ERICA HARDY v. THE STATE OF TEXAS--Appeal from County Court at Law No 3 of Nueces County

   NUMBER 13-04-055-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

ERICA HARDY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the County Court at Law No. 3

of Nueces County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, Erica Hardy, pled guilty to the misdemeanor offense of driving while intoxicated, but reserved her right to appeal the trial court=s denial of her motion to suppress. Tex. Pen. Code Ann. _ 49.04 (Vernon 2003). Pursuant to her negotiated plea, the trial court assessed punishment at 200 days in jail, suspended for eighteen months of community supervision, and a $1,000 fine. In a single issue, appellant challenges the denial of her motion to suppress the breath-alcohol test. We affirm the trial court=s ruling.

Facts

Corpus Christi Police Officer Pedro Trujillo pulled appellant over for disregarding a stop sign. During questioning, Officer Trujillo noticed appellant=s bloodshot eyes and could smell alcohol on her breath. Upon being asked whether or not she had been drinking, appellant admitted to having a glass of wine. Officer Trujillo asked appellant to step out of the vehicle so that he could administer a field sobriety test. Appellant voluntarily complied and failed the field sobriety test.[1]

Officer Trujillo testified that he followed proper procedure in offering appellant the breathalyzer test by reading the required statutory warnings.[2] Appellant was placed in the back of the patrol unit, whereupon she asked, Awhat happens if I pass [the test]?@ At trial, appellant testified that Officer Trujillo=s response was AThen you can go. And if you fail, then you would lose your license and go in.@ Officer Trujillo testified that he thought that appellant had asked him whether he would let her go if she took and passed the breath test, and that his response to her was, Aif she would pass the breath test she would probably be released.@ The breathalyzer was later administered at the jail by someone other than Officer Trujillo. Appellant failed the test and was arrested.

Standard of Review

In reviewing a trial court=s ruling on a motion to suppress, we apply the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer to a trial court=s determination of historical facts, and review de novo the trial court=s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman, 955 S.W.2d at 88-89). If the issue involves the credibility of a witness, we defer to a trial court=s ruling, as a trial court is in a better position to evaluate the credibility of witnesses before it. Guzman, 955 S.W.2d at 87, 89. If the trial court is called upon to apply the law to the facts, and the ultimate resolution of the issue does not turn on an evaluation of the credibility and demeanor of a witness, we review that issue de novo. Id. at 89. The issue before us does not turn on disagreement of facts or evaluation of the credibility of a witness. Therefore, we will utilize a de novo standard of review to evaluate the trial court=s decision on the motion to suppress. See Guzman, 955 S.W.2d at 89.

Motion to Suppress

Appellant contends the trial court erred in refusing to suppress the results of her breathalyzer tests. Specifically, appellant contends that Officer Trujillo=s comment that she would be released if she passed the test and that she would lose her license and Ago in@ if she failed the exam constitutes coercion that renders her agreement to take the test involuntary . Appellant further observes that Ashe would not have taken the breath test but for [Officer Trujillo] telling her that if she took the test and passed, she would be released.@ Appellant relies on the Texas Court of Criminal Appeals=decision in Erdman v. State, 861 S.W.2d 890 (Tex. Crim. App. 1993).[3]

In Erdman, the Texas Court of Criminal Appeals held that if an officer fails to recite the proper statutory warning to the defendant before a breathalyzer or blood alcohol concentration test, the defendant=s consent is involuntary as a matter of law. Erdman, 861 S.W.2d at 893-94. According to statute, however, officers may only conduct breathalyzer or alcohol tests after a suspect has heard the statutory warnings of the legal consequences of consenting or refusing to consent and has given consent. Id. at 893 (construing Tex. Rev. Civ. Stat. Ann. Art. 6701l-5, ' 2 (Vernon 1977), now codified at Tex. Transp. Code Ann. '' 724.012, 724.013, 724.015 (Vernon 1999 & Supp. 2004-05)). Additionally, in Erdman, the court noted that Alaw enforcement officials must take care to warn DWI suspects correctly about the actual, direct, statutory consequences of refusal. Any other information conveyed to DWI suspects may have the effectBeither intended or unintendedBof undermining their resolve and effectively coercing them to consent.@ Id. at 894. Erdman was told of the consequences of passing and failing the breathalyzer test. See id. at 891. He was also told, however, of the consequences of refusing the test. See id. The court of criminal appeals focused its analysis exclusively on the coerciveness of those extra-statutory warnings concerning the consequences of refusing the test. See id. at 893-94.

As the court in Sandoval v. State, 17 S.W.3d 792, 795 (Tex. App.BAustin 2000, pet. ref'd), points out, Texas case law in this area, both before and after Erdman, has generally focused only on extra-statutory warnings of consequences of refusing a breath test. See, e.g., Erdman, 861 S.W.2d at 893-94; Tex. Dep=t of Pub. Safety v. Rolfe, 986 S.W.2d 823, 826 (Tex. App.BAustin 1999, no pet.); see also Ewerokeh v. State, 835 S.W.2d 796, 796 (Tex. App.BAustin 1992, pet. ref=d); Sells v. State, 798 S.W.2d 865, 866 (Tex. App.BAustin 1990, no pet.) (pre-Erdman cases also considering extra-statutory warnings of refusal to take test).

In Sandoval, a DWI suspect asked the arresting officer what consequences would follow if he passed the breath test. Sandoval, 17 S.W.3d at 794. The officer told the suspect that a family member could come to pick him up if he passed, but that he would be charged with DWI if he did not pass, whereupon the suspect agreed to take test, which proved positive for alcohol. Id. Sandoval filed a pretrial motion to suppress the test results on the grounds that he had been coerced, and that his consent was therefore involuntary. Id. In affirming the trial court's refusal to grant the motion to suppress, the Austin Court of Appeals concluded that the officer's statements to Sandoval about the consequences of passing or failing the breath test were not of the same coercive nature as those in Erdman, which had been premised solely on the consequences of refusing to submit to the test. See id. at 797.

Analysis

Officer Trujillo=s statement to appellant falls far short of the officer=s statements found to be coercive in Erdman. Officer Trujillo did not make any statements about the consequences of appellant=s refusal to take a breath test beyond those listed in section 724.015 of the transportation code. By merely answering appellant=s question, Officer Trujillo did not warn appellant that dire consequences would follow if she refused to take the breath test. Furthermore, Officer Trujillo did not make any extra-statutory assertions about the possible consequences of refusing to submit to the test. Accordingly, Officer Trujillo did not coerce appellant to consent. Officer Trujillo=s statement to appellant is similar to those made by the officer in Sandoval and, unlike the statements found to be coercive in Erdman, his statement did not address the unfavorable consequences that would occur if appellant refused to submit to the test. Rather, as the trial court pointed out, Officer Trujillo simply answered a question by the appellant, which addressed the question of what would happen to her if she took the test and passed. Officer Trujillo provided a factually correct answer in that if she passed the test she would not be charged with DWI. Although appellant testified that the reason she agreed to the breath test was because of Officer Trujillo=s answer, the trial court did not err in denying appellant=s motion to suppress, given the surrounding circumstances showing that Officer Trujillo gave appellant the correct statutory warnings before administering appellant's breath test. Appellant=s personal interpretation of those warnings is not relevant to the question of coercion.

As there is no argument that Officer Trujillo failed to correctly give appellant the proper statutory warnings, we conclude that the trial court did not err by finding that appellant was not induced or coerced to submit a breath sample for testing. See Guzman, 955 S.W.2d at 89.

  Conclusion We overrule appellant=s sole issue on appeal and AFFIRM the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 4th day of August, 2005.

[1]Appellant was subsequently asked to re-perform the sobriety test in the video room at the jail, and she failed that test as well.

[2]See Tex. Transp. Code Ann. ' 724.015 (1), (2) (Vernon Supp. 2004-05).

[3]Appellant cites, but not does not discuss, one other case in her brief: State v. Serrano, 894 S.W.2d 74 (Tex. App.BHouston [14th Dist.] 1995, no pet.). Serrano, however, is distinguishable because of the timing of the nonstatutory information given by the arresting officer. The appellate court in Serrano upheld the trial court=s decision, under the circumstances of that case, to find coercion and grant a new trial. Id. at 76. In Serrano, unlike the present case, the nonstatutory information was given as the officer=s primary warning. Id. The passage of two hours between the coercive statement made by the officer at the scene and the administration of the proper statutory warnings by a different officer at the county jail did not remove the initial taint. Id. Although the nonstatutory information conveyed to the suspects is the same in both cases, the circumstances in which it was given are distinguishable.