State v. Woehst

175 S.W.3d 329, 2004 Tex. App. LEXIS 8376, 2004 WL 2066253

• Court: Court of Appeals of Texas
• Decided: September 16, 2004
• Docket: 01-02-01263-CR
• Status: Published

Opinions

OPINION

TIM TAFT, Justice.

The State of Texas appeals from the trial court’s order granting the motion to suppress of Meredith Carol Woehst, appel-lee. Woehst was charged with driving while intoxicated (DWI). See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). Woehst moved to suppress the admission of her refusal to submit a breath or blood specimen and the audio and visual recordings of her refusal on the ground that they had been illegally obtained by the reading of incorrect statutory warnings as to the effect of her refusal. After a hearing, the trial court granted the motion and suppressed the evidence. In two issues, the State argues that the trial court erred in suppressing the evidence because (1) a refusal to take a blood-alcohol test cannot be involuntary or coerced and, therefore, cannot be obtained in violation of law and rendered inadmissible and (2) the only possible effect of the officer’s reading the incorrect warning relates to the suspension of Woehst’s driver’s license, not the admissibility at her DWI trial of her refusal to take the breath test. We affirm.

Background

On October 4, 2001, College Station Police Officer Miguel Vasquez initiated a traffic stop of Woehst’s vehicle and subsequently arrested Woehst for DWI.

The current version of the Texas Transportation Code provides that a person arrested for DWI must be informed that, if the person is 21 years of age or older, submits to the taking of a specimen, and the specimen shows that the person had an alcohol concentration of a level specified by Chapter 49 of the Texas Penal Code, then the person’s license to operate a motor vehicle will automatically be suspended for not fewer than 90 days. Tex. Transp. Code Ann. § 724.015(3) (Vernon Supp. 2004-05). A person must also be warned that two specific consequences will result from a refusal to submit to a breath test: (1) the person’s driver’s license will be suspended automatically for not fewer than 180 days and (2) evidence of the refusal is admissible against the person in court. Tex. Transp. Code Ann. § 724.015(1), (2) (Vernon Supp.2004-05).

At the police station, Officer Vasquez read Woehst a 1999 statutory warning form (1999 DIC-24) informing her of the outdated consequences for refusing to provide a blood or breath sample: that her license would be suspended for not fewer than 90 days and that evidence of her refusal would be admissible against her in court. At the time of Woehst’s arrest, the 1999 DIC-24 form had already been replaced by a 2001 version. In 2001, the Legislature amended the statute to lengthen the minimum period that a driver’s license automatically would be suspended upon refusal to submit to the taking of a specimen to not fewer than 180 days, rather than the previous 90 day minimum suspension. The 2001 statute applied to persons arrested for an offense committed on or after September 1, 2001. See Tex. Transp. Code Ann. § 724.015 (Vernon Supp.2004-05). Because Woehst was arrested after September 1, 2001, the Texas Transportation Code required Officer Vasquez to inform Woehst of the consequences set forth in the 2001 statute instead of the 1999 statute. The State stipulated in the trial court that Officer Vasquez had read Woehst the outdated 1999 form.

Woehst moved to suppress the breath-test refusal and the videotaped portions of her refusal on the ground that, had she been given the proper statutory warning, she would have had a stronger incentive to take the breath test. At the hearing on her motion, Woehst argued that Officer Vasquez’s failure to provide the correct statutory warnings violated section 724.015 of the Transportation Code and, thus, that her refusal to provide a breath specimen was (1) involuntary and inadmissible under the self-incriminatory provisions of the federal and state constitutions¹ and (2) inadmissible under Texas’s exclusionary rule, article 38.23 of the Code of Criminal Procedure.² The trial court found in Woehst’s favor and suppressed the refusal and its recordings.

Standard of Review

A trial court’s ruling on a motion to suppress lies within its discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). A trial court abuses its discretion if it refuses to suppress evidence that is obtained in violation of the law and that is, therefore, inadmissible under Article 38.23 of the Code of Criminal Procedure. Erdman v. State, 861 S.W.2d 890, 893 (Tex.Crim.App.1993).

In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give almost total deference to a trial court’s determination of historical facts, while we conduct a de novo review of a trial court’s application of the law to those facts. Id. (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997)). During a motion-to-suppress hearing, a trial court is the sole trier of fact; accordingly, the trial court may choose to believe or to disbelieve all or any part of a witness’s testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000); King v. State, 35 S.W.3d 740, 742 (Tex.App.-Houston [1st Dist.] 2000, no pet.). When no findings of fact are filed, we must view the evidence in the light most favorable to the ruling and sustain the decision if it is correct on any applicable theory of the law. Ross, 32 S.W.3d at 855-56; King, 35 S.W.3d at 742. When reviewing the ruling, we must consider only whether the trial court improperly applied the law to the facts. Porter v. State, 938 S.W.2d 725, 727 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). If any basis for the trial court’s ruling is correct, its order to suppress must be upheld. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

Exclusion of Breath-Test Refusal

In its first issue, the State contends that (1) Texas’s exclusionary statute, article 38.23(a) of the Code of Criminal Procedure, requires the exclusion only of illegally obtained evidence; (2) the refusal to give a breath specimen would be obtained illegally only if it were involuntary; and (3) a refusal to give a breath specimen cannot be involuntary unless it is coerced, and it cannot be coerced. Therefore, the State contends that Woehst’s refusal should not have been suppressed. See Tex.Code CRIM. PROC. Ann. art.38.23(a) (Vernon Supp. 2004-05).

In her motion to suppress, Woehst relied primarily on Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App.1993).³ However, Woehst also relied on the effect of the officer’s Transportation Code violation regarding the statutory consequences of refusing a breath test and, particularly, the influence that the violation had on Woehst’s decision to refuse to take the breath test. The trial court suppressed the refusal based upon both reasons, deciding that it was “required by logic in Erdman to exclude the evidence of the warning and of the refusal” and that because the “statute’s [section 724.015] not followed, then the results should not go in front of the jury.”.

On appeal, the State first challenges the constitutional basis involving coercion, arguing that Erdman does not apply to the uncoerced refusal to take a breath test in a DWI case; rather, the State argues that Erdman governs the exclusion of a breath test obtained by coerced consent. Relying primarily on South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the State argues that, unlike consent, a refusal to provide a breath specimen in a DWI case cannot be involuntary.

Second, to the extent the State addresses the statutory basis for suppression of the evidence, the State argues that reading admittedly factually incorrect statutory warnings does not require suppression of Woehst’s refusal under any circumstances for the same reason that it does not require suppression on constitutional grounds — the refusal can never be involuntary. The State fails to consider, however, the different analysis that a trial court should undertake to determine admissibility in response to a claim of a statutory violation. See Pham v. State, 72 S.W.3d 346, 346 (Tex.Crim.App.2002) (in reversing Pham v. State, 36 S.W.3d 199, 204 (Tex.App.-Houston [1st Dist.] 2000), holding that a statutory violation requires a causal-connection analysis in addressing a statutory violation).

By law, the Transportation Code requires that a person suspected of having committed the offense of DWI be (1) given the opportunity to take a breath test and (2) warned both that the failure to take the test may be admissible in a subsequent prosecution and that the failure will automatically result in the suspension of his or her driver’s license for not fewer than 180 days — the statutory amount of time. Tex. Transp. Code Ann. § 724.015(l)-(2). These statutory warnings “emphasize the importance of ensuring that the consent is given ‘freely and with a correct understanding of the actual statutory consequences of refusal.’ ” Sandoval v. State, 17 S.W.3d 792, 795 (Tex.App.-Austin 2000, pet. ref'd) (citing Erdman, 861 S.W.2d at 893). In the present case, Woehst was warned that if she refused to give a specimen, her license would be suspended for not fewer than 90 days. This warning is admittedly factually inaccurate. In reality, her refusal would result in her license’s being suspended for not less than 180 days, and the Transportation Code requires that this exact warning be given to a suspect. See Tex. Tkansp. Code Ann. § 724.015(2). The failure to warn Woehst of the accurate statutory consequences of her refusal thus violated the Transportation Code.

We acknowledge, however, that “[e]vidence is not ‘obtained in violation’ of a provision of 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) (citing Roquemore v. State, 60 S.W.3d 862, 870 (Tex.Crim.App.2001)); Schafer v. State, 95 S.W.3d 452, 455-56 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd) (holding that trial court did not err in concluding that there was no causal connection between appellant’s failure to receive DWI warnings in writing and his decision to submit to breath test). Therefore, in order for Woehst’s refusal to be excluded, there must be a causal connection between her refusal and the State’s violation of section 724.015(2) of the Transportation Code.

Unlike in Schafer, in this case, the trial court concluded that Woehst had demonstrated the existence of a causal connection between her refusal and the officer’s violation of the Transportation Code. See Gonzales, 67 S.W.3d at 912. At the pre-trial hearing, the following exchange occurred on direct examination:

[Defense Counsel]: Had you known that the proper Statutory Warning — if you had a correct understanding of the actual statutory consequences of the refusal, that is, specifically that your license would have been suspended for not 90 days but for actually 180 days, would that have affected your decision whether or not to submit a breath or blood specimen?

[Ms. Woehst]: It would have given me more of an incentive to take the test. [Defense Counsel]: Why?

[Ms. Woehst]: Just because it’s more days of the suspension.

[Defense Counsel]: Okay. Did it act— did it play a role in your decision — and I say that — when I say this, if you had, in fact, been given the correct statutory period of suspension, that would have, in fact, influenced your decision whether to submit a breath specimen or not submit a breath specimen; is that right?

[Ms. Woehst]: Yes, sir.

On cross-examination, Woehst could not explain why the officer’s reading of the wrong minimum suspension period affected her.⁴ Woehst admitted that she did not feel coerced to refuse to provide a specimen and that she understood the form as it was explained to her. The prosecutor asked Woehst if she wanted the trial court to believe that she would have provided a specimen because the mínimums for refusing had increased. Woehst responded affirmatively. On redirect, Woehst also testified that the length of suspension would have had some influence or some effect on her life.

Viewing the evidence in the light most favorable to the trial court’s ruling, and deferring to the trial court’s determination of facts, especially when they are based, as they are here, on an evaluation of credibility and demeanor, we hold that the trial court did not abuse its discretion in suppressing Woehst’s refusal. Woehst established a causal connection, by showing that the officer’s misinformation and failure to provide a proper warning had caused her to refuse to consent to the breath test, and the trial court implicitly found her to be credible. Article 38.23 of the Code of Criminal Procedure, therefore, requires exclusion of the refusal evidence. See Schafer, 95 S.W.3d at 455, 457; Jessup v. State, 935 S.W.2d 508, 511 (Tex.App.Houston [14th Dist.] 1996, pet. ref d). We disagree with the dissenting opinion, which would find no causal connection as a matter of law absent coercion and thus that a trial court could never find that a refusal was caused by a statutory violation.

We overrule the State’s first issue. Because our ruling is dispositive of the appeal, we do not address the State’s second issue as to the alleged constitutional violations.

Conclusion

We affirm the trial court’s order granting appellee’s motion to suppress.

Justice KEYES, dissenting.

1 . U.S. Const, arts. V, XIV; Tex. Const, art. I, § 10.

2 . Article 38.23(a) provides that “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 Constitution or laws of the United States of America shall be admitted in evidence against the accused.” Tex.Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2004-05).

3 . In Erdman, the Court of Criminal Appeals held that a driver’s consent to a breath test was coerced, and thus improperly obtained and properly excluded from the evidence, when the officer warned the driver of extra-statutory consequences of a refusal — namely, that the driver would be jailed and charged with DWI if he refused consent — in addition to providing the general statutory warnings contained in the Transportation Code. Erdman v. State, 861 S.W.2d 890, 893-94.

4 . The following exchange occurred:

[Prosecutor]: Ms. Woehst, would your getting to class or going to work or anything like that have been impacted somehow differently had you had a longer suspension than 90 days at the time this was explained to you? How would a 180-day suspension have made an impact on you that would have differed from a 90-day suspension? Do you not have an answer, ma’am?

[Ms. Woehst]: No.