*1 hаbeas applicant’s witnesses at the (2) how this hearing were credible differs
testimony previous testi-
mony at the motion for new trial such that “newly
it constitutes discovered evidence”
that was not available and could not have Al- hearing.
been discovered for that
though carefully courts must examine a claim of actual innocence—even
credible many years alleged
one made after said, He said”
crime—recantations “She
sexual assault cases are not rare.29 Such
post-conviction claims should not be ac- nor,
cepted scrutiny general- without close
ly, strong corroboration inde- case,
pendent present evidence. In the ap-
the habeas record does not show that
plicant’s newly evidence is either discover- unquestionably
ed or that it establishes his
innocence. deny
We therefore relief.
KEASLER, J., concurred
judgment.
Mary HARRISON, Appellant Elizabeth
The STATE of Texas.
No. PD-1193-04.
Court of Criminal Texas.
Nov.
Elizondo,
(Tex.Crim.
parte
parte Tuley,
29. See Ex
Harmon,
(Tex.Crim.App.1997);
parte
App.2002);
parte
elude that the court of holding. History
Facts and Procedural driving City Arlington in the While August Vickie the afternoon of report that Harrison Evans called 911 intoxicated or was hav- driving while ing a seizure. As she continued follow Harrison, phone, Evans remained on the location. advising police of Harrison’s Lodatto, dispatched who was as Officer call, spottеd first a result Evans’s officer, Officer Con- Harrison as a fellow stantine, directing pull her to over and parking stopped. in a lot. Evans also stop initiated contact with While Constantine spoke with Evans. Ev- Lodatto Lodatto that while she had ans informed following she observed been lane, fidget- going Harrison from lane to in- ing, “flopping around like fish” approached Lodatto side her car. then standing outside Harrison while she was Constantine. Observ- talking her car with demeanor, Lo- Harrison’s behavior and Ford, Worth, appellant. Robert Fort “continuously noticed that she was datto Curl, Swenson, around, moving bending M. Asst. around fidgeting, Anne David ” Worth, waist, legs.... Atty’s, lifting up Fort Matthew [and] Crim. Dist. Austin, Paul, a number of Atty., for State. Lodatto then administered State’s sobriety Based on Harrison’s
field tests. tests, Lodatto on the performance overall OPINION Harrison was under the concluded that KEASLER, J., opinion delivered than alco- an intoxicant other influence of KELLER, P.J., the Court which hol. COCHRAN, HERVEY, WOMACK, under arrest placed JJ., joined. Lо- county jail, where transported to the breath and asked her to failed to datto Holding that the State After Lodatto warned Mary specimens. evidence that refusing consequences voluntarily consented Harrison Harrison Elizabeth by the specimens as the court of to submit Code,2Harrison consented. Transpоrtation trial court’s denial of appeals reversed the negative tested Harrison’s breath suppress.1 con- When Harrison’s motion to We 724.011-724.013, §§ See Tex Transp. 89-90 1. Harrison v. 2001). (Vernon 2004). 724.015 (Tex.App.-Fort Worth alcohol, officer, although presented Lodatto and another it a “closer DeMott, Arling- question.” took Officer Harrison Hospital
ton Memorial to obtain a blood 21, 2003, April pursuant plea On to a sample. Although a nurse tried to draw Her agreement, pled guilty. *3 blood from Harrison’s hands and arms five jail, days at in sentence was assessed times, a or six testable amount could not years, probated for two and fine of $500. repeatеdly be her obtained because veins appealed Harrison the trial court’s deni- collapsed. suppress. argued al of her motion to She that attempts finding The unsuccessful that the trial court erred to draw blood stop supported by the sus- pain caused Harrison and resulted in was reasonable DeMott, рicion. further claimed that the court bruising. But She according to Harri- in finding voluntarily that she cooperative son remained even assist- and submitting sented to a urine by instructing ed the nurse her on the best maintaining prove that the State failed to way sample. point, to take the At some convincing voluntariness clear and began the nurse to examine Harrison’s However, feet for a dence. site to draw blood. DeMott, who had taken note the fact claims, Responding to Harrison’s the that the attempts unsuccessful to draw argued State that the trial court pain upon blood inflicted asked err in denying sup- Harrison’s motion to Harrison if willing providе she would be press. stop claimed that State sample. a urine agreed pro- Harrison supported by suspicion was reasonable and sample
vide a urine being avoid stuck provide that Harrison’s consent to a urine with the again having and to avoid Relying was this suspended. her driver’s license Neither State,3 Hulit v. opinion Court’s officer informed Harrison that she did not I, argued also that Article 9 of the Section have to give sample. They a urine also require Texas Constitution did not failed to inform her that her license would prove voluntary State to consent to obtain suspended not be in the event that she Rather, sample. a urine it provide refused to sample. Harri- only State to establish that positive son’s urine did test for controlled was reasonable. substances, and she was later charged with that Second Court found driving misdemeanor while intoxicated. provided by “the information was Evans
Harrison
suppress
sufficiently
filed motion
al-
provide police
reliable to
with
leging
rights
her
under
suspicion
the United
reasonable articulable
to initiate
States and Texas
investigative stop
Constitutions were vio- an
of Harrison.”4 Be-
argued
stop
lated. She
was not
fore
whether the State
consent,
stated,
supported by
suspicion
voluntary
reasonable
the court
“we
provide
that her consent to
adopt
a urine
decline to
the State’s contention that
...,
to Hulit
involuntary.
The trial court
pursuant
denied
the State has no
po-
the motion. The court found that the
or the voluntari-
prove
burden
consent
consent,
had
suspicion
stop
prove only
lice
reasonable
fоr the
ness of
but must
rea-
and that Harrison consented to the urine
sonableness of
conduct.”5 The
3. 982 S.W.2d
at
5. Id.
n. 3.
court
went on to find
Law
State
prove by
clear and convincing evidence
I,
Article
Under
Section
voluntary.6
that Harrison’s consent was
Constitution,
Texas
search made after
“[a]
so,
In doing
the court stated:
voluntary
is not unreasonable.”9
consent
challenged
trial,
If
voluntariness is
“the
sup-
Because all three witnesses at the
State must
voluntariness of
pression
agreed
hearing
consent
to search
agreed
was in
pain
A
evidence.”10
“must look at
to avoid further needle
totality
of the circumstances surround
sticks, agreed Harrison
not advised
ing the
of consent in order to
statement
to decline
*4
given
determine whether
consent was
specimen,
agreed
and
trial
voluntarily.”11
does
When
informed her license would not be sus-
findings
denying
not enter
of fact when
refused,
pended if
we
hold
cannot
reviewing
suppress,
motion to
court must
heightened
met its
burden
State
light
the
“in the
view
evidence
most favor
prove
to
con-
voluntariness Harrison’s
ruling”
to
able
the trial court’s
and “as
totality of
sent under the
the circum-
implicit
sume that
the trial court made
and
by
stances
clear
findings
support
ruling
fact that
its
as
dence.7
findings
as
are
long
supported
those
almost total
the reсord.”12 And
deference
result,
As a
the court
reversed the
must be
to the trial
rul
judge’s
afforded
case
judgment
court’s
and remanded the
on
ings
credibility questions.13
for a new trial.8
Here,
the record reflects
review,
petitioned
The
for
and we
State
had consented
a much
(cid:127) Harrison
granted
grounds
its five
review.
painful proсedure;
more invasive
ground for review
“Do
State’s fifth
states:
at no time withdrew her
(cid:127)
the
relied
evidentiary
upon
factors
test;
consent to the blood
court
find
involuntary
con-
or
police
no coercion
threats to
used
(cid:127)
assigned
sent invade the role
to the trial
consent; and
compel
court
in
by failing
place
evidence
that she
Harrison said
consented
(cid:127)
context,
by determining
matters of
farther sticks with the needle
avoid
Because
historical
fact?”
the record
having
her driver’s li-
to avoid
in
Appeals
shows
Court
suspended.
cense
finding that
to establish
voluntariness, we need not
consider
found that
Appeаls
“[t]he
Court of
given
fact that
consent was
grounds
four
Harrison’s
State’s first
review.
818;
Reasor,
6.
at
see
Id. at
12 S.W.3d
also Johnson
11.
89.
State,
644,
(Tex.Crim.App.
653
v.
68 S.W.3d
Id.
7.
Robinette,
33,
2002) (citing
v.
519 U.S.
Ohio
40,
417,
(1996)).
L.Ed.2d 347
117
136
S.Ct.
Id. at 89-90.
853,
Ross,
(Tex.
S.W.3d
12. State v.
32
855
State,
(Tex.
9. Reasor v.
Crim.App.2000).
Crim.App.2000).
(Tex.
Ibarra,
State
Guzman
Crim.App.1997).
Crim.App.1997).
license, may be a
factor
painful physical pressures
avoid
driver’s
relevant
—more
sticks,
weighs
assessing
when
whether her consent was
probably
her feet —
conclude that
it is
against
voluntary,
voluntariness.”14 But
court
we cannot
Further,
controlling.
though
per-
even
failed to take into account the fact that
knowledge
son’s
of his or her
Harrison did not withdraw her consent to
factor
refusе consent
is also a relevant
before she con-
voluntariness,
it is
when
sented to
a less-
an-
custody
And while
is
determinative.17
invasive alternative.
cases
So unlike
considered,18
other factor to be
“consent is
person’s
where the
consent is the result of
involuntary merely
not rendered
physical
psychologiсal pressure
from
The trial
officials,15
the accused
under arrest.”19
enforcement
law
Harrison will-
fact-finder,
judge,
presumably
as the
ingly
a pain-
chose
her consent to
observing
factors when
sidered these
less alternative.
demeanor of the officers and Harrison
Also,
finding that the
when
State failed
hearing
supрress,
on the motion
its burden to
Harrison’s consent
something that neither we nor the Court of
voluntary,
Appeals
the Court of
relied
opportunity
have had the
to do.
fact that the
officers did not
*5
states that
The dissent
inform Harrison that she
refuse to
could
a
is hard to believe that the trial court
provide
they
[i]t
and that
highly prоbable
could
that it was
to advise
find
consequences
Harrison that the
reasonably
Appellant
certain that
applicable
person’s
to a
provide
refusal to
sented to the urine test when she was
specimen
a
do
apply
blood
not
when an
given statutory warnings
to
prior
individual
speci-
refuses
submit a urine
consenting
giving
specimen
a urine
men.16 But
statutory
the fact that
and when both officers who testified
warnings were read to Harrison and that
they
about the consent stated that
provide
specimen
consented to
not inform
that she could re-
to the police officers does not mean that
losing
provide
fuse to
a
obligated
officers were then
to inform
her driver’s license.
her,
requesting
specimen,
before
a urine
that the consequences associated with re-
reasoning
Simply
The dissent’s
is flawed.
fusing
provide
a
specimen
blood
do not put,
require
Texas statutes did not
apply
person’s
to a
a
refusal
submit to
given any statutory warnings
Harrison be
specimen.
Although Harrison’s be- before she was asked for her consent to
consequences
lief that the
associated with
the offi-
provide
specimen.20
a urine
And
a refusal to
spe-
blood
cers were not
to inform Harrison
cifically,
suspension
the automatic
of her
that she could refuse to
a urine
State,
504,
(Tex.
sample without sought breath simply they first that the Court of We hold giving after specimens and blood consent was not finding that Harrison’s warnings.21 The dis- required statutory therefore reverse its deci- voluntary. We that “the ma- incorrectly states sent also of the trial judgment affirm the sion and Appellant was jority claims that because court. giving a given statutory warnings about consented, JJ., JOHNSON, the officers sample and concurred PRICE and inform her that the obligated in the result. were giv- consent to of failure to consequences MEYERS, J., dissenting opinion filed do not or blood breath HOLCOMB, J., joined. in which specimen.” a urine apply to failure MEYERS, J., dissenting opinion, filed request for conclusion is that Our J., HOLCOMB, joined. in which specimens, which breath and blood warnings applicable, is en- statutory were a defendant vol- In whether a urine request for tirely distinct search, to a we consider untarily consented speci- request circumstances, specimen. totality men, breath prove by which followed clear burden is on the State did not need to be consent specimens, and blood that the convincing еvidence previous- paired with a statement Clear thing indicating that the statutory warnings inappli- were dence is “evidence ly given or reason- highly probable to be is cable. It hard to believe ably certain.”1 may argued It be *6 highly that it was the trial court could find had Harri- by the officers because misled Appel- that reasonably certain probable or attorney her to contact son been allowed she the urine test when lant consented to attorney could requested, as she had her prior to statutory warnings given was not could refuse have informed her that she specimen consenting giving a sample for a urine without testified about when both officers who Harrison did not her license. But losing they did not inform consent stated that attorney pres- right have the to have an refuse to that she could Appellant above, and, discussed ent for the reasons li- losing her driver’s sample a without to mislead Harri- nothing officers cense. son. Nonethelеss, majority claims that us, given statutory facts before Considering Appellant all of the was sample to the trial proper giving deference giving warnings about determinations, consented, obligated can- credibility we the officers were not judge’s consequences of judge erred in decid- to inform her that say not or giving clear and failure to consent to breath that the State apply to failure do not that Harrison’s blood convincing evidence majority also sample. give voluntary. sent was (7th Dictionary Law 1. See Black's § 724.015. Tex.Transp. ed.2000). Griffith State, 787 S.W.2d Crim.App.2001); Garcia v. that, says although attorney, to call her Appellant failure allowed inform Appellant right attorney her to refuse the could informed her then her have urine test was a relevant factor in assess- right to refuse to consent to a urine her consent, ing the voluntariness of her it was license, losing rather her controlling, not knowledge and that her being than misled the officers. Since right to refuse consent is not determi- single who claimed there was not witness native of whether her consent was volun- informed, it Appellant’s that consent was tary. Presuming judge that the trial con- difficult to see how the consent could be sidered these factors and assessed the voluntary. considered credibility witnesses, and demeаnor of the disagree majority’s I with the contention majority holds that the trial appeals give the court of failed to properly found that proved by proper deference to the trial court’s find- clear and convincing evidence that the con- ings.2 appeals properly The court of re- factors, sent was How do these viewed the evidence and held that there each of which lean in Appellant’s favor and not evidence to each of which indicate that consent was Appellant voluntarily consented uninformed, add up highly probable Therefore, sample. respect- to the urine I reasonably certain Appel- evidence that fully dissent. lant’s consent to a urine sample was voluntary?
In addition the fact that informed of her to refuse
consent and was not informed
consequences of refusing apply did not the court of also consid- Waylon HERNANDEZ, Appellant 1)
ered the fact that Appellant had been arrested, transported hospital to the handcuffs, custody and was in at the time Texas, Appellee. STATE consented, indicating that she was *7 aware that she was free to refuse to sub- No. 07-05-0197-CR. 2) mit a urine sample; that she was in- Texas, Court of duced to consent order to avoid addi- Amarillo. tional pain repeated sticks, which causing collapsed were veins May 3) bruising; that her license was Discretionary Review Refused very important only to her and she Sept. sented because she did not want to lose additionally her license. The record indi-
cates that asked for her attor-
ney repeatedly throughout process this
and the officers told her that she could call attorney completed after she Perhaps
breath tests. if the officers had Although findings requested nothing indicating were when the there is in the record suppress, findings ruled on the motion to of fact were entered.