LISANDRO ISRAEL LEAL v. THE STATE OF TEXAS (2011)

MEMORANDUM OPINION

Opinion By Justice Francis

A jury convicted Lisandro Israel Leal of driving while intoxicated, and the trial court sentenced him to ninety days in the county jail.   In a single issue, appellant contends the trial court erred in admitting evidence of his breath test results because he did not voluntarily consent to giving a breath sample.   We affirm.

Evidence at the suppression hearing showed that Plano Police Officer Tyra Gabriel arrested appellant for driving while intoxicated and took him to the intoxilyzer room at the police station.   Appellant was videotaped as Officer Gabriel played a recording, in Spanish, of the DIC–24 statutory warnings.   Before playing the tape, Office Gabriel directed appellant's attention to an enlarged copy of the DIC–24 statutory warnings in Spanish on the wall next to him and told him to follow along with the recording.   Although she did not ask whether appellant could read, the recording shows appellant looking at the posted form numerous times during the four-minute recording.   Near the end of the recording, the recording asks in Spanish, “Right now, we are asking for a sample of breath.   Tell the officer ‘Yes' or ‘No.’ ” Officer Gabriel's practice was to stop the tape after it asked for a sample of breath, and ask the defendant herself, in Spanish, “Yes” or “No.” On this occasion, however, Gabriel cut off the tape after “yes,” so that appellant heard, “Right now, we are asking for a sample of your breath.   Tell the officer ‘Yes'—.”  Officer Gabriel then immediately asked appellant herself, “yes or no.”   Appellant nodded yes.   Thereafter, the videotape shows appellant providing two breath samples.

After hearing the evidence, the trial court concluded appellant had voluntarily provided a breath specimen.   The trial court found the required statutory warnings were made available to appellant;  appellant turned to face the DIC–24 warnings on the wall several times;  the tape was cut off at “Tell the officer yes;” and the cutoff was a “problem” that was “cured” by special circumstances in this case, that is, the officer's immediately asking appellant, “si or no,” and an armed police officer asking “si or no” is more authoritative than a voice on the tape.   The breath results were admitted at trial and showed a blood alcohol content of 0.162 and 0.160.

We review a trial court'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).   We give almost total deference to the trial court's determination of historical facts, and we review de novo the trial court's application of law to facts not turning on credibility and demeanor.  Id. We do not engage in our own factual review;  instead, the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be their testimony.  St. George, 237 S.W.3d at 725.   We review the record to determine whether the trial court's ruling is supported by the record and is correct under some theory of law applicable to the case.  St. George, 237 S.W.3d at 725.

Section 724.011 of the Texas Transportation Code, known as the implied consent statute, provides that a person arrested for DWI is “deemed to have consented” to the taking of a breath sample and therefore a statutory presumption of consent exists.   Tex. Transp.  Code Ann. § 724.011(a) (West 2011);  Rodriguez v. State, 631 S.W.2d 515, 516 (Tex.Crim.App.1982).   That presumption, however, may be rebutted by evidence tending to show that consent was not voluntarily given.  State v. Amaya, 221 S.W.3d 797, 800 (Tex.App.—Fort Worth 2007, pet. ref'd).   An arrested person's decision to submit to a breath test must be his own and must be freely made with a correct understanding of the statutory consequences of refusal.  Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App.1993).   To be voluntary and thus consistent with the statutory scheme, the decision to provide a sample must not result from physical or psychological pressure brought to bear by law enforcement officials.  Id. Consent is also not voluntary if it is induced by an officer's misstatement of the consequences flowing from a refusal to give a specimen.  Id. at 894 n.3.

Here, appellant argues that because the portion of the recording deleted the “no” option, he “was told by the authority to respond in the affirmative to the question of whether to give a specimen of his breath which, in effect, caused [his] consent to be involuntary.”   We disagree.

Having reviewed the videotape, we conclude it supports the trial court's conclusion that appellant's consent was voluntary.   The statutory warnings were on an enlarged form posted on the wall just inches from appellant.   Officer Gabriel directed appellant's attention to the form and told him to follow along with the recording of the DIC–24 warnings in Spanish.   Several times during the four-minute tape, appellant looked at the form as if he were reading it.   Although the officer cut off the tape after “yes,” she asked appellant, “yes or no,” almost instantaneously.   Moreover, appellant could see the recording was interrupted.   Having just been warned of the statutory consequences of refusing to submit to the test and having just been told the officers were “asking for a sample” of his breath, we believe a reasonable person in appellant's position would have understood the recording had been cut off, and not that appellant had no choice in whether to provide a sample.   Under the circumstances presented, we conclude the trial court did not err in denying appellant's motion to suppress.

We affirm the trial court's judgment.

MOLLY FRANCIS JUSTICE