Opinion filed September 9, 2010

In The

Eleventh Court of Appeals 

__________

Nos. 11-09-00107-CR & 11-09-00109-CR

__________

ADRIAN CONTRERAS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 367th District Court

Denton County, Texas

Trial Court Cause Nos. F-2008-1405-E & F-2008-1991-E

O P I N I O N

The jury convicted Adrian Contreras of intoxication assault1and failure to stop and 

render aid2and assessed his punishment at nine years confinement and a $10,000 fine for 

intoxication assault and five years confinement and a $5,000 fine for failure to stop and render 

aid. We affirm.

I. Background Facts

Contreras unsuccessfully tried to pass a motorcycle while driving a pickup. Contreras hit 

the motorcycle from the side and caused it to flip and throw its riders. Contreras did not stop to 

 

1

11-09-00107-CR.

2

11-09-00109-CR.
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assist the injured motorcyclists. An eyewitness stopped, helped the motorcyclists, and called 

911. Another witness observed a pickup with a blown-out tire speed into a Taco Bueno parking 

lot and drive to the back next to a dumpster. Concerned that something was wrong, the witness

called 911. The witness saw a passenger, who appeared intoxicated, exit the pickup, look at 

damage on the vehicle’s passenger side, and gather beer cans from the pickup.

Lewisville police officers responded to both 911 calls. Officer Deborah Binion 

responded to the call from Taco Bueno. Officer Binion approached Contreras and noticed that 

he had red, watery eyes and slurred speech; that there was a large amount of beer visible in his 

pickup; and that the right front of his vehicle was damaged. Contreras was arrested for public 

intoxication. He asked for a Spanish speaking officer. Lieutenant Casey Cameron Carter arrived 

and read Miranda3 warnings to Contreras in Spanish. Contreras acknowledged that he 

understood the warnings, and he admitted to drinking and driving. Lieutenant Carter then had 

Contreras perform field sobriety tests. Contreras exhibited several signs of intoxication. 

Contreras provided a breath sample at the Lewisville Police Department. His blood alcohol 

concentration tested as 0.181.

II. Issues

Contreras challenges his conviction in both cause numbers with two issues. He contends 

that the trial court erred by not suppressing statements made after being arrested but before being 

informed of his rights as a Mexican citizen to contact the Mexican consulate. He also challenges 

the trial court’s decision to admit the breathalyzer result.

III. Motion to Suppress

Contreras argues in his first issue that the trial court erred when it denied his motion to 

suppress statements made to law enforcement officials because he was not timely informed of his 

right as a Mexican citizen to contact the Mexican consulate. Contreras argues that the right to 

contact his consulate is tied to the Fifth Amendment and that a defendant must knowingly and 

intelligently waive this right prior to police questioning.

A trial court’s ruling on a motion to suppress is reviewed for an abuse of discretion. 

Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Under this standard, we give 

almost total deference to the trial court’s determination of historical facts supported by the 

record, especially when the findings are based on an evaluation of credibility and demeanor. Id.

 

3Miranda v. Arizona, 384 U.S. 436 (1966).
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at 89. We review de novo mixed questions of law and fact that do not turn on an evaluation of 

credibility and demeanor. State v. Iduarte, 268 S.W.3d 544, 549 (Tex. Crim. App. 2008). We 

uphold the trial court’s ruling if it is reasonably supported by the record and is correct on any 

theory of law applicable to the case. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 

2006).

The Vienna Convention on Consular Relations grants foreign nationals who have been 

arrested, imprisoned, or taken into custody the right to contact their consulate and requires the 

arresting government authorities to inform the individual of this right “without delay.” Rocha v. 

State, 16 S.W.3d 1, 13 (Tex. Crim. App. 2000). Contreras acknowledges that the United States 

Supreme Court has held that the Vienna Convention does not control Texas or national law. See 

Medellín v. Texas, 552 U.S. 491 (2008). But Contreras distinguishes Medellín by describing its 

holding as turning on the separation of powers doctrine and the court’s determination that the 

treaty was not self-executing. In contrast, his argument is that notification of the right to contact 

a foreign consulate is a procedural due process right granted him by the Fifth Amendment.

The Due Process Clause provides that “[n]o person shall be . . . deprived of life, liberty, 

or property, without due process of law.” U.S. CONST. amend. V. Contreras’s arrest implicates a 

liberty interest. The State was, therefore, required to follow a constitutionally sufficient 

procedure in connection with his arrest. Coleman v. Dretke, 395 F.3d 216, 221 (5th Cir. 2004). 

Contreras makes no argument that the United States Constitution has always required police 

officers to advise foreign nationals of their right to contact a consulate official before beginning a 

custodial interrogation. Thus, if required now, it is because of subsequent developments. 

Contreras points first to the treaty itself. Courts have, however, held that the Vienna Convention

does not create an individually enforceable right. Medellín v. Dretke, 371 F.3d 270, 280 (5th Cir. 

2004); see also United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir. 2001) (“The sum of 

Jimenez-Nava’s arguments fails to lead to an ineluctable conclusion that Article 36 creates 

judicially enforceable rights of consultation between a detained foreign national and his consular 

office. Thus, the presumption against such rights ought to be conclusive.”). 

We recognize that Contreras’s argument is that the Due Process Clause is the source of 

his procedural right. But because the Vienna Convention was drafted to govern relations 

between sovereign nations and foreign consular officials, Sierra v. State, 218 S.W.3d 85, 86-87 

(Tex. Crim. App. 2007), we do not believe that its language creates a substantive right sufficient 

to implicate the constitutionally required procedures police officers must follow before 
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interrogating a foreign national. Moreover, courts have not read the treaty to require notification 

before instituting any police interrogation, but only within three working days of the arrest. See 

Sanchez-Llamas v. Oregon, 548 U.S. 331, 362 (2006) (Ginsburg, J., concurring in judgment) 

(citing Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 52 

¶ 97 (Judgment of Mar. 31)). Thus, even if we are in error and the Vienna Convention does 

create a benefit enforceable under the Due Process Clause, we do not believe that this required 

the police to inform Contreras of the right to contact his consulate before beginning a custodial 

interrogation.

Contreras next points to the decision of the International Court of Justice in Avena, and 

contends that it is a violation of an individual’s human rights to be tried without knowledge of 

the right to contact a consulate official. The Supreme Court has held that ICJ decisions are 

entitled to respectful consideration but that they are not binding precedent “even as to the ICJ 

itself.” Sanchez-Llamas, 548 U.S. at 355. Furthermore, the United States withdrew from general 

ICJ jurisdiction in 1985. Medellín v. Texas, 552 U.S. at 500. We decline, therefore, to find an 

ICJ decision as the basis for divining the procedural rights guaranteed by the Fifth Amendment. 

Finally, Contreras argues that President George W. Bush mandated compliance with the 

Avena ruling. See id. at 498 (President Bush determined that the United States would “discharge 

its international obligations under Avena by having State courts give effect to the decision.”). 

The Supreme Court, however, has concluded that the President lacked this authority. Id. at 525-

32. Consequently, we find that the Due Process Clause did not require the officers to advise 

Contreras that he had the right to contact a consulate official prior to beginning a custodial 

interrogation.

Even if we are in error, Contreras is not entitled to the suppression of any evidence. The 

Supreme Court has held that suppression under the federal exclusionary rule is not an appropriate 

remedy for a violation of the Vienna Convention. Sanchez-Llamas, 548 U.S. at 350. In Rocha,

the Texas Court of Criminal Appeals held that the exclusionary rule under TEX. CODE CRIM.

PROC. ANN. art. 38.23 (Vernon 2005) does not provide a remedy for violations of treaties, 

including the Vienna Convention. Rocha, 16 S.W.3d at 18-19. The trial court, therefore, did not 

err in admitting Contreras’s statements. Issue One is overruled. 

IV. Intoxilyzer Test

Contreras contends in his second issue that the trial court erred by admitting the results of 

his intoxilyzer test. We review the trial court’s ruling on the admissibility of evidence under an 
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abuse of discretion standard. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 

(Tex. 1985). Because the underlying science of intoxilyzer tests has been determined by the 

legislature to be valid, the trial court’s sole duty when the results of a test are challenged is to 

serve as a gatekeeper and determine whether the test was properly applied in accordance with 

DPS rules. TEX. TRANSP. CODE ANN. § 724.016 (Vernon 1999); TEX. R. EVID. 702; Reynolds v. 

State, 204 S.W.3d 386, 390-91 (Tex. Crim. App. 2006). As long as the operator is certified by 

DPS, knows the protocol involved in administering the test, and testifies that it was followed on 

the occasion in question, it is not necessary to demonstrate any personal familiarity with the 

underlying science and technology. Reynolds, 204 S.W.3d at 390-91.

Contreras complains that the State did not adequately show that it followed proper 

procedures when administering the test. The record reflects that Community Service Officer 

John Swinbanks is a certified intoxilyzer operator. He detailed the methodology he follows 

when administering a test. Technical Supervisor Lisa Fondren testified that Officer Swinbanks’s 

machine was inspected a month prior to Contreras’s test and again a week after and was operating correctly both times. The State adequately established that the test was properly 

administered. 

Contreras complains next that he was not afforded an opportunity to independently test 

the specimen taken. A person arrested for driving while intoxicated is entitled to a reasonable 

opportunity to contact a physician or nurse to take an additional specimen of blood after 

submitting to a breath test. TEX. TRANSP. CODE ANN. § 724.019(a)-(b) (Vernon 1999). When

Contreras provided a breath sample, Officer Robert Limon informed him that he was over the 

legal limit and that he was entitled to contact a doctor, technician, pharmacist, or nurse to come 

within two hours and draw blood. Contreras did not attempt to contact anyone; thus, he was not 

denied the chance to independently test his blood alcohol concentration.

Contreras argues lastly that the intoxilyzer test result was inadmissible because he was

not provided with the software code for the intoxilyzer instrument. The record does not indicate 

that Contreras ever requested the software code. Furthermore, Contreras cannot show with a 

reasonable probability that, had he been given access to the computer and computer program, the 

outcome of the trial would have been different. 

The trial court did not err in admitting evidence of the intoxilyzer test, and we overrule 

Contreras’s second issue. 
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V. Conclusion

The judgments of the trial court are affirmed.

RICK STRANGE

JUSTICE

September 9, 2010

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.