Billy Joey Bookman v. The State of Texas--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00156-CR

Billy Joey Bookman,

Appellant

v.

The State of Texas,

Appellee

From the 18th District Court

Johnson County, Texas

Trial Court No. F40686

MEMORANDUM Opinion

A jury convicted Billy Joey Bookman of felony driving while intoxicated and assessed his punishment at twenty-five years imprisonment after finding two enhancement allegations to be true. Bookman contends in two issues that the court erred by: (1) denying his motion to suppress intoxilyzer results; and (2) granting the State s motion in limine regarding the admissibility of the quantitative result of a portable breath test he took on the roadside. We will affirm.

Background

Department of Public Safety trooper Casey Jones stopped a dump truck driven by Bookman because the truck did not bear the statutorily required identification markings for a commercial motor vehicle. See Tex. Transp. Code Ann. 642.002 (Vernon 1999). Jones observed that Bookman had bloodshot eyes and detected alcohol on his breath, so the trooper attempted to conduct the horizontal gaze nystagmus test to evaluate Bookman s condition. Bookman was unable to complete this test but submitted to a portable breath test, which indicated the presence of alcohol in his system.

Jones advised Bookman that he was being detained and that he wanted to take Bookman to the county jail to submit to an intoxilyzer test. Jones testified that he wanted to do this to obtain results for purposes of the applicable commercial driver s license statutes.[1] He explained to Bookman that he was not under arrest and a friend could pick him up from the jail when the testing was completed. Bookman rode in the front seat of the patrol car without being handcuffed as they went to the jail. At the jail, Jones read Bookman the DIC-55 and DIC-24 statutory warning forms.[2] Bookman provided a breath specimen which showed an alcohol concentration of 0.13. Jones then arrested him for DWI.

Voluntariness of Consent

Bookman contends in his first issue that the court erred by denying his motion to suppress the intoxilyzer results because his consent was involuntary.

At a suppression hearing, the trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). Thus, the court may choose to believe or disbelieve any or all of a witness s testimony. Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007). This Court is not at liberty to disturb any fact finding that is supported by the record. Id. We view the evidence in the light most favorable to the court s ruling. State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).

State v. Rudd, 255 S.W.3d 293, 297-98 (Tex. App. Waco 2008, pet. ref d).

When the court makes explicit findings of fact, we must determine whether the evidence supports those findings. Kelly, 204 S.W.3d at 818; Rudd, 255 S.W.3d at 298. But when, as here, a trial court does not make explicit findings, we must defer not only to all implicit factual findings that the record will support in favor of [the] trial court s ruling, but also to the drawing of reasonable inferences from the facts. Amador v. State, 221 S.W.3d 666, 674-75 (Tex. Crim. App. 2007) (quoting Kelly v. State, 163 S.W.3d 722, 726 (Tex. Crim. App. 2005)); Rudd, 255 S.W.3d at 298 n.6. We then 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. Kelly, 204 S.W.3d at 818; Rudd, 255 S.W.3d at 298.

Trooper Jones did not recall the exact words he used when he detained Bookman and explained to him that he wanted him to submit to an intoxilyzer test, but Jones essentially testified that he had told Bookman he would be free to leave after he took the test. Bookman similarly did not recall the officer s exact words and likewise testified in the suppression hearing that he understood that he would be free to leave after submitting to the test. But Bookman did testify at one point in the suppression hearing that Jones said if I pass it he let me go.

The record supports an implied finding that Trooper Jones told Bookman he would be released if he passed the intoxilyzer test. See Amador, 221 S.W.3d at 674-75; Kelly, 163 S.W.3d at 726; Rudd, 255 S.W.3d at 298 n.6. There is no evidence in the record to support a finding that Jones provided Bookman any non-statutory consequences for a refusal to submit to the test. See Gette v. State, 209 S.W.3d 139, 145 (Tex. App. Houston [1st Dist.] 2006, no pet.) ( The courts of appeals have ruled that statements about the consequences of passing or failing the breath test are not of the same coercive nature as statements about the consequences of refusing to take a breath test. ) (quoting Ness v. State, 152 S.W.3d 759, 763 (Tex. App. Houston [1st Dist.] 2004, pet. ref d)).

Texas appellate courts have uniformly held that consent to a breath test is not rendered involuntary merely because an officer has explained that the subject will be released if he passes the test. See Gette, 209 S.W.3d at 146; Urquhart v. State, 128 S.W.3d 701, 705-06 (Tex. App. El Paso 2003, pet. ref d); Sandoval v. State, 17 S.W.3d 792, 796-97 & n.1 (Tex. App. Austin 2000, pet. ref d). Accordingly, we overrule Bookman s first issue.

Portable Breath Test

Bookman contends in his second issue that the court abused its discretion by granting the State s motion in limine regarding the admissibility of the quantitative result (0.076) of the portable breath test. He argues that this evidence should have been admitted because it is relevant to the issue of whether he had an alcohol concentration in excess of the legal limit on the occasion in question. He also argues that the court s decision to admit testimony regarding the portable breath test for the limited purpose of establishing that the test detected the presence of alcohol but not the quantitative result violates Rule of Evidence 403 because the probative value of this evidence is substantially outweighed by the danger of unfair prejudice and of misleading the jury.

The grant or denial of a motion in limine does not preserve an issue for appellate review. Griggs v. State, 213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007). A ruling on a state s motion in limine that excludes defense evidence is subject to reconsideration throughout trial, and to preserve error, an offer of the evidence must be made at trial. Shaw v. State, 122 S.W.3d 358, 362 (Tex. App. Texarkana 2003, no pet.) (citing Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (per curiam)); accord Garcia v. State, 106 S.W.3d 854, 857 (Tex. App. Houston [1st Dist.] 2003, pet. ref d).

Here, Bookman did not attempt to offer the quantitative result of the portable breath test in evidence at trial. Nor did he object under Rule 403 (or on any other basis) to Trooper Jones s trial testimony that the portable breath test did indicate a detectable amount of alcohol. Thus, he has not preserved this issue for appellate review. Warner, 969 S.W.2d at 2; Shaw, 122 S.W.3d at 362; Garcia, 106 S.W.3d at 857. Accordingly, we overrule Bookman s second issue.

The judgment is affirmed.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 6, 2008

Do not publish

[CRPM]

[1] A person driving a commercial motor vehicle with a measurable or detectable amount of alcohol in the person s system must be placed out of service for 24 hours. See Tex. Transp. Code Ann. 522.101 (Vernon 2007). A person driving a commercial motor vehicle with an alcohol concentration of 0.04 or more will be disqualified from driving a commercial motor vehicle for one year, even though this would not ordinarily be a sufficient level to support a DWI prosecution. Id. 522.081(b)(4)(A) (Vernon 2007); cf. Tex. Pen. Code Ann. 49.01(2)(B) (Vernon 2003) (defining intoxication for purposes of DWI prosecution).

[2] Bookman testified at the suppression hearing that Jones did not read these statutory warnings to him. However, the trial evidence (including the trooper s testimony and a video recording) establish that Jones did read the warnings to Bookman.