NO. 07

- 1 1

- 0077

- C R IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL A DECEMBER 11 , 20 12

______________________________
THE STATE OF TEXAS , APPELLANT V. JOHN JOE ROADES , APPELLEE

_________________________________ FROM THE COUNTY CRIMINAL COURT NO. 4 OF DALLAS COUNTY; NO. MB0 9

- 36032

- E ; HONORABLE TERESA TOLLE , JUDGE

_______________________________ Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION
Appellant, the State of Texas, appeals from an order suppressing the test results of a breath sample given by Appellee, John Joe Roades. In a single issue, the State asserts the trial court abused its discretion in granting Roades’ s motion to suppress. W e reverse and remand for further proceedings consistent with this opinion

.2 Background
In November 2009, an information was filed alleging Roades committed the misdemeanor offense of driving while intoxicated. 1 Roades subsequently filed a motion to suppress the results of his breat halyzer test. His motion alleged the test results were obtained in violation of section 724.015 of the Texas Transportation Code 2 and , as a result, were inadmissible at trial pursuant to art icle 38.23 of the Texas Code of Criminal Procedure. 3
At the suppression hearing , Anthony Camacho, Roades’s employer for eleven years, t estified he was deaf and relied heavily on American Si gn Language. He indicated Roades’ s vocabulary was at a third or fourth grade level and if you

1 Tex. Penal Code Ann. § 49.04 (West 2011).

2 Section 724.015 states, in pertinent part, as follows: Before requesting a person to submit to the taking of a specimen, the officer shall inform the person orally and in writing that: (1) if the person refuses to submit to the taking of the specimen, that refusal may be admissible in a subsequent proceeding; (2) if the person refuses to submit to the taking of the specimen, the person’s license to operate a motor vehicle will be automatically suspended, whether or not the person is subsequently prosecuted as a result of the arrest, for not less than 180 days; Tex. Transp. Code Ann. § 724.015 (West 2011). (Throughout the remainder of this opinion, we will cite this provision of the Transportation Code simply as “section 724.015” or “§ 724.015 ”).

3 Article 38.23 of the Texas Code of Criminal Procedure states, in pertinent part, as follows: (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in ev idence against the accused on the trial of any criminal case. Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005) (Throughout the remainder of this opinion, we will cite this provision of the Code of Criminal Procedure simply as “article 38.23”).3 communicated in writing with him , you had to be careful to use words he could understand.
Roades testified that the night of his arrest “he did everything the police told him to do.” Although he was given a document entitled “Statutory Warning” that enumerated section 724.015’s required warnings before a breath test was requested, Roades testified “[t he officers] didn’t read all of that, no.” He testified a uniformed officer wrote him a note 4 and a second officer demonstrated how he should breathe into the breathalyzer machine. Prior to the test, “[he] didn’t know that [he] could say no , ” believed he had no choice , and “just complied with what the police ordered.” The officers did not “push o r pull [ him ] to the instrument” or “[do] anything to make [ him ] feel they were forcing [ him ] physically to give a breath sample.” He testified “[t]hey wrote it down and I just followed naively, but it’s not like they used force, but I just followed along. I was eager to do what they wanted me to do.” His breath sample measured nearly twice the legal limit

. Officer Jared Sykes tes tified that, prior to the test, he read the Statutory W arning form to Roades. He “placed a copy of it in front of him and l ine

- by

- line with my finger each

— the entire warning.”
Thereafter, the trial court made the following oral findings:

Based on [Roades] testimony, the testimony of his employer , Mr. Camacho, he understands American Sign Language but does not read lips. And he does not have understanding of reading that contains certain

4 The han dwritten note stated: “Keep hands away from your mouth. When you do the test, you’re going to blow into the tube like you’re blowing up a balloon. If you feel sick, let me know. OK?”4 expressions and words. He would not know how to keep those words in context. Finding No. 3: having read the statutory warning myself and having heard it read many times in this courtroom, I understand the language that is used, it’s statutory language, and any fair person will admit that it is lengthy and has several concepts in it that must be understood in co ntext to understand the warning. Finding No. 4: I understand technically that we all give implied consent on the back of our driver’s licenses, but I have yet to find a person who says they know that. And it is clear to me from watching Mr. Roades on the videotape that he as

— he tried to imitate everything that was shown and done. Finding No. 5: I have no confidence that Mr. Roades understood he had an option of refusing. He had the option to take the breath test, he had an option to refuse the breath te st. I don’t believe he understood he had any option to refuse.
Thereafter, the trial court granted his motion to suppress and t his appeal followed.

Discussion

The State contends Roades failed to meet his burden of proof to establish a causal connection between any warning under section 724.015 , or lack thereof, and his decision to submit to the breath tes t. The State also asserts Roades consented to perform the breath test and his cons ent was voluntary.

Standard of Review
A trial court’s ruling concerning the admission or exclusion of evidence may not be disturbed on appeal unless an abuse of discretion is shown. Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App. 2008 ). When reviewing a trial judge’s ruling on a motion to suppress, we view all the evidence in a light most favorable to the trial judge’s5 ruling. State v. Johnston , 336 S.W.3d 649, 657 (Tex.Crim.App. 2011) (citing State v. Garcia

- Cantu , 253 S.W.3d 236, 241 (Tex.Crim.App. 2008)). We afford almost total deference to a trial judge’s determination of historical facts when they are supported by the record. Id. (citing Guzman v. State , 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)). The prevailing party is entitled t o “the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from the evidence.” Garcia

- Cantu , 253 S.W.3d at 241 . We also afford almost total deference to the trial judge’s rulings on mixed questions of law and fact wh en the resolution of those questions depends on an evaluation of credibility and demeanor. Guzman , 955 S.W.2d at 89 . We review de

novo mixed questions of law and fact that do not depend on an evaluation of credibility and demeanor. Id. All purely legal questions are reviewed de novo. Kothe v. State , 152 S.W.3d 54, 62

- 63 (Tex.Crim.App. 2004).

Causal Connection

Under article 38.23(a), “evidence is not ‘obtained . . . in violation’ of a provision of law if there is no causal connection between the illeg al conduct and the acquisition of the evidence.” Gonzales v. State, 67 S.W.3d 910, 912 (Tex.Crim.App. 2002). Therefore, in order for Roades’ s test results to be excluded, there must be a causal connection between an “[improper warning or lack thereof] and [his] decision to submit to a breath test.” Sandoval v. State , 17 S.W.3d 792, 79 6 (Tex.App.

— Austin 2000, pet. ref’d) (quoting Tex. Dep’t of Pub. Safety v. Rolfe , 986 S.W.2d 823, 827 (Tex.App.

— Austin 1999, no pet.) )

.6 Here, Roades offered no evidence at the hearing that he submitted to the breath
test because he failed to receive any warning based on section 724.015. See State v. Woehst, 175 S.W.3d 329 , 333 (Tex.App.

— Houston [1st Dist.] 2004, no pet.) (causal connection established by showing that officer’s misinformation and failure to provide a proper warning had caused the driver to refuse to consent to a breath test)

. See also Sandoval, 17 S.W.3d at 796

- 97 (defendant failed to come forward with evidence

s howing a causal connection between the officer’s extra

- statutory statements and her decision to submit to a breath test); Rolfe, 986 S.W.2d at 827 (collected cases cited therein). In addition, Roades failed to come forward w ith evidence that the officers coerced his consent. See Sandoval , 17 S.W.3d at 796 (burden on defendant to establish “warnings actually coerced his consent”). Rather , he testified the officers did not “[do] anything to make [him] feel they were forcing him physically to give a breath sample,” “[t]hey wrote it down and I just followed naively, but it’s not like they used force, but I just followed along. I was eager to do what they wanted me to do. ”
Even though Roades testified that “[he] didn’t know that [he] could say no” and “just complied with what the police ordered,” the Fifth Amendment has no application to evidence which is non

- testimonial in nature; T urpin v. State, 606 S.W.2d 907, 91 3

- 1 4 (Tex.Crim.App. 1980) (collected cases cited therein) ; Landgraff v. State, 740 S.W.2 d 577, 579 (Tex.App.

— Houston [1st Dist.] 1987, pet. ref’d) (breath sample is non

testimonial evidence) , and “[i]t is unnecessary to show that a person consenting to a search was warned of his right to refuse, or that he knew of his right to do so, in order to support a finding that consent was freely and knowingly given.” Cole v. State , 484 S.W.2d 779, 783 n.4 (Tex.Crim.App. 1972) (citing DeVoyle v. State , 471 S.W.2d 77, 807 (Tex.Crim.App. 1971)). See Valerio v. State , 494 S.W.2d 892, 897 (Tex.Crim.App.
19 73); ( citing Clark v. State, 483 S.W.2 d 465, 467 (Tex.Crim.App. 1972)).
Although evidence must show that warnings provided in section 724.015 were given an accused prior to introduction of evidence of a refusal to submit to a breath test, section 724.015 does not require proof of those warnings as a predicate to the introduction of voluntarily taken breath tests. See Hogue v. State, 752 S.W.2d 585,
589

- 90 (Tex.App.

— Tyler 1987, pet. ref’d) (applying former artic le 6701/

- 5 of the Texas Revised Statutes, since repealed and re

- codified as § 724.015). See also Woodbridge v. State, No. 05

- 96

- 01114

- CR, 1998 Tex. App. LEXIS 4554 , at *4 (Tex.App.

— Dallas July 28, 1 998, no pet.) (mem. op., not designated for publication). Here, t here is simply

no record evidence that Roades submitted to the breath test b ecause of any physical or psychological pressure brought to bear by law enforcement

. See Vester v. State , 916 S.W.2d 708, 712 (Tex.App.

— Texarkana 1996, no pet.) (“mere fa ct that Vester reached a conclusion that he gave the breath test involuntarily without testimony that the officer coerced him into taking the test” is insufficient to raise issue warranting jury charge ” ).

Because there was an absence of evidence estab lishing that any improper conduct by a law enforcement officer caused, or coerced, Roades to submit to a breath test, we find that the trial court abused its discretion in granting Roades’ s motion

. See Schafer v. State, 95 S.W.3d 452, 456

- 57 (Tex.App.

— Houston [1st Dist.] 2002, pet. ref’d) (trial court did not err in concluding no causal connection between appellant’s failure to receive DWI warnings in writing and his decision to submit to breath test where appellant testified that oral warnin gs given at the time were “confused all together,” he did not understand them, he did not think he had any choice but to consent, and8 evidence showed he had a blood alcohol concentration of .185). The State’s single issue is sustained.

Conclusion

The tri al court’s order is reversed and this case is remanded for further proceedings consistent with this opinion.

Patrick A. Pirtle Justice
Do not publish.