Erdman v. State

BAIRD, Judge,

concurring.

We granted this petition to determine whether the Court of Appeals applied the correct standard of review. 1 However, as the majority notes, the petition deals more with the voluntary nature of the consent than the standard of appellate review. Erdman v. State, 861 S.W.2d 890 , 891 n. 1 (Tex.Cr.App.1993). I write separately because this case necessarily involves the question of which standard of appellate review is correct and the majority does not address the issue.

I. THE COURT OF APPEALS’ HOLDING

On direct appeal, appellant contended the trial judge erred in overruling the motion to suppress. Although the Court of Appeals found appellant was erroneously advised of the consequences of his refusal to consent to the intoxilyzer test, the Court concluded the error was not so coercive as to render the consent involuntary. Erdman v. State, 796 S.W.2d 243, 244 (Tex.App.—Houston [14th Dist.] 1990). The Court of Appeals overruled the point of error because there had been “no clear abuse of discretion by the trial court.” Id. at 245 .

In order for an appellate court to correctly apply any standard of review, the appellate court must first determine what burden of proof was required at the trial level, and then review the decision of the trial judge in light of that burden. However, the Court of Appeals failed to state what burden of proof should have been employed at the trial level to establish that appellant’s consent was vol *895 untary. Therefore, the threshold issue in this case is what burden of proof is extant at the trial level when the defendant contends his consent to the intoxilyzer test was involuntary.

II.MIXED QUESTION OF FACT AND LAW

The Court of Appeals treated the question of the voluntariness of appellant’s consent as purely a question of fact to be resolved by the factfinder. Erdman, 796 S.W.2d at 244 . However, that treatment was erroneous. The question of voluntariness of consent presents a mixed question of fact and law. Stephenson v. State, 494 S.W.2d 900, 904 (Tex.Cr.App.1973) (citing Hoover v. Beto, 439 F.2d 913 (5th Cir.1971)). Before the factfin-der can consider evidence obtained as a result of the consent, the factfinder must first determine, from the totality of all the circumstances, that the consent was voluntary. Meeks v. State, 692 S.W.2d 504, 510 (Tex.Cr.App.1985). To hold consent presents only questions of fact would effectively insulate consent issues from appellate review. 2

III.BURDEN OF PROOF AT THE TRIAL LEVEL

Although, evidence obtained as a result of the intoxilyzer test is non-testimonial in nature, Turpin v. State, 606 S.W.2d 907, 913-14 (Tex.Cr.App.1980), consent to an intoxilyzer test must be voluntary. Id., 606 S.W.2d at 914 (citing Dominguez v. State, 459 S.W.2d 628 (Tex.Cr.App.1970)). Clearly, physical force may not be used to require submission to the intoxilyzer test. Forte v. State, 759 S.W.2d 128, 138 (Tex.Cr.App.1988) (quoting State v. Spencer, 305 Or. 59 , 750 P.2d 147 (1988); and McCambridge v. State, 712 S.W.2d 499, 504, n. 16 (Tex.Cr.App.1986)). However, not only physical force is forbidden. Consent to take the intoxilyzer may be involuntary if induced by the officer’s misstatement of the implied consent law. State v. Sells, 798 S.W.2d 865, 866-867 (Tex.App.—Austin 1990, no pet.) 3 .

In other areas of our law, the State is required to prove consent was freely and voluntarily given, by clear and convincing evidence. Bumper v. North Carolina, 391 U.S. 543, 548 , 88 S.Ct. 1788, 1792 , 20 L.Ed.2d 797 (1968); Kolb v. State, 532 S.W.2d 87, 89 (Tex.Cr.App.1976). This burden requires the State to show the consent was positive and unequivocal, free of duress or coercion, actual or implied. Kolb, 532 S.W.2d at 90 ; Allen v. State, 487 S.W.2d 120, 121 (Tex.Cr.App.1972). I see no reason to depart from this established standard. Therefore, in cases where the defendant contends his consent to take the intoxilyzer was involuntary, the State bears the burden of proving, by clear and convincing evidence, that the consent was voluntary.

IV.STANDARD OF APPELLATE REVIEW

With the foregoing in mind, we must next decide what standard of review the appellate court should apply. As previously noted, the Court of Appeals purported to rely upon the “clear abuse of discretion ” standard. However, in Sells the Austin Court of Appeals used the “abuse of discretion” standard. Sells, 798 S.W.2d at 867 . There is no meaningful distinction between the standards; we have defined the two in precisely the same way. In Cantu v. State, 842 S.W.2d 667 (Tex.Cr.App.1992), we defined a clear abuse of discretion as a decision by the trial court which is “so clearly wrong as to lie outside the zone within which reasonable persons might disagree.” Cantu, 842 S.W.2d at 682 . For that definition, we relied on Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.1990) (op. on reh’g), where we held there is no abuse of discretion “as long as the trial court’s ruling was at least within the zone of reasonable disagreement_” Montgomery, 810 S.W.2d at 391 . Therefore, the stan *896 dards are the same and used interchangeably. Finally, the abuse of discretion standard is the appropriate standard of appellate review to be applied by appellate courts in consent cases. Gilmore v. State, 666 S.W.2d 136, 148 (Tex.App.—Amarillo 1983) (citing Williams v. State, 535 S.W.2d 637 (Tex.Cr.App.1976)). See also, State v. Comeaux, 786 S.W.2d 480, 485-6 (Tex.App.—Austin 1990), aff'd, State v. Comeaux, 818 S.W.2d 46, 53 (Tex.Cr.App.1991).

V. APPLICATION

To prove by clear and convincing evidence the voluntariness of appellant’s consent, the State was required to show the consent was positive and unequivocal, free of duress and coercion, actual or implied. Kolb, 532 S.W.2d at 90 ; Allen, 487 S.W.2d at 121 . In this case, appellant consented to the intoxilyzer test only after being advised of the statutory warnings pursuant to Tex.Rev.Civ.Stat. art. 67011-5 § 2, 4 and after being erroneously advised that his refusal'would result in his incarceration while passing the intoxilyzer test would result in his release. 5 As the Court of Appeals held in Sells, 798 S.W.2d 865 , “If a driver’s consent is induced by an officer’s misstatement of the consequences flowing from a refusal to take the test, the consent is not voluntary.” Sells, 798 S.W.2d at 867 (citing Hall v. State, 649 S.W.2d 627 (Tex.Cr.App.1983)). 6 In the absence of evidence indicating appellant’s consent was not induced by the erroneous statements, the State failed, as a matter of law, to prove by clear and convincing evidence, that appellant’s consent was voluntary. Therefore, the Court of Appeals erred in finding the trial judge did not abuse his discretion in finding appellant’s consent was voluntary.

With these comments, I join the majority opinion.

MILLER and MALONEY, JJ., join this opinion.

. Specifically, appellant’s question for review asks:

Whether the Court of Appeals utilized an incorrect standard of review in rejecting the contention that the Appellant's purported consent to submit to the intoxilyzer test was involuntarily obtained in violation of Article 38.23, V.A.C.C.P.

. As the State notes, "the mixed question of law and fact also requires examination of applicable doctrines which might render a factually voluntary act 'involuntary' for legal purposes.” State’s brief on appellant’s PDR, pg. 12.

. Our law provides that any person operating a motor vehicle upon the public highways of our state impliedly consents to the taking of a specimen of his breath or blood to determine the alcohol concentration or the presence of a controlled substance in his body. Tex.Rev.Civ.Stat. art. 6701 1-5 § 1. Refusal to submit to the test will result in the suspension of one’s driver’s license and may be used as evidence in a subsequent prosecution, but does not trigger the filing of charges or incarceration.

. Tex.Rev.Civ.Stat. art. 6701 1-5 § 2(a) provides in part:

"... if a person under arrest refuses, upon the request of a peace officer, to give a specimen designated by the peace officer ... none shall be taken."

Tex.Rev.Civ.Stat. art. 6701 1-5 § 2(b) provides in part:

Before requesting a person to give a specimen, the officer shall inform the person orally and in writing that if the person refuses to give the specimen, that refusal may be admissible in a subsequent prosecution, and that the person's license, permit, or privilege to operate n motor vehicle will be automatically suspended for 90 days after the date of the adjournment of the hearing provided for in Subsection (f) of this section, whether or not the person is subsequently prosecuted as a result of the arrest. ...

. The State contends that, as a practical matter, the statements were true, i.e., that appellant's refusal to submit to an intoxilyzer test would result in his being charged and incarcerated. To support the contention, the State discusses how driving while intoxicated cases are handled in Harris County. However, the discussion is not supported by the appellate record. Information not found in the appellate record may not be utilized for appellate review. Pollan v. State, 612 S.W.2d 594, 596 (Tex.Cr.App.1981).

. In Sells , the defendant asked what the consequences would be of a refusal to submit to an intoxilyzer test. The officer replied that the defendant "would automatically be charged and incarcerated.” Id., 798 S.W.2d at 866 . The trial judge found Ae officer's misstatement of the implied consent law rose to the level of coercion and ordered Ae results of Ae intoxilyzer test suppressed. The State appealed contending "Ae trial court erred by concluding Aat Ae officer’s misstatement rendered [Ae defendant's] consent involuntary.” The Court of Appeals rejected Ae State's argument and affirmed Ae decision of Ae trial judge, holding:

While Ae implied consent law forbids Ae use of physical force to compel submission to a breaA or blood test, it does not follow Aat only physical force is forbidden. The Court of Criminal Appeals has repeatedly stated Aat a driver's consent to a blood or breaA test must be voluntary. Turpin v. State, 606 S.W.2d 907, 914 (Tex.Cr.App.1980); Hearn v. State, 411 S.W.2d 543, 545 (Tex.Cr.App.1967). If a driver’s consent is induced by an officer's misstatement of Ae consequences flowing from a refusal to take Ae test, Ae consent is not voluntary. Hall v. State, 649 S.W.2d 627 (Tex.Cr. App.1983). The officer in Hall allegedly told Ae driver Aat if he refused to take a breath test "you’re automatically convicted of DWI and your license will be suspended.” The court held Aat Ais raised Ae issue of volun-tariness.

We believe Aat Hall is dispositive of Ais cause. Having found Aat [the defendant’s] consent to Ae breath test was induced by Ae officer’s misstatement of Ae implied consent law, Ae trial court did not abuse its discretion in granting Ae motion to suppress. Tex.Code Cr.P.Ann. art. 38.23(a) (Supp.1990).

Sells, 798 S.W.2d at 866-67 .