Humberto Saul Mendoza Rodriguez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 12, 2023
• Docket: 07-22-00231-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00231-CR

HUMBERTO SAUL MENDOZA RODRIGUEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 287th District Court Parmer County, Texas Trial Court No. 3724, Honorable Robert W. Kinkaid, Jr., Sitting by Assignment

October 12, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant, Humberto Saul Mendoza Rodriguez, appeals the trial court’s judgment

finding him guilty of the offense of driving while intoxicated with a child passenger1 and

resulting sentence of 180 days’ incarceration. We affirm the judgment of the trial court.

1 See TEX. PENAL CODE ANN. § 49.045. BACKGROUND

While on patrol at around 11:30 p.m. in September of 2020, Officer John Torres of

the Friona Police Department observed a vehicle being driven by Appellant failing to

signal lane changes and maintain a single lane. He also observed the vehicle drive in

the wrong lane against traffic. After observing these traffic violations, Torres activated his

emergency lights and initiated a traffic stop. Upon approaching the vehicle, Torres

identified the passenger in the vehicle as Appellant’s twelve-year-old son. Torres

observed a beer cap fall out of the vehicle when Appellant exited and noticed that

Appellant had trouble keeping his balance. Appellant admitted to drinking. At this point,

Torres noted that Appellant’s speech was slurred and the smell of alcohol emanated from

him. Torres transported Appellant to the Friona Police Department to conduct field

sobriety tests.

After conducting field sobriety tests at the police station, Torres advised Appellant

that he would be performing an intoxilyzer test on Appellant’s breath. While preparing the

intoxilyzer instrument, Torres asked Appellant if he would provide a breath specimen.

Appellant agreed. Torres did not read Appellant any warnings before performing the

intoxilyzer testing. The intoxilyzer testing showed that Appellant had a blood-alcohol

concentration of .211 and .217. After Torres completed the intoxilyzer testing, he read

Appellant the statutory warnings regarding the intoxilyzer test and had Appellant sign a

copy of the warnings. Torres then arrested Appellant for driving while intoxicated with a

child passenger.

2 Prior to trial, Appellant filed a motion to suppress the results of the intoxilyzer on

the basis that Torres did not read Appellant his statutory rights prior to obtaining

Appellant’s breath sample. During the hearing on the motion, the breath test results, the

signed warnings form, and a video of Appellant and Torres’s interaction at the police

station was admitted. Torres testified that he did not read the warnings to Appellant until

after he had obtained Appellant’s breath specimen. The trial court denied Appellant’s

motion to suppress.

Subsequently, Appellant pled guilty and punishment was tried to the jury. After

hearing evidence, the jury assessed punishment at 180 days’ confinement with no fine.

The trial court imposed sentence and entered the judgment from which Appellant timely

appeals.

By his appeal, Appellant presents two issues. His first issue contends that the trial

court erred by denying his motion to suppress evidence of the results of the intoxilyzer’s

test of his breath specimen. His second issue contends that the trial court erred in

admitting evidence of the intoxilyzer’s results because the State obtained this evidence

in a manner that violated the law.

STANDARD OF REVIEW

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

abuse of discretion standard and may overturn the trial court’s ruling only if it is outside

the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex.

Crim. App. 2011). We apply a bifurcated standard of review, giving almost total deference

to the trial court’s determination of historical facts and mixed questions of law and fact

3 that rely on the credibility of a witness, but applying a de novo standard of review to pure

questions of law and mixed questions that do not depend on credibility determinations.

Id. at 922–23. When the trial court does not enter findings of fact, we review the evidence

in the light most favorable to the trial court’s ruling and assume that the trial court made

implicit findings supported by the record. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim.

App. 2005). We will sustain the trial court’s ruling “if it is reasonably supported by the

record and is correct under any theory of law applicable to the case.” Villarreal v. State,

935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (en banc).

ISSUE ONE: DENIAL OF MOTION TO SUPPRESS

Appellant’s first issue challenges the trial court’s denial of Appellant’s motion to

suppress the results of the intoxilyzer breath test results. Appellant’s argument is that

Torres’s failure to read him the statutory warnings rendered his consent involuntary. We

disagree.

The Fourth Amendment prohibits unreasonable searches and seizures. U.S.

CONST. amend. IV. A search and seizure conducted without a warrant issued upon

probable cause is “per se unreasonable . . . subject only to a few specifically established

and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507,

19 L. Ed. 2d 576 (1967). One such exception permits a warrantless search made after

voluntary consent. Noble v. State, No. 07-06-00304-CR, 2007 Tex. App. LEXIS 8282, at

*6 (Tex. App.—Amarillo Oct. 18, 2007, no pet.) (mem. op., not designated for publication)

(citing Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000)). We assess whether

consent was voluntarily given by reviewing the totality of the circumstances of a particular

4 police-citizen interaction from the perspective of an objectively reasonable person to

determine whether the person’s will was overborne and his capacity for self-determination

critically impaired. Fienen v. State, 390 S.W.3d 328, 333 (Tex. Crim. App. 2012). “The

validity of an alleged consent is a question of fact, and the State must prove voluntary

consent by clear and convincing evidence.” Id.

“Any person who is arrested for DWI is deemed to have given consent to submit

to providing a specimen for a breath or blood test for the purpose of determining alcohol

concentration or the presence of a controlled substance, drug, dangerous drug, or other

substance.” Id. A person generally retains an absolute right to refuse a test. Id.

However, a person may consent to give a breath specimen provided the consent was

made freely and voluntarily. Id. For consent to be freely and voluntarily given, it must not

be the result of physical or psychological pressures brought to bear by law enforcement.

Hunter v. State, 607 S.W.3d 894, 898 (Tex. App.—Amarillo 2020, no pet.).

Before requesting a blood or breath specimen, a law enforcement officer must

inform a suspect that his refusal: (1) may be admissible in a subsequent prosecution, (2)

will result in the suspension of his operator’s license for a minimum of 180 days, and (3)

may result in the officer applying for a warrant to secure the specimen. Marin v. State,

No. 08-19-00186-CR, 2021 Tex. App. LEXIS 2885, at *5–6 (Tex. App.—El Paso Apr. 15,

2021, no pet.) (not designated for publication); see TEX. TRANSP. CODE ANN. § 724.015.

By his first issue, Appellant contends that the trial court erred by denying his motion

to suppress because his consent to provide a breath specimen was rendered involuntary

by Torres’s failure to read the requisite statutory warnings before obtaining Appellant’s

5 consent. The State responds contending that Appellant voluntarily consented to providing

the breath specimen and giving the statutory warnings after obtaining the sample did not

affect the voluntariness of Appellant’s consent.

The record reflects that Appellant freely and voluntarily gave his consent to the

taking of a breath specimen after he was asked by Torres. The record does not reflect

that Torres threatened, intimidated, coerced, or used any type of force to secure

Appellant’s consent to provide a specimen. Further, Appellant does not contend that his

consent was not freely and voluntarily given.2 Rather, Appellant argues that his consent

should be deemed involuntary based solely on the fact that Torres failed to provide the

statutory warnings before obtaining Appellant’s consent.

Because any person who operates a motor vehicle on public highways and is

arrested for DWI is statutorily deemed to have consented to the taking of a breath

specimen, the failure to give statutory warnings does not preclude admission of breath

testing results when consent to provide a specimen was voluntarily given. Landgraff v.

State, 740 S.W.2d 577, 579 (Tex. App.—Houston [1st Dist.] 1987, pet. ref’d). Rather, it

is only when a person refuses to provide a specimen that the State must prove that the

statutory warnings were given before the refusal occurred. See Cole v. State, 484 S.W.2d

2 At oral argument, Appellant contended that the circumstances surrounding his consent to provide

a breath specimen were such that they rendered his consent involuntary. However, Appellant did not present this argument in his briefing. “An appellant may not raise new points during oral argument . . . .” Moore v. State, 165 S.W.3d 118, 121 n.1 (Tex. App.—Fort Worth 2005, no pet.). Additionally, to make his case concerning the voluntariness of his consent, Appellant relies on evidence that was not presented at the hearing on his motion to suppress but, rather, was presented only at the punishment hearing following his plea of guilty. In reviewing whether a trial court’s suppression decision is supported by the record, we generally consider only evidence adduced at the suppression hearing because the ruling was based on this evidence rather than evidence adduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) (identifying the exception as being when the suppression issue is consensually re-litigated by the parties at the trial on the merits). 6 779, 783 n.4 (Tex. Crim. App. 1972) (“It is not necessary 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 the consent was freely and knowingly given.”); Hogue v. State,

752 S.W.2d 585, 589–90 (Tex. App.—Tyler 1987, pet. ref’d) (“While evidence must show

that warnings [required under the previous statute] were given the accused prior to

introduction of evidence of his refusal to submit to a breath test, we have found no

authority construing [the prior statute] as requiring proof of these warnings as a predicate

to the introduction of voluntarily taken breath test results . . . .”) (emphasis added); Nebes

v. State, 743 S.W.2d 729, 731 (Tex. App.—Houston [1st Dist.] 1987, no pet.) (same).

“Taking a chemical breath test with the consent of the accused violates none of his rights.”

Hogue, 752 S.W.2d at 589.

As indicated above, we conclude that Appellant freely and voluntarily consented

to provide a breath specimen for testing. Under applicable law, the failure of Torres to

inform Appellant of the consequences of his refusal to provide a specimen does not

render his consent involuntary. See Hogue, 752 S.W.2d at 589–90; Nebes, 743 S.W.2d

at 731. Further, because a person who consents to the taking of a breath sample suffers

no penalty when he is not informed of the consequences of his refusal, Appellant was not

harmed by Torres’s failure to read him the statutory warnings. See Landgraf, 740 S.W.2d

at 579. The record does not reflect that law enforcement officers brought any physical or

psychological pressure to bear to obtain Appellant’s consent to provide a breath

specimen. State v. Roades, No. 07-11-00077-CR, 2012 Tex. App. LEXIS 10240, at *9

(Tex. App.—Amarillo Dec. 11, 2012, no pet.) (mem. op., not designated for publication).

Since the record demonstrates that Torres’s warrantless seizure of Appellant’s breath

7 specimen was reasonable under the Fourth Amendment, we overrule Appellant’s first

issue.

ISSUE TWO: VIOLATION OF ARTICLE 38.23

By his second issue, Appellant contends that the intoxilyzer test results are

inadmissible under article 38.23 of the Texas Code of Criminal Procedure. The State

responds contending that Appellant failed to establish a causal connection between the

statutory violation and the evidence obtained.

Article 38.23(a) of the Texas Code of Criminal Procedure provides that, “[n]o

evidence obtained by an officer or other person in violation of any provision 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 evidence against the accused on the trial of any

criminal case.” TEX. CRIM. PROC. CODE ANN. art. 38.23(a). Evidence is not obtained in

violation of the law if there is no causal connection between the illegal conduct and the

acquisition of the evidence. Gonzales v. State, 67 S.W.3d 910, 912 (Tex. Crim. App.

2002). The burden to prove such a causal connection between the failure to give statutory

warnings and the decision to submit a breath test is on the defendant. Martinez v. State,

No. 08-03-00240-CR, 2005 Tex. App. LEXIS 2687, at *9 (Tex. App.—El Paso Apr. 7,

2005, no pet.). Appellant argues that Torres’s failure to read him the statutory warnings

rendered his otherwise free and voluntary consent to provide a breath specimen

involuntary. We have rejected this argument above. Appellant’s conclusory contention

does not discharge his burden to show a causal connection between Torres’s failure to

read the statutory warnings and Appellant’s consent to provide a breath specimen. See

8 Lane v. State, 951 S.W.2d 242, 244 (Tex. App.—Austin 1997, no pet.) (per curiam) (no

proof of causal connection between officer’s failure to provide written warnings and

appellant’s consent to provide a breath specimen). Consequently, we overrule

Appellant’s second issue.

CONCLUSION

Having overruled both of Appellant’s issues, we affirm the judgment of the trial

court.

Judy C. Parker Justice

Do not publish.