dissenting.
Although I do not disagree with the general propositions of law set forth by the majority, I must respectfully dissent to the conclusion that Officer Campbell’s actions rose to any level of coercion such as to demonstrate that appellant’s consent was anything but freely and voluntarily given.
During the suppression hearing, Officer Campbell testified that in every case of D.W.I. he explains to the suspect what the procedures are and what is going to happen. In the instant case, Officer Campbell was completely honest with the appellant: he told the appellant that if he refused the intoxilyzer test he would be charged with D.W.I. and incarcerated and that the appellant could still have a blood test. If anything, this honesty of the Officer makes the appellant’s decision to take the test even more informed since he had all options before him. I simply cannot subscribe to the idea that when an officer openly and honestly responds to an accused’s inquiries concerning the procedures the officer will follow, such rises to the level of coercion.
The majority relies on the Austin Court of Appeals’ decision in State v. Sells, 798 S.W.2d 865 (Tex.App.—Austin 1990), and the interpretation of our opinion in Hall v. State, 649 S.W.2d 627 (Tex.Cr.App.1983). As the author for the Court of the Hall opinion, I must point out that it is not applicable to the facts before us. Hall was a jury instruction case where the officer had misstated the law to a D.W.I. suspect. It was argued that this misstatement coerced the defendant to consent to the breathalyzer and that such consent was therefore involuntary. The defendant, based on this evidence, sought a jury instruction on voluntariness pursuant to Article 38.-23, V.A.C.C.P. This Court concluded that since the evidence raised the issue the defendant was entitled to a charge on voluntariness.
Such is not the case here. Officer Campbell made no misstatement of the law. Furthermore, no promise of a benefit was made to appellant such as to render his decision coerced or involuntary. The decisions of the trial court and Court of Appeals should be affirmed. I dissent.
OVERSTREET, Judge,dissenting.
I disagree with the conclusion that in the instant cause the trial court abused its discretion in finding that appellant’s consent was voluntary.
The record which appellant brings before us is somewhat murky with respect to precisely what he was told by the trooper regarding the taking of the breath test. Appellant did not testify at the suppression hearing. The specifies, such as were shown, were elicited via the trooper. The trooper transported appellant and advised him of the statutory warnings pursuant to Tex.Rev.Civ. Stat. Article 6701Z-5 § 2 and requested that he submit to an intoxilyzer test. Appellant shortly thereafter refused to submit to the intoxilyzer test.
The trooper testified that he did not remember exactly what he told appellant while in transit to the substation, i.e. the Harris County jail annex in Humble. He stated that he explained to all suspects who are arrested what is going to happen to them when they get to the jail; however, he could not state exactly what was said to appellant. He indicated that he “probably” made appellant aware that he was probably going to the substation for the purpose of participating in a video taping. He indicated that he did tell appellant that he would be brought down for an intoxilyzer breath test. The trooper stated that he did not remember the very first place that he had brought appellant after arriving at the substation, but did recall that appellant initially refused to take the breath test. The trooper did not remember where that refusal took place. The trooper testified that appellant “did not want to take the test when [they] first got there.” The trooper was unable to state in which room at the substation he gave appellant the above-mentioned warnings, but was sure that he gave appellant a copy and read it aloud to him.
The trooper believed that he read the warnings in the video room, whereupon appellant decided that he did not want to take the test, but then decided that he wanted to take it; whereupon they then went to the *898intoxilyzer room and appellant was given a written copy of the warnings. The trooper did not recall exactly what he had said to appellant about refusing to take the breath test and losing his license for ninety days, but stated that he “d[oes] explain to subjects that that’s what happens.” The trooper responded affirmatively when asked if at that same time he would have told appellant that if he refused the breath test that DWI charges would be filed against him and he would be placed in jail. He also indicated that he told appellant that if he took and passed the breath test “[h]e would not be charged that night with D.W.I.” The trooper responded affirmatively when then asked if appellant thereafter went into the video room on the trooper’s instructions. The trooper indicated that there was no doubt in his mind that prior to the time appellant walked into the video room, he had refused to take the breath test. The trooper did state that appellant had read the written statutory admonition “down there in the in-toxilyzer room.” However, he then indicated that he did not have any independent memory of that, though he knew it was in the intoxilyzer room because that was where the forms were. The trooper later indicated that his period of observing appellant began at the time he learned that appellant was going to take the breath test and that such would have been in the video room, and that then would have been when he had read appellant the oral DWI warnings and provided him with the written warnings. The trooper later indicated that he had begun the observation period in the intoxilyzer room when appellant refused, then they went down to the video room and appellant decided to take the test.
Later, under questioning by the prosecutor, the trooper indicated that his usual procedure was to walk an arrestee inside the substation, walk down to the intoxilyzer room, and then explain about taking the breath test. If the arrestee wants to take it, they sit down and fill out the DIC-24 form. He fills it out and lets the arrestee read it, then he reads it to them. He indicated that this was the procedure that was followed with appellant, but that appellant indicated that he did not want to take the intoxilyzer test, so the trooper “told him [‘]fine[’].”
They then “left the room and went back to the video room.” He indicated that they eventually returned to the intoxilyzer room after the first part of a video interview. The trooper then further explained that he had initially brought appellant into the intoxilyzer room, filled out the DIC-24 form, read it aloud while appellant read his copy; whereupon appellant stated that he did not want to take the test, so they “got up and ... left out of there.” Later they returned to the intoxi-lyzer room, whereupon the trooper observed appellant for 15 minutes prior to giving him the breath test. The trooper indicated that at that time, he did not fill out any paperwork.
Thus, while the trooper properly warned appellant about the statutorily prescribed consequences of refusing to submit to the breath test pursuant to Article 67011-5 § 2, he additionally informed appellant that if he refused the breath test, DWI charges would be filed against him and he would be placed in jail, but that if he took and passed the breath test “[h]e would not be charged that night with D.W.I.” No doubt the correct and better practice is for law enforcement officials to simply and only read the statutory warnings contemplated by Article 6701 £-5. This Court appears to ignore the reality that this record reveals, that is that the appellant (not uncommonly) vacillated back and forth (for whatever reasons) on whether or not to submit to the intoxilyzer test. The record does not contain discernible reasons why the trooper gave additional warnings not contemplated by the statute, nor does the record reflect that the trooper was ever asked why. I do not find the trooper’s additional statements to be untrue or in any way coercive. The record does not demonstrate that appellant relied upon the trooper’s statements in changing his mind and subsequently agreeing to take the breath test.
In the face of this record, I do not see any abuse of discretion by the trial court in finding that appellant’s consent was voluntary. The record supports a finding that by clear and convincing evidence appellant’s consent was voluntary. Thus, the decisions of both the trial court and the court of appeals *899should be affirmed. With these comments, I respectfully dissent to the majority opinion.