Daniel Lee Buechmann v. State

Opinion issued January 19, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00212-CR

———————————

Daniel Lee Buechmann , Appellant

V.

The State of

Texas , Appellee

On Appeal from the County Criminal Court at Law No. 3

Harris County, Texas

Trial Court Case No. 1710381

MEMORANDUM OPINION

Daniel Lee

Buechmann was charged with the offense of driving while intoxicated. After the

trial court denied his motion to suppress his breath test results, Buechmann

pleaded guilty and was sentenced to 180 days’ confinement, probated

for one year, and a $300 fine. In a single issue, Buechmann challenges the

trial court’s ruling on his motion to suppress. We affirm.

Background

University

of Houston Police Officer J. Ramos stopped Buechmann for running a red light on

the University of Houston campus. Ramos determined that Buechmann presented

indications of intoxication and administered a horizontal gaze nystagmus (HGN) test. Ramos testified that he was trained

in the administration of the HGN test, and he administered the test pursuant to

his training. According to Ramos, Buechmann exhibited signs of intoxication

during the HGN test. Ramos then took Buechmann to the “central intox facility” at the Houston Police Department to have

other sobriety tests administered by a Houston Police Department (HPD) evidence

technician.

At the HPD facility, Ramos read

Buechmann the statutory warning aloud while Buechmann followed along in a written

copy of the warning. These warnings included information that, if Buechmann

refused to give a specimen for the breath test, (1) his refusal could be

admissible in a subsequent prosecution, (2) his license to operate a motor

vehicle would be suspended for not less than 180 days, and (3) he could be disqualified

for driving a commercial vehicle for a period of not less than one year. Buechmann

asked Ramos to repeat the consequences of refusing to give a specimen. Ramos

responded, “If you refuse to give a specimen or a specimen shows that you have

an alcohol concentration .08 or more you may be disqualified from driving a

commercial motor vehicle for a period of not less than one year.” The HPD evidence

technician then asked Buechman if he drove a

commercial vehicle, to which Buechmann responded that he did not.

After Buechmann agreed that he

understood the warning, he provided a breath sample that registered a blood

alcohol content of 0.16 — twice the

legal limit.

Standard of Review

We review a trial court’s ruling on a motion to suppress

evidence under an abuse of discretion standard. Villarreal

v. State , 935 S.W.2d 134,

138 (Tex. Crim. App. 1996); Gette v. State ,

209 S.W.3d 139, 142 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The

trial court is the sole judge of the credibility of the witnesses and the

weight to be given to their testimony. Villarreal ,

935 S.W.2d at 138 (citing Romero v. State , 800 S.W.2d 539, 543

(Tex. Crim. App. 1990)). Thus, we view the evidence and all reasonable

inferences therefrom in the light most favorable to the trial court’s ruling and

sustain the ruling if it is reasonably supported by the record and is correct

on any applicable theory of law. Id . ( citing Romero , 800 S.W.2d at 543 ).

But the trial court has no discretion in determining the law, and we review the

trial court’s application of the law to the facts under a de novo standard of

review. Carmouche v. State , 10

S.W.3d 323, 327 (Tex. Crim. App. 2000); Gette , 209 S.W.3d at 142 .

Admissibility of the Breath Test

Section 724.011 of the Transportation

Code 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

for an analysis. Tex. Transp.

Code Ann. § 724.011(a) (West 2011).

Section 724.015 requires that certain warnings be given to a person arrested

for DWI, including warnings that refusal to give a breath specimen for testing

will result in the following consequences: (1) evidence of the refusal will be

admissible against the person in court, (2) the person’s driver’s license will

be suspended for no less than 180 days, and (3) the officer may apply for a

warrant authorizing the State to take a specimen. Id. § 724.015 (West 2011) ; see also Erdman v. State , 861 S.W.2d 890, 893 (Tex. Crim. App.

1993) (applying former version of section 724.015). The warnings Ramos read to Buechmann

and provided in writing to Buechmann included not only the consequences for

refusal to submit a specimen set forth in section 724.015, but also the

consequences set forth in 522.103, relating to a person’s qualification to

drive a commercial vehicle. See Tex. Transp. Code Ann. § 724.015 (specifying information that must be

provided to person, orally and in writing, before requesting person to submit

to taking specimen); id. § 522.103 (West 2011) (consequences of

refusing to give specimen on qualification for driving commercial motor

vehicle).

Buechmann does not deny that Ramos

read aloud and provided a copy of the statutory warning to him or challenge the

legal correctness of the warnings given to him. Buechmann’s

complaint is that, when he asked Ramos to “ go[ ] over”

the consequences of refusing the breath test, Ramos repeated a consequence that

did not apply to Buechmann because he did not drive a commercial vehicle. On

this basis, Buechmann contends that his consent to give a breath specimen was

coerced and, thus, involuntary.

The statute does not require Ramos

to read all of the warnings to Buechmann twice, nor does it require him to

determine which of the warnings are most important to Buechmann. See Tex.

Transp. Code Ann. § 724.015.

Buechmann had a written copy of the warnings, which he was free to re-read. Ramos

did not threaten Buechmann with an extra-statutory consequence of refusing to

give a specimen. Cf. Erdman v. State ,

861 S.W.2d 890 , 893–94 (Tex. Crim. App. 1993) (holding that breath specimen was

not voluntarily given when trooper warned driver of non-statutory consequence

of refusing to give specimen — that he

would be taken to jail and prosecuted for DWI). Instead, Ramos repeated one of

the statutory consequences potentially applicable to Buechmann without

repeating other statutory consequences that were of greater import to

Buechmann. While Buechmann’s complaint focuses on

Ramos’s failure to repeat certain potential consequences of refusing to take

the test, Buechmann did not refuse to take the test. Even if we assume

Buechmann was unaware of the additional statutory consequences previously read

to him and provided to him in writing, Buechmann provides no causal connection

between not knowing about certain potential consequences of refusing to give a

breath sample and his decision to give a breath sample. While a party might

mistakenly refuse to give a sample because he was not adequately warned of the

consequences of refusal, it is not clear how a party would be induced to give a

sample on that basis.

Additionally, the record does not

support any implication that Buechmann was induced to give a breath test

because he was concerned about losing the right to drive a commercial vehicle.

Immediately after the warning regarding a commercial license was repeated,

Buechmann asserted that he did not drive a commercial vehicle. Thus, the trial

court could have reasonably concluded that Buechmann knew that potential consequence

did not apply to him. See Ness v. State , 152 S.W.3d 759, 763 (Tex. App.—Houston

[1st Dist.] 2004, pet. ref’d) (holding that officer’s statement was not coercive

because it did not encompass adverse circumstance that would result from

defendant’s refusal to submit to test).

On this record, the trial court

could have reasonably concluded that Buechmann was not coerced into giving a

breath specimen by Ramos’s actions or inactions. See Urquhart

v. State , 128 S.W.3d 701, 705

(Tex. App.—El Paso 2003, pet. ref’d) (stating that, even when extra-statutory

warnings are given, party seeking to suppress must show causal connection

between improper warnings and decision to give breath specimen); Sandoval v. State , 17 S.W.3d 792, 796

(Tex. App.—Austin 2000, pet. ref’d) (same); cf. Erdman , 861 S.W.2d at 894 (observing that threat of

imprisonment and immediate prosecution was of nature “that would normally

result in considerable psychological pressure upon a D.W.I. suspect to consent

to the taking of a breath sample”).

We hold that the trial court did

not abuse its discretion in denying Buechmann’s

motion to suppress. [1] We

therefore overrule Buechmann’s sole issue.

Conclusion

We affirm

the trial court’s judgment.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.

Do

not publish. Tex. R.

App. P. 47.2( b).

[1]

Buechmann

argues that we should not consider one of his trial exhibits, Defense Exhibit

1, on appeal. The State has not asked us to consider this exhibit, and neither

party has relied on the exhibit in its briefing. We therefore have not

considered the exhibit in reaching our holding.