Opinion filed September 9, 2010



## In The 

# Eleventh Court of Appeals

__________ 

### No s . 11

- 09

- 00107

- CR & 11

- 09

- 00109

- CR

__________ ADRIAN CONTRERAS , Appellant

V.

STATE OF TEXAS , Appellee

On Appeal from the 367 th District Court

Denton County, Texas

Trial Court Cause No s . F

- 2008

- 1405

- E & F

- 2008

- 1991

- E

O P I N I O N
The jury convicted Adria n Contreras of intoxicat ion assault 1 and failure to stop and
render aid 2 and assessed his punishment at nine years confinement and a $10,000 fine for
intoxicat ion 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 motorcy cle while driving a pickup

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

1 11

- 09

- 00107

- CR.

2 11

- 09

- 00109

- CR.2

assist the injured motorcyclists. An eyewitness stopped
, help ed the motorcyclists
, and called
911. Anoth er 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, t he witness
called 911. The witness saw a passenger , who appeared intoxicated
, exit the p ickup , look at damage on the vehicle’s passenger side, and gat her beer cans from the pickup.
Lewisvill e police officers responded to both 911 calls. Officer Deborah Binion responded to the call from Taco Bueno. Officer Binion approached Contreras and no ticed 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 Miranda 3 warnings to Contreras in Spanish. Contreras acknowledged that he understood the warnings
, and he admitted to drinking and driving. Lieutenant Carter then had Contreras per form field sobr iety 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 c onsulate. He also challenges the trial court’s decision to ad mit the breathalyzer resu lt

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

su ppress statements made to law enforcement officials because he was not timely informed of his right as a Mexican citizen to contact the Mexican c onsulate . 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 pri or to p olice 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

- 8 9 (Tex. Crim. App. 1997). Under this standard, we give
almost total deference to the trial court ’ s determ ination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id.

3 Miranda v. Ar i zona , 384 U.S. 436 (1966).3

at 89. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and de meanor. 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 national s who ha ve been arrested, imprisoned
, or taken into custody the right to contact their consulate and requires the arresting government authorities to inform the indi vidual 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 th e 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. C ONST

. amend. V. Contreras’s arrest implicates a liberty interest. The State was , therefore, requir ed to follow a constitutionally sufficient procedure in connection with his arrest

. Coleman v. Dretke , 395 F.3d 216, 221 (5 th Cir. 2004). Contreras makes no arg ument that the United States C onstitution has always required police
officers to advis e foreign national s of the ir right to contact a consulate official before beginning a custodial interrogation . Thus, if required now
, it is because of subsequent develop ments. Contreras points first to the treaty itself. Courts have, however, held that the Vienna Convention
does not c reate an individually enforceable right. Medellín v. Dretke , 371 F.3d 270, 280 (5 th Cir. 2004) ; s ee also United States v. Jimenez

- Nava , 2 43 F.3d 192, 198 (5 th 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 D ue P rocess C lause is the source of
his procedural right

. But because the Vienna Convention was drafted to govern relations between sovereign nations and foreign consular officials, S ierra 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 constitutio nally required procedures police officers must follow before4

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
Sanche z
- 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 ¶ 9 7 (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 t o 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 ar e 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 i d. at 498 (Pre sident 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 conclud ed that the President lacked this authority. Id. at 525

- 32. Consequently, we find that the D ue P rocess C lause 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 Cr iminal Appeals held that the exclusionary rule under T EX

. C ODE C RIM

. P ROC

. A NN

. a rt

. 38.23 (Vernon 2005) does not provide a remedy for violations of treaties, including the Vienna Convention. Rocha
, 16 S.W.3d at 18

- 1 9. The trial court , therefore, did not err in admitting Contreras’s statements. Issue O ne is overruled.
IV. Intoxilyzer Test
Contreras contends in his second is sue that the trial court erred by admitting the results of
his intoxilyzer test. We review the trial court’s ruling on the adm issibility of evidence under an5

abuse of discretion standard. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

- 42 (Tex. 1985). Because the underlying science of intoxily z er tests has been determined by the legislature to be valid, the trial cour t’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 a ccordance with
DPS rules

. T EX . T RANSP . C ODE A NN

. § 724.016 (Vernon 1999) ; T EX . R. E VID . 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 a t 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 S upervisor Lisa Fondren testified that Officer Swinbanks ’s
machine was inspected a month prior to Contreras’s test and again a week after and was oper

ating 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 pers on 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. T EX . T RANSP . C ODE A NN . § 724. 0 19(a)

- (b) (Vernon 1999 )

. When
Contr eras 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 ind icate 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 w ould have been different. The trial court did not err in admitting evidence of the intoxilyzer test
, and we overrule Contreras’s second issue.6 V. Conclusion The judgment s of the trial court are affirmed

.

RICK STRANGE
JUSTICE

September 9, 2010
Publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Strange, J.