THE STATE OF TEXAS v. JUAN ENRIQUE REYNA--Appeal from County Court at Law No 4 of Hidalgo County

NUMBER 13-01-847-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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  THE STATE OF TEXAS, Appellant,

v.

  JUAN ENRIQUE REYNA, Appellee.

___________________________________________________________________

On appeal from the County Court at Law No. 4

of Hidalgo County, Texas.

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O P I N I O N

Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Rodriguez

Appellee Juan Reyna, a McAllen police officer, was charged with driving while intoxicated (DWI). The trial court granted Reyna=s motion to suppress an accident report as evidence. By one point of error, the State claims the trial court erred in granting the motion. We reverse and remand.

I. FACTS

Reyna drove his pickup truck into a utility pole on November 22, 1998, in Edinburg, Texas, pinning a passenger in the wreckage. At trial, Officers Bocanegra and Rodriguez testified regarding the events which occurred when the police arrived at the accident scene. Officer Rodriguez spoke to Reyna first and asked him what happened. Reyna responded that he was on his cell phone, dropped it and lost control of the vehicle while trying to retrieve it.

Officer Bocanegra talked to a woman on the scene who was later identified as Reyna=s girlfriend. She stated that she had been at a bar where Reyna had consumed four to six beers. Officer Bocanegra conducted a horizontal gaze nystagmus test on Reyna, and another officer administered two other field sobriety tests. Reyna failed these tests and was arrested for DWI. Upon arrival at the police station, Officer Bocanegra read Reyna his Miranda warnings. Officer Rodriguez prepared the accident report which included the statements Reyna gave at the scene about the circumstances surrounding the accident. The report also included a supplement describing Reyna=s slurred speech and unsteady balance.

Reyna filed a motion to suppress the accident report claiming sections 550.021 and 550.023 of the transportation code required him to give the police officers information in violation of his right against self-incrimination. See Tex. Transp. Code Ann. '' 550.021, 550.023 (Vernon 1999). The trial court filed findings of facts and conclusions of law.

II. STANDARD OF REVIEW

A trial court=s ruling on a motion to suppress is generally reviewed for abuse of discretion. See Ford v. State, 26 S.W.3d 669, 672 (Tex. App.BCorpus Christi 2000, no pet.) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999)). The reviewing court may not disturb supported findings of fact absent a clear showing of abuse of discretion. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). A court abuses its discretion if it acts without reference to guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Mixed questions of law and fact that turn on the credibility and demeanor of a witness are reviewed under a total deference standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Mixed questions of law and fact which do not turn on the credibility and demeanor of a witness are reviewed de novo. Id.

An issue does not evaluate the credibility and demeanor where evidence is uncontroverted because the trial court does not have to decide which conflicting testimony deserves more weight. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App. 1999). Because the issue in this case does not involve a disagreement about the facts or credibility of a witness, but rather whether the transportation code compels a person to make statements in violation of the right against self-incrimination, we review the trial court=s ruling de novo. See Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89.

III. ANALYSIS

In its sole point of error, the State contends the trial court erred in granting Reyna=s motion to suppress the accident report. The transportation code requires the driver to give his name, address, vehicle registration number, name of insurance and if requested, a driver=s license Ato any person injured or the operator or occupant of or person attending a vehicle involved in the collision.@ Tex. Transp. Code Ann. '' 550.021, 550.023. The statutes do not require a driver to give any information to law enforcement officials. Id.; see State v. Stevenson, 958 S.W.2d 824, 827 (Tex. Crim. App. 1997) (citing Tex. Rev. Civ. Stat. Ann. art. 6701d, '' 38(b), 40, since repealed and codified at Tex. Transp. Code. Ann. '' 550.021, 550.023 (Vernon 1999)). If the language of a statute is unambiguous, we give effect to its plain meaning unless doing so would lead to absurd results. See Stevenson, 958 S.W.2d at 827. Looking at the language of sections 550.021 and 550.023, we conclude they are clear and unambiguous. The statutes do not compel a person to give incriminating information to a police officer. Id. There is no requirement that a driver cooperate with an officer in making the officer=s written report by giving oral statements about the accident; statements which might be incriminating. Id. at 827-28.

We respectfully disagree with the dissent=s conclusion that this accident report constitutes inadmissible hearsay. From the record before us there is no evidence that the accident report was ever offered into evidence. Thus, it cannot be said that the accident report was being used to prove the truth of the matter asserted. See Tex. R. Evid. 801(d); Gaitan v. State, 905 S.W.2d 703, 708 (Tex. App.BHouston [14th Dist.] 1995, pet. ref=d). Because this theory of law is not applicable to the case before us, we decline to sustain the motion to suppress on such basis. See Roquemore v. State, 60 S.W.3d 862, 866 (Tex. Crim. App. 2001).

IV. CONCLUSION

We conclude the trial court erred in granting Reyna=s motion to suppress the accident report. The State=s sole point of error is sustained.

Accordingly, the trial court=s judgment is reversed and remanded.

NELDA V. RODRIGUEZ

Justice

Dissenting Opinion by Justice Dorsey.

Publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 5th day of September, 2002.