NO. 03-15-00109-CR

IN THE 

COURT OF APPEALS 

THIRD DISTRICT OF TEXAS 

AUSTIN, TEXAS 

CHELSEA PADOWSKI § APPELLANT 

VS. § 

THE STATE OF TEXAS § APPELLEE 

APPEAL FROM THE COUNTY COURT OF LAW NUMBER FIVE 

TRAVIS COUNTY, TEXAS 

CAUSE NO. C-1-CR-14-205047 

APPELANT’S BRIEF

 James Gill 

 1201 Rio Grande, Ste 200 

 Austin, Texas 78701 

 Phone: (512) 448-4560 

 Fax: (512) 308-6780 

 jgill@austin-criminallawyer.com 

 Bar Number: 24043692 

 ORAL ARGUMENT REQUESTED 

ACCEPTED

03-15-00109-CR

6546620

THIRD COURT OF APPEALS

AUSTIN, TEXAS

8/18/2015 3:09:11 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/18/2015 3:09:11 PM JEFFREY D. KYLE Clerk
i i

IDENTITY OF PARTIES AND COUNSEL

CHELSEA PODWOSKI

2202 W. Northloop

Austin, Texas 78756

Appellant

JAMES R. GILL

1201 Rio Grande, Ste 200

Austin, Texas 78701

Trial & Appellate Attorney for Appellant

WARD B.B. DAVISON

1201 Rio Grande, Ste 200

Austin, Texas 78701

Appellate Attorney for Appellant

Giselle Horton

Travis County Attorney’s Office

P.O. Box 1748

Austin, Texas 78767

Appellate Attorney for the State

The Honorable Nancy Hohengarten

County Court at Law #5

P.O. Box 1748

Austin, Texas 78767

Trial Judge
ii ii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL..............................................i

TABLE OF AUTHORITIES...............................................................iv

STATEMENT OF THE CASE.............................................................v

REQUEST FOR ORAL ARGUMENT....................................................vi

ISSUES PRESENTED......................................................................vii

STATEMENT OF FACTS..................................................................2

SUMMARY OF THE ARGUMENTS.....................................................4

ARGUMENT...................................................................................4

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION 

TO SUPPRESS THE BREATH TEST EVIDENCE OBTAINED 

THROUGH PSYCHOLOGICAL COERCION OF APPELLANT. 

A. Based on the totality of the circumstances, Appellant’s ability to 

determine whether or not to provide evidence to a law enforcement 

officer was overborne by that law enforcement officer’s actions.

a. Officer Marler read the statutory DIC-24, required to be read 

before asking for a breath sample, warning so fast as to cause 

confusion for the Appellant.

b. Upon Appellant’s request for a clarification of the DIC-24, 

Officer Marler misrepresented the law in regards to possible 

consequences of Appellants compliance or refusal.

c. Appellant complied with Officer Marler’s request for a 

specimen of her breath based upon Officer Marler’s 

misrepresentation of her rights.

B. The trial court’s error in failing to suppress the breath test 

evidence was harmful beyond a reasonable doubt. 
iii iii

PRAYER.....................................................................................11

CERTIFICATE OF SERVICE............................................................12
iv iv

TABLE OF AUTHORITIES

Cases

Fienen v. State, 390 S.W.3RD 328 (Tx. Crim App., 2013)......................6,7,8,9

Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007)......................5,6

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)..........................5

Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990)........................5

Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007)........................5

State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).............................5

State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App).......................................5

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App.2006).................5

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002)..................5,6

Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).......................5

Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011)..................10

Statutes

TEX. TRANS. CODE §724.015(3).......................................................7

TEX. R. APP. PROC. 44.2(a)............................................................10
v v

STATEMENT OF THE CASE

Nature of the case: On May 2014 the County Attorney presented 

information alleging that the Appellant committed 

DWI (1st offense, BAC > .15) on or about March 

29, 2014.

Course of proceedings: A pretrial hearing was held on Appellant’s Motion 

to Suppress was held on November 25th, and 

December 4th, 2014. 

Disposition of the case: Client pleaded guilty to the offense of DWI on 

December 4th, 2014. Appellant was sentenced to 

15 months of probation on a class B 1st offense, 

$100 fine, 60 hours of Community Service and 6 

months of an ignition interlock in her vehicle. The 

finding of BAC >.15 was waived by the state. 
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REQUEST FOR ORAL ARGUMENT

This issue needs to be heard as it revolves around the split between Erdman 

and Fienen. It also speaks directly to the concurring opinion in Fienen.

This case seeks to clarify the conclusion the Criminal Court of Appeals laid 

out in Fienen, especially about clear misrepresentations of the law. Fienen states 

that a law enforcement officer may not misrepresent the law. However, the law 

enforcement officer in Fienen represented the law clearly and correctly. And the 

main issue was whether or not extra statutory language should be permitted. It is 

perfectly reasonable and just for a law enforcement officer to clarify statutory 

language and provide the arrested individual with factual information.

The question remains: Is it permissible to admit evidence to trial obtained by 

a law enforcement official’s misrepresentation of the law? Fienen says that it is not 

permissible. However, there is some ambiguity as to the weight given 

misrepresentations of the law because we must view under the totality of the 

circumstances of each individual case.

An oral argument may better allow for examination of the facts of this case 

as there is some confusion about the weight the evidence should be given. Closer 

scrutiny will provide all parties, and all trial court in Texas, with greater clarity.
vii vii

ISSUES PRESENTED

Did the trial court err in failing to suppress evidence of the Appellants breath test 

when the arresting officer misrepresented the law to Appellant? 
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NO. 03-15-00109-CR

IN THE 

COURT OF APPEALS

THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

CHELSEA PADOWSKI § APPELLANT

VS. §

THE STATE OF TEXAS § APPELLEE

APPEAL FROM THE COUNTY COURT OF LAW NUMBER FIVE

TRAVIS COUNTY, TEXAS

CAUSE NO. C-1-CR-14-205047

TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Appellant Chelsea Podowski, by and through her

undersigned counsel and offers this Appellant’s Brief. 

This case brings to light how an officer’s misrepresentation of the law can 

critically impair a suspect’s power of self-determination. Police officers are highly 

respected members of the community. This same community tasks law 

enforcement officials to protect the rights and liberties of the entire population. 
2 2

When an officer testifies that he misrepresented the law and incorrectly advised the 

suspect with regard to her privileges to operate a motor vehicle, the officer has

abridged the suspect’s rights as opposed to protecting them. This Court should 

send a message that police officers are not allowed to gather evidence by 

misinforming a suspect of their rights. Failure to reverse and remand the trial 

court’s decision will set a precedent that law enforcement officials may 

misrepresent the law when gathering evidence...certainly an unjust outcome.

STATEMENT OF FACTS

Officer Scott Marler testified Officer Jennings made a traffic stop on 

Appellant, Chelsea Padowski, and requested an officer to perform the standardized 

field sobriety tests around 1:00 A.M, March 29, 2014. RR II 18-19. Marler

responded to perform the tests. RR II 18. Marler observed the vehicle stopped in a 

parking lot at 1100 block of W. Sixth. RR II 19. After speaking with Officer 

Jennings, Marler introduced himself to Appellant, Padowski, and performed the 

Standardized Field Sobriety Tests. RR II 20-21. After completing the tests, Marler 

then read Padowski the DIC 24 warning. RR II 21. Marler read the document at a 

very rapid pace, confusing Padowski. RR II 31, RRIII 17. Padowski informed 

officer Marler that she didn’t fully comprehend everything and asked “In which 
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case is my license not going to be suspended at all.” RR II 24. Officer Marler, 

misrepresenting the law, responded “None.” RR II 24. Marler then asked, “Is that 

a yes or a no?” RR II 24. Padowski then responded “yes” to provide a sample of 

her breath. RR II 24. Marler had previously requested a PBT test from Padowski

which Padowski declined to provide after another officer explained to her what a 

portable breath test was. RR II 21. On cross-examination Marler estimated that he 

had read the DIC-24 approximately 10-12 times in his entire career. RR II 24-25. 

Padowski testified on direct examination that she didn’t feel like she had a 

choice to refuse the breath test from the arresting officer. RR II 29. Padowski

further testified once she arrived at the mobile breath test unit that the man who 

administered the breath test told her she had to take the test. RR II 29. The man 

who administered the breath test is Keith Wade, a civilian employee and former 

peace officer. RR III 2-3. 

Keith Wade had no recollection of performing the breath test on Padowski 

even after having been shown a booking photo of Appellant or of any events of 

that particular day. RR III 5. Wade subsequently admitted that he has been asked 

“quite a bit” by persons who are under arrest if they have to take the breath test. 

RR III 7. When asked by the state how he responded to these questions, he 

responded, “It all depends of the situation.” RR III 7. On direct examination, 

Wade further testified that if it were not a no-refusal weekend he would tell them 
4 4

they didn’t have to take the test. RR III 8. When asked on direct examination if 

Padowski asked him if she had to take the test he didn’t recall. RR III 8-9. 

Padowski distinctly remembers asking Wade if she was required to provide a 

specimen of her breath and Wade’s answer in the affirmative. RR II 29. 

SUMMARY OF THE ARGUMENTS

The trial court erred in denying Appellant’s motion to suppress the breath test 

evidence acquired illegally by the police officer. An officer is not allowed to 

make misrepresentations of the law. Further, based on the totality of the 

circumstances the Appellant’s involuntary acquiescence to the police officer’s 

request for evidence was obtained through psychological coercion. By allowing the 

evidence to be admitted, the trial court harmed the Applicant beyond a reasonable 

doubt.

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION 

TO SUPPRESS THE BREATH TEST EVIDENCE OBTAINED 

THROUGH PSYCHOLOGICAL COERCION OF APPELLANT. 

Preservation of Error

Prior to the beginning of trial, Appellant raised the issue of the officer 

misrepresenting the law with regard to Appellant’s right to refuse to take a breath 

test. RR II 21, 24
5 5

Standard of Review

An appellate court reviews a trial court’s ruling on a motion to suppress 

evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 

673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. 

App. 1997). In reviewing the trial court’s decision, the appellate court does not 

engage in its own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. 

Crim. App.1990). As the sole trier of fact, the trial judge is in the best position to 

assess the credibility of the witnesses and the weight to be given their testimony. 

Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 

S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v. 

Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, a reviewing court 

gives almost total deference to the trial court’s rulings on: (1) questions of 

historical fact, even if the trial court’s determination of those facts was not based 

on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact 

questions that turn on an evaluation of credibility and demeanor. Amador, 221 

S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. 

App.2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). 

However, when application-of-law-to-fact questions do not turn on the credibility 

and demeanor of the witnesses, the appellate court reviews the trial court’s rulings 
6 6

on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 

S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

Here, Appellant challenges the validity of Appellant’s consent to providing a 

breath specimen. The ruling on this issue does not turn on the credibility and 

demeanor of witnesses, as they admitted to the alleged conduct. Consequently, this 

Court should conduct a de novo review of the trial court’s ruling.

Argument and Authorities

“The totality of the circumstances” must be taken into account to determine 

“whether DWI suspects acted voluntarily.” Fienen v. State, 390 S.W.3d 328, 336 

(Tex. Crim. App. 2012). The Travis County Court No. 5 agreed with this 

assessment. RR III 10. Part of the totality of those circumstances was a 

misrepresentation of the law by a police officer when asked for a clarification from 

Appellant. RR II at 27. The Court in Fienen clearly states in its conclusion that 

“law-enforcement officers may not misrepresent the law.”

A. Based on the totality of the circumstances, Appellant’s ability to 

determine whether or not to provide evidence to a law enforcement 

officer was overborne by that law enforcement officer’s actions.

In Fienen the officer places a suspect under arrest. After having been 

properly read the DIC-24, the suspect then refuses to give a breath specimen. The 

arresting Officer requests a warrant for a blood draw. At this point Fienen begins to 
7 7

vacillate between wanting to comply with the officer’s request for a specimen and 

refusing that request. At no time did the officer “provide any information that was 

untrue.” Id at 335-336. Conversely, the officer’s responses to Fienen’s constant 

questioning provided Fienen with “greater information on which to base his 

decision” to comply with the officer’s request or to refuse. Id.

The Court in Fienen clearly states that “a driver’s consent to a blood or 

breathe test must be free and voluntary.” Id. The Court further explains that the 

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

self-determination critically impaired such that his consent to search must have 

been involuntary.” Id. 

Here, Officer Marler critically impaired the Appellant’s capacity for selfdetermination by misrepresenting the law following a request from the Appellant 

for a clarification. RR II 24. Officer Marler’s departure from the law further 

confused the Appellant, forcing her to make a decision based on false information 

supplied by Officer Marler. 

a. Officer Marler read the statutory DIC-24, required to be read

before asking for a breath sample, warning so fast as to cause 

confusion for the Appellant.

An arresting officer must “inform the [arrested] orally” of the consequences 

of their refusal to provide a specimen. TEX. TRANS. CODE §724.015(3). Officer 

Marler failed to inform Padowski orally because Marler, according to the trial 
8 8

court, read the warning “way too fast.” RR II 45. While this fact alone would not 

likely render Padowski’s waiver of the right to refuse providing a specimen

involuntary, it is the act which leads to Officer Marler’s misrepresentation of the 

law. But for Officer Marler’s unreasonable reading of the warning (the Trial Court 

stated that Officer Marler should be admonished not to read it in such a manner), 

Padowski would not have required clarification. RR II 45. Marler created the 

circumstances under which he would misrepresent the law. This is vastly different 

than Fienen, where Fienen created the confusion and the officer provided Fienen 

with accurate clarifications. Here, Officer Marler created a confusing situation and 

further befuddled Appellant’s ability to make a clear determination of her rights 

when he misrepresented those rights to her.

b. Upon Appellant’s request for a clarification of the DIC-24, 

Officer Marler misrepresented the law in regards to possible 

consequences of Appellants compliance or refusal.

When asked if he “misrepresented the current law,” Officer Marler replied 

“Yes, sir, I did.” RR II 27. The Court in Fienen states in its conclusion that “law 

enforcement officer’s may not misrepresent the law.” Appellant recognizes the fact 

that Officer Marler did not intend to misrepresent the law. Appellant does not 

make the argument that Officer Marler intended to deceive or coerce the Appellant. 

However, through his actions, Officer Marler created a deception that coerced 
9 9

Appellant Padowski into an involuntary acquiescence to Marler’s request for a 

breath specimen.

c. Appellant complied with Officer Marler’s request for a 

specimen of her breath based upon Officer Marler’s 

misrepresentation of her rights.

After Officer Marler misstated the law, Padowski felt that she “didn’t really 

have a choice” that would allow her to proceed without having her license 

suspended. RR II 29. Thus her decision making moved towards a matter of 

compliance or not. Padowski complied because she “wanted to be up front with 

everything” and “felt that [refusal] would just, in general, look like [she] was 

resisting. RR II 31. Given the circumstances under which she was forced to make

her decision, Officer Marler’s failure to inform Padowski of her rights and 

misrepresenting her rights to her, Padowski could only involuntarily comply. 

The State argues that Marler’s over zealous reading of the warning 

combined with his misrepresentation of the law do not deem her breath test 

compliance involuntary. However, the burden is on the State to prove that the test 

is voluntary. Fienen. The State must provide clear and convincing evidence that it 

was voluntary. Id. The State’s best evidence to carry their burden is Appellant’s 

eventual consent. That simply does not rise to the level of clear and convincing 

evidence, especially when weighed against the facts supporting Padowski’s 

argument.
10 10

B. The trial court’s error in failing to suppress the breath test 

evidence was harmful beyond a reasonable doubt. 

Due to the constitutional magnitude of the trial court’s error, this Court must 

reverse the judgment of conviction unless it determines beyond a reasonable doubt 

that the error did not contribute to the conviction or punishment. See Tex. R. App. 

Proc. 44.2(a). In conducting this analysis, this Court should consider the following 

factors: (1) the nature of the error, (2) whether it was emphasized by the State, (3) 

the probable implications of the error, and (4) the weight the jury would likely 

have assigned to it in the course of its deliberations. See Snowden v. State, 353 

S.W.3d 815, 822 (Tex. Crim. App. 2011). The Court of Criminal Appeals has held 

that these are not the exclusive considerations in any particular case, as many other 

considerations may logically serve to inform a proper harm analysis. See 

id. According to the Court of Criminal Appeals:

At bottom, an analysis for whether a particular constitutional error is 

harmless should take into account any and every circumstance apparent 

in the record that logically informs an appellate determination whether 

“beyond a reasonable doubt [that particular] error did not contribute to 

the conviction or punishment.”

Id. (quoting Tex. R. App. Proc. 44.2(a))

Here, the error certainly crippled any chance of trying this case in front of a 

jury. Any reasonable jury would have given great weight to a breath alcohol 

concentration over .16. Had the Trial Court not erred in denying Appellant’s 
11 11

Motion to Suppress the breath test evidence, Padowski’s chances of going to trial 

and maintaining her innocence would have drastically increased.

PRAYER

WHEREFORE PROMISES CONSIDERED, Appellant prays that this 

Court sustains her point of error, reverse the trial court’s denial of the motion to 

suppress & judgment of conviction, and remand for new trial. 

Respectfully submitted,

/s/ James Gill________________________

James Gill

1201 Rio Grande, Ste 200

Austin, Texas 78701

Phone: (512) 448-4560

Fax: (512) 308-6780

jgill@austin-criminallawyer.com

Bar Number: 24043692
12 12

CERTIFICATE OF SERVICE

This is to certify that the above Appellant’s brief has been served on the State’s 

attorney by hand delivering a copy to Giselle Horton, Travis County Attorney’s 

Office, P.O Box 1748, Austin, Texas 78767 and electronic transmission 

(AppellateTCDA@co.travis.tx.us), on this 18

th day of August, 2015

/s/ James Gill_________________________

James Gill