteady on his feet and to use the back portion of his truck for support. The officer further detected a strong odor of alcohol emitting from the driver's person. He also observed the driver to have slurred speech. Corporal Cenotti administered the Horizontal Gaze and Nystagmus ("HGN") Test and found the driver, subsequently identified as Willard Boaz Fowler, ("Fowler"), to have a total of six clues of intoxication. Fowler also was unable to successfully recite the alphabet and failed the finger count test. Additionally, Fowler provided a breath sample at the scene that indicated the presence of alcohol.

Fowler was arrested for driving while intoxicated and transported to the Guadalupe County jail. At the jail, Corporal Cenotti administered the Walk and Turn test and after detecting one clue, read Fowler his Miranda warnings. (1) The required statutory warnings, referred to as DIC-24 Warnings, were also read to Fowler who subsequently agreed to submit to a breath test. The results of the Intoxilyzer 5000 breath tests, which were administered by Trooper Barrett, a certified intoxilyzer operator, revealed that Fowler had a blood-alcohol content of 0.155 and 0.147. Fowler also admitted drinking two beers and a pint of Crown Royal liquor.

Fowler raises the following issues on appeal: 1) the trial court erred in failing to suppress the Intoxilyzer 5000 tests and their results because the tests were administered by an intoxilyzer operator whose operator certificate was invalid, it was not shown that an operator was continuously present with Fowler during the fifteen minutes immediately prior to his Intoxilyzer 5000 breath tests, and Fowler did not voluntarily consent to give a breath sample; 2) the trial court erred in failing to suppress all references to Fowler's breath tests and results derived from an uncertified PBT device; and, 3) the trial court erred in failing to suppress Fowler's oral custodial statements recorded in violation of his statutory and constitutional rights.

Standard of Review

We review the trial court's ruling on a motion to suppress for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Under this standard, we afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the findings are based on an evaluation of the credibility and demeanor of the witnesses. Id. When reviewing a trial court's ruling on a mixed question of law and fact, we review de novo the trial court's application of the law to the facts of the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). However, we also afford almost total deference to the trial court's evaluation of the credibility and demeanor of the witnesses. Id. And, when there are no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court's ruling. Id. The trial court's ruling must be upheld if it is correct under any theory of law applicable to the case. Id.

Discussion

I.. Motion to Suppress the Intoxilyzer 5000 Tests and their Results

A. Invalid Operator Certificate

 

Initially, Fowler argues that the trial court erred in denying the motion to suppress because

Trooper Barrett, who administered the Intoxilyzer 5000 tests, had an invalid operator certificate. Fowler maintains that Trooper Barrett's certification was invalid because he resigned his full-time position as a Schertz Police officer to work for his family, and although Trooper Barrett subsequently left the family business to work for TDPS full-time, there was a gap in his law enforcement employment which required that he reapply for certification. In support of his position, Fowler cites the Texas Administrative Code provision, relating to certification inactivation and suspension, which provides that inactivation will be utilized when a breath test operator terminates employment under which certification was acquired. 37 Tex. Admin. Code 19.5 (2006) (Tex. Dept. of Public Safety). However, the record here reflects that upon resigning his full-time position with the Schertz Police Department, Trooper Barrett continued to work for the Schertz Police Department as a reserve officer; therefore, there was no gap in his law enforcement employment. And although Fowler argues that Trooper Barrett's reserve peace officer status did not preserve his Intoxilyzer 5000 operator certification, he fails to cite any authority to support his contention. See Tex. R. App. P. 38.1 (h);Abdelnour v. Mid Nat'l Holdings, Inc. 190 S.W.3d 237, 241-42 (Tex. App.-- Houston [1st Dist.] 2006, no pet) (citing Wolfe v.C.S.P.H., Inc., 24 S.W.3d 641, 647 (Tex. App.--Dallas 2000, no pet.) and Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000)). Further, both Trooper Barrett and his technical supervisor, Melinda Casarez, testified that Trooper Barrett maintained his annual certification status without any lapse and that he was, in fact, certified on the date the incident in question took place. Casarez also testified that typically a breath test operator retains his certification upon resigning his position if he is still involved in law enforcement as a reserve officer or will be transferring to another law enforcement agency where certification as a breath test operator would still be desired.

Accordingly, the trial judge did not abuse his discretion in denying Fowler's motion to suppress the breath test results based on Trooper Barrett's Intoxilyzer 5000 operator certificate. Guzman, 955 S.W.2d at 88-89. Fowler's issue is denied.

B. Evidence Fowler was Observed for Fifteen Minutes

Fowler also maintains that the Intoxilyzer 5000 tests and their results should have been suppressed because it was not shown that an operator was continuously present with him during the fifteen minutes immediately prior to administration of the breath tests.

The Texas Administrative Code provides that all breath alcohol testing techniques shall meet, but not be limited to, the following:

a period during which an operator is required to remain in the presence of the subject. An operator shall remain in the presence of the subject at least 15 minutes before the test and should exercise reasonable care to ensure that the subject does not place any substances in the mouth. Direct observation is not necessary to ensure the validity or accuracy of the test result.

 

37 Tex. Admin. Code 19.4. (2006).

In the present case, Corporal Cenotti and Trooper Barrett both testified that they were present with Fowler and observed him prior to the time he entered the intoxilyzer room, as well as after, including the approximately eight minutes Fowler was videotaped in the Intoxilyzer Room. Trooper Barrett further testified that Fowler was in his presence for at least fifteen minutes and that at no time did he observe Fowler drink, throw up, belch, burp, or place anything in his mouth. See id.

Thus, the trial judge was in a position to evaluate the credibility and demeanor of the witnesses and could have believed Corporal Cenotti's and Trooper Barrett's testimony that Fowler had, in fact, been observed for fifteen minutes prior to taking the breath test. As the trial judge did not abuse his discretion in denying the motion to suppress based on this finding, we reject Fowler's issue. Id.

C. Involuntary Consent to Give Breath Test Sample

Next, Fowler asserts that the Intoxilyzer 5000 tests and their results should have been suppressed because Fowler did not voluntarily consent to give a breath sample. Specifically, Fowler contends that because he was not warned of the mandatory three-year surcharge imposed following a DWI conviction that his consent to give a breath sample was rendered involuntary. (2) We disagree.

Section 724.011 of the Texas Transportation Code provides that a person arrested for DWI is "deemed to have given his consent" to the taking of a breath sample and therefore, a statutory presumption of consent exists. Rodriguez v. State, 631 S.W.2d 515, 516 (Tex. Crim. App. 1982); State v. Amaya, 221 S.W.3d 797, 800 (Tex. App.-- Fort Worth 2007, pet. filed). However, before requesting a person to submit to the taking of a specimen, the law requires that an officer inform the person, orally and in writing, of the following: (3)

(1) that if the person refuses to submit to the taking of the specimen, that refusal may be admissible in a subsequent prosecution;

 

(2) if the person refuses to submit to the taking of the specimen, the person's license to operate a motor vehicle will be automatically suspended, whether or not the person is subsequently prosecuted as a result of the arrest, for not less than 180 days;

 

(3) if the person is 21 years of age or older and submits to the taking of a specimen designated by the officer and an analysis of the specimen shows the person had an alcohol concentration of a level specified by Chapter 49, Penal Code, the person's license to operate a motor vehicle will be automatically suspended for not less than 90 days, whether or not the person is subsequently prosecuted as a result of the arrest.

 

Tex. Transp. Code Ann. 724.015 (Vernon 1999 & Supp. 2006); Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App.1993).

A suspect's decision to submit to a breath test must be voluntary and made with a correct understanding of the statutory consequences of refusal. Erdman, 861 S.W.2d at 893. Consent to take a breath test is not voluntary when it is the result of physical or psychological pressure brought to bear by law enforcement officials. Id.; see also Thomas v. State, 723 S.W.2d 696, 704-05 (Tex. Crim. App.1986) (recognizing that consent to breath test is not voluntary if induced by physical force or mental coercion); Schafer v. State, 95 S.W.3d 452, 455 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd) (recognizing that consent to breath test is not voluntary if induced by misstatement of direct statutory consequences of refusal). Thus, an arresting officer's extra-statutory warnings, even if true, that DWI charges would be filed and the suspect would be jailed that night if he refused to take the test, have been held to render a suspect's consent to take the breath test involuntary. Erdman, 861 S.W.2d at 893. The court of criminal appeals emphasized that "law enforcement officials must take care to warn DWI suspects correctly about the actual, direct, statutory consequences of refusal" and "any other information conveyed to DWI suspects may have the effect-either intended or unintended- of undermining their resolve and effectively coercing them to consent." Id. at 894.

In the present case, Fowler does not dispute that he was read, and provided a copy of, the DIC-24 statutory warnings. Further, Fowler does not contend that he was given extra-statutory warnings for refusing to take the breath test. Moreover, Fowler does not show how the officer's failure to provide an extra-statutory warning regarding the assessment of a surcharge, resulted in physical or psychological pressure brought to bear by law enforcement officials such that it rendered his consent to take the breath test involuntary. Id. In fact, Fowler does not allege that he was pressured in any way to consent to take the test but argues, instead, that he is unable to pay this yearly surcharge and had he known it was going to be assessed, he "did not believe" he would have consented to take the breath test.

However, "[a]n officer advising an accused of his statutory rights does not undertake the role of counsel to advise the accused of all the ramifications of such rights." Vester v. State, 916 S.W.2d 708, 711-712 (Tex. App.-- Texarkana 1996, no pet.). As the record does not reflect any evidence that Fowler's consent to take the breath test was the result of physical or psychological pressure brought to bear by law enforcement officials, the trial court was within its discretion to find that Fowler's consent was not rendered involuntary by the arresting officer's failure to give extra-statutory warnings. Guzman, 955 S.W.2d at 88-89. Fowler's issue is overruled.

II. Motion to Suppress-PBT Device

Next Fowler argues that the trial court erred in failing to suppress all references to Fowler's breath tests and results derived from an uncertified PBT device.

The record reflects that the trial court granted Fowler's motion to suppress any and all evidence arising from the police use of a PBT device "as to any quantitative value allegedly given," but denied the motion as to evidence that alcohol was detected. This ruling comports with cases that have treated similar breath tests given to indicate the presence of alcohol as field sobriety tests. See Fernandez v. State, 915 S.W.2d 572, 576 (Tex. App.--San Antonio 1996, no pet) (finding that the Passive Alcohol Sensor test results were admissible as another indicator of intoxication relied on by the officer much like the other field sobriety tests); see also Adams v. State, 156 S.W.3d 152, 156-57 (Tex. App.-- Beaumont 2005, no pet.) (PBT results generally admissible to show presence of alcohol; however, officer's response that reading was over .08 was not so inflammatory that it could not be cured by an instruction to disregard ); Tex. Dept. of Pub. Safety v. Bond, 955 S.W.2d 441, 447 (Tex. App.-- Fort Worth 1997, no pet.) (intoximeter test given at scene was one of several field sobriety tests used to determine probable cause).

Thus, the trial court did not abuse its discretion in denying Fowler's motion to suppress evidence arising from the police use of a PBT device as to evidence that alcohol was detected. Guzman, 955 S.W.2d at 88-89. Fowler's issue is denied.

III. Motion to Suppress Custodial Statements

Finally, Fowler maintains that the trial court erred "in failing to suppress [Fowler's] oral custodial statements recorded in violation of his statutory and constitutional rights." Specifically, Fowler argues he was not properly Mirandized prior to his statements being recorded. Fowler also argues, for the first time on appeal, that he was not advised he was being recorded and further, that the videotape recording of Fowler's oral statements after he was Mirandized was not properly authenticated prior to being admitted into evidence. At trial, the state offered both tapes into evidence. The judge asked trial counsel whether or not he had seen the tapes and if he had an objection to their admission. Trial counsel responded, "I don't object to the admission." Indeed, no objections to the videotapes or the statements recorded therein were presented prior to the admission of this evidence. As these last two arguments have been waived, we turn to Fowler's sole remaining issue. See Tex. R. App. P. 33.1.

Fowler asserts that his pre-Miranda and post-Miranda custodial statements should have been suppressed because, although the traffic stop occurred at 3:02 p.m. and he was arrested at 3:23 p.m., the videotape taken at the jail shows he was not Mirandized until 6:16 p.m.

A DWI investigation that includes questioning and field-sobriety tests does not, without more, rise to the level of a custodial interrogation. State v. Stevenson, 958 S.W.2d 824, 828-29 (Tex. Crim. App.1997)(citing Berkemer v. McCarty, 468 U.S. 420, 440-41, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)). Safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a degree associated with formal arrest. Berkemer, 468 U.S. at 442. Determinations of custody are made on a case-by-case basis, considering all the objective circumstances. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App.1996). 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 formal arrest. Id. at 254. A routine traffic stop is a seizure, but it does not by itself give rise to custody for Miranda purposes. Berkemer, 468 U.S. at 440. A traffic stop is similar to an investigative detention or "Terry" stop. Id. at 439. This is because a traffic stop is public in nature and also is presumptively temporary and brief. Id. However, a traffic stop may escalate into a custodial interrogation depending on subsequent events. Id.

Here, Fowler was stopped at approximately 3:00 p.m. for following too closely and crossing the yellow line. Subsequently, Fowler made statements and was subjected to field sobriety tests when he was not under arrest, but was under investigative detention. Reviewing the record, it appears Fowler's detention was more akin to a traffic stop and did not escalate to a custodial interrogation which would require Miranda warnings. Thus, Fowler was free to refuse to answer the officer's questions and the officer was not required to read Fowler the Miranda warnings. Fowler's seizure did not evolve from an investigative detention into an arrest until after Fowler failed the field sobriety tests, thus providing Corporal Cenatti with probable cause to arrest Fowler. And, while Fowler was not transported to the jail until approximately one hour later, Corporal Cenatti testified that he had a canine in his vehicle when he stopped Fowler and had to wait for another patrol vehicle to transport Fowler to the jail.

Once Fowler was transported to the jail, he was read the Miranda warnings. While Fowler maintains that this occurred at approximately 6:00 p.m. based on the time indicated on the videotape, Corporal Cenatti testified that based on his interview sheet, Fowler was read the Miranda warnings at 5:16 p.m. Corporal Cenatti's testimony is supported by the intoxilyzer results which indicated the Intoxilyzer 5000 breath tests were administered at 5:17 p.m. Nevertheless, Fowler argues that the video of the Intoxilyzer 5000 tests is "inaccurate" and should be suppressed because there was a discrepancy between the time indicated on the video and the time printed on the breath test results. However, the fact finder is the sole judge of conflicts in the evidence, the weight of the evidence, and the credibility of witnesses. Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App.1993). Further, we review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). Here the record reflects that Trooper Barrett testified that the tape was a true and accurate representation of the events that took place on December 20, 2004, notwithstanding any discrepancy in time.

Moreover, the record fails to show that Fowler made any statements due to police interrogation from the time he was formally arrested at the scene to the time he was read his Miranda rights at the jail. Nor does Fowler direct this court to any specific statements he believes were wrongfully elicited. Thus the trial judge could have found that any pre-Miranda custodial statements made by Fowler were spontaneous. Therefore, the trial judge was within his discretion to deny Fowler's motion to suppress.

Conclusion

Accordingly, we overrule Fowler's issues on appeal and affirm the trial court's judgment.

 

Karen Angelini, Justice

DO NOT PUBLISH

1. Corporal Cenotti testified that he was unable to safely administer the Walk and Turn test at the scene of the traffic stop due to the uneven ground.

2. Section 708.102 of the Texas Transportation Code provides that "the department shall assess a surcharge on the license of each person who during the preceding 36-month period has been finally convicted of an offense relating to the operating of a motor vehicle while intoxicated. The amount of a surcharge under this section is $1,000 per year," for a first conviction provided that an analysis of a specimen of the person's blood, breath, or urine does not show an alcohol concentration level of 0.16 or more at the time the analysis was performed. Tex. Transp. Code Ann. 708.102 (Vernon Supp. 2006).

3. The statute also includes several other warnings, not relevant to this case, that pertain to persons under the age of 21, residents without a license to operate a motor vehicle in this state, and the right to a hearing on the suspension or denial of a driver's license.