Nicholas Peter Gette v. State

Opinion issued August 10, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01–05–00930–CR

NICHOLAS PETER GETTE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1298406

O P I N I O N

Nicholas Peter Gette, appellant, was charged by information with driving while

intoxicated. Tex. Pen. Code Ann. § 49.04 (Vernon 2003). Appellant pled not guilty,

and the jury found him guilty. The trial court sentenced him to 180 days in a state

jail, suspended for one year of community supervision.

In four points of error, appellant challenges the trial court’s denial of two

motions to suppress evidence, arguing (1) the arresting officer lacked the authority

to stop appellant and (2) the arresting officer rendered appellant’s breath test

involuntary by telling appellant that someone had recently exonerated himself by

taking the test.

We affirm.

Background

Officer Gregory Beaves works for the Rice University Police Department. On

April 20, 2005, Officer Beaves was patrolling the perimeter of Rice University when

he saw appellant driving east on University Boulevard. Officer Beaves saw appellant

“bumping and crossing the center line” of University Boulevard. Appellant then

turned onto entrance eight on Rice University campus. While turning, appellant

almost hit the curb with his left tires and initially entered the lane for opposing traffic.

On campus, Officer Beaves observed appellant driving 26 miles per hour when the

posted speed limit was 20 miles per hour.

After Officer Beaves pulled appellant over, he detected the odor of alcohol in

the car. Appellant admitted he had consumed four drinks earlier. Officer Beaves had

appellant perform some sobriety tests. Based on appellant’s performance in the

sobriety tests, Officer Beaves decided to take appellant into custody. Officer Beaves

told appellant that he was going to take him into custody so that appellant could take

a breath test. During the discussion, Officer Beaves told appellant that he had

administered the breath test to another person recently and that the breath test had

exonerated that person.

Motions to Suppress

Appellant filed two motions to suppress. The first sought to suppress all

evidence obtained as a result of the stop of appellant, arguing that Officer Beaves

lacked the authority to perform the stop. The second sought to suppress the results

of appellant’s breath test, arguing that appellant was psychologically coerced into

taking the breath test. Appellant appeals the denial of both motions.

A. Standard of Review

A trial court’s ruling on a motion to suppress evidence will not be set aside

unless an abuse of discretion is found. Villarreal v. State , 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996); State v. Derrow , 981 S.W.2d 776, 778 (Tex. App.—Houston [1st

Dist.] 1998, pet. ref’d). We must afford almost total deference to the trial court’s

determination of facts supported by the record, especially when the findings are based

on the evaluation of the witnesses’ credibility and demeanor. Guzman v. State , 955

S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s ruling, 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 the trial court’s determination of the historical facts and conduct a

de novo review of the trial court’s application of the law to those facts. Id. The trial

court is the exclusive finder of fact in a motion to suppress hearing, and it may choose

to believe or disbelieve any or all of any witness’s testimony. State v. Ross , 32

S.W.3d 853, 855 (Tex. Crim. App. 2000).

When the trial court does not file findings of fact concerning its ruling on a

motion to suppress, we assume that the court made implicit findings that support its

ruling, provided those implied findings are supported by the record. See Maxwell v.

State , 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). When the trial court does file

findings of fact with its ruling on a motion to suppress, an appellate court does not

engage in its own factual review, but determines only whether the record supports the

trial court’s fact findings. Romero v. State , 800 S.W.2d 539, 543 (Tex. Crim. App.

1990). Unless the trial court abused its discretion by making a finding not supported

by the record, we will defer to the trial court’s fact findings and not disturb the

findings on appeal. Cantu v. State , 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). On

appellate review, we address only the question whether the trial court properly

applied the law to the facts. Romero , 800 S.W.2d at 543 .

B. Authority of Rice University Police

In three points of error, appellant argues that the trial court erred in denying the

motion to suppress all evidence obtained as a result of the stop because Officer

Beaves lacked the authority to perform the initial stop. Specifically, appellant argues

that (1) Officer Beaves lacked the authority to enforce state laws on a public road; (2)

Officer Beaves lacked the authority to enforce state laws on a private road; and (3)

the reduced speed limits on Rice University campus were unenforceable. Because we

find the third issue determinative for the other two, we address it first.

1. Authority of Rice University to Set Traffic Regulations

In his third point of error, appellant argues that the reduced speed limit on the

campus was unenforceable. For urban streets, a speed limit of 30 miles per hour is

prima facie valid. Tex. Transp. Code Ann. § 545.352(b)(1) (Vernon Supp. 2005).

Appellant argues that Rice University did not meet the requirements of sections

542.006 through 542.008 to lower the speed limit. Tex. Transp. Code Ann.

§ 542.006–.008 (Vernon Supp. 2005). These statutes are not the applicable law in

this case, however.

Section 600.003 of the Transportation Code gives private institutions of higher

education the authority to “enforce a traffic law of this state under Chapter 545

restricting or prohibiting the operation of movement of vehicles on a road of the

institution.” Tex. Transp. Code Ann. § 600.003(b) (Vernon 1999). According to

the statute, Rice University was authorized to enforce the speed limit as long as it (1)

made the road open to the public at the time of enforcement; (2) adopted a regulation

to enforce the law; (3) posted a sign designating the speed limit; and (4) obtained

approval from the City of Houston. Id. In order to set a speed limit below 30 miles

per hour, Rice had to receive authorization from the City of Houston after an

engineering and traffic investigation had been performed. Tex. Transp. Code Ann.

§ 545.356 (Vernon Supp. 2005).

In his brief, appellant argued that the City of Houston never “authorized the

enforcement of a speed limit less than 30 miles per hour on the campus.” On appeal,

the State filed a motion for us to take judicial notice of the City of Houston’s

ordinance that approved the reduction of speed limits on Rice campus. Appellant, in

response, argued that the City of Houston Charter does not provide for judicial notice

of this type of ordinance. We need not determine whether the City of Houston

Charter provides for judicial notice of this ordinance, however. Rule 204 of the

Texas Rules of Evidence provides that upon the motion of a party, we must take

judicial notice of ordinances of a municipality once the party has provided this Court

with sufficient information to enable this Court to comply with the request. Tex. R.

Evid. 204.

Prior to the enactment of Rule 204 in 1984, both trial and appellate courts

expressed a reluctance to take judicial notice of ordinances from municipalities and

counties within the State of Texas. 1 Goode, Wellborn, & Sharlot, Texas

Practice Series § 204.1 (3d ed. 2002). Rule 204 expressly provides that courts can

take judicial notice of such ordinances. Tex. R. Evid. 204. Although the language

of Rule 204 is seemingly broad enough to permit an appellate court to take judicial

notice of ordinances, it does not contain the language found in both Rules 201(f) and

202 that provides that courts may take judicial notice at any stage of the proceeding.

Tex. R. Evid. 201(f); 202. However, a number of appellate courts, including our

sister court, the Fourteenth Court of Appeals, have held that an appellate court, as

well as a trial court, may take judicial notice under Rule 204. See Eckman v. Des

Rosiers , 940 S.W.2d 394, 399 (Tex. App.—Austin 1997, no writ) (holding that

appellate court has power to take judicial notice of Texas Register and Administrative

Code); Blackwell v. Harris County , 909 S.W.2d 135 , 140 n.2 (Tex. App.—Houston

[14th Dist.] 1995, writ denied) (taking judicial notice of a city ordinance for first time

on appeal); Int’l Ass’n of Firefighters Local 624 v. City of San Antonio , 822 S.W.2d

122, 127 (Tex. App.—San Antonio 1991, writ denied) (taking judicial notice of city

charter for first time on appeal). But see City of Glenn Heights v. Sheffield

Development Co., Inc. , 55 S.W.3d 158 , 162–63 (Tex. App.—Dallas 2005, no pet.)

(refusing to take judicial notice of municipal ordinance when ordinance had not been

presented to trial court during summary judgment proceeding); Metro Fuels, Inc. v.

City of Austin , 827 S.W.2d 531, 532 (Tex. App.—Austin 1992, no writ) (holding that

parties must both comply with Rule 204 and make ordinance part of trial court record

because municipal ordinances difficult to research and verify).

Moreover, Rule 202 provides a mechanism for courts to take judicial notice of

ordinances from another state and explicitly provides that judicial notice may be

taken at any stage of the proceeding. Tex. R. Evid. 202. We see no reason to apply

a stricter standard for in-state ordinances than for out-of-state ordinances. Thus, we

hold that an appellate court as well as a trial court may take judicial notice of an

ordinance as long as a party or parties comply with the provisions of Rule 204.

In order for a court to take judicial notice of an ordinance, it must be

authenticated. Fields v. City of Texas City , 864 S.W.2d 66, 69 (Tex. App.—Houston

[14th Dist.] 1993, writ denied); Hollingsworth v. King , 810 S.W.2d 772, 774 (Tex.

App.—Amarillo 1991), writ denied per curiam , 816 S.W.2d 340 (Tex. 1991). The

State included along with its motion a copy of the City of Houston ordinance certified

by the City Secretary. Accordingly, we take judicial notice that Rice University

received proper authority from the City of Houston to reduce its speed limits on

campus to 20 miles per hour.

We overrule appellant’s third point of error.

2. Authority of Rice University Officers to Enforce State Laws on

Private Roads

In his second point of error, appellant argues that Officer Beaves lacked the

authority to stop appellant for a traffic violation that occurred on private property.

Appellant argues that without the consent of an elected governing body, a police

officer for Rice University lacks the authority to stop people for traffic violations on

private property. The State of Texas has given Rice University such authority,

however.

Section 51.212 of the Texas Education Code authorizes the governing boards

of private institutions of higher education

to employ and commission campus security personnel for the purpose of

enforcing the law of this state on the campuses of private institutions of higher

education. Any officer commissioned under the provisions of this section is

vested with all the powers, privileges, and immunities of peace officers while

on the property under the control and jurisdiction of the respective private

institution of higher education or otherwise in the performance of his assigned

duties.

Tex. Educ. Code Ann. § 51.212 (Vernon 1996). The campus security personnel are

authorized to enforce the reduced speed limits set by the school. Tex. Transp. Code

Ann. § 600.003(c). We hold that Officer Beaves had the proper authority to stop

appellant for exceeding the speed limit posted on Rice University campus.

We overrule appellant’s second point of error.

3. Authority of Rice University Officers to Enforce State Laws on

Public Roads

In his first point of error, appellant argues that Officer Beaves lacked the

authority to stop appellant for a traffic violation that occurred outside of the campus.

We have already determined that Officer Beaves had the authority to stop appellant

for exceeding the speed limit lawfully set by Rice University. Therefore, the stop was

lawful, and the trial court did not abuse its discretion in denying appellant’s motion

to suppress. Accordingly, we need not reach appellant’s first point of error.

We overrule appellant’s first point of error.

C. Voluntariness of Breath Test

In his fourth point of error, appellant argues that the trial court erred in denying

his motion to suppress the breath test because he was psychologically coerced into

taking the breath test. This claim stems from a statement by Officer Beaves that he

had stopped another student recently under similar circumstances and that the student

had exonerated himself by taking the breath test.

Section 724.011 of the Transportation Code, the “implied consent” statute,

provides that a person arrested for suspected driving while intoxicated is deemed to

have consented to the taking of samples for a breath or blood test. Tex. Transp.

Code Ann. § 724.011(a) (Vernon 1999). An adult person arrested for DWI must be

warned that refusal to submit to a breath test will result in the following

consequences: (1) evidence of the refusal will be admissible against the person in

court, and (2) the person’s driver’s license will be suspended for 180 days. Tex.

Transp. Code Ann. § 724.015(1)–(2) (Vernon Supp. 2005); Erdman v. State , 861

S.W.2d 890, 893 (Tex. Crim. App. 1993) (decided under former version of section

724.015, which provided for 90-day loss-of-license penalty). The suspect must

likewise be informed of possible consequences if he submits to the test and the results

of the test show a prohibited blood-alcohol level. See Tex. Transp. Code Ann.

§ 724.015(3), (4) (Vernon Supp. 2005).

A suspect’s consent to a breath test must be voluntary. Turpin v. State , 606

S.W.2d 907, 914 (Tex. Crim. App. 1980) (construing former version of section

724.015 of Transportation Code). For consent to a breath test to be deemed

“voluntary,” a suspect’s decision must not be the result of physical pressure or

psychological pressure brought to bear by law enforcement officials. See Thomas v.

State , 723 S.W.2d 696 , 704–05 (Tex. Crim. App. 1986) (noting that consent to breath

test involuntary if induced by physical force or mental coercion); Schafer v. State , 95

S.W.3d 452, 455 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (noting that

consent to breath test involuntary if induced by misstatement of direct statutory

consequences arising from refusal). A suspect’s decision to submit to a breath test

must be his own, made freely, and with a correct understanding of the statutory

consequences of refusal. Erdman , 861 S.W.2d at 893 .

Erdman and its progeny have focused on whether the alleged extra-statutory

warnings concerned the consequences of refusing to take the breath test. Erdman ,

861 S.W.2d at 893–94; Ness v. State , 152 S.W.3d 759, 763 (Tex. App.—Houston [1st

Dist.] 2004, pet. ref’d); Urquhart v. State , 128 S.W.3d 701, 705 (Tex. App.—El Paso

2003, pet. ref’d); Sandoval v. State , 17 S.W.3d 792, 795 (Tex. App.—Austin 2000,

pet. ref’d). The courts of appeals have ruled that statements about the consequences

of passing or failing the breath test “are not of the same coercive nature” as

statements about the consequences of refusing to take a breath test. Ness , 152 S.W.3d

at 763 (citing Sandoval , 17 S.W.3d at 797 ); see also Urquhart , 128 S.W.3d at 705 .

In Ness , the officer told the defendant that he was being detained pending the

outcome of the breath test. Ness , 152 S.W.3d at 763 . In Sandoval , the officer told

the defendant that if he passed the breath test, he would be released to the custody of

his family. Sandoval , 17 S.W.3d at 794 . In Urquhart , the only statement preserved

for review was the officer’s statement to the defendant that if he took the test and

passed, he would be released from jail. Urquhart , 128 S.W.3d at 704 . In each of

these cases, the courts of appeals held that the trial courts had not abused their

discretion in denying the motions to suppress. Ness , 152 S.W.3d at 764 ; Sandoval ,

17 S.W.3d at 797 ; Urquhart , 128 S.W.3d at 706 .

In the present case, Officer Beaves told appellant that he had stopped another

student recently under similar circumstances and that the student had exonerated

himself by taking the breath test. Appellant testified during the motion to suppress

that, absent Officer Beaves’s statement, he would not have consented to the breath

test. Officer Beaves testified that he made the statement in the context of explaining

to appellant that he was taking him in to take a breath test and that he would not be

mistreated. The videotape of the field sobriety test showed the statement in question

was made in the context that Officer Beaves described. Later, appellant was taken

to the police station; he was given his statutory warnings; and he consented to take

the breath test.

Because the trial court’s ruling was based on the evaluation of the witnesses’

credibility and demeanor, we must afford almost total deference to the trial court’s

determination. Guzman , 955 S.W.2d at 89 . In this light, we cannot say that the trial

court’s decision to admit the results of the breath test was outside the zone of

reasonable disagreement. Accordingly, we hold that the trial court did not abuse its

discretion in denying appellant’s motion to suppress.

We overrule appellant’s fourth point of error.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Higley, and Bland.

Publish. See Tex. R. App. P. 47.2(b).