Donjuan v. State

461 S.W.3d 611

Moises Donjuan, Appellant

v.The State of Texas, Appellee

NO. 14–13–00829–CR

Court of Appeals of Texas, Houston (14th Dist.).

Filed February 19, 2015

Rehearing En Banc Overruled April 7, 2015

Louis Jether Jones II, Galveston, TX, for Appellant.

Rebecca Klaren, Galveston, TX, for State.

Panel consists of Chief Justice Frost and Justices Boyce and McCally.

OPINION

William J. Boyce, Justice

A jury convicted appellant Moises Donjuan of felony driving while intoxicated¹ and assessed his punishment at five years' imprisonment. Appellant contends that the trial court committed reversible error by (1) denying appellant's motion to suppress the results of a blood alcohol test; and (2) failing to direct appellant to wear civilian clothes at trial. We affirm.

Background

Lieutenant William Settegast of the Galveston County Sheriff's Office stopped appellant for failure to maintain his pickup truck in a single lane of traffic. After stopping appellant, Settegast observed that appellant smelled of alcohol, spoke with slurred speech, and was unsteady on his feet.

Settegast contacted Deputy Jacob Manuel to investigate whether appellant had driven while intoxicated. Manuel arrived on the scene, and Settegast departed. Manuel determined that appellant spoke Spanish and “very little English.” Manuel called Deputy David Galindo to the scene to translate.

Manuel asked appellant, through Galindo's translation, whether appellant would agree to participate in a field sobriety test. Appellant refused. Manuel placed appellant under arrest for driving while intoxicated.

Galindo read the contents of Form DIC–24 to appellant in Spanish.² The form warned appellant of the consequences of giving or refusing to give a breath or blood specimen. The form stated that an officer may apply for a warrant if the suspect refuses to provide a specimen. Appellant consented to providing a breath specimen after Galindo read the form to him in Spanish.

Manuel drove appellant to the Dickinson Police Station to take a breath specimen. Galindo stayed with appellant's truck. Department of Public Safety Trooper Matthew Leighton took appellant into custody at the police station to conduct appellant's breath test. Leighton observed appellant for 15 minutes. Leighton told appellant how to give a sufficient breath specimen for alcohol-content analysis. Appellant blew into the police station intoxilyzer twice. The intoxilyzer recorded appellant's breath specimen as “deficient” and was unable to analyze appellant's breath for alcohol content.

Manuel reviewed appellant's criminal history and discovered that appellant had two prior convictions for driving while intoxicated. Manuel contacted Galveston County Assistant District Attorney John Hall, who requested a mandatory draw of appellant's blood. See Tex. Transp. Code Ann. §§ 724.011(a), 724.012(b), 724.013 (Vernon 2011). Manuel thereafter learned that appellant had failed to provide a sufficient breath specimen for alcohol-content analysis. Manuel considered appellant's failure a “refusal” to provide a breath specimen.

Manuel transported appellant to the Mainland Medical Center and ordered Dr. Suchmor Thomas to draw appellant's blood pursuant to the Transportation Code. See id. §§ 724.011(a), 724.012(b), 724.013. Thomas drew appellant's blood while Manuel was present.

The State indicted appellant for felony driving while intoxicated. Appellant filed a motion to suppress the blood specimen and the results of a blood alcohol test of the specimen. At the evidentiary hearing on the motion to suppress, appellant's counsel questioned Dr. Thomas:

[APPELLANT'S COUNSEL]: You didn't have any opportunity to ask [appellant] whether he gave consent to having his blood drawn?

[DR. THOMAS]: I did. I always ask the patients before I do any blood draws or any procedures.

[APPELLANT'S COUNSEL]: And you didn't give him any kind of form or consent to sign, did you sir?

[DR. THOMAS]: We usually don't. We just ask them.

[APPELLANT'S COUNSEL]: And so you asked him, and then you just take blood?

[DR. THOMAS]: No. We ask them. We get his consent. I tell him, “My name is Dr. Thomas. Can I draw your blood,” because it is supposed to be sent to the State for alcohol blood level. And he said, “Yes, Doctor, I do.”

[APPELLANT'S COUNSEL]: And so you routinely take blood without having a person sign a consent form, sir?

[DR. THOMAS]: If the patient is intubated, the patient doesn't know where he is, we can't. Otherwise, we always do[.]

The State questioned Thomas:

[THE STATE]: And you said that you asked [appellant] to draw his blood, and he gave consent. Was he violent with you? Did he fight with you?

[DR. THOMAS]: No, ma'am.

[THE STATE]: You asked him and he said yes and then you took the blood?

[DR. THOMAS]: Yes.

Settegast, Manuel, Galindo, and Leighton testified at the hearing. None of the officers testified that appellant was told his blood draw was mandatory. The trial court denied appellant's motion.

The trial court admitted appellant's blood specimen and the results of a blood alcohol test of the specimen into evidence at trial. The results showed a blood alcohol concentration of 0.161 grams of alcohol per 100 milliliters of blood, which is above the legal driving limit. See Tex. Penal Code Ann. § 49.01(1), (2) (Vernon 2011). The jury convicted appellant of felony driving while intoxicated and assessed his punishment at five years' imprisonment. Appellant timely appealed.

Analysis

I. Motion to Suppress

In his first issue, appellant contends that the trial court erred in denying his motion to suppress his blood specimen and the results of a blood alcohol test of the specimen.

A. Standard of Review

Evidence obtained in violation of the law must be excluded from jury consideration in criminal cases upon the defendant's request. Tex.Code Crim. Proc. Ann. art. 38.23 (Vernon 2005) ; see also Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (evidence obtained by search and seizure in violation of the Constitution is inadmissible).

We review a trial court's ruling on a motion to suppress under a bifurcated standard. Vasquez v. State, 324 S.W.3d 912, 918 (Tex.App.–Houston [14th Dist.] 2010, pet. ref'd) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) ). We give “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 are based on an evaluation of credibility and demeanor.” See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We review de novo questions of law and “mixed questions of law and fact” that do not depend upon credibility and demeanor. Fienen v. State, 390 S.W.3d 328, 335 (Tex.Crim.App.2012) ; Guzman, 955 S.W.2d at 89. When, as here, there are no explicit findings of historical fact, we review the evidence in the light most favorable to the trial court's ruling assuming that the trial court made implicit findings of fact supported in the record that buttress its ruling. See Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000).

The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The ultimate touchstone of the Fourth Amendment is reasonableness. Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014). A search conducted without a warrant issued upon probable cause is “per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). It is the State's burden to show that a warrantless search falls within one of these exceptions. McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App.2003).

The State concedes that appellant's blood was drawn without a warrant. It argues that its search was reasonable under the voluntary consent and exigent-circumstances exceptions to the warrant requirement. See id. (recognizing voluntary consent to search and search under exigent circumstances as exceptions to the Fourth Amendment warrant requirement).

We address the State's argument that appellant voluntarily consented to the warrantless blood draw. Finding consent, we do not consider whether exigent circumstances also support the reasonableness of the blood draw.

B. Consent

A warrantless search authorized by consent is wholly valid. Schneckloth, 412 U.S. at 222, 93 S.Ct. 2041. “A driver's consent to a blood or breath test must be free and voluntary, and it must not be the result of physical or psychological pressures brought to bear by law enforcement.” Fienen, 390 S.W.3d at 333. Consent is not established by “showing no more than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 548–49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). “The ultimate question is whether the person's ‘will has been overborne and his capacity for self-determination critically impaired’ such that his consent to search must have been involuntary.” Fienen, 390 S.W.3d at 333 (quoting Schneckloth, 412 U.S. at 225–26, 93 S.Ct. 2041 ). The validity of alleged consent is a question of fact, and the State must prove voluntary consent by clear and convincing evidence. Id.

The trial court must consider the “totality of the circumstances” in order to determine whether consent was given voluntarily. Id. The court “must conduct a careful sifting and balancing of the unique facts and circumstances of each case in deciding whether a particular consent to search was voluntary or coerced.” Meekins v. State, 340 S.W.3d 454, 459 (Tex.Crim.App.2011). “[N]o one statement or action should automatically amount to coercion such that consent is...