BENITO JUAREZ BENNETT, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 5, 1998
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-95-01301-CR
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BENITO JUAREZ BENNETT, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the County Criminal Court No. 7
Dallas County, Texas
Trial Court Cause No. MB89-49511-H
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O P I N I O N
Before Justices Maloney, Moseley, and Roach
Opinion By Justice Moseley
        Benito Juarez Bennett appeals his conviction for driving while intoxicated (DWI). After finding appellant guilty, the trial court assessed a ninety-day sentence and a $750 fine. The trial court then suspended imposition of appellant's sentence and placed him on community supervision for twenty-four months. In three points of error, appellant contends the trial court erred in denying his motion to suppress the results of the intoxilyzer test because (1) he was coerced into providing a breath specimen, (2) the intoxilyzer test was not conducted according to the applicable regulations, and (3) his breath specimen was obtained in violation of his constitutional right to counsel. We affirm the trial court's judgment.
FACTUAL BACKGROUND
        On September 2, 1989 at 4:45 a.m., Officer Richard Morrell and Sergeant Lewis B. Merit were driving in a marked police car on the Dallas North Tollway. Appellant passed them at a speed of over one hundred miles per hour. Morrell and Merit activated their lights and siren and pursued appellant. Appellant slowed to about seventy miles per hour, but refused to stop. As appellant exited the tollway, he lost control of his car and hit a curb, causing the car's engine to stall.
        Morrell testified the officers approached appellant and ordered him out of the car; however, appellant sat in his car staring straight ahead and did not respond to the officers' request. The officers physically removed appellant from his car. Appellant was unable to stand by himself and had to lean against the car. Morrell testified that appellant was staring into space, did not know where he was, and could not hold a basic conversation. Appellant also had a strong smell of alcohol on his breath, bloodshot eyes, and slurred speech. From his observation, Morrell formed the opinion that appellant was intoxicated. Morrell stated that, in his opinion, appellant did not have the normal use of his mental and physical faculties due to the introduction of alcohol into his body.
        Because appellant was too intoxicated to perform field sobriety tests, Morrell arrested him for DWI and transported him to Lew Sterrett Jail. On the way to Lew Sterrett, the police car had a flat tire. Appellant arrived at Lew Sterrett about an hour and a half after the officers arrested him. According to Morrell, appellant slept most of time between his arrest and his arrival at the jail. Morrell further stated there was a marked difference in appellant's appearance on the videotape and at the scene.
        The videotape was admitted into evidence and played for the trial court. On the tape, appellant read the "Six Flags" card and recited the alphabet correctly. Sergeant Pitts, the officer administering the tests, asked appellant to count backwards from thirty-eight to twenty-two; however, appellant stopped counting at twenty-four. Later, Pitts asked appellant to walk heel-to-toe on the black line. Appellant started moving sideways down the line. After Pitts corrected him, appellant correctly completed the test. Appellant also gave a breath specimen for alcohol concentration testing. The intoxilyzer test showed appellant had an alcohol concentration of 0.21.
        At trial, appellant orally moved to suppress the results of the intoxilyzer test on the grounds that (1) he was coerced into providing a breath specimen, and (2) he was denied his right to counsel. Appellant again objected when the State sought to admit the videotape and the intoxilyzer test results into evidence. Appellant also objected to the intoxilyzer test results on the grounds that the officer administering the test did not continuously observe him for a fifteen-minute period.
        
STANDARD OF REVIEW
        In reviewing the trial court's ruling on a motion to suppress, we must first determine the applicable standard of review as recently set forth in Guzman v. State. FN:1 As a general rule, we afford almost total deference to a trial court's determination of the historical facts that the record supports, especially when the trial court's fact findings involves an evaluation of credibility and demeanor. FN:2 Similarly, we afford the same amount of deference to mixed questions of law and fact if resolving those ultimate questions turns on evaluating credibility and demeanor. FN:3 However, we review mixed questions of law and fact that do not turn on credibility and demeanor de novo. FN:4
        At a hearing on a motion to suppress involving a fact question, the trial court is the sole judge of the witnesses' credibility and the weight to be given their testimony. FN:5 The trial court may accept or reject any or all of the witnesses' testimony. FN:6 We review the evidence in the light most favorable to the trial court's finding. FN:7 We apply an abuse of discretion standard to the court's ruling and will reverse only if a clear abuse of discretion is shown. FN:8
VOLUNTARINESS OF PROVIDING BREATH SPECIMEN
        In his first point of error, appellant argues he was coerced into giving a specimen of his breath for testing. Specifically, he asserts that one of the police officers told him if he refused the intoxilyzer test, his refusal "could be deemed as an admission of guilt." He asserts his testimony is undisputed; therefore, the trial court abused its discretion in refusing to suppress the results of the intoxilyzer test. The State responds that, contrary to appellant's assertions, Morrell unequivocally stated that he did not instruct appellant before taking him into the videotaping room.
        Whether appellant voluntarily provided a breath specimen was a mixed question of law and fact. FN:9 Here, the trial court's resolution of the voluntariness issue turned on its evaluation of the witnesses' credibility and demeanor. Therefore, we will accord deference to the trial court's findings. FN:10
1. Applicable Law
        Under the implied consent law in effect when appellant committed the offense, any person who operates a motor vehicle in a public place is deemed to have given consent to submit to a breath or blood test to determine the alcohol concentration in the person's body. FN:11 The implied consent law also provides that, when requesting a breath specimen, the officer shall inform the person that if he refuses, his refusal to take the intoxilyzer test may be admissible in a subsequent prosecution and will result in the suspension of his driver's license for ninety days regardless of whether he is later prosecuted as a result of the arrest. FN:12 A person who refuses to give a breath specimen cannot be physically forced to do so. FN:13
        A suspect's decision to submit to an intoxilyzer test must be made freely and with a correct understanding of the actual statutory consequences of refusal. FN:14 Any warnings other than those provided in the statute, even if correct, may coerce a suspect into submitting to the test and thereby undermine the protection afforded by the law. FN:15 Thus, the court of criminal appeals made it clear that the two warnings provided by the statute are the only two warnings that officers may give a suspect. FN:16
2. Discussion
        Appellant testified for the limited purpose of his motion to suppress. He stated that, before he was taken into the videotaping room at Lew Sterrett, a police officer "led [him] to believe" that, if he refused to take the test, that fact "could be deemed an admission of [his] guilt." On cross examination, appellant admitted that he did not remember which officer made the statement, but thought it was Morrell. He also admitted he could not recall exactly what the officer told him. Appellant also stated he voluntarily agreed to provide a breath specimen and that he was not psychologically coerced into doing so.         
        Morrell testified that, although he escorted appellant to the videotaping room, he did not instruct appellant at all. The videotape shows that the officer provided appellant with the statutory warnings orally and in writing. The officer did not give appellant any other warnings on the videotape.
        As the fact finder, the trial court was entitled to believe Morrell's testimony and disbelieve appellant's. FN:17 Moreover, on cross examination, appellant admitted he voluntarily provided a breath specimen. Under these circumstances, the trial court did not abuse its discretion in concluding the officers did not coerce appellant into providing a breath specimen. We overrule appellant's first point of error.
ADMINISTRATION OF INTOXILYZER TEST
        In his second point of error, appellant argues the trial court erred in denying his motion to suppress the results of the intoxilyzer test because the test was not properly administered. Specifically, he contends that the videotape shows that Pitts, the intoxilyzer operator, did not comply with Texas Department of Public Safety regulations requiring the operator to continuously observe the subject for a fifteen-minute period before administering the test. FN:18 Appellant contends that Pitts only observed him for fourteen minutes and forty-eight seconds, twelve seconds short of the required fifteen minutes. Appellant also argues that Pitts did not continuously observe him because the video shows Pitts was concentrating on the intoxilyzer machine for several minutes.
        We have reviewed the record and conclude we need not decide whether the trial court erred in admitting the intoxilyzer test results because, even assuming it did, any error was harmless. Under rule 44.2(b) of the Texas Rules of Appellate Procedure, effective September 1, 1997, we disregard any nonconstitutional error that does not affect the defendant's substantial rights. FN:19 The language of rule 44.2(b) tracks the language of Federal Rule of Criminal Procedure 52(a). FN:20 Because the two rules are substantially identical, we consult federal cases interpreting rule 52(a) for guidance in applying our new harmless error rule.
        Under rule 52(a), errors made during a criminal trial are not grounds for reversal unless they affect the accused's substantial rights. FN:21 The accused's substantial rights are not affected unless there is a reasonable possibility that the errors are prejudicial; i.e., that they "might have contributed" to the defendant's conviction. FN:22 Under rule 52(a), an error is harmless if the reviewing court determines, after reviewing the entire record, that the error did not influence, or had only a slight influence on, the conviction. FN:23 Stated another way, an appellate court must only reverse a conviction because of an erroneous evidentiary ruling if the fact finder may have been "substantially swayed" by the improperly-admitted evidence. FN:24
        Under the federal standard, the appellate court's task is to gauge what effect, if any, the error had or reasonably may be taken to have had on the fact finder's decision. FN:25 Those errors that did not influence the fact finder or had only a very slight effect on the fact finder are disregarded as harmless. FN:26 Because our new appellate rule was modeled on the federal rule, we will utilize the federal courts' interpretation of rule 52(a) in conducting our harmless error analysis.
        In this case, the information alleged both definitions of "intoxication" provided by the penal code: (1) that appellant did not have the normal use of his mental and physical faculties by reason of the introduction of alcohol into the body and (2) that appellant had an alcohol concentration of at least 0.10. FN:27 These definitions provide two different means or methods of committing the same offense. FN:28 Absent a motion for the State to elect its theory of intoxication, proof of either method of intoxication is sufficient to sustain a DWI conviction. FN:29
        In this case, appellant did not move for the State to elect its theory of intoxication. Therefore, the trial court could find appellant guilty under either statutory definition of intoxication that the evidence supports. Morrell testified that, at the scene, appellant stared straight ahead, was unresponsive to questions, smelled strongly of alcohol, had bloodshot eyes, and spoke with slurred speech. Once the officers removed appellant from his car, he had difficulty standing by himself. Morrell formed the opinion that appellant did not have the normal use of his mental and physical faculties due to the introduction of alcohol into his body. Morrell's testimony, standing alone, is sufficient to sustain a DWI conviction. FN:30 Therefore, even without the intoxilyzer test results, the evidence supports the trial court's finding that appellant was intoxicated in that he did not have the normal use of his mental and physical faculties due to the introduction of alcohol into his body.
        Additionally, when appellant committed his offense, a DWI conviction carried a sentence of confinement in jail for seventy-two hours to two years and a fine of $100 to $2000. FN:31 However, the trial court assessed ninety days in jail and a $750 fine. The trial court then suspended imposition of the sentence and placed appellant on community supervision for twenty-four months.
        Under these circumstances, admission of the intoxilyzer test results did not "substantially sway" the trial court in reaching its finding of guilt or assessing punishment. Accordingly, we conclude that appellant's substantial rights were not affected and the error, if any, in admitting the intoxilyzer test results was harmless. FN:32 We overrule appellant's second point of error.
RIGHT TO COUNSEL
        In his third point of error, appellant contends the trial court erred in denying his motion to suppress the results of the intoxilyzer test because he was denied his constitutional right to counsel. Specifically, he claims that, when he was brought into the videotaping room, the record shows he was under arrest and in custody. Appellant claims that all of the questioning in the videotaping room was "custodial interrogation;" therefore, once he invoked his right to counsel, the interrogation should have ceased until he had an opportunity to confer with an attorney. Because this point of error does not turn on a determination of historical facts, we will review the trial court's ruling de novo. FN:33
        The Texas Court of Criminal Appeals has held that compelling a DWI suspect to perform sobriety tests on videotape does not call for testimonial responses and therefore does not offend either the United States or the Texas Constitutions. FN:34 Police requests that suspects perform the sobriety tests and police directions on how suspects are to perform the tests are not considered "interrogation." FN:35 Likewise, queries concerning a suspect's understanding of his rights do not constitute "interrogation." FN:36
        Here, the police officer did not make any comments other than those necessary to inform appellant of his rights, determine whether he understood those rights, and instruct him on how to perform the sobriety tests. When appellant asked for a lawyer, the officer correctly informed him that his lawyer did not have to be present for the sobriety tests. Thus, the officer's questions and comments were limited to those normally attendant to the arrest and custody of a DWI suspect. The officer's conduct did not seek, nor was it likely to result in incriminating testimonial evidence. Therefore, we conclude the officer was not interrogating appellant. FN:37 We overrule appellant's third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47.3
951301
 
FN:1 955 S.W.2d 85 (Tex. Crim. App. 1997).
FN:2 See id. at 89.
FN:3 Id.
FN:4 See id.
FN:5 Id. at 88.
FN:6 Johnson v. State, 864 S.W.2d 708, 713 (Tex. App.--Dallas 1993), aff'd, 912 S.W.2d 227 (Tex. Crim. App. 1995).
FN:7 Id.
FN:8 See Dawson v. State, 868 S.W.2d 363, 367 (Tex. App.--Dallas 1993, pet. ref'd).
FN:9 Erdman v. State, 861 S.W.2d 890, 895 (Tex. Crim. App. 1993).
FN:10 See Guzman, 955 S.W.2d at 89.
FN:11 See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 4, 1983 Tex. Gen. Laws 1568, 1577, amended by Act of April 21, 1993, 73rd Leg., R.S., ch. 82, § 1, 1993 Tex. Gen. Laws 168, 168, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.09, 1993 Tex. Gen. Laws 3586, 3702, repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1025, 1870 (current version at Tex. Transp. Code Ann. § 724.011 (Vernon Pamph. 1998)).
FN:12 See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 4, 1983 Tex. Gen. Laws 1568, 1578, amended by Act of May 27, 1993, 73rd Leg., R.S., ch. 790, § 29, 1993 Tex. Gen. Laws 3088, 3102, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 886, § 9, 1993 Tex. Gen. Laws 3515, 3523, repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1025, 1870 (current version at Tex. Transp. Code Ann. § 724.015 (Vernon Pamph. 1998)).
FN:13 See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 4, 1983 Tex. Gen. Laws 1568, 1578, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 886, § 9, 1993 Tex. Gen. Laws 3515, 3523, repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1025, 1870 (current version at Tex. Transp. Code Ann. § 724.013 (Vernon Pamph. 1998)).
FN:14 Erdman, 861 S.W.2d at 893.
FN:15 Id. at 893-94.
FN:16 Id. at 893.
FN:17 See Johnson, 864 S.W.2d at 713.
FN:18 See Gifford v. State, 793 S.W.2d 48, 49 (Tex. App.--Dallas 1990), pet. dism'd, improvidently granted, 810 S.W.2d 225 (Tex. Crim. App. 1991).
FN:19 See Tex. R. App. P. 44.2(b).
FN:20 See Tex. R. App. P. 44.2(b) (comments following rule recognize that paragraph 44.2(b) was taken from federal rule without substantive change).
FN:21 See Fed. R. Crim. P. 52(a); see also United States v. Brown, 897 F.2d 162, 163 (5th Cir. 1990).
FN:22 See Brown, 897 F.2d at 163; United States v. Lay, 644 F.2d 1087, 1090 (5th Cir.), cert. denied, 454 U.S. 869 (1981).
FN:23 See United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir.), cert. denied, 512 U.S. 1224 (1994).
FN:24 See id.
FN:25 See United States v. Foster, 939 F.2d 445, 450 (7th Cir. 1991).
FN:26 Id.
FN:27 See Act of May 17, 1985, 69th Leg., R.S., ch. 462, § 18, 1985 Tex. Gen. Laws 1624, 1630, codified by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3697 (current version at Tex. Penal Code Ann. § 49.01(2)(A),(B) (Vernon 1994)).
FN:28 Kilgo v. State, 880 S.W.2d 828, 829 (Tex. App.--Dallas 1994, pet. ref'd); Harris v. State, 866 S.W.2d 316, 324 (Tex. App.--San Antonio 1993, pet. ref'd).
FN:29 See State v. Lyons, 820 S.W.2d 46, 48 (Tex. App.--Fort Worth 1991, no pet.).
FN:30 See Dumas v. State, 812 S.W.2d 611, 615-16 (Tex. App.--Dallas 1991, pet. ref'd) (uncorroborated testimony of arresting officer that defendant's car weaved from lane to lane, defendant's breath smelled of alcohol, and defendant failed to pass field sobriety tests sufficient to support DWI conviction).
FN:31 See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 3, 1983 Tex. Gen. Laws 1568, 1575, repealed by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704 (codified at Tex. Penal Code Ann. § 40.09(c) (Vernon Supp. 1998)).
FN:32 See Tex. R. App. P. 44.2(b).
FN:33 See Guzman, 955 S.W.2d at 89.
FN:34 See Miffleton v. State, 777 S.W.2d 76, 78 (Tex. Crim. App. 1989).
FN:35 Jones v. State, 795 S.W.2d 171, 172 (Tex. Crim. App. 1990); see also Chadwick v. State, 766 S.W.2d 819, 821 (Tex. App.--Dallas 1988), affirmed, 795 S.W.2d 177 (Tex. Crim. App. 1990).
FN:36 Jones, 795 S.W.2d at 172.
FN:37 See Jones, 795 S.W.2d at 176.