11th Court of Appeals
Eastland, Texas
Opinion
Donald William Gray
Appellant
Vs. No. 11-01-00126-CR -- Appeal from Rockwall County
State of Texas
Appellee
The jury convicted appellant of driving while intoxicated. The trial court assessed his punishment at confinement in the Rockwall County Jail for a term of 60 days, probated for a term of 2 years. The trial court also imposed a fine of $1,000. Appellant brings one point of error on appeal contending that the trial court erred in denying his motion to suppress intoxilizer test results.[1] We affirm.
Appellant argues that his consent for submitting a breath specimen for analysis was involuntarily obtained. Appellant testified about a conversation that he had with an unidentified police officer while being transported from the scene of the initial stop. Appellant stated that he asked the officer what would happen if he did not submit a breath specimen. Appellant testified that the officer told him that he would spend the night in jail if he did not take the breath test. Appellant further testified that he would not have taken the breath test if the officer had not made this statement to him. Citing Erdman v. State, 861 S.W.2d 890 (Tex.Cr.App.1993), appellant asserts that the officer=s purported statement rendered his consent for the breath test involuntary. The officer who allegedly made the statement to appellant did not testify at the hearing on the motion to suppress. However, the State disputed the statement=s occurrence during its cross-examination of appellant and argument to the trial court.
At a suppression hearing, the trial court is the sole, exclusive trier of fact and the judge of the credibility of the witnesses and their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Cr.App.2002); Allridge v. State, 850 S.W.2d 471, 493 (Tex.Cr.App.1991), cert. den=d, 510 U.S. 831 (1993). We give almost total deference to a trial court=s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor while we review de novo application-of-law-to-fact questions that do not turn upon credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Cr.App.2002); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997). Since the trial court did not make explicit findings of fact, we review the evidence in a light most favorable to the trial court=s ruling. Maxwell v. State, supra, at 281; State v. Ballard, 987 S.W.2d 889 (Tex.Cr.App.1999).
The resolution of appellant=s motion to suppress required the trial court to determine whether the unidentified officer made the statement in question and the extent of appellant=s reliance on the purported statement. This determination depended upon the trial court=s assessment of appellant=s credibility. The record does not reflect that the trial court abused its discretion in making this assessment. Appellant was not able to identify the officer who allegedly made the statement. Moreover, appellant=s conviction for driving while intoxicated did not solely depend on the results of his breath test. The Texas Penal Code provides two methods by which a person may be determined to be intoxicated: (1) not having the normal use of mental or physical faculties by reason of the introduction of a substance into the body; or (2) having an alcohol concentration of 0.08 or more. TEX. PENAL CODE ANN. ' 49.01(2) (Vernon Supp. 2002). The information and jury charge alleged that appellant was intoxicated under both methods. Appellant does not challenge the jury=s implicit finding that he did not have the normal use of his mental and physical faculties at the time of the offense. Appellant=s sole point of error is overruled.
The judgment of the trial court is affirmed.
W. G. ARNOT, III
CHIEF JUSTICE
September 19, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]The appellate record reflects that the analysis of appellant=s breath specimen revealed alcohol concentration levels of 0.158 and 0.164.