ACCEPTED
03-15-00109-CR
6546620
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/18/2015 3:09:11 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00109-CR
IN THE FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
COURT OF APPEALS 8/18/2015 3:09:11 PM
JEFFREY D. KYLE
THIRD DISTRICT OF TEXAS Clerk
AUSTIN, TEXAS
CHELSEA PADOWSKI § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
APPEAL FROM THE COUNTY COURT OF LAW NUMBER FIVE
TRAVIS COUNTY, TEXAS
CAUSE NO. C-1-CR-14-205047
APPELANT’S BRIEF
James Gill
1201 Rio Grande, Ste 200
Austin, Texas 78701
Phone: (512) 448-4560
Fax: (512) 308-6780
jgill@austin-criminallawyer.com
Bar Number: 24043692
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
CHELSEA PODWOSKI
2202 W. Northloop
Austin, Texas 78756
Appellant
JAMES R. GILL
1201 Rio Grande, Ste 200
Austin, Texas 78701
Trial & Appellate Attorney for Appellant
WARD B.B. DAVISON
1201 Rio Grande, Ste 200
Austin, Texas 78701
Appellate Attorney for Appellant
Giselle Horton
Travis County Attorney’s Office
P.O. Box 1748
Austin, Texas 78767
Appellate Attorney for the State
The Honorable Nancy Hohengarten
County Court at Law #5
P.O. Box 1748
Austin, Texas 78767
Trial Judge
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL……………………………………….i
TABLE OF AUTHORITIES………………………………………………………iv
STATEMENT OF THE CASE…………………………………………………….v
REQUEST FOR ORAL ARGUMENT…………………………………………....vi
ISSUES PRESENTED…………………………………………………………....vii
STATEMENT OF FACTS…………………………………………………………2
SUMMARY OF THE ARGUMENTS……………………………………………..4
ARGUMENT…………………..…………………………………………………...4
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
TO SUPPRESS THE BREATH TEST EVIDENCE OBTAINED
THROUGH PSYCHOLOGICAL COERCION OF APPELLANT.
A. Based on the totality of the circumstances, Appellant’s ability to
determine whether or not to provide evidence to a law enforcement
officer was overborne by that law enforcement officer’s actions.
a. Officer Marler read the statutory DIC-24, required to be read
before asking for a breath sample, warning so fast as to cause
confusion for the Appellant.
b. Upon Appellant’s request for a clarification of the DIC-24,
Officer Marler misrepresented the law in regards to possible
consequences of Appellants compliance or refusal.
c. Appellant complied with Officer Marler’s request for a
specimen of her breath based upon Officer Marler’s
misrepresentation of her rights.
B. The trial court’s error in failing to suppress the breath test
evidence was harmful beyond a reasonable doubt.
ii ii
PRAYER………………………………………………………………………….11
CERTIFICATE OF SERVICE……………………………………………………12
iii iii
TABLE OF AUTHORITIES
Cases
Fienen v. State, 390 S.W.3RD 328 (Tx. Crim App., 2013)………………….6,7,8,9
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007)………………....5,6
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)……………………..5
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990)……………………5
Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007)…………………...5
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000)………………………..5
State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App)………………………………...5
Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App.2006)……………..5
Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002)……………...5,6
Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005)…………………..5
Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011)………………10
Statutes
TEX. TRANS. CODE §724.015(3)……………………………………………….7
TEX. R. APP. PROC. 44.2(a)……………………………………………………10
iv iv
STATEMENT OF THE CASE
Nature of the case: On May 2014 the County Attorney presented
information alleging that the Appellant committed
DWI (1st offense, BAC > .15) on or about March
29, 2014.
Course of proceedings: A pretrial hearing was held on Appellant’s Motion
to Suppress was held on November 25th, and
December 4th, 2014.
Disposition of the case: Client pleaded guilty to the offense of DWI on
December 4th, 2014. Appellant was sentenced to
15 months of probation on a class B 1st offense,
$100 fine, 60 hours of Community Service and 6
months of an ignition interlock in her vehicle. The
finding of BAC >.15 was waived by the state.
v v
REQUEST FOR ORAL ARGUMENT
This issue needs to be heard as it revolves around the split between Erdman
and Fienen. It also speaks directly to the concurring opinion in Fienen.
This case seeks to clarify the conclusion the Criminal Court of Appeals laid
out in Fienen, especially about clear misrepresentations of the law. Fienen states
that a law enforcement officer may not misrepresent the law. However, the law
enforcement officer in Fienen represented the law clearly and correctly. And the
main issue was whether or not extra statutory language should be permitted. It is
perfectly reasonable and just for a law enforcement officer to clarify statutory
language and provide the arrested individual with factual information.
The question remains: Is it permissible to admit evidence to trial obtained by
a law enforcement official’s misrepresentation of the law? Fienen says that it is not
permissible. However, there is some ambiguity as to the weight given
misrepresentations of the law because we must view under the totality of the
circumstances of each individual case.
An oral argument may better allow for examination of the facts of this case
as there is some confusion about the weight the evidence should be given. Closer
scrutiny will provide all parties, and all trial court in Texas, with greater clarity.
vi vi
ISSUES PRESENTED
Did the trial court err in failing to suppress evidence of the Appellants breath test
when the arresting officer misrepresented the law to Appellant?
vii vii
NO. 03-15-00109-CR
IN THE
COURT OF APPEALS
THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
CHELSEA PADOWSKI § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
APPEAL FROM THE COUNTY COURT OF LAW NUMBER FIVE
TRAVIS COUNTY, TEXAS
CAUSE NO. C-1-CR-14-205047
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellant Chelsea Podowski, by and through her
undersigned counsel and offers this Appellant’s Brief.
This case brings to light how an officer’s misrepresentation of the law can
critically impair a suspect’s power of self-determination. Police officers are highly
respected members of the community. This same community tasks law
enforcement officials to protect the rights and liberties of the entire population.
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When an officer testifies that he misrepresented the law and incorrectly advised the
suspect with regard to her privileges to operate a motor vehicle, the officer has
abridged the suspect’s rights as opposed to protecting them. This Court should
send a message that police officers are not allowed to gather evidence by
misinforming a suspect of their rights. Failure to reverse and remand the trial
court’s decision will set a precedent that law enforcement officials may
misrepresent the law when gathering evidence…certainly an unjust outcome.
STATEMENT OF FACTS
Officer Scott Marler testified Officer Jennings made a traffic stop on
Appellant, Chelsea Padowski, and requested an officer to perform the standardized
field sobriety tests around 1:00 A.M, March 29, 2014. RR II 18-19. Marler
responded to perform the tests. RR II 18. Marler observed the vehicle stopped in a
parking lot at 1100 block of W. Sixth. RR II 19. After speaking with Officer
Jennings, Marler introduced himself to Appellant, Padowski, and performed the
Standardized Field Sobriety Tests. RR II 20-21. After completing the tests, Marler
then read Padowski the DIC 24 warning. RR II 21. Marler read the document at a
very rapid pace, confusing Padowski. RR II 31, RRIII 17. Padowski informed
officer Marler that she didn’t fully comprehend everything and asked “In which
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case is my license not going to be suspended at all.” RR II 24. Officer Marler,
misrepresenting the law, responded “None.” RR II 24. Marler then asked, “Is that
a yes or a no?” RR II 24. Padowski then responded “yes” to provide a sample of
her breath. RR II 24. Marler had previously requested a PBT test from Padowski
which Padowski declined to provide after another officer explained to her what a
portable breath test was. RR II 21. On cross-examination Marler estimated that he
had read the DIC-24 approximately 10-12 times in his entire career. RR II 24-25.
Padowski testified on direct examination that she didn’t feel like she had a
choice to refuse the breath test from the arresting officer. RR II 29. Padowski
further testified once she arrived at the mobile breath test unit that the man who
administered the breath test told her she had to take the test. RR II 29. The man
who administered the breath test is Keith Wade, a civilian employee and former
peace officer. RR III 2-3.
Keith Wade had no recollection of performing the breath test on Padowski
even after having been shown a booking photo of Appellant or of any events of
that particular day. RR III 5. Wade subsequently admitted that he has been asked
“quite a bit” by persons who are under arrest if they have to take the breath test.
RR III 7. When asked by the state how he responded to these questions, he
responded, “It all depends of the situation.” RR III 7. On direct examination,
Wade further testified that if it were not a no-refusal weekend he would tell them
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they didn’t have to take the test. RR III 8. When asked on direct examination if
Padowski asked him if she had to take the test he didn’t recall. RR III 8-9.
Padowski distinctly remembers asking Wade if she was required to provide a
specimen of her breath and Wade’s answer in the affirmative. RR II 29.
SUMMARY OF THE ARGUMENTS
The trial court erred in denying Appellant’s motion to suppress the breath test
evidence acquired illegally by the police officer. An officer is not allowed to
make misrepresentations of the law. Further, based on the totality of the
circumstances the Appellant’s involuntary acquiescence to the police officer’s
request for evidence was obtained through psychological coercion. By allowing the
evidence to be admitted, the trial court harmed the Applicant beyond a reasonable
doubt.
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
TO SUPPRESS THE BREATH TEST EVIDENCE OBTAINED
THROUGH PSYCHOLOGICAL COERCION OF APPELLANT.
Preservation of Error
Prior to the beginning of trial, Appellant raised the issue of the officer
misrepresenting the law with regard to Appellant’s right to refuse to take a breath
test. RR II 21, 24
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Standard of Review
An appellate court reviews a trial court’s ruling on a motion to suppress
evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666,
673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.
App. 1997). In reviewing the trial court’s decision, the appellate court does not
engage in its own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.
Crim. App.1990). As the sole trier of fact, the trial judge is in the best position to
assess the credibility of the witnesses and the weight to be given their testimony.
Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State v.
Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, a reviewing court
gives almost total deference to the trial court’s rulings on: (1) questions of
historical fact, even if the trial court’s determination of those facts was not based
on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact
questions that turn on an evaluation of credibility and demeanor. Amador, 221
S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim.
App.2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
However, when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, the appellate court reviews the trial court’s rulings
5 5
on those questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154
S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Here, Appellant challenges the validity of Appellant’s consent to providing a
breath specimen. The ruling on this issue does not turn on the credibility and
demeanor of witnesses, as they admitted to the alleged conduct. Consequently, this
Court should conduct a de novo review of the trial court’s ruling.
Argument and Authorities
“The totality of the circumstances” must be taken into account to determine
“whether DWI suspects acted voluntarily.” Fienen v. State, 390 S.W.3d 328, 336
(Tex. Crim. App. 2012). The Travis County Court No. 5 agreed with this
assessment. RR III 10. Part of the totality of those circumstances was a
misrepresentation of the law by a police officer when asked for a clarification from
Appellant. RR II at 27. The Court in Fienen clearly states in its conclusion that
“law-enforcement officers may not misrepresent the law.”
A. Based on the totality of the circumstances, Appellant’s ability to
determine whether or not to provide evidence to a law enforcement
officer was overborne by that law enforcement officer’s actions.
In Fienen the officer places a suspect under arrest. After having been
properly read the DIC-24, the suspect then refuses to give a breath specimen. The
arresting Officer requests a warrant for a blood draw. At this point Fienen begins to
6 6
vacillate between wanting to comply with the officer’s request for a specimen and
refusing that request. At no time did the officer “provide any information that was
untrue.” Id at 335-336. Conversely, the officer’s responses to Fienen’s constant
questioning provided Fienen with “greater information on which to base his
decision” to comply with the officer’s request or to refuse. Id.
The Court in Fienen clearly states that “a driver’s consent to a blood or
breathe test must be free and voluntary.” Id. The Court further explains that the
“ultimate question is whether the person’s will has been overborne and capacity for
self-determination critically impaired such that his consent to search must have
been involuntary.” Id.
Here, Officer Marler critically impaired the Appellant’s capacity for self-
determination by misrepresenting the law following a request from the Appellant
for a clarification. RR II 24. Officer Marler’s departure from the law further
confused the Appellant, forcing her to make a decision based on false information
supplied by Officer Marler.
a. Officer Marler read the statutory DIC-24, required to be read
before asking for a breath sample, warning so fast as to cause
confusion for the Appellant.
An arresting officer must “inform the [arrested] orally” of the consequences
of their refusal to provide a specimen. TEX. TRANS. CODE §724.015(3). Officer
Marler failed to inform Padowski orally because Marler, according to the trial
7 7
court, read the warning “way too fast.” RR II 45. While this fact alone would not
likely render Padowski’s waiver of the right to refuse providing a specimen
involuntary, it is the act which leads to Officer Marler’s misrepresentation of the
law. But for Officer Marler’s unreasonable reading of the warning (the Trial Court
stated that Officer Marler should be admonished not to read it in such a manner),
Padowski would not have required clarification. RR II 45. Marler created the
circumstances under which he would misrepresent the law. This is vastly different
than Fienen, where Fienen created the confusion and the officer provided Fienen
with accurate clarifications. Here, Officer Marler created a confusing situation and
further befuddled Appellant’s ability to make a clear determination of her rights
when he misrepresented those rights to her.
b. Upon Appellant’s request for a clarification of the DIC-24,
Officer Marler misrepresented the law in regards to possible
consequences of Appellants compliance or refusal.
When asked if he “misrepresented the current law,” Officer Marler replied
“Yes, sir, I did.” RR II 27. The Court in Fienen states in its conclusion that “law
enforcement officer’s may not misrepresent the law.” Appellant recognizes the fact
that Officer Marler did not intend to misrepresent the law. Appellant does not
make the argument that Officer Marler intended to deceive or coerce the Appellant.
However, through his actions, Officer Marler created a deception that coerced
8 8
Appellant Padowski into an involuntary acquiescence to Marler’s request for a
breath specimen.
c. Appellant complied with Officer Marler’s request for a
specimen of her breath based upon Officer Marler’s
misrepresentation of her rights.
After Officer Marler misstated the law, Padowski felt that she “didn’t really
have a choice” that would allow her to proceed without having her license
suspended. RR II 29. Thus her decision making moved towards a matter of
compliance or not. Padowski complied because she “wanted to be up front with
everything” and “felt that [refusal] would just, in general, look like [she] was
resisting. RR II 31. Given the circumstances under which she was forced to make
her decision, Officer Marler’s failure to inform Padowski of her rights and
misrepresenting her rights to her, Padowski could only involuntarily comply.
The State argues that Marler’s over zealous reading of the warning
combined with his misrepresentation of the law do not deem her breath test
compliance involuntary. However, the burden is on the State to prove that the test
is voluntary. Fienen. The State must provide clear and convincing evidence that it
was voluntary. Id. The State’s best evidence to carry their burden is Appellant’s
eventual consent. That simply does not rise to the level of clear and convincing
evidence, especially when weighed against the facts supporting Padowski’s
argument.
9 9
B. The trial court’s error in failing to suppress the breath test
evidence was harmful beyond a reasonable doubt.
Due to the constitutional magnitude of the trial court’s error, this Court must
reverse the judgment of conviction unless it determines beyond a reasonable doubt
that the error did not contribute to the conviction or punishment. See Tex. R. App.
Proc. 44.2(a). In conducting this analysis, this Court should consider the following
factors: (1) the nature of the error, (2) whether it was emphasized by the State, (3)
the probable implications of the error, and (4) the weight the jury would likely
have assigned to it in the course of its deliberations. See Snowden v. State, 353
S.W.3d 815, 822 (Tex. Crim. App. 2011). The Court of Criminal Appeals has held
that these are not the exclusive considerations in any particular case, as many other
considerations may logically serve to inform a proper harm analysis. See
id. According to the Court of Criminal Appeals:
At bottom, an analysis for whether a particular constitutional error is
harmless should take into account any and every circumstance apparent
in the record that logically informs an appellate determination whether
“beyond a reasonable doubt [that particular] error did not contribute to
the conviction or punishment.”
Id. (quoting Tex. R. App. Proc. 44.2(a))
Here, the error certainly crippled any chance of trying this case in front of a
jury. Any reasonable jury would have given great weight to a breath alcohol
concentration over .16. Had the Trial Court not erred in denying Appellant’s
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Motion to Suppress the breath test evidence, Padowski’s chances of going to trial
and maintaining her innocence would have drastically increased.
PRAYER
WHEREFORE PROMISES CONSIDERED, Appellant prays that this
Court sustains her point of error, reverse the trial court’s denial of the motion to
suppress & judgment of conviction, and remand for new trial.
Respectfully submitted,
/s/ James Gill________________________
James Gill
1201 Rio Grande, Ste 200
Austin, Texas 78701
Phone: (512) 448-4560
Fax: (512) 308-6780
jgill@austin-criminallawyer.com
Bar Number: 24043692
11 11
CERTIFICATE OF SERVICE
This is to certify that the above Appellant’s brief has been served on the State’s
attorney by hand delivering a copy to Giselle Horton, Travis County Attorney’s
Office, P.O Box 1748, Austin, Texas 78767 and electronic transmission
(AppellateTCDA@co.travis.tx.us), on this 18th day of August, 2015
/s/ James Gill_________________________
James Gill
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