AFFIRMED; Opinion Filed June 9 , 2015.

In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05
- 14
- 00483
- CR JUSTIN COOK , Appellant

V. THE STATE OF TEXAS , Appellee On Appeal from the County Criminal Court No. 9

Dallas County, Texas Trial Court Cause No. M A 12
- 46238
- K 

### MEMORANDUM OPINION Before Justices Myers, Evans, and Brown Opinion by Justice Myers Appellant Justin Cook was charged by information with driving while intoxicated . He filed a pretrial motion to suppress evidence ; the trial court held a hearing and denied the motion. In accordance with the negotiated plea agreement, the trial court subsequently sentenced appellant to 150 days in jail, suspended imposition of the s entence, placed appellant on fifteen months’ community supervision, and assessed a $1000 fine. In one issue, appellant contends the trial court erred by denying the pretrial motion to suppress. We affirm.
B ACKGROUND AND P ROCEDURAL H ISTORY On October 7, 2012, Officer Richard Conklin of the Ri chardson Police Department arrested appellant for DWI following a traffic stop

. Officer Conklin testified that once appellant was arrested and transported to the Richardson Jail, he was read “the statut ory warning.” Although Officer Conklin typically u sed the 2011 version of the form DIC

– 24 that contained the– 2

–

statutory warning s due a suspect, he testified that the statutory warning s he orally read and provided to appellant on this occasion w ere from the 2005 version of the DIC

– 24 form. When asked about the difference between the 2005 and 2011 forms, the officer stated that the 2005 version of the form did not include the warning that “ [i] f you refuse to give a specimen, the officer may request a warrant authorizing a specimen to be taken from y ou,” which was added in

a 2011 amendment to the statue

. See T EX
. T RANSP
. C ODE A NN . § 724.015 (3). The State then asked: Q. Okay. When you handed a copy of this warning to the defendant and read it to him, did the defendant indicate that he understood these warnings? A. He did. Q. After the defendant indicated he understood these warnings, did he choose to provide a breath specimen? A. He did. Q. And so he consented to a breath test? A. Yes, sir, he did. Q. This was completely voluntary? A. Yes, sir. The officer testified that another officer administered the Intoxilyzer t est and obtained the test results. Officer Conklin was not aware of anything that would have caused the test results to be invalid. Officer Conklin again testified on cross

- examination that he was aware of the 2011 change to the statutory warnings , and that the 2011 version of the form included the language found in section 724.015(3)

. Se e id. He testified that he did not read appel lant the language in section 724.015(3) because that provision was not included i n the version of the form he had in his possession at the time of appellant’s arrest. Defense counsel then asked, “Did you at any time, other than what we have heard you test ify to, warn Mr. Cook that if he refused to submit to– 3

–

the taking of a specimen, you might apply or you may apply for a warrant authorizing a specimen to be taken from him ? ” Conklin replied, “Not that I recall, sir, no.” He testified that, as far as he kn ew, he had always read and provided the 2011 version of the statutory warnings to DWI suspects. He explained, “In the jail where we have the forms, there, obviously, was a 2005 version somewhere laying in that stack of papers that I must have grabbed, and just out of the habit of reading the statutory warning so many times . . . I didn’t realize that it was the 2005 version.”
D ISCUSSION In his issue, appellant argue s the trial court erred by overruling his motion to suppress evidence. Specifically, he c ontends that , because he was not advised of all the requirements of section 724.015 of the Transportation Code before agreeing to provide a breath specimen, “ there was a failure to comply with the I mplied C onsent L aw which precludes a finding that [ appellant ] consented to providing the specimen. ” Section 724.015 of the Transportation Code requires an officer to provide certain information orally and in writing before requesting a specimen of a person ’ s breath or blood for analysis to determine alco hol concentration. See T EX
. T RANSP
. C ODE A NN
. § 724.015

. The DIC

– 24 form, entitled “statutory warning,” is the Texas Department of Public Safety ’ s standard form containing the written warnings required by s ection 724.015. See Martin v. Department of Pub lic Safety , 964 S.W.2d 772, 773 (Tex. App.

— Austin 1998, no pet.). It lists the warnings due a suspect under section 724.015. Lakore v. State , No. 07

– 12

– 00485

– CR, 2014 WL 6478569, at *2 (Tex. App.

–– Amarillo Nov. 19, 2014, no pet.) (mem. op., n ot designated for publication).
T he following warnings are found in the 2005 version of the DIC

– 24 form, which Officer Conklin testified that he read and provided to appellant be fore requesting the breath specimen: If you refuse to give the specimen, that r efusal may be admissible in a subsequent prosecution. Your license, permit or privilege to operate a motor vehicle will be– 4

–

suspended or denied for not less than 180 days, whether or not you are subsequently prosecuted for this offense. If you are 21 years or age or older and submit to the taking of a specimen and an analysis of the specimen shows that you have an alcohol concentration of 0.08 or more, your license, permit or privilege to operate a motor vehicle will be suspended or denied for not less than 90 days, whether or not you are subsequently prosecuted for this offense. If you are younger than 21 years of age and have any detectable amount of alcohol in your system , your license, permit or privilege to operate a motor vehicle will be suspended or d enied for not less than 60 days. However, if you submit to the taking of a specimen and an analysis of the specimen shows that you have an alcohol concentration of less than 0.08, you may be subject to criminal penalties less severe than those provided fo r under Chapter 49, Penal Code. If you refuse to give the specimen, or if the specimen shows that you have an alcohol concentration of 0.08 or more, you may be disqualified from driving a commercial motor vehicle for a period of not less than one year. You may request a hearing on the suspension or denial. This request must be received by the Texas Department of Public Safety at its headquarters in Austin, Texas, no later than 15 days after you receive or are presumed to have received notice of suspension or denial. The request can be made by written demand, fax, or other form prescribed by the Department. See T EX
. T RANSP
. C ODE A NN . §§ 724.015 , 724.035, 724.061. Appellant argues that his consent to provide a breath specimen was in voluntary because the 2005 version of the DIC

– 24 form did not include the warning that “if the person refuses to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person.” See T EX
. T RANSP
. C ODE A NN . § 724.015 (3)

. This warning was added by amendment to section 724.015 and became effective on September 1, 2011. See Act of May 23, 2011, 82nd Leg., R.S. , ch. 674 § 1, 2011 Tex. S ess. Law S erv. 1627 (West)

. A warrantless search authorized by consent is wholly valid

. Schneckloth v. Bustamonte , 412 U.S. 218, 222 (1973)

. “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 v. State , 390 S.W.3d 328, 333 (Tex. Crim. App. 2012). In making this determination, the trial court must consider the totality of the circumstances. Id

. “[N]o one– 5

–

statement or action should automatically amount to coercion such that consent is involuntary

— it
must be considered in the totality.” Id

. The ultimate question is whether the person ’ s “will has been overborne and his capacity for self

- deter mination critically im paired” such that his consent to search must have been involuntary. Schneckloth , 412 U.S. at 225

– 26. The validity of an alleged consent is a question of fact, and the State must prove voluntary consent by cl ear and convincing evidence. Fienen , 390 S.W.3d at 333. We will uphold a trial court ’ s finding on the voluntariness of a breath test unle ss the ruling is clearly

erroneous. Id

. at 335. We re view de novo questions of law and “mixed questions of law and fact” that do not depend upon credibility and demeanor

. See id

. When, as in this case, the trial court d oes not make explicit findings of fact, we must view the evidence in a light most favorable to the trial court ’ s ruling and assume the trial court resolved any issues of historical fact or credibility consistently with its ultimate ruling. Hubert v. State , 3 12 S.W.3d 554, 560 (Tex. Crim. App. 2010). The record in this case does not show, nor does appellant argue, that Officer Conklin threatened, intimidated, coerced, or used any type of force to secure appellant’s consent to provide the breath specimen. No r is there any question regarding t he accuracy of the statutory warnings that were provided to appellant

. It is true that t he 2005 version of the form that Officer Conklin used did not include the section 724.015(3) warning that “if the person refuse s to submit to the taking of a specimen, the officer may apply for a warrant authorizing a specimen to be taken from the person.” T EX
. T RANSP
. C ODE A NN . § 724.015 (3). But if we were to conclude that appellant’s consent was involuntary simply because Offic er Conklin read f rom an older version of the DIC

– 24, and th ereby failed to inform appellant that his refusal may result in the officer applying for a warrant that authorize d the taking of a specimen of appellant’s breath, we would be disregarding the provi so in Fienen that “no one statement or action should automatically– 6

–

amount to coercion such that consent is involuntary.” Fienen , 390 S.W.3d at 333. The voluntariness of consent must be analyzed based on the totality of the circumstances

. Id . at 335. “No stateme nt

— whether it refers to the con sequences of refusing a breath test, the consequences of passing or failing a breath test, or otherwise

— should be analyzed in isolation because its impact can only be understood when the surrounding circumstances a re accounted for. ” Id

. In addition, as noted by the State, the incomplete warnings actually understated the consequences of

a refusal, and there is no evidence that appellant’s consent was somehow ind uced or coerced by Officer Conklin understating the co nsequence of refusal

. See Bice v. State , No. 13

– 12

– 00154

– CR, 2013 WL 123709, at *4 (Tex. App.

–– Corpus Christi Jan. 10, 2013, pet. ref’d) (mem. op., not designated for publication) (“ Although appellant consented after he was incorrectly advised, there is n o indication that the consent was induced or coerced by the officer understating the consequences of a refusal. ” ) ; see also State v. Dorr , No. 08

– 13

– 00305

– CR, 2015 WL 631033, at *2 (Tex. App.

–

– El Paso Feb. 13, 2015, no pet.) (“ [W] arning a suspected intoxicated driver that the officer may apply for a warrant to obtain a specimen if the driver refuses to consent actually makes it more likely that the driver will vo luntarily provide the specimen. ”) (emphasis in original)

. Likewise, there i s no evidence that the use of the 2005 DIC

– 24 had any impact on appellant’s decision to consent to providing the breath specimen. Therefore, c onsidering the totality of the circumstances, Officer Conklin’s failure to fully inform appellant of the
conseque nces of a refusal did not render appellant’s consent invalid. See Worku v. State , No.
14

– 13

– 00047

– CR, 2014 WL 1330278, at *8 (Tex. App.

–– Houston [14th Dist.] April 3, 2014, no pet.) (mem

. op., not designated for publication) (“ Although appellant consented after hearing the inaccurate warnings, that fact alone, without evidence that appellant was pressured physically or psychologically, is insufficient to invalidate an otherwise voluntary consent. ”) (citing Fienen , 390 S.W.3d at 333 )

.– 7

–

Nor are we persuaded by appellant’s contention that “[i]t cannot be said that the State established that [appellant] freely and voluntarily, positively and unequivocally [,] consented to provide a specimen of his breath based on the mere reading of the Implied Consent Law

warn ings.” The relevant question is whether, based on the totality of the circumstances, the State met its burden of proving that the defendant’s consent was voluntary. See Fienen , 390 S.W.3d at 33 4

– 3 5. As we have already d iscussed, when viewed in the light most favorable to the trial court’s ruling, the totality of the circumstance s here amply demonstrate that appellant voluntarily consented to provide the breath s pecimen. 1 Accordingly, we conclude that the record supports the trial court’s implied finding that appellant freely and voluntarily consented to provide the specimen of his breath, and that the record shows that the warrantless seizure of appellant’s breath specimen was reasonable under the Fourth Amendment. We overrule appellant’s issue. 2 We affirm the trial court’s judgment. / Lana Myers/ LANA MYERS JUSTICE Do Not Publish TEX. R. APP. P. 47 140483F.U05

1 Appellant also cites the decision in Leal v. State , 452 S.W.3d 14 (Tex. App.

–– Houston [14th Dist.] 2014), vacated and remanded , 456 S.W.3d 567 (Tex. Crim. App. 2015). In Leal , the court of appeals held that the totality of the circumstances showed that the appellant withdrew his consent prior to the warrantless blood draw because he physical ly resisted the taking of his blood and had to be rest rained when the blood sample was taken

. Id . at 27. Moreover, given the appellant’s withdrawal of consent, the State’s only justification for conducting the warrantles s nonconsensual blood draw was the repeat

- offender provision of section 724.012 (b)(3)(B) , which is not a t issue in the present case, and the court concluded that the State ha d not met its burden o f establish ing the existence of a valid consent justifying the warrantless blood draw. Id . at 27

– 28. The court of criminal appeals ultimately vacated the judgment of the court of appeals and remand ed the case to address whether appellant preserved his claim that the warrantless blood draw violated his Fourth Amendment rights. See Leal , 456 S.W.3d at 568

.
2 The State argues that appellant’s b rief also contains a challenge to the constitutionality of the implied consent statute, and it points out that this challenge wa s not preserved for appellate review because appellant did not challenge the constitutionality of the statute either in his w rit ten motion to suppress or during the hearing on the motion to suppress. See T EX
. R. A PP
. P. 33.1. During oral argument, appellant’s counsel assured us he was not challenging the constitutionality of the implied consent statute. We , therefore , do not add ress the issue.– 8

– 

## Court of Appeals Fifth District of Texas at Dallas

JUDGMENT
JUSTIN COOK, Appellant No. 05

- 14

- 00483

- CR V. THE STATE OF TEXAS, Appellee On Appeal from the County Criminal Court No. 9, Dallas County, Texas Trial Court Cause No. MA12

- 46238

- K. Opinion delivered by Justice Myers. Justices Evans and Brown participating. Based on the Court’s opinion of this date, the judgme nt of the trial court is AFFIRMED

. Judgment entered this 9 th day of June, 2015.