extra-statutory warning in Texas

2008The court of criminal appeals held that the extra-statutory warnings conveyed to the suspect were of the type that would result in “considerable psychological pressure.” Id. at 894 .

2008In Erdman, the court of criminal appeals emphasized that Erdman “consented to the intoxilyzer test only after the trooper gave him [the extra-statutory warnings] concerning the consequences of refusal.” Erdman, 861 S.W.2d at 893–94 (emphasis added); see also Thorn v. State, No. 02-95-00872-CR, 1997 WL 672623 , at *4 (Tex. App.—Dallas Oct. 30, 1997, pet. ref’d) (not designated for publication) (distinguishing Erdman and holding that extra- statutory warnings given after defendant consented to breath test had no impact on whether she should take the test).

2004Sandoval holds “[I]t is not enough simply to show extra-statutory warnings of any kind were given; in the absence of an extra-statutory warning that is inherently and necessarily coercive, the defendant must also show ‘a causal connection between [the] improper warning and the decision to submit to a breath test.’ ” Id.

2003Sandoval holds "[I]t is not enough simply to show extra-statutory warnings of any kind were given; in the absence of an extra-statutory warning that is inherently and necessarily coercive, the defendant must also show 'a causal connection between [the] improper warning and the decision to submit to a breath test.'" Id.

2008See Wiede, 214 S.W.3d at 24–25; Ross, 32 S.W.3d at 855; see also Ness v. State, 152 S.W.3d 759 , 763–64 (Tex. App.—Houston 2004, pet. ref’d) (holding that trial court acted within its discretion by rejecting appellant’s professed understanding of the officer’s extra-statutory warning).

2008See Wiede , 214 S.W.3d at 24–25; Ross , 32 S.W.3d at 855 ; see also Ness v. State , 152 S.W.3d 759 , 763–64 (Tex. App.—Houston 2004, pet. ref’d) (holding that trial court acted within its discretion by rejecting appellant’s professed understanding of the officer’s extra-statutory warning).

2002However, in Sandoval and Rolfe , this Court said it is not enough simply to show extra-statutory warnings of any kind were given; in the absence of an extra-statutory warning that is inherently and necessarily coercive, the defendant must also show a "causal connection between [the] improper warning and the decision to submit to a breath test." Sandoval , 17 S.W.3d at 796 ; Rolfe , 986 S.W.2d at 827 .

2002However, in Sandoval and Rolfe, this Court said it is not enough simply to show extra-statutory warnings of any kind were given; in the absence of an extra-statutory warning that is inherently and necessarily coercive, the defendant must also show a Acausal connection between [the] improper warning and the decision to submit to a breath test.@ Sandoval, 17 S.W.3d at 796 ; Rolfe, 986 S.W.2d at 827 .

2006Erdman, 861 S.W.2d at 893-94 ; Ness v. State, 152 S.W.3d 759, 763 (Tex.App.-Houston [1st Dist.] 2004, pet. ref’d); Urquhart v. State, 128 S.W.3d 701, 705 (Tex.App.-El Paso 2003, pet. ref'd); Sandoval v. State, 17 S.W.3d 792, 795 (Tex.App.-Austin 2000, pet. ref'd).

2006Erdman , 861 S.W.2d at 893–94; Ness v. State , 152 S.W.3d 759, 763 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d); Urquhart v. State , 128 S.W.3d 701, 705 (Tex. App.—El Paso 2003, pet. ref’d); Sandoval v. State , 17 S.W.3d 792, 795 (Tex. App.—Austin 2000, pet. ref’d).

2006Erdman thus stands for the proposition that law enforcement officials “must take care to warn DWI suspects correctly about the actual, direct, statutory consequences of refusal.” Id. ; see also State v. Serrano , 894 S.W.2d 74, 75-76 (Tex. App.--Houston [14th Dist.] 1995, no pet.) (affirming grant of new trial premised on warnings provided by arresting officer that exceed warnings listed in statute).

2004Erdman thus stands for the proposition that law enforcement officials “must take care to warn D.W.I. suspects correctly about the actual, direct, statutory consequences of refusal.” Id . (emphasis in original); see also State v. Serrano , 894 S.W.2d 74, 75-76 (Tex. App.—Houston [14th Dist.] 1995, no pet.) (affirming grant of new trial premised on warnings provided by arresting officer that exceed warnings listed in statute).

2011App. 1993), and State v. Sells , 798 S.W.2d 865 (Tex. App.—Austin 1990, no pet.), to argue that his breath sample was “acquired under a false pretense.” In both of those cases, however, the defendant was given the proper statutory warnings but also an extra-statutory warning that they would be jailed and charged with DWI if they refused to submit to breath testing.

2011App. 1993), and State v. Sells, 798 S.W.2d 865 (Tex. App.—Austin 1990, no pet.), to argue 12 that his breath sample was ―acquired under a false pretense.‖ In both of those cases, however, the defendant was given the proper statutory warnings but also an extra-statutory warning that they would be jailed and charged with DWI if they refused to submit to breath testing.

2015Fienen v. State, 390 S.W.3d at 334 .

2015See id. at 335-36 (holding that extra-statutory warnings are not inherently coercive but that any coercive effect of the warnings should be determined by considering the totality of the circumstances in a particular case); see also Bucaro v. State, No. 02-14-00339-CR, 2015 Tex. App. LEXIS 9075 , at **7-9 (Tex. App.—Fort Worth Aug. 27, 2015, no pet.) (mem. op., not designated for publication) (“Comparing the case at bar to Fienen, if the giving of the DIC-24 warnings plus the extra-statutory warnings present in Fienen were not inherently coercive, then the statutory warnings standing alone coul

2008See Wiede , 214 S.W.3d at 24–25; Ross , 32 S.W.3d at 855 ; see also Ness v. State , 152 S.W.3d 759 , 763–64 (Tex. App.—Houston 2004, pet. ref’d) (holding that trial court acted within its discretion by rejecting appellant’s professed understanding of the officer’s extra-statutory warning).

2005See id. 4 Analysis In his sole issue, appellant asserts the trial court erred in denying habeas corpus relief because appellant’s trial attorney was ineffective in waiving a valid Erdman objection to the officer’s extra-statutory warnings about the intoxilyzer test.