DWI defendant in Texas

2012See Schafer v. State, 95 S.W.3d 452, 456-57 (Tex.App. -- Houston [1st Dist.] 2002, pet. ref'd) (trial court did not err in concluding no causal connection between appellant's failure to receive DWI warnings in writing and his decision to submit to breath test where appellant testified that oral warnings given at the time were "confused all together," he did not understand them, he did not think he had any choice but to consent, and evidence showed he had a blood alcohol concentration of .185).

2012See Schafer v. State, 95 S.W.3d 452, 456-57 (Tex.App.—Houston [1st Dist.] 2002, pet. ref’d) (trial court did not err in concluding no causal connection between appellant’s failure to receive DWI warnings in writing and his decision to submit to breath test where appellant testified that oral warnings given at the time were “confused all together,” he did not understand them, he did not think he had any choice but to consent, and 7 evidence showed he had a blood alcohol concentration of .185).

2009See Hernandez v. State, 13 S.W.3d 78, 80 (Tex. App.—Texarkana 2000, no pet.) (holding circumstantial evidence sufficient to prove defendant was driving vehicle when defendant was the only person walking near wrecked vehicle despite defendant’s assertion to investigating officers that he was not the driver and that the driver had run away); Yeary v. State, 734 S.W.2d 766, 769 (Tex. App.—Fort Worth 1987, no pet.) (holding circumstantial evidence sufficient to show defendant was driving vehicle when defendant was the only person in the vicinity of wrecked vehicle and vehicle’s windshield was lyin

2009See Hernandez v. State , 13 S.W.3d 78, 80 (Tex. App.—Texarkana 2000, no pet.) (holding circumstantial evidence sufficient to prove defendant was driving vehicle when defendant was the only person walking near wrecked vehicle despite defendant’s assertion to investigating officers that he was not the driver and that the driver had run away); Yeary v. State , 734 S.W.2d 766, 769 (Tex. App.—Fort Worth 1987, no pet.) (holding circumstantial evidence sufficient to show defendant was driving vehicle when defendant was the only person in the vicinity of wrecked vehicle and vehicle’s windshield was ly

2009See Hernandez v. State, 13 S.W.3d 78, 80 (Tex. App.—Texarkana 2000, no pet.) (holding circumstantial evidence sufficient to prove defendant was driving vehicle when defendant was the only person walking near wrecked vehicle despite defendant’s assertion to investigating officers that he was not the driver and that the driver had run away); Yeary v. State, 734 S.W.2d 766, 769 (Tex. App.—Fort Worth 1987, no pet.) (holding circumstantial evidence sufficient to show defendant was driving vehicle when defendant was the only person in the vicinity of wrecked vehicle and vehicle’s windshield was lyin

2009See Hernandez v. State , 13 S.W.3d 78, 80 (Tex. App.—Texarkana 2000, no pet.) (holding circumstantial evidence sufficient to prove defendant was driving vehicle when defendant was the only person walking near wrecked vehicle despite defendant’s assertion to investigating officers that he was not the driver and that the driver had run away); Yeary v. State , 734 S.W.2d 766, 769 (Tex. App.—Fort Worth 1987, no pet.) (holding circumstantial evidence sufficient to show defendant was driving vehicle when defendant was the only person in the vicinity of wrecked vehicle and vehicle’s windshield was ly

2013Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); see Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.—Tyler 1996, pet. ref’d) (finding DWI defendant’s trial counsel was not ineffective for failing to call certain witnesses when their testimony would have been cumulative of other testimony).

2012See, e.g., Crawford v. State, 355 S.W.3d 193, 199 (Tex.App.-Houston [1st Dist.] 2011, pet. ref’d) (trial counsel in evading arrest trial was not ineffective for failing to call a passenger who was in defendant’s car at time defendant failed to comply with police officer’s instructions as defendant did not identify any fact to which witness would testify that trial court had not already heard from another witness): Tutt v. State, 940 S.W.2d 114, 121 (Tex.App.-Tyler 1996, pet. ref’d) (DWI defendant’s trial counsel was not ineffective for failing to call certain witnesses when their testimony wou

2013Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); see Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.—Tyler 1996, pet. ref’d) (finding DWI defendant’s trial counsel was not ineffective for failing to call certain witnesses when their testimony would have been cumulative of other testimony).

2012See, e.g., Crawford v. State, 355 S.W.3d 193, 199 (Tex.App.-Houston [1st Dist.] 2011, pet. ref’d) (trial counsel in evading arrest trial was not ineffective for failing to call a passenger who was in defendant’s car at time defendant failed to comply with police officer’s instructions as defendant did not identify any fact to which witness would testify that trial court had not already heard from another witness): Tutt v. State, 940 S.W.2d 114, 121 (Tex.App.-Tyler 1996, pet. ref’d) (DWI defendant’s trial counsel was not ineffective for failing to call certain witnesses when their testimony wou

2004See Schafer, 95 S.W.3d at 456-57 (trial court did not err in concluding no causal connection between appellant’s failure to receive DWI warnings in writing and his decision to submit to breath test where appellant testified oral warnings given at time were “confused all together,” he did not understand them, he did not think he had any choice but to consent, but evidence showed he had blood alcohol concentration of .185); Rowland, 983 S.W.2d 58, 60 (Tex.App.Houston [1st Dist.] 1998, pet. ref'd) (appellant failed to show causal connection between evidence obtained, ie., refusal to take breath t

2004See Schafer, 95 S.W.3d at 456-57 (trial court did not err in concluding no causal connection between appellant's failure to receive DWI warnings in writing and his decision to submit to breath test where appellant testified oral warnings given at time were "confused all together," he did not understand them, he did not think he had any choice but to consent, but evidence showed he had blood alcohol concentration of .185); Rowland, 983 S.W.2d 58, 60 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (appellant failed to show causal connection between evidence obtained, i.e., refusal to take breath

2011Miles , 241 S.W.3d at 42 ; see Woods v. State , 152 Tex. Crim. 338 , 213 S.W.2d 685 , 687–88 (1948); see also McEathron v. State , 163 Tex. Crim. 619 , 294 S.W.2d 822 , 823–24 (1956) (upholding citizen’s arrest when citizen saw defendant drive at high speed, drink from a bottle, strike the esplanade three times, and run red lights); Ruiz v. State , 907 S.W.2d 600 , 603–04 (Tex. App.—Corpus Christi 1995, no pet.) (citing Woods and concluding that DWI defendant committed breach of peace when he drove the wrong way down the highway, placing “his own life and the lives of other motorists in danger

2011Miles, 241 S.W.3d at 42 ; see Woods v. State, 152 Tex. Crim. 338 , 213 S.W.2d 685 , 687–88 (1948); see also McEathron v. State, 163 Tex. Crim. 619 , 294 S.W.2d 822 , 823–24 (1956) (upholding citizen‘s arrest when citizen saw defendant drive at high speed, drink from a bottle, strike the esplanade three times, and run red lights); Ruiz v. State, 907 S.W.2d 600 , 603–04 (Tex. App.— Corpus Christi 1995, no pet.) (citing Woods and concluding that DWI defendant committed breach of peace when he drove the wrong way down the highway, placing ―his own life and the lives of other motorists in danger‖);

2015In Missouri v. McNeely, the Supreme Court reiterated its rejection of per se rules in the context of the warrantless search and seizure of blood by declining to recognize a per se exigency claim based upon the destruction of alcohol evidence in a DWI defendant’s bloodstream. 133 S.Ct. at 1563 (“In short, while the natural dissipation of alcohol may Villarreal Concurring Opinion – 4 support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically.”).

2014In Missouri v. McNeely, the Supreme Court reiterated its rejection of per se rules in the context of the warrantless search and seizure of blood by declining to recognize a per se exigency claim based upon the destruction of alcohol evidence in a DWI defendant’s bloodstream. 133 S.Ct. at 1563 (“In short, while the natural dissipation of alcohol may support a finding of exigency in a specific case, as it did in Sehmerber, it does not do so categorically.”).

2021See Tamez v. State, 11 S.W.3d 198, 202 (Tex.Crim.App. 2000) (instructing that when a felony-DWI defendant stipulates to the prior convictions alleged in the indictment, the State may read the indictment at the commencement of trial that mentions the prior convictions, but may not present evidence of the convictions during its case-in-chief). 5 A grand jury returned an indictment that charged Appellant “operate[d] a motor vehicle in a public place while [he] was intoxicated,” an analysis of his blood, breath, or urine “showed an alcohol concentration level of 0.15 or more,” and he had previousl

2003Robles v. State, 85 S.W.3d 211, 213 (Tex.Crim.App.2002), also acknowledged that “[p]roof of the convictions is necessary in that the prior convictions are elements of felony DWI.” Likewise Tamez v. State, 11 S.W.3d 198, 201 (Tex.Crim.App.2000), notes the prior offenses are required for jurisdictional purposes.

2016See Gassaway v. State, 957 S.W.2d 48, 51 (Tex. Crim.

2016See Gassaway v. State, 957 S.W.2d 48, 51 (Tex.Crim.App.1997).

2015See State v. Claborn, 870 P.2d 169, 171 (Okla.Crim.App.1994) (holding that a court cost need only be "reasonably related to the costs of administering the criminal justice system” in order to not be considered a tax); Broyles v. State, 285 Ark. 457 , 688 S.W.2d 290, 292 (1985) (holding that court costs of $302.25 for DWI defendant, which included an additional $250 that was allocated in part to programs relating to drunken driving, detoxification services and alcohol and drug abuse rehabilitation, was constitutional since funds go to agencies society has created to keep the highways safe from

2015See Broyles v. State, 688 S.W.2d 290, 292 (1985) (holding that court costs of $302.25 for DWI defendant, which included an additional $250 that was allocated in part to programs relating to drunken driving, detoxification services and alcohol and drug abuse rehabilitation, was constitutional since funds go to agencies society has created to keep the highways safe from drunk drivers); State v. Young, 238 So.2d 589, 590 (Fla. 1970) (acknowledging difference in a civil filing fee and a post- conviction criminal fee, and holding that statute imposing a one dollar charge for law enforcement on ever

2015See State v. Claborn, 870 P.2d 169, 171 (Okla.Crim.App.1994) (holding that a court cost need only be "reasonably related to the costs of administering the criminal justice system” in order to not be considered a tax); Broyles v. State, 285 Ark. 457 , 688 S.W.2d 290, 292 (1985) (holding that court costs of $302.25 for DWI defendant, which included an additional $250 that was allocated in part to programs relating to drunken driving, detoxification services and alcohol and drug abuse rehabilitation, was constitutional since funds go to agencies society has created to keep the highways safe from

2015See Broyles v. State, 688 S.W.2d 290, 292 (1985) (holding that court costs of $302.25 for DWI defendant, which included an additional $250 that was allocated in part to programs relating to drunken driving, detoxification services and alcohol and drug abuse rehabilitation, was constitutional since funds go to agencies society has created to keep the highways safe from drunk drivers); State v. Young, 238 So.2d 589, 590 (Fla. 1970) (acknowledging difference in a civil filing fee and a post- conviction criminal fee, and holding that statute imposing a one dollar charge for law enforcement on ever

2013See Rankin v. State, 46 S.W.3d 899 (Tex.Crim.App.2001); Najera v. State, 955 S.W.2d 698 (Tex.App.-Austin 1997, no pet.); Davis v. State, 955 S.W.2d 340 (Tex.App.-Fort Worth 1997, pet. ref’d). 19 .

2013See Rankin v. State 46 S.W.3d 899 (Tex. Crim.

2012See, e.g., Crawford v. State, 355 S.W.3d 193, 199 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (trial counsel in evading arrest trial was not ineffective for failing to call a passenger who was in defendant’s car at time defendant failed to comply with police officer’s instructions as defendant did not identify any fact to which witness would testify that trial court had not already heard from another witness); Tutt v. State, 940 S.W.2d 114, 121 (Tex. App.— Tyler 1996, pet. ref’d) (DWI defendant’s trial counsel was not ineffective for failing to call certain witnesses when their testimony

2012Id. ("'failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony.'”) (quoting King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983)). .

2011Miles , 241 S.W.3d at 42 ; see Woods v. State , 152 Tex. Crim. 338 , 213 S.W.2d 685 , 687–88 (1948); see also McEathron v. State , 163 Tex. Crim. 619 , 294 S.W.2d 822 , 823–24 (1956) (upholding citizen’s arrest when citizen saw defendant drive at high speed, drink from a bottle, strike the esplanade three times, and run red lights); Ruiz v. State , 907 S.W.2d 600 , 603–04 (Tex. App.—Corpus Christi 1995, no pet.) (citing Woods and concluding that DWI defendant committed breach of peace when he drove the wrong way down the highway, placing “his own life and the lives of other motorists in danger

2011Miles , 241 S.W.3d at 42 ; see Woods v. State , 152 Tex. Crim. 338 , 213 S.W.2d 685 , 687–88 (1948); see also McEathron v. State , 163 Tex. Crim. 619 , 294 S.W.2d 822 , 823–24 (1956) (upholding citizen’s arrest when citizen saw defendant drive at high speed, drink from a bottle, strike the esplanade three times, and run red lights); Ruiz v. State , 907 S.W.2d 600 , 603–04 (Tex. App.—Corpus Christi 1995, no pet.) (citing Woods and concluding that DWI defendant committed breach of peace when he drove the wrong way down the highway, placing “his own life and the lives of other motorists in danger

2011Miles , 241 S.W.3d at 42 ; see Woods v. State , 152 Tex. Crim. 338 , 213 S.W.2d 685 , 687–88 (1948); see also McEathron v. State , 163 Tex. Crim. 619 , 294 S.W.2d 822 , 823–24 (1956) (upholding citizen’s arrest when citizen saw defendant drive at high speed, drink from a bottle, strike the esplanade three times, and run red lights); Ruiz v. State , 907 S.W.2d 600 , 603–04 (Tex. App.—Corpus Christi 1995, no pet.) (citing Woods and concluding that DWI defendant committed breach of peace when he drove the wrong way down the highway, placing “his own life and the lives of other motorists in danger

2011Miles, 241 S.W.3d at 42 ; see Woods v. State, 152 Tex. Crim. 338 , 213 S.W.2d 685 , 687–88 (1948); see also McEathron v. State, 163 Tex. Crim. 619 , 294 S.W.2d 822 , 823–24 (1956) (upholding citizen‘s arrest when citizen saw defendant drive at high speed, drink from a bottle, strike the esplanade three times, and run red lights); Ruiz v. State, 907 S.W.2d 600 , 603–04 (Tex. App.— Corpus Christi 1995, no pet.) (citing Woods and concluding that DWI defendant committed breach of peace when he drove the wrong way down the highway, placing ―his own life and the lives of other motorists in danger‖);

2011Miles , 241 S.W.3d at 42 ; see Woods v. State , 152 Tex. Crim. 338 , 213 S.W.2d 685 , 687–88 (1948); see also McEathron v. State , 163 Tex. Crim. 619 , 294 S.W.2d 822 , 823–24 (1956) (upholding citizen’s arrest when citizen saw defendant drive at high speed, drink from a bottle, strike the esplanade three times, and run red lights); Ruiz v. State , 907 S.W.2d 600 , 603–04 (Tex. App.—Corpus Christi 1995, no pet.) (citing Woods and concluding that DWI defendant committed breach of peace when he drove the wrong way down the highway, placing “his own life and the lives of other motorists in danger

2011Miles , 241 S.W.3d at 42 ; see Woods v. State , 152 Tex. Crim. 338 , 213 S.W.2d 685 , 687–88 (1948); see also McEathron v. State , 163 Tex. Crim. 619 , 294 S.W.2d 822 , 823–24 (1956) (upholding citizen’s arrest when citizen saw defendant drive at high speed, drink from a bottle, strike the esplanade three times, and run red lights); Ruiz v. State , 907 S.W.2d 600 , 603–04 (Tex. App.—Corpus Christi 1995, no pet.) (citing Woods and concluding that DWI defendant committed breach of peace when he drove the wrong way down the highway, placing “his own life and the lives of other motorists in danger

2008See id. at 738 B 39.

2008See id. at 738-39 .

2004See Mody v. State, 2 S.W.3d 652, 655 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (refusal to submit to breath test admissible where oral and written warnings regarding refusal sufficiently complied with section 724.015, even though warnings referred to blood alcohol level of .10 at time of testing, rather than at time of driving); Moore v. State, 981 S.W.2d 701, 706 (Tex.App.-Houston [1st Dist.] 1998, pet. refd) (refusal admissible where defendant was informed license would be suspended if he had blood alcohol level of 0.10 at time of testing, rather than at time of driving); Gonzalez v.

2004See Mody v. State, 2 S.W.3d 652, 655 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd) (refusal to submit to breath test admissible where oral and written warnings regarding refusal sufficiently complied with section 724.015, even though warnings referred to blood alcohol level of.10 at time of testing, rather than at time of driving); Moore v. State, 981 S.W.2d 701, 706 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (refusal admissible where defendant was informed license would be suspended if he had blood alcohol level of 0.10 at time of testing, rather than at time of driving); Gonzalez v.

2004See Schafer, 95 S.W.3d at 456-57 (trial court did not err in concluding no causal connection between appellant’s failure to receive DWI warnings in writing and his decision to submit to breath test where appellant testified oral warnings given at time were “confused all together,” he did not understand them, he did not think he had any choice but to consent, but evidence showed he had blood alcohol concentration of .185); Rowland, 983 S.W.2d 58, 60 (Tex.App.Houston [1st Dist.] 1998, pet. ref'd) (appellant failed to show causal connection between evidence obtained, ie., refusal to take breath t

2004See Schafer, 95 S.W.3d at 456-57 (trial court did not err in concluding no causal connection between appellant's failure to receive DWI warnings in writing and his decision to submit to breath test where appellant testified oral warnings given at time were "confused all together," he did not understand them, he did not think he had any choice but to consent, but evidence showed he had blood alcohol concentration of .185); Rowland, 983 S.W.2d 58, 60 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (appellant failed to show causal connection between evidence obtained, i.e., refusal to take breath

2004Safety v. Thomas, 985 S.W.2d 567, 570 (Tex.App.-Waco 1998, no pet.) (in appeal of license suspension, because police did not adequately warn defendant of all actual, direct, and statutory consequences — specifically, loss of commercial license — substantial statutory right of defendant was violated; thus trial court properly reversed suspension of driver’s license). 4 In these cases, as here, although the officer deviated from the statutory warnings, his statement of the warnings was substantially correct, and the officer made no extra-statutory coercive statements.

2004Safety v. Thomas, 985 S.W.2d 567, 570 (Tex.App.-Waco 1998, no pet.) (in appeal of license suspension, because police did not adequately warn defendant of all actual, direct, and statutory consequences — specifically, loss of commercial license — substantial statutory right of defendant was violated; thus trial court properly reversed suspension of driver's license). [4] In these cases, as here, although the officer deviated from the statutory warnings, his statement of the warnings was substantially correct, and the officer made no extra-statutory coercive statements.

2014Therefore, we conclude that restitution may be ordered, when appropriate, in DWI cases.52 50 South Dakota v. Neville, 459 U.S. 553, 558 (1983) (“The situation underlying this case—that of the drunk driver—occurs with tragic frequency on our Nation’s highways.

1998Neville, 459 U.S. at 564 , 103 S.Ct. at 923 .