THE STATE OF TEXAS v. SCOTT ALAN RAMSEY (2011)

OPINION

Opinion By Justice Myers

Scott Alan Ramsey was charged by indictment with driving while intoxicated (DWI).   See Tex. Penal Code Ann. § 49.04 (Vernon 2003).   The State of Texas appeals from the trial court's order granting Ramsey's pretrial motion to suppress.   We reverse and remand.

Background and Procedural History

On March 13, 2010, Allen Police Officer Johnson arrested Ramsey for driving while intoxicated and then transported him to the police station.   At the station, Johnson asked Ramsey to submit to a breath test, and the police video recorded the interaction between Ramsey and the officer.   At the beginning of the recording, Johnson read the statutory warnings regarding the effects of a refusal to provide a breath specimen.   After reading those warnings to Ramsey, Johnson asked him, “I am now requesting a specimen of your breath.”   Then he asked, “Will you provide a breath specimen?”   Ramsey replied, “Yes sir.”

After Ramsey agreed to provide a breath specimen, Johnson explained the breath testing procedures and told him they would have to wait fifteen minutes before Ramsey could provide a breath sample.   During the next several minutes of the recording, neither the officer nor Ramsey mentioned the breath test.   The officer then described the testing procedure in more detail.   After Johnson explained the testing procedure, Ramsey said, “We can do it now if you want.”

Johnson told Ramsey they would have to wait until the end of the fifteen minute period, so he could not allow Ramsey provide a breath specimen at that time.   At this point, Ramsey asked the officer what would happen if his blood-alcohol concentration was less than .08 percent, which is the legal limit in Texas.   See Tex. Penal Code Ann. § 49.01(2)(B) (West 2011).   The officer replied that Ramsey would get an “unarrest” letter and “you go home.”   Ramsey then asked what would happen if the sample was more than .08.   Johnson replied, “Well, we'll talk about that.”   Ramsey also asked about the status of his car:  “Does that mean my car doesn't get towed if it's less?”   The officer replied that the car “was probably already on the wrecker, but if we beat it, maybe we can stop it.”   Ramsey said, “That's why I wouldn't mind doing it now.”   Johnson again told Ramsey they would have to wait “the fifteen minutes.”

Ramsey did not ask any other questions about the consequences of taking the breath test.   He did not indicate he had changed his mind about giving a breath sample or that he was having second-thoughts.   After waiting fifteen minutes, Ramsey submitted two breath samples.   The test results showed he had an alcohol concentration of .113 percent.

Ramsey filed a motion to suppress the results of the breath test and any evidence, testimony, or statements regarding the breath test.   At the pretrial suppression hearing, the State introduced the recording of the conversation between Johnson and Ramsey in the intoxilyzer room, and Ramsey testified.   Ramsey admitted that he agreed to take the breath test after the officer read the statutory warnings.   He also admitted that he never withdrew his consent.   But Ramsey testified that he had doubts about his original agreement to take the test and those doubts were expressed in the questions he asked the officer about what would happen if he passed the test.   Ramsey testified that his ultimate decision to submit to a breath test came only after the officer told him about the “unarrest” letter and the other consequences of passing the test, and this additional information coerced Ramsey into taking the breath test.

The trial court granted Ramsey's motion to suppress, and subsequently filed findings of fact and conclusions of law.   This appeal followed.   The State challenges the following findings:

6.  Within minutes after the defendant, Scott Ramsey, was provided with this information by the officer [information regarding the “unarrest letter” and efforts to prevent Ramsey's car from being towed], he agreed to submit to the breath test.

7. The court finds that the Defendant did place actual reliance upon the officer's statements in deciding whether or not to submit to a breath test.

8. The Court finds that the officer's statements did bear significantly on the defendant's decision to take the test.

9. The Court finds that the officer's statements exerted considerable psychological pressure upon the defendant to consent to take the breath test.

10. The Court finds that the officer's statements were coercive in nature and did in fact coerce the defendant to submit to a breath test.

Discussion

The State argues that the trial court (1) erred as a matter of law by concluding Ramsey agreed to take the breath test after Johnson made the extra-statutory comments because “Ramsey's consent was effective prior to the comments and Ramsey never withdrew his original verbal consent”;  (2) abused its discretion by concluding Ramsey agreed to take the breath test after the extra-statutory comments were made because “the video evidence showed the consent occurred before those comments”;  and (3) the trial court abused its discretion by determining that the officer's extra-statutory comments were coercive.   We begin with the State's second issue.

We review a trial judge's ruling on a motion to suppress evidence under a bifurcated standard of review.  St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App.2007);  Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App.2005);  Randolph v. State, 152 S.W.3d 764, 769 (Tex.App.-Dallas 2004, no pet.).   This standard of review gives almost total deference to a trial court's determination of historical facts, particularly when the trial court's fact findings are based on an evaluation of credibility and demeanor.   See St. George, 237 S.W.3d at 725;  Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997);  Randolph, 152 S.W.3d at 769.   We show the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor.  Guzman, 955 S.W.2d at 89.   We apply a de novo review to mixed questions of law and fact not turning on an evaluation of credibility and demeanor.  St. George, 237 S.W.3d at 725;  Guzman, 955 S.W.2d at 89;  see also State v. West, 20 S.W.3d 867, 870–71 (Tex.App.—Dallas 2000, pet. ref'd).

When reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling.  Wiede v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007);  State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006).   When, as in this case, the trial court makes explicit fact findings, we determine whether the evidence, when viewed in the light most favorable to the trial court's ruling, supports those findings.   Kelly, 204 S.W.3d at 818–19.   We then review the trial court's legal ruling de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling.  Id. at 818.   We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case, even if the trial court gave the wrong reason for its ruling.  State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App.2007);  Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003).

A driving while intoxicated suspect's decision to take a breath alcohol test must be voluntary.   See Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App.1993).   To be voluntary, the decision to consent to a breath test must not be the result of physical or psychological pressure brought to bear by law enforcement officials.  Id. The suspect's decision to submit to a breath test must be his own, made freely, and with a correct understanding of the statutory consequences of refusal.  Id. “If the officer requesting a breath sample misstates the law and includes extra-statutory consequences of a refusal to submit to the breath test, the consent may be considered to have been involuntarily given.”  Sandoval v. State, 17 S.W.3d 792, 795 (Tex.App.—Austin 2000, pet ref'd) (emphasis in original).   The defendant must show a causal connection between the improper warning and the decision to submit to a breath test.   See id. at 796;  Tex. Dep't of Pub. Safety v. Rolfe, 986 S.W.2d 823, 827 (Tex.App.—Austin 1999, no pet.).   In this case, Ramsey does not complain about the statutory admonishments he received and there is nothing in the record to show that he was advised improperly.   The evidence also shows that Ramsey agreed to take the breath test almost immediately after Johnson read the statutory warnings.   At that time, Ramsey had received only the statutory warnings.   Johnson's extra-statutory comments regarding what consequences might follow if Ramsey passed the breath test occurred after Ramsey verbally consented to take the breath test.   Ramsey never withdrew that consent.   See, e.g., Harrison v. State, 205 S.W.3d 549, 553 (Tex.Crim.App.2006) (once given, consent remains effective until withdrawn).   Therefore, the trial court abused its discretion by finding Ramsey relied on the officer's extra-statutory comments in making his decision to submit to a breath test, and that those comments coerced Ramsey into consenting.

We sustain the State's second issue.   We reverse the trial court's order granting Ramsey's motion to suppress and remand this cause for further proceedings.   We do not address the State's other issues.

LANA MYERS JUSTICE