In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-03-00103-CV
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ROY JON, Appellant
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V.
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VICTOR TUATAGOLOA, ET AL., Appellees
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On Appeal from the 5th Judicial District Court
Bowie County, Texas
Trial Court No. 01C0311-005
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Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
            Roy Jon appeals the dismissal with prejudice of his civil suit against four employees of the Texas Department of Criminal JusticeâInstitutional Division. We modify the judgment to provide that the dismissal is without prejudice, and affirm the judgment as so modified.
            On February 26, 2001, Jon, an indigent inmate proceeding without counsel, sued Victor Tuatagola, Otis Bruce, Rodney Dixon, and Chauncey Miles, in their individual capacities, alleging assault with personal injuries and a subsequent denial of needed medical care. On June 22, 2001, a motion to dismiss was filed, which was not made a part of the record on appeal. By its order dated May 29, 2003, the trial court dismissed Jon's suit with prejudice on the bases that (1) the suit was frivolous, and (2) Jon had failed to comply with Chapter 14 of the Texas Civil Practice and Remedies Code.
            On appeal, Jon contends the trial court erred in dismissing his suit (1) because it was done sua sponte without a hearing, (2) because Jon raised a fact issue under the Texas Tort Claims Act and the Eighth Amendment to the United States Constitution by alleging a beating by the prison staff, (3) because Jon raised such a fact issue by alleging denial of needed medical care after that beating, (4) because the dismissal was with prejudice, and (5) because he had requested discovery that was improperly denied. Appellees defend the dismissal by arguing that Jon failed to comply with Chapter 14 by failing to file a proper affidavit of previous lawsuits as required by Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (Vernon 2002) because Jon's affidavits (A) failed to provide adequate designation of "operative facts" involved in Jon's previous lawsuits and (B) failed to state that the lawsuits listed in Jon's affidavits were all of Jon's prior lawsuits.
            In its discretion, a trial court may dismiss a suit filed by an indigent inmate either before or after service of process if it finds the claim is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a) (Vernon 2002). An inmate who files an affidavit or unsworn declaration of inability to pay costs must file a separate affidavit or unsworn declaration identifying every suit he or she has previously filed pro se, except suits filed under the Texas Family Code. Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a)(1). The affidavit must, among other things, state the operative facts for which relief was sought. Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a)(2).
            A trial court may dismiss a suit under Section 14.003(a) without a hearing when an inmate fails to file an affidavit meeting the requirements of Section 14.004. Gowan v. Tex. Dep't of Crim. Justice, 99 S.W.3d 319, 321â23 (Tex. App.âTexarkana 2003, no pet.); Thomas v. Knight, 52 S.W.3d 292, 293 n.2 (Tex. App.âCorpus Christi 2001, pet. denied); Williams v. Brown, 33 S.W.3d 410, 411 (Tex. App.âHouston [1st Dist.] 2000, no pet.).
            Jon filed an affidavit listing individually a number of suits he had filed. As to many of the lawsuits listed, the operative facts are not given. Since Jon's affidavit does not provide the operative facts, his lawsuit may be dismissed in the trial court's discretion. Thompson v. Rodriguez, 99 S.W.3d 328, 330 (Tex. App.âTexarkana 2003, no pet.). Also, Jon's affidavit fails to state that it lists all suits he has filed, as requiredâanother reason why his suit was subject to being dismissed. Id.; Gowan, 99 S.W.3d at 322.
            The dismissal, however, should have been without prejudice. Thomas v. Skinner, 54 S.W.3d 845 (Tex. App.âCorpus Christi 2001, pet. denied); Knight, 52 S.W.3d at 292. Dismissal with prejudice under Section 14.004 should be used only in rare circumstances, such as when the trial court determines that the deficiencies in the affidavit are purposeful. Cf. Williams v. Tex. Dep't of Crim. Justice-Institutional Div., No. 14-01-00640-CV, 2002 Tex. App. LEXIS 5808, at *7 (Tex. App.âHouston [14th Dist.] Aug. 8, 2002, pet. denied) (not designated for publication) (opportunity to amend not taken, thus deficiencies were purposeful and dismissal with prejudice proper). In this circumstance, we should modify the judgment to make the dismissal without prejudice. See Moore v. Zeller, 108 S.W.3d 373, 374 (Tex. App.âBeaumont 2003, no pet.).
            Because dismissal was proper on the grounds discussed heretofore, it is not necessary for us to discuss the other allegations of error raised by Jon.
            We modify the judgment of the trial court to provide that the dismissal is without prejudice, and we affirm the trial court's judgment as modified.
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                                                                                    Josh R. Morriss, III
                                                                                    Chief Justice
Date Submitted:Â Â Â Â Â Â Â Â Â Â February 20, 2004
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â March 4, 2004
and others).
Further, Washburn was under the age of twenty-one at the time of the accident. It is beyond dispute that Trooper Anderson had probable cause to arrest Washburn for driving under the influence by a minor. A person under the age of twenty-one "commits an offense if the minor operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system." Tex. Alco. Bev. Code Ann. § 106.041 (Vernon 2007). Reviewing de novo the finding of probable cause, we conclude Anderson had probable cause to arrest Washburn for driving under the influence by a minor or for DWI.
The next issue is whether Washburn was under arrest at the time of the offense. The State cites Bell v. State, 881 S.W.2d 794 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd), which contains almost identical facts to the case at issue. In Bell, the defendant was transported to a hospital following an automobile accident where he ran his car into a ditch. Id. at 796. The officer detected the odor of alcohol on the defendant's breath but did not conduct any sobriety tests. Id. At the hospital, the officer read the DIC-24 form to the defendant and requested a blood sample. Id. Even though the arresting officer testified Bell was not under arrest, the Fourteenth District Court of Appeals concluded there was evidence to support a conclusion the defendant was under arrest when he consented to the taking of a blood specimen. Id. at 800.
Other cases with similar facts to this case have likewise concluded the defendant was under arrest. See, e.g., Nottingham v. State, 908 S.W.2d 585, 587 (Tex. App.--Austin 1995, no pet.) (defendant under arrest at hospital when she had sustained injuries in an automobile accident, she had failed horizontal gaze nystagmus (HGN) test, officer detected odor of alcohol, and she was read DIC-24 warnings); State v. Williams, 814 S.W.2d 256, 259 (Tex. App.--Austin 1991), aff'd, 832 S.W.2d 52 (Tex. Crim. App. 1992) (defendant under arrest at hospital when he had sustained injuries in one-car accident, his eyes were red and bloodshot, his speech was slurred, he failed HGN test, and he was read DIC-24 warnings).
Trooper Anderson testified that, while he believed he had probable cause to arrest Washburn at the time he requested a specimen, he never arrested Washburn. (4) Washburn argues that it "is apparent that the trooper used the DIC-24 out of cautiousness, not because he intended to place Appellant under arrest." However, the subjective intent of law enforcement officials is irrelevant unless that intent is somehow communicated or otherwise manifested to the suspect. Dowthitt, 931 S.W.2d at 254. The test is whether a reasonable person would believe his or her freedom of movement was restrained to the degree associated with a formal arrest.
Under the circumstances of this case, the manifestation of probable cause by the defendant, combined with other circumstances, would lead a reasonable person to believe that he or she is under restraint to the degree associated with an arrest. When asked what had happened, Washburn responded, "I'm not going to lie to you. I have been drinking," and was obviously aware of the facts giving rise to probable cause, such as the fact that he was the driver of a vehicle which struck a tree. Further, there were other circumstances which would lead a reasonable person to conclude that an arrest had occurred. At the time of the request, Washburn was receiving medical care at the hospital and was informed he was being investigated for a crime. Further, Washburn testified he remembered being read the warnings contained in form DIC-24 and admitted that the first sentence of the warnings states, "You are under arrest for an offense . . . ."
The mere fact that Trooper Anderson read Washburn form DIC-24 is some evidence Washburn was under arrest. In Bell, the Fourteenth District Court of Appeals held "the very fact that the form was read to Bell was some evidence that Bell was under arrest." Bell, 881 S.W.2d at 799. But see Combest v. State, 981 S.W.2d 958, 960 (Tex. App.--Austin 1998, pet. ref'd) (holding that no arrest occurred despite DIC-24 warnings because "[a]ppellant and the State both agree[d] and the record affirm[ed]" that appellant was not under arrest). The Fourteenth District also noted "the mere fact that an officer makes the statement to an accused that he is under arrest is not enough to complete the arrest." Bell, 881 S.W.2d at 799 (quoting Burkhalter v. State, 642 S.W.2d 231, 233 (Tex. App.--Houston [14th Dist.] 1982, no pet.)). Although the reading of form DIC-24 may not be sufficient by itself to constitute an arrest, it is a significant factor in determining whether a reasonable person would believe he or she was free to leave. We agree with the Austin Court of Appeals that, "[w]hile the officer might have considered the language of the DIC-24 form to be merely a formality, a reasonable person in appellant's position would believe that [he or she] was not free to leave after being told by a police officer that [he or she] was under arrest." See Nottingham, 908 S.W.2d at 588. There is no evidence that Anderson informed Washburn he was not under arrest or was free to leave. (5) Under the facts of this case, a reasonable person would believe his or her freedom of movement was restrained to the degree associated with a formal arrest. See Tex. Dep't of Pub. Safety v. Latimer, 939 S.W.2d 240, 244 (Tex. App.--Austin 1997, no pet.) (defendant in hospital after being read a form containing the words "[y]ou are under arrest"--a reasonable person would not believe he was free to leave). The manifestation of probable cause by the defendant, combined with the other circumstances at the time of the request, would lead a reasonable person to believe that he or she is under restraint to the degree associated with an arrest. We conclude Washburn was in fact under arrest at the time of the request.
Washburn's Consent Was Voluntary
Washburn's only argument that his consent was involuntary is that the warnings were incorrect and rendered his otherwise voluntary confession involuntary. Washburn testified he did not freely consent to the specimen because he "was afraid [he] was going to lose [his] license." If he had not been told his driver's license would be suspended, Washburn testified he would have refused to provide a specimen. As discussed above, Washburn was under arrest at the time the request was made. As such, the warnings given by Trooper Anderson were appropriate. Because Washburn was under arrest at the time Anderson requested the specimen, Washburn was not misinformed concerning the consequences of refusal.
Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). "Although the federal constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given." Carmouche, 10 S.W.3d at 331; see Montanez v. State, 195 S.W.3d 101, 105 (Tex. Crim. App. 2006). To be valid, a consent to search must be positive and unequivocal and must "not be coerced, by explicit or implicit means, by implied threat or covert force." Id. Consent is "not established by 'showing no more than acquiescence to a claim of lawful authority.'" Id.
The record contains sufficient evidence that Washburn's consent was voluntary. Anderson testified it was clear Washburn had consented to the blood specimen. Washburn testified he was read the DIC-24 form and admitted giving consent to the taking of a blood specimen. We grant almost total deference to trial courts' determinations when they are based on an evaluation of credibility and are supported by the record. No error has been shown in the trial court's determination that Washburn's consent was freely and voluntarily given. See Masterson v. State, 155 S.W.3d 167, 170 (Tex. Crim. App. 2005).
For the reasons stated, we overrule Washburn's sole point of error and affirm the trial court's judgment.
Jack Carter
Justice
Date Submitted: August 7, 2007
Date Decided: September 5, 2007
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