Affirmed and Opinion filed February 19 , 2015

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 13

- 00829

- CR

MOISES DONJUAN , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 12

- CR

- 2473

O P I N I O N
A jury convicted appellant Moises Donjuan of felony driving while
intoxicated 1 and assessed his punishment at five year s’ imprisonment. Appellant
contends that the trial cou rt 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 wea r civilian clothes at trial . We affirm

.

1 See Tex. Penal C ode Ann. §§ 49.04, 49.09(b) (Vernon Supp. 2014 )

.2 B ACKGROUND 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 fe et. Settegast contacted Deputy Jacob Manuel to investigate whether appellant
had driven while intoxicated. Manuel ar rived on the scene , and Settegast departed.
Manuel determined that appellant spoke Spanish and “ very little English

. ” Manuel
called D eput y 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 driv ing while intoxicated.

Galindo read the contents of Form DIC

- 24 to appellant in Spanish. 2 Th e form warned appellant o f 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 f orm to him in Spanish

. Manuel drove appellant to the Dickinson Police Stat ion 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 . Leighto n observed appellant for 15 minutes

. Leighton told appellant how to give a sufficient breath specimen for al cohol

-

2 Form DIC

- 24 is the stan dard warning to be given to a suspected intoxicated driver before an officer asks the s uspect to give a breath or blood specimen. See Martin v. Dep’t of Pub. Safety , 964 S.W.2d 772, 773 (Tex. App.

— Austin 1998, no pet.); see also Tex. Transp. Code An n. § 724.015 (Vernon Supp. 2014 ) (stating the information an officer mu st provide to a suspect ed intoxicate d driver before requesting the suspect to give a breath or blood specimen).3

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 dis covered that appellant had two prior convictions for driving while intoxicated. Manue l contacted Galveston County A ssistant District A ttorney 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 provid e a sufficient breath specimen for alcohol

- content analysis. Manuel considered appellant’s failure a “refusal” to provide a breath specimen

. Manue l 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 S tate 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 ,

a ppellant’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 proc edures. [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 you4

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[.]

T he 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

. No ne of the
officers testified that appellant was told his blood draw was mandatory

. The trial

court denied appellant’s motion.

The trial court admitted a ppellant’s blood specimen and the results of a
blood alcohol te st 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 An n. § 49.01(1), (2) (Vernon 2011 ). The jury convicted appellant of felony driving while intoxicated
and assessed his punishment at five year s’ imprisonment. Appellant timely appealed.5 A NALYSIS

I. Motion to Suppress In his first issue, appellant contends that the trial court erred in denying his motion to sup press 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
consider ation 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 (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

sta ndard. Vasquez v. State , 324 S.W.3d 912, 918 (Tex. App.

— Hous ton [14th Dist.] 2010, pet. ref ’ d) (citing Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). We give “ almost t otal 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 la w 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 mos t favora ble 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)

.6

The Fourth Amendment to the United St ates 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 a ffirmation, 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 Four th Amendment is
reasonableness

. Riley v. California
, 134 S. Ct. 2473, 2482 (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 (1973)

. It is the State’ s burden to

s how 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 volu ntary 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 who lly valid. Schneckloth
, 412 U.S. at 222

. “ 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 t o a claim of lawful7

authority.” Bumper v. North Carolina
, 391 U.S. 543, 548

- 49 (1968)

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

- de t ermination 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). The validity of alleged consent is a question of fact, and the State must prove voluntary co nsent 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 an d 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 conse nt is involuntary .” Fienen , 390 S.W.3d at 333 . We uphold the trial court’s finding of voluntariness unless it is clearly erroneous. Id. at 335.

The State argues that appellant’s warrantless blood draw was constitutional because appellant gave Dr. Thomas ac tual , voluntary consent to draw his blood. Appellant acknowledges that he agreed Dr. Thomas could draw his blood. He argues that his agreement was at most acquiescence to Manuel’s claim of lawful authority to compel production of appellant’s bl ood specimen

. See Bumper , 391
U.S. at 548

–

49 (consent not voluntary where officer falsely represented he had a
valid s earch warrant ). 3

3 The Texas Transportation Code provides that a person arrested for driving while intoxicated is deemed to have consented to the taking of one o r more specimens of the person’s breath or blood for analysis to determine alcohol concentration. Tex. Transp. Code Ann. § 724.011(a); see Leal v. State
, No. 14

- 13

- 00208

- CR, 2014 WL 5898299, at *8 (Tex. App.

— Houston [14th Dist.] Nov. 13, 2014, no. pet. h.) . A driver, however, may refuse an officer’s request to submit a specimen unless certain aggravating circumstances exist. Tex. Transp. Code Ann. §§ 724.012(b), 724.013; see State v. Villarreal
, No. PD

- 0306

- 14, 2014 WL 6734178, at *78

We deem t he trial court to have made an implied finding that appellant
voluntar il y consented to his blood draw because the trial court did not make explicit findings of fact
, and this implied finding buttresses the trial court’s ruling

. See Carmouche
, 10 S.W.3d at 328

. 4 W e must uphold the trial court’s implied finding of voluntary consent because it is not clearly errone ous. See Fienen , 390
S.W.3d at 33 5.

(Tex. Crim. App. N ov. 26, 2014) (“[A] n individual who is arrested for an ‘ ordinary ’ DWI

. . . has an absol ute right to refuse to provide a specimen, notwithstanding the existence of implied consent. ”). Texas Transportation Code section 724.012(b)(3)(B) describes an instance of aggravating circumstances. As written, section 724.012(b)(3)(B) authorizes an officer to take a specimen of a person’s breath or blood if (1) the officer arrests the person for driving while intoxicated; (2) the person refuses the officer’s request to submit a specimen voluntarily; and (3) at the time of arrest, the officer possesses or receives reliable information from a credible source that the person previously has been convicted of driving while intoxicated on two or more prior occasions. Tex. Tr ansp. Code Ann. § 724.012(b)(3)(B); see Leal , 2014 WL 5898299, at *8. If the stated circumstances exist, the statute provides that a person cannot revoke statutory implied consent. Tex. Transp. Code Ann. § 724.012(b)(3)(B); see Villarreal , 2014 WL 673417 8, at *7 ( “[I] f one of the aggravating circumstances is present, then, pursuant to the statute, even if a suspect refuses to comply, an officer has a mandatory duty to require that the suspect ’ s blood be drawn. ”). The Texas Court of Criminal Appeals recent ly held a warrantless blood draw unconstitutional when justified solely by implied consent made irrevocable by section 724.012(b). See Villarreal , 2014 WL 6734178 at *21 (“[A] nonconsensual search of a DWI suspect’s blood conducted pursuant to the mandato ry

- blood

- draw and implied

- consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment .”).
Villarreal does not dictate the outcome of this c ase. Villarreal was decided after the parties submitted their briefs to this court. Appellant’s opening brief anticipates some of the constitutional arguments against warrantless searches based solely on implied consent as discussed in Villarreal . The S tate asserts on appeal that it does not rely on statutory implied consent; instead, it relies only on appellant’s actual consent and exigent circumstances. Villarreal did not address actual consent or exigent circumstances. See id. at *2 (State conceded that the suspect’s blood was drawn without his actual consent and did not argue for exigent circumstances).

4 Although the trial court did not make explicit findings of fact, it state d at the conclusion of the hearing on appellant’s motion to suppress: “ [L] ast but not least, Dr. Thomas who is not an agent of the State adamantly testified that the Defendant consented to the blood draw. All of these things taken together, the Court denies the motion to suppress the evidence.”9

Although appellant argues that his co nsent was mere acquiescence
, no evidence in the record indicates that Manuel or any other officer told appellant his blood draw was mandatory

. At most, th e record shows that Manuel deemed appellant’s failure to give a sufficient breath specimen to be a “ refusal; ” Hall
instructed Manuel t o obtain a mandatory blood draw; Manuel transported appellant to a hospital and ordered Dr. Thomas to draw appellant’s blood ; and Dr. Thomas drew app ellant’s blood while Manuel was present

. Nothing in the record shows
that Manuel made a claim to appellant of lawful authority to compel the production of appellant’s blood specimen. Manuel did not ask for appellant’ s consent to draw his blood, but Dr.
Th omas did. Dr. Thomas testified that he asked appellant
, “Can I draw your
blood.” Dr. Thomas’s request would have indicated to a reasonable person that he
or she was free to refuse. See United States v. Drayton , 536 U.S. 194, 206 (2002) ( officer’s questi on of whether an individual objected to being searched would have indicated to a reasonable person that he or she was free to refuse ). A ppellant replied “Yes,” and did not resist Dr. Thomas when he took appellant’s blood.
Viewing the totality of the circumstances in the light most favorable to the trial court’s ruling, we conclude that the trial court’s finding that appellant gave voluntary consent to having his blood drawn is not clearly erroneous. See
Schneckloth , 412 U. S. at 225

- 26; Fienen , 390 S.W.3d at 333

- 35. We conclude that the trial court did not err in denying appellant’s motion to suppress his blood specimen and the results of a blood

- alcohol test of the specimen because the trial court found, without clear error , that appellant had voluntarily consented to having his blood drawn

. See Schneckloth , 412 U.S. at 225 (“[A] search authorized by consent is wholly valid .”). We overrule appellant’s first
issue.10

In his second issue, appellant contends that the Texas impl ied

- consent statute is unconstitutional. See Tex. Transp. Code. Ann. § 724.011(a). We do not
reach a ppellant’s second issue because a determination of the constitutionality of the implied

- consent statute i s unnecessa ry to a decision in this case. See In re Doe
2 , 19 S.W.3d 278, 284 (Tex. 2000) (“[T]he constitutionality of a statute should be considered only when the question is properly raised and such determination is necessary and appropriate to a decision in the case. ”)

. II. Prison Clothes

In his thir d issue, appellant argues that the trial court violated Texas Code of Criminal Procedure article 2.03 by not directing him to wear civilian clothes at trial when appellant had not knowing ly and i ntelligent ly waived his right to be tried in
civilian clothes

. Prior to jury selection, the trial court advised appellant in chambers that he had a right to wear civilian clothes at trial, and that the trial court had such clothes available. The trial court asked appellant if he would like to be tried in civilian

c lothes , and a ppellant responded that he was fine in the prison clothes he was wearing. Appellant’s counsel stated that he had offered appellant civilian clothes, but that appellant had declined his offer. Appellant wore prison clothes at trial. Appellant asserts on appeal that he did not know the importance of his decision to be tried in prison clothes.

Te xas Code of Criminal Procedure a rticle 2.03(b) states: “ It is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both
the state and the defendant [and] not impair the presumption of innocence .” Tex.
Code Crim. P roc

. Ann. art. 2.03(b) (Vernon 2005 ); see also Estelle v. Williams
, 425 U.S. 501, 503 (1976) ( the right to a fair trial is a fundamental liberty secured11

by the Fourteenth Amendment; t he presumption of innocence is a basic component
of a fair trial ). “ If a defendant timely objects to being put to trial while d ressed in prison clot hes, he should not be compelled to stand trial in that attire

. Such a compulsion would v iolate the defendant ’ s right to a fair trial and his right to be presumed innocent. ” Randle v. State , 826 S.W.2d 943, 944

- 45 (Tex. Crim. App. 1992)

. A defendant must timely o bject to being made to wear prison clothes or he waives the right to complain

. Id. at 945

. We determine that the trial court did not err in allowi ng appellant to be tried in prison clothes because appellant did not object to being tried in such clothes.
See Randle , 826 S.W.2d at 945; see also Estelle , 425 U.S. at 5 12

- 13 (“[T]he failure to make an objection to the court as to being trie d in [prison ] clothes, for whatever reason, is sufficient to negate the presence of compu lsion necessary to establish a
constitutional violation .”). Appellant’s failure to understand the import ance of his
d ecision is not grounds for error , nor did it impose a d uty on the trial court to direct appellant to wear civilian clothes

. See Randle , 826 S.W.2d at 945; see also Estelle
, 425 at 508 n.3, 512

- 13 (the right not to be compell ed to stand trial in prison clothes is not a fundamental right of the sort at issue in Johnson v. Zerbst , 304 U.S. 458 (1938), where the issue concerned whether the a ccused willingly stood trial without the benefit of counsel)

. We overrule appellant’s third issue.

C ONCLUSION

W e affirm the trial court’s judgment.

/s/ William J. Boyce Justice

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

— Tex. R. App

. P. 47.2( b).