IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS

TABLE OF CONTENTS TABLE OF CONTENTS... i IDENTITY OF PARTIES AND COUNSEL... ii INDEX OF AUTHORITY...iii STATEMENT REGARDING ORAL ARGUMENT... 1 STATEMENT OF THE CASE... 1 ISSUES PRESENTED... 2 STATEMENT OF FACTS... 3 SUMMARY OF THE STATE S ARGUMENT... 6 STATE S ISSUE PRESENTED ONE... 7 I. Issues Presented for Review One... 7 II. Standard of Review... 7 III. Argument & Authorities... 8 STATE S ISSUE PRESENTED TWO... 10 I. Issue Presented for Review Two... 10 II. Argument and Authorities... 10 STATE S ISSUE PRESENTED THREE... 12 I. Issue Presented for Review Three... 12 II. Argument and Authorities... 12 CONCLUSION AND PRAYER... 15 CERTIFICATE OF SERVICE... 16 i

IDENTITY OF PARTIES AND COUNSEL In accordance with the requirments of Texas Rule of Appellate Procedure 38.1, the folllowing listed persons and entities are parties to the order of the trial court from which the State of Texas now appeals: Trial Court Honorable David Rippel Presiding Judge Appellee Scott Alan Ramsey Derk A. Wadas Trial and Appellate Counsel 1400 Gables Court Plano, TX 75075 Appellant... State of Texas Greg Willis Collin County Criminal District Attorney John R. Rolater, Jr. Assistant Criminal District Attorney Chief of the Appellate Division Cynthia A. Walker (appellate counsel) Assistant Criminal District Attorney 2100 Bloomdale Road, Suite 20004 McKinney, Texas 75071 ii

INDEX OF AUTHORITIES Statutes, Codes, and Rules TEX. CODE CRIM. PROC. art. 44.01(a)(5)... 1 TEX. PEN. CODE 49.04... 1 TEX RULE OF APP. PROC. 38.1...ii TEX. TRANS. CODE ANN. 724.015... 8, 12 Cases Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000)... 7, 11 Erdman v. State, 861 S.W.2d 890 (Tex. Crim. App. 1993)... 8, 12, 13 Hall v. State, 649 S.W.2d 627 (Tex. Crim. App. 1983)... 8, 12 Harrison v. State, 205 S.W.3d 549 (Tex. Crim. App. 2006)... 8 Janecka v. State, 937 S.W. 2d 456 (Tex. Crim. App. 1996)... 14 Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002)... 7 Ness v. State, 152 S.W.3d 759 (Tex. App. Houston [1 st Dist.] 2004, pet. ref d)... 13 Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995)... 14 Powell v. State, 898 S.W.2d 821 (Tex. Crim. App. 1994)... 7 iii

Sandoval v. State, 17 S.W.3d 795 (Tex. App.-Austin 2000, no pet)... 13 Scott v. Harris, 550 U.S. 372 (2007)... 11 State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999)... 7 State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006)... 9 State v. Kurtz, 111 S.W.3d 315 (Tex. App.-Dallas), aff'd, 152 S.W.3d 72 (Tex. Crim. App. 2004)... 7 Texas Dep't of Public Safety v. Rolfe, 986 S.W.2d 823 (Tex. App.-Austin 1999, no pet.)... 8, 12 Urquhart v. State, 128 S.W.3d 701, 705 (Tex. App. El Paso 2003, pet ref d)... 12, 13 iv

IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS THE STATE OF TEXAS, APPELLANT v. No. 05-10-00971-CR SCOTT ALAN RAMSEY, APPELLEE APPEALED FROM CAUSE NUMBER 004-81999-10 IN THE COLLIN COUNTY COURT AT LAW NO. 4 OF COLLIN COUNTY, TEXAS, THE HONORABLE DAVID RIPPEL, JUDGE PRESIDING. TO THE HONORABLE COURT OF APPEALS: The State of Texas, by and through Greg Willis, the Criminal District Attorney of Collin County, appeals the trial court s order granting a pretrial motion to suppress evidence in The State of Texas v. Scott Alan Ramsey. See Tex. Code Crim. Proc. art. 44.01(a)(5). STATEMENT REGARDING ORAL ARGUMENT The State of Texas believes that oral argument will assist in the Court of Appeals understand of the case. STATEMENT OF THE CASE Scott Alan Ramsey was charged by indictment with driving while intoxicated. CR 5; see Tex. Pen. Code 49.04. Ramsey filed a pretrial motion to suppress, seeking to suppress his breath test results. CR 10. The trial court conducted a hearing and granted Ramsey s motion. CR 13, 22-24. The State timely filed its notice of appeal. CR 25. 1

ISSUES PRESENTED 1. Did the trial court err as a matter of law by concluding that Ramsey agreed to take the breath test after the extra-statutory comments were made by the officer when Ramsey s consent was effective prior to the comments and Ramsey never withdrew his original verbal consent? 2. Did the trial court abuse its discretion by finding that Ramsey agreed to take the breath test only after the officer s extra-statutory comments were made when the video evidence showed the consent occurred before those comments? 3. Did the trial court abuse its discretion by determining that the officer s extrastatutory comments were coercive when the officer s actions were different from those prohibited by Erdman? 2

STATEMENT OF FACTS On March 13, 2010, Allen Police Officer Johnson arrested Appellee, Scott Ramsey, for driving while intoxicated and then transported him to the police station. CR 5; RR 6. Once at the station, Officer Johnson provided Ramsey with an opportunity to give a breath sample. RR 6. The police recorded this entire interaction between Ramsey and the officer. See State s Exhibit 1, second video. In the beginning of the video recording, Officer Johnson read the statutory warnings regarding the effects of a refusal to provide a breath specimen. Id. at 5:11:45 to 5:13:57. At the end of the warnings, he asked, I am now requesting a specimen of your breath. Id. at 5:13:56. Then he asked, Will you provide a breath specimen. Id. at 5:13:57-58. Ramsey immediately replied, Yes sir. Id. at 5:14:59. After Ramsey agreed to provide a breath specimen, the officer explained the breath testing procedures and in general told him they had to wait fifteen minutes before Ramsey could provide a sample. Id. at 5:14:12 to 5:14:15. In the next four minutes, neither the officer nor Ramsey mentioned the breath test. Then the officer explained the testing procedure in more detail. See id. at 5:18:50 to 5:19:26. When Officer Johnson finished his instructions, Ramsey confirmed his desire to give a breath sample. Ramsey requested to give the specimen immediately by saying we can do it now if you want. Id. at 5:19:27-28. Officer Johnson explained to Ramsey that they still had to wait for the full fifteen minutes, so he could not let Ramsey provide the specimen at that moment. Id. at 5:19:29-39. At this point, Ramsey asked the officer what would happen if his sample 3

was less than.08. Id. at 5:19:40. The officer replied that Ramsey would get an unarrest letter and Ramsey would get to go home. 5:19:42-46. Ramsey then asked if it s more then. The officer replied, well, we ll talk about that. Id. at 5:19:55. Ramsey asked a question regarding the status of his car. He said, Does that mean my car doesn t get towed if it s less? Id. at 5:20:04. The officer replied that the car was probably already on the wrecker, but if we beat it, maybe we can stop it. Id. at 5:20:14. In reply to the officer s statement, Ramsey again expressed his desire to take the test by stating, that s why I wouldn t mind doing it now. Id. at 5:20:16. more questions about the consequences of taking the breath test. Ramsey asked no Nor did Ramsey indicate that he had changed his mind about giving the breath sample or was even having second-thoughts about giving the sample. After the fifteen-minute waiting period expired, Ramsey submitted two breath samples. Id. 5:27:20-5:30:15. The results showed that Ramsey had a breath alcohol concentration of.113. Id. at 5:32:25. Ramsey filed a motion to suppress the results of the breath test as well as any evidence, testimony, or statements concerning the breath test. CR 10. At the pretrial hearing, the State introduced the video of the conversation between the officer and Ramsey in the intoxilyzer room (RR 5-6), and Ramsey testified. RR 5-19. Ramsey admitted that he had agreed to take the breath test immediately after the officer read the statutory warnings. RR 10-11. Further, he admitted that he never withdrew his consent. RR 15. But Ramsey stated that he had doubts about his original agreement to take the test and that those doubts were expressed in the questions he asked the officer about the 4

consequences of the test results. RR 16-17. Though he had previously consented to the breath test, he claimed his ultimate decision to submit to a breath test came only after the officer told him the information regarding the unarrest letter andconsequences of taking the breath test. RR 7, 17. That extra information, he complained, coerced him into taking the breath test. The court agreed with Ramsey and granted his motion to suppress. CR 13. Upon the State s request, the trial court filed findings of fact and conclusions of law. CR 22-24. 5

SUMMARY OF THE STATE S ARGUMENT The trial court erred in granting Ramsey s motion to suppress because Ramsey s consent to take the breath test was made immediately after the officer read the correct statutory warnings to Ramsey. No coercion or unlawful means were used to gain this consent. At no point did Ramsey withdraw his consent or indicate that he was unsure whether to proceed with the breath test or not. Though the Court ruled that the officer s extra-statutory answers to Ramsey s questions about the consequences of taking the test coerced Ramsey into consenting to the test, this ruling is contradicted by the video evidence in the case. No rational fact finder would have made a similar finding. Even if Ramsey s consent is viewed to have been made after the officer told him the consequences of taking the test, the law generally focuses only on extra-statutory warnings of the consequences of refusing the test. In this case, the officer only answered questions regarding the consequences of taking the breath test. Any extra-statutory information provided to the defendant did not arise to the level of coerciveness that is prohibited by law. 6

I. Issues Presented for Review One STATE S ISSUE PRESENTED ONE Did the trial court err as a matter of law by concluding that Ramsey agreed to take the breath test after the extra-statutory comments were made by the officer when Ramsey s consent was effective prior to the comments and Ramsey never withdrew his original verbal consent? II. Standard of Review A motion to suppress is reviewed with a bifurcated standard. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). Almost total deference is afforded to the trial court s determination of historical facts, so long as they are supported by the record, because the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id.; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). But whether a trial court properly applied the law to the facts is reviewed with deference only so far as it turns on an evaluation of credibility and demeanor. Johnson, 68 S.W.3d at 652-53. Otherwise, mixed questions of law and fact are reviewed de novo. Id. The evidence is considered in the light most favorable to the trial court s ruling. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000); State v. Kurtz, 111 S.W.3d 315, 318 (Tex. App. Dallas), aff d, 152 S.W.3d 72 (Tex. Crim. App. 2004). The trial court s ruling should be upheld so long as it is correct under any valid legal theory, regardless of whether the reason was argued before the court. Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App. 1994). 7

III. Argument & Authorities The trial court erred in granting Ramsey s motion to suppress. A driving while intoxicated suspect s decision to take a breath alcohol test must be voluntary. See Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993). To be voluntary, the decision to consent to a breath test must not be the result of physical or psychological pressure exerted by law enforcement. Hall v. State, 649 S.W.2d 627, 628 (Tex. Crim. App. 1983). The Transportation Code provides that a person arrested for driving while intoxicated must be warned that two specific consequences will result from a refusal to submit to a breath test: the person s driver s license will be suspended and evidence of the refusal will be admissible in a subsequent prosecution. See TEX. TRANSP. CODE ANN. 724.015 (Vernon Supp. 2009). If an officer includes extra-statutory consequences of a refusal to submit to the breath test, thereby misstating the law, the consent may be considered to have been involuntarily given. See Erdman v. State, 861 S.W.2d 890, 893-94; Texas Dep t of Public Safety v. Rolfe, 986 S.W.2d 823, 827 (Tex. App. Austin 1999, no pet.)(emphasis added). The trial court erred as a matter of law in finding anything the officer said coerced Ramsey s consent. The video clearly showed Ramsey consented to the breath test immediately after the officer read the required statutory warnings. Four minutes after Ramsey gave his consent, he asked to take the breath test again confirming his consent. Id. at 5:19:27-28. His consent came before the officer gave any additional information concerning the consequences of taking the test. Id. Once given, his consent remained effective until it was affirmatively withdraw. Harrison v. State, 205 S.W.3d 549, 553 8

(Tex. Crim. App. 2006) (consent remained effective when Harrison agreed to give a blood test even though police later requested a urine specimen without given the statutory warnings since her consent was never withdrawn). At no point during the entire interview did Ramsey indicate he wished to stop the breath testing procedures or withdraw his consent. While Ramsey could have withdrawn his consent with an unequivocal act or statement, he chose not to do so. In Texas, even mere acquiescence without any verbal agreement can constitute valid consent. See State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. 2006)(acquiescence to a blood draw constituted consent where there was no testimony indicating the defendant expressly refused to allow blood draw by hospital personnel.). In the present case, there is clear, definite, verbal consent to take the breath test immediately after the correct warnings were given. Ramsey s consent was legally effective until he affirmatively told the officer otherwise, which he never did. As such, it was legally insignificant that the officer and Ramsey engaged in further conversation about the breath test. The conversation could not have coerced Ramsey s decision because, as a matter of law, his decision had already been made. 9

STATE S ISSUE PRESENTED TWO 1 I. Issue Presented for Review Two Did the trial court abuse its discretion by finding that Ramsey agreed to take the breath test only after the officer s extra-statutory comments were made when the video evidence showed the consent occurred before those comments? II. Argument and Authorities In the instant case, the trial court abused its discretion by making the following findings of fact: 6. Within minutes after the defendant, Scott Ramsey, was provided with [the information regarding the unarrest letter and the efforts to keep Ramsey s car from being towed] by the officer, he agreed to submit to the breath test. 7. The court finds that the Defendant did place actual reliance upon the officer s statements in deciding whether or not to submit to a breath test. 8. The Court finds that the officer s statements did bear significantly on the defendant s decision to take the test. 9. The Court finds that the officer s statements exerted considerable psychological pressure upon the defendant to consent to take the breath test. 10. The Court finds that the officer s statements were coercive in nature and did in fact coerce the defendant to submit to a breath test. CR 23. A rational fact finder could not come to these conclusions after watching the video evidence in this case. These findings appear to rely primarily on Ramsey s testimony. Though Ramsey agreed he did verbally consent to take a breath test immediately after the correct warnings 1 The standard of review is the same as in the State s Issue Presented One 10

were given, he claims his ultimate decision to consent came only after the officer s comments about the letter and car. RR 10-11, 18. State s Exhibit 1 at 5:11:45 5:13:59. But where a party s story is blatantly contradicted by the record, there is no genuine issue of material fact. Scott v. Harris, 550 U.S. 372, 380 (2007). And when a videotape presents indisputable visual evidence contradicting essential portions of testimony, a reviewing court does not have to blind itself to those contradictions. Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000). The video evidence in the present case clearly showed Ramsey making a definitive agreement to take the breath test immediately after the officer read the statutory warnings. For the court to conclude that Ramsey relied on the officer s extra-statutory statements in making his decision and that these statements coerced Ramsey into consenting to take the test, flies in the face of the direct evidence on the video. Further, it is illogical to find that the officer s statements, which occurred after Ramsey verbally consented to the test, affected Ramsey s decision to consent. As such, the trial court s findings 6 through 10 are illogical and a rational fact finder would not have come to the same conclusion. 11

I. Issue Presented for Review Three STATE S ISSUE PRESENTED THREE 2 Did the trial court abuse its discretion by determining that the officer s extrastatutory comments were coercive when the officer s actions were different from those prohibited by Erdman? II. Argument and Authorities The trial court erred in granting Ramsey s motion to suppress. A driving while intoxicated suspect s decision to take a breath alcohol test must be voluntary. See Erdman, 861 S.W.2d at 893. To be voluntary, the decision to consent to a breath test must not be the result of physical or psychological pressure exerted by law enforcement. Hall, 649 S.W.2d at 628. The Transportation Code provides that a person arrested for driving while intoxicated must be warned that two specific consequences will result from a refusal to submit to a breath test: the person s driver s license will be suspended and evidence of the refusal will be admissible in a subsequent prosecution. See TEX. TRANSP. CODE ANN. 724.015 (Vernon Supp. 2009). If an officer includes extrastatutory consequences of a refusal to submit to the breath test, thereby misstating the law, the consent may be considered to have been involuntarily given. See Erdman, 861 S.W.2d at 893-94; Rolfe, 986 S.W.2d at 827 (emphasis added). Even if this court adopts the trial court s factual findings, the officer s statements still do not violate the law. Case law distinguishes between an officer providing extrastatutory consequences of a breath test refusal from that of providing the consequences of submitting a breath sample. See Urquhart v. State, 128 S.W.3d 701, 705 (Tex. App. El 2 The standard of review is the same as in the State s Issue Presented One and Two 12

Paso 2003, pet ref d); Sandoval v. State, 17 S.W.3d 795 (Tex. App. Austin 2000, no pet). 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 the test. Ness v. State, 152 S.W.3d 759, 763 (Tex. App. Houston [1 st Dist.] 2004, pet. ref d)(citing Sandoval, 17 S.W.3d at 797); Urquhart, 128 S.W.3d at 705. In Erdman, the officer told the defendant he would be jailed and charged with DWI if he refused a breath test. Erdman, 861 S.W.2d at 894. The Court of Criminal Appeals noted that this type of statement arises to the level of coercion that would normally result in considerable psychological pressure upon a DWI suspect. Id. In the present case, the officer answered questions about the consequences of consenting and then passing the test. Unlike the threat of jail and criminal charges levied in Erdman, in this case the officer only conveyed the possible benefit to Ramsey of passing the test. This officer s extra-statutory statements did not threaten a consequence for taking the breath test. The consequences that the officer talked about simply put Ramsey back in the place that he would have been prior to the traffic stop his car returned and no criminal charges filed. This is different than Erdman. Erdman was concerned about officers violating the statute s voluntariness requirement by threatening a severe consequence such as the threat of jail to influence DWI suspects. The situation in the present case is much different. Here, if Ramsey took the test and passed it, he would simply be returned to the same place he was before arrest. In confession law, a promise for something that a 13

suspect is already able to obtain is not a sufficient benefit that makes a statement involuntary. Janecka v. State, 937 S.W. 2d 456, 466 (Tex. Crim. App. 1996). As with coercion involved in confessions, for an extra-statutory statement to be coercive, there must be some promise made that would overbear the will of the suspect that would induce the suspect to completely alter the path they would have otherwise taken. Penry v. State, 903 S.W.2d 715, 748 (Tex. Crim. App. 1995). Nothing here rises to that level. The trial court ruled incorrectly because the officer s extra-statutory statements did not rise to the same level of coerciveness that Erdman and its progeny have established as law. 14

CONCLUSION AND PRAYER The trial court erred in granting Ramsey s motion to suppress. The State prays that the decision and order of the trial court be reversed and that the case be remanded to the trial court for further proceedings. Respectfully submitted, GREG WILLIS Criminal District Attorney Collin County, Texas JOHN R. ROLATER, JR. Assistant Criminal District Attorney Chief of the Appellate Division /s/ Cynthia A. Walker CYNTHIA A. WALKER Assistant Criminal District Attorney 2100 Bloomdale Rd., Suite 20004 McKinney, Texas 75071 State Bar No. 24014843 (972) 548-4323 FAX (972) 548-4324 15

CERTIFICATE OF SERVICE A true copy of the State s brief has been mailed to counsel for Scott Alan Ramsey, the Honorable Derk A. Wadas, 1400 Gables Court, Plano, Texas 75075, on the 10 th day of January, 2011. /s/ Cynthia A. Walker Cynthia A. Walker 16