The State of Texas v. Kenneth Charles Williamson--Appeal from County Court at Law No 1 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00383-CR

The State of Texas,

Appellant

v.

Kenneth Charles Williamson,

Appellee

From the County Court at Law

McLennan County, Texas

Trial Court No. 2003-5271-CR1

MEMORANDUM Opinion

The State appeals an order granting Kenneth Charles Williamson s motion to suppress the results of a blood test. The State contends in its sole issue that the court abused its discretion by suppressing the results because no rational trier of fact could have found that Williamson s consent to submit a blood specimen for testing was involuntary. We will affirm.

Background

While on patrol shortly after midnight, Trooper Patrick Brice noticed a pickup truck which had collided with a guardrail on the highway shoulder. Williamson was the sole occupant, seated in the driver s seat. Although he was bleeding because of a head injury, he told Trooper Brice that the accident happened because he had been cut off by another driver. Brice could smell alcohol coming from Williamson s breath.

An ambulance transported Williamson to a hospital. Brice arrived at the hospital around 1:30 that morning after clearing the accident scene. Williamson appeared conscious and alert when Brice arrived. Shortly after Brice arrived, he explained to Williamson that he wanted to take a blood specimen for a DWI investigation. Williamson was never physically restrained in any way, and, according to Brice, he was not under arrest.[1] Brice testified that Williamson verbally consented to the giving of a blood specimen after Brice read him the DIC-24 statutory warning form. Because the emergency room was busy, Williamson s blood was not drawn until about four hours later.

Brice stayed near Williamson during his entire hospital stay. As Brice explained, I was there for the blood, and whether they re under arrest or not, we have to stay with them. Brice recalled talking to Williamson s mother but did not recall talking to his stepfather. He denied telling Williamson s mother and stepfather that Williamson could not leave the hospital until he gave a blood specimen or that he would go to jail if he did not give a specimen.

The nurse who drew the blood testified that it is standard procedure to ask a patient in law enforcement custody for verbal consent before drawing a blood specimen and that she would not have drawn Williamson s blood without his verbal consent.[2]

Williamson testified that he did not have a clear recollection of the events which occurred at the hospital on the occasion in question.

Williamson s mother and stepfather arrived around 2:00 that morning. His stepfather Mercer testified that Brice was concerned constantly about getting a blood test. Brice would not allow him to accompany Williamson when he was taken to get stitches. Mercer testified that Brice insisted that Williamson must either provide a blood specimen or go to jail. He characterized Brice s close proximity to Williams as being like a chain around his leg.

Williamson s mother Lauretta testified that Brice talked to numerous nurses about drawing Williamson s blood and kept asking when they were going to do so. She likewise testified that Brice told them that Williamson must either give a blood specimen or go to jail and that he stated this directly to Williamson. According to Lauretta, Brice did not tell Williamson any of the consequence for refusal but instead merely told him to sign the consent form. Lauretta did not believe that he had a choice regarding the taking of a blood specimen.

Findings of Fact and Conclusions of Law

The court made numerous findings of fact and conclusions of law.[3] To summarize the court s findings and conclusions, it chose to believe Mercer s and Lauretta s testimony over Trooper Brice s. Accordingly, the court found that Williamson was under arrest while at the hospital; that Brice informed Williamson, his mother, and stepfather that he must either provide a blood specimen or go to jail; and that Brice did not read the statutory warnings (the DIC-24) to Williamson before obtaining his consent to provide a blood specimen. Thus, the court concluded that Williamson s consent to the taking of a blood specimen was not voluntary.

Standard of Review

Williamson s suppression motion challenged the voluntariness of his consent under both the federal and state constitutions. However, the court found only a Fourth Amendment violation. [4] Therefore, we use only federal constitutional law to decide this appeal.

Voluntary consent to a search is a well-established exception to the warrant and probable cause requirements of the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854 (1973); Montanez v. State, 195 S.W.3d 101, 105 (Tex. Crim. App. 2006); Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002). The federal constitution requires the State to prove voluntary consent by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n.14, 94 S. Ct. 988, 996 n.14, 39 L. Ed. 2d 242 (1974); Montanez, 195 S.W.3d at 105.

At a suppression hearing, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Thus, the court may choose to believe or disbelieve any or all of a witness s testimony. This Court is not at liberty to disturb any fact finding that is supported by the record. Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007). We view the evidence in the light most favorable to the court s ruling. If the court makes explicit findings of fact, we must determine whether the evidence supports these findings. By contrast, we review the court s legal ruling de novo unless the court's findings (which are supported by the evidence) are also dispositive of the legal ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

Application

The court found that Trooper Brice informed Williamson, his mother, and stepfather that he must either provide a blood specimen or go to jail and that Brice did not read the statutory warnings to Williamson before obtaining his consent. These findings are supported by the testimony of Williamson, his mother, and his stepfather.[5]

Consent is involuntary if obtained by threat of incarceration. See Erdman v. State, 861 S.W.2d 890, 893-94 (Tex. Crim. App. 1993). Consent is also involuntary if induced by the arresting officer s misstatement of the statutory consequences which flow from a refusal to provide a specimen. See State v. Woehst, 175 S.W.3d 329, 332-33 (Tex. App. Houston [1st Dist.] 2004, no pet.); Franco v. State, 82 S.W.3d 425, 427 (Tex. App. Austin 2002, pet. ref d). We conclude that a total failure to read the statutory consequences likewise renders a consent involuntary.

Viewing the evidence in the light most favorable to the court s findings, we cannot say that the court abused its discretion by concluding that Williamson s consent was involuntary. Therefore, we overrule the State s sole issue and affirm the suppression order.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray notes that the statement in the opinion We conclude that a total failure to read the statutory consequences likewise renders a consent involuntary is unnecessary dicta. The comment is at best an alternate holding and I do not join it because it is a global conclusory statement that is not supported by authority. I concur in the remainder of the opinion and the judgment.)

Affirmed

Opinion delivered and filed January 30, 2008

Do not publish

[CR25]

[1] Notwithstanding Brice s testimony on this issue, the trial court found that Williamson was under arrest when he consented to the withdrawal of a blood specimen, and the State does not challenge this finding.

[2] However, the nurse did not have any personal recollection of having drawn Williamson s blood or of the events surrounding his treatment.

[3] The court s findings of fact and conclusions of law cover six pages and include thirty-seven findings of fact and thirteen conclusions of law.

[4] This is stated in the court s Conclusion of Law No. 13.

[5] The State places great emphasis on the fact that neither Williamson nor any other witness refuted Trooper Brice s testimony that Williamson consented to providing a blood specimen and that Brice read the DIC-24 to Williamson shortly after arriving at the hospital (and ostensibly before Williamson s mother and stepfather arrived). However, the trial court was free to disbelieve this testimony, which the court expressly did in its Findings of Fact Nos. 8 and 9. See Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007).