Opinion issued May 5, 2005

In The
Court of Appeals
For The
First District of Texas

NO. 01-04-00205-CR

SAMUEL OLGLKAN OGUNTOPE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 14
Harris County, Texas
Trial Court Cause No. 1208977

O P I N I O N
          Appellant Samuel Oguntope waived his right against self-incrimination, his
right to trial by jury, and his right to confrontation.  He judicially confessed to the
State’s allegations that he committed the misdemeanor offense of driving while
intoxicated (“DWI”).  After finding true an enhancement paragraph alleging a prior
felony, the trial court assessed punishment at ten days’ confinement, suspended his
driver’s license for one year, and entered an order requiring Oguntope to install an
ignition interlock restriction device in his vehicle.

          Before entering his plea of guilty, Oguntope moved to suppress the results of
his field sobriety test.  The trial court denied the motion.  After entry of the plea, he
filed a motion for new trial and to withdraw his plea.  The trial court denied the
motion.  On appeal, Oguntope contends the trial court erred in denying his motion to
suppress the results of his field sobriety test because his agreement to perform the test
improperly was coerced.  We conclude that the trial court did not err and therefore
affirm.
Facts and Procedural History
          On December 12, 2003, a Texas Department of Public Safety trooper pulled
over Oguntope’s vehicle at approximately 11:45 p.m.  The trooper detected an
alcoholic odor on Oguntope’s breath, and Oguntope admitted that he had consumed
one beer.  The trooper instructed Oguntope to follow his finger with his eyes.
Oguntope refused.  The trooper then requested that he submit to a breathalyzer test.
Oguntope did not blow hard enough into the tube to successfully complete the test.
The trooper told Oguntope that, “If you can’t do what I’m asking you to do, then I’m
going to take you to jail for DWI.”  Oguntope then performed several field sobriety
tests, including the horizontal gaze nystagmus (“HGN”) test, straight line walk test,
and a stand on one foot test.  Oguntope failed the field sobriety tests, and the trooper
arrested him for DWI.  The trooper told Oguntope that he would give him another
chance to take a breath test at the jail, and if he blew .08 or less, he would let the
district attorney decide whether to keep him in jail.  The trooper denied Oguntope’s
requests to allow him to repeat the field sobriety tests.  The trooper read Oguntope the
statutory warnings and asked him whether he would perform the breathalyzer test.
Oguntope answered both yes and no, which the trooper interpreted as a no.
          At trial, Oguntope moved to suppress evidence of the field sobriety tests.
After watching the videotaped footage of the field sobriety tests and hearing oral
argument, the trial court granted the motion in part and denied it in part.  The court
agreed to suppress (1) any breathalyzer results, although the trooper gathered no
results because Oguntope did not successfully blow into the tube, and (2) the
trooper’s statement concerning the district attorney.  The trial court refused to
suppress the results of the field sobriety tests.  Oguntope then pleaded guilty to DWI.

Standard of Review
          In reviewing a trial court’s ruling on a motion to suppress, we apply the
bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.
Crim. App. 1997).  We defer to a trial court’s determination of historical facts, and
review de novo the trial court’s application of the law of search and seizure.
Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) (citing Guzman, 955
S.W.2d at 88-89).  If the issue involves the credibility of a witness, we defer to a trial
court’s ruling, as a trial court is in a better position to evaluate the credibility of
witnesses before it.  Guzman, 955 S.W.2d at 87, 89.  If the trial court is called upon
to apply the law to the facts, and the ultimate resolution of the issue does not turn on
an evaluation of the credibility and demeanor of a witness, we review that issue de
novo.  Id. at 89.
Motion to Suppress
          Oguntope contends the trial court erred in refusing to suppress the results of
his field sobriety tests.  Specifically, Oguntope contends the trooper’s comment that
he would arrest him if he refused to perform the HGN test constitutes  coercion that
renders involuntary his agreement to take the test.  Oguntope relies on the “due
process clause of the federal Constitution” and the Texas Court of Criminal Appeal’s
decision in Erdman v. State, 861 S.W.2d 890 (Tex. Crim. App. 1993).
          Oguntope observes that it is unlawful for “the police to coerce a defendant into
producing evidence,” citing Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735 (1961).
In Rogers, the United States Supreme Court held that “convictions following the
admission into evidence of confessions which are involuntary, i.e., the product of
coercion, either physical or psychological, cannot stand.”  365 U.S. at 540, 81 S. Ct.
at 739.  Although Rogers holds that the State may not coerce a confession from a
defendant, its reasoning does not preclude the State from obtaining evidence from a
defendant against his or her will.  365 U.S. at 540-42, 81 S. Ct. at 739-40 (emphasis
added).  Contrary to Oguntope’s contention, the Court of Criminal Appeals has held
that authorities may compel a defendant to submit physical evidence of intoxication.
Jones v. State, 795 S.W.2d 171, 175 (Tex. Crim. App. 1990); see also Thomas v.
State, 723 S.W.2d 696, 704-05 (Tex. Crim. App. 1986); Martin v. State, 97 S.W.3d
718, 720 (Tex. App.—Waco 2003, pet. ref’d).
          Unlike a confession, the performance of a field sobriety test is not testimonial
in nature, but rather is physical evidence of a motorist’s mental and physical faculties.
Gassaway v. State, 957 S.W.2d 48, 51 (Tex. Crim. App. 1997); Jones, 795 S.W.2d
at 175; see also Shpikula v. State, 68 S.W.3d 212, 219 n.5 (Tex. App.—Houston [1st
Dist.] 2002, pet. ref’d) (citing Youens v. State, 988 S.W.2d 404, 407 (Tex.
App.—Houston [1st Dist.] 1999, no pet.)).  In particular, the Texas Court of Criminal
Appeals has reasoned that field sobriety tests are not testimonial because their results
do not create “an express or implied assertion of fact or belief.”  Gassaway, 957
S.W.2d at 51.  Accordingly, the trooper’s statement that Oguntope would be subject
to arrest if he refused to perform the field sobriety tests does not violate Oguntope’s
constitutional right to due process.  See Martin, 97 S.W.3d at 720.
          In addition, Oguntope relies on Erdman to contend that the trooper’s coercive
statements render the field sobriety tests inadmissible as a matter of Texas law.  861
S.W.2d at 894.  In Erdman, the Texas Court of Criminal Appeals held that, if an
officer fails to recite the proper statutory warning to the defendant before a
breathalyzer or blood alcohol concentration test, then the defendant’s consent is
involuntary as a matter of law.  Id. at 893-94.  According to statute, however, officers
may only conduct breathalyzer or blood alcohol tests after a suspect has heard the
statutory warnings of the legal consequences of consenting or refusing to consent, and
has given consent.  Erdman, 861 S.W.2d at 893 (construing Tex. Rev. Civ. Stat.
Ann. art. 6701/-5, § 2 (Vernon 1977), now codified at Tex. Transp. Code Ann. §
724.012, .013, .015 (Vernon 1999 & Supp. 2004-2005)) (emphasis added).  These
required statutory warnings do not extend to field sobriety tests.  In Erdman, the
Court held that the officer had not provided the appropriate warnings.  861 S.W.2d
at 893-94.  Thus, the breathalyzer evidence was inadmissable under article 38.23,
which prohibits the admission of evidence obtained in violation of any provisions of
Texas law.  See id.; Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 1979 & Supp.
2004-2005).
          Without any similar statute requiring warnings before consenting to perform
a field sobriety test, the trooper’s statements did not violate Texas law so as to taint
the admission of the results of the tests.  See Tex. Code Crim. Proc. Ann. art 38.23.
We therefore hold that the trial court did not err in denying the motion to suppress on
this ground.
Conclusion
          We conclude that (1) the trooper’s statement that he would arrest Oguntope if
he refused to perform the field sobriety test does not violate constitutional due
process requirements, because the tests are not testimonial in nature, and (2) the
trooper’s comments to Oguntope do not violate Texas Transportation Code sections
724.013 and 724.015, as those sections apply only to breathalyzer and blood alcohol
testing.  We therefore affirm the trial court’s denial of Oguntope’s motion to suppress.

                                                             Jane Bland
                                                             Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.
Publish.  Tex. R. App. P. 47.2(b).


72 F.3d 127NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
THE NORTH CAROLINA LIFE AND ACCIDENT AND HEALTH INSURANCEGUARANTY ASSOCIATION, Plaintiff-Appellant,v.ALCATEL NETWORK SYSTEMS, INCORPORATED, formerly known asAlcatel Business Systems, Incorporated;  The AlcatelInvestment and Savings PLAN TRUST Committee;  Bankers TrustCompany of California, N.A.;  First Union National Bank ofNorth Carolina;  Mark D. Primm;  Ira H. Dorf;  Robert D.Marangell;  Steven J. Fry;  Leif E. Thorsen;  Ronald K.Boyd;  Marvin S. Edwards;  Michael M. Friend;  Michael K.Robinson;  Patrick J. Vogeler;  RJR Nabisco, Incorporated;Wachovia Bank of North Carolina, N.A., Defendants-Appellees.TEXAS LIFE, ACCIDENT, HEALTH & HOSPITAL SERVICE INSURANCEGUARANTY ASSOCIATION;  National Organization of Life andHealth Insurance Guaranty Associations;  Robert B. Reich,Secretary of Labor, Amici Curiae.
No. 95-1375.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 2, 1995.Decided Dec. 18, 1995.

ARGUED:  Margaret Cain Lumsden, HUNTON & WILLIAMS, Raleigh, North Carolina;  Robert D. Phillips, BOWLES & VERNA, Walnut Creek, California, for Appellant.
Patricia Montgomery, Austin, Texas, for Amicus Curiae Texas Life.  John Lester Sarratt, PETREE, STOCKTON, L.L.P., Raleigh, North Carolina;  Hayden Judson Silver, III, MOORE & VAN ALLEN, P.L.L.C., Raleigh, North Carolina, for Appellees.
ON BRIEF:  Michael L. Unti, HUNTON & WILLIAMS, Raleigh, North Carolina, for Appellant.
R. James George, Jr., Gary L.  Lewis, GEORGE, DONALDSON & FORD, L.L.P., Austin, Texas, for Amicus Curiae Texas Life.
Craig B. Wheaton, PETREE, STOCKTON, L.L.P., Raleigh, North Carolina;  Curtis J. Shipley, MOORE & VAN ALLEN, P.L.L.C., Raleigh, North Carolina;  Nigle B.  Barrow, Jr., SMITH, ANDERSON, BLOUNT, DORSETT, MITCHELL & JERNIGAN, Raleigh, North Carolina, for Appellees.
Anthony R.  Buonaguro, Senior Vice President and General Counsel, John F.  Del Campo, NATIONAL ORGANIZATION OF LIFE AND HEALTH INSURANCE GUARANTY ASSOCIATIONS, Herndon, Virginia;  Stephen Goldberg, JORDEN, BURT & BERENSON, Washington, D.C.;   James H. Fleming, SEYFARTH, SHAW, FAIRWEATHER & GERALDSON, San Francisco, California, for Amicus Curiae National Association.  Thomas S. Wil
Before MURNAGHAN, MICHAEL and MOTZ, Circuit Judges.
OPINION
PER CURIAM:

1
This declaratory judgment action arises from a dispute over whether Plaintiff/Appellant, The North Carolina Life and Accident and Health Insurance Guaranty Association, has the responsibility under North Carolina law to stand behind certain "guaranteed investment contracts" (GICs) issued by the insolvent Executive Life Insurance Company of California to two North Carolina-based employee benefit plans.  The GICs "guaranteed" a high rate of interest, and Executive Life invested heavily in junk bonds to meet its obligations under the GICs.

I.

2
Defendants Alcatel Network Systems, Inc. and RJR Nabisco, Inc. sponsor employee benefit (pension) plans for their employees.  About 600 North Carolina residents are beneficiaries under the Alcatel plan, and about 7,800 North Carolinians are beneficiaries under the RJR Nabisco plan.  These plans are administered in part by committees of current and former officers and employees of the two companies.  In addition, defendant First Union National Bank of North Carolina is trustee of the Alcatel plan, and defendant Wachovia Bank of North Carolina, N.A. is trustee of the RJR Nabisco plan.  Bankers Trust Company of California is alleged to have served as trustee of both plans.

3
The Guaranty Association is required by North Carolina law to cover certain obligations owed to North Carolina residents by insolvent insurance companies.  All insurers doing business in North Carolina are required to be members of the Guaranty Association.

4
In the late 1980s the Alcatel and RJR Nabisco pension plans invested approximately $32 million in GICs issued by Executive Life.  Executive Life became insolvent in 1991, and the company was placed into conservatorship in California.  The North Carolina Guaranty Association (as well as other state guaranty associations) agreed to participate in a Plan of Rehabilitation that was approved in 1993 by the Los Angeles County Superior Court.  Under the Plan of Rehabilitation, Executive Life creditors (such as life insurance policy beneficiaries and purchasers of annuities) will be paid some portion of their claims.

5
The Alcatel and RJR Nabisco pension plans chose to opt out of the California Plan of Rehabilitation.  Instead, they initiated proceedings before the North Carolina Department of Insurance in an effort to force the Guaranty Association to assume in full Executive Life's liabilities under the GICs.  Those proceedings are pending currently.

6
Several important state law coverage questions should be decided in the North Carolina administrative proceedings.  One question is whether these Executive Life GICs are "covered policies" or "covered annuities" within the meaning of the North Carolina Guaranty Act.  Another question is whether, as a matter of North Carolina law, the plans' decision to opt out of the California Plan of Rehabilitation precludes them from asserting their rights under the North Carolina Guaranty Act.1  Still another question is whether the North Carolina Guaranty Act's limitation of coverage to $300,000 applies to each plan, or whether that limitation applies to each individual beneficiary under each plan.

7
The Guaranty Association filed a declaratory judgment action in the United States District Court for the Eastern District of North Carolina, seeking to determine its liability under North Carolina law for the Executive Life GICs.  The Guaranty Association also asserted ERISA claims against the plan administrators and trustees, alleging that their decision to purchase GICs was a breach of fiduciary duty and that if the Guaranty Association is obligated to assume liability under the GICs, the Association would have subrogation rights against the plan administrators and trustees.  The district court dismissed the action.  First, relying primarily on Burford v. Sun Oil Co., 319 U.S. 315 (1943), and Brillhart v. Excess Ins. Co., 316 U.S. 491 (1942), the district court abstained from deciding the state law coverage issues because of the pending administrative proceedings in North Carolina.  Second, the district court held that the Guaranty Association did not currently have standing to bring the ERISA claims.  The Guaranty Association appeals.2

II.

8
After considering the record in this case, the briefs of the parties and of amici, and the oral arguments of the parties and of one amicus, we are of the opinion that the judgment of the district court should be affirmed.  Accordingly, we affirm on the reasoning of the district court.  See The North Carolina Life & Accident & Health Ins. Guaranty Ass'n v. Alcatel Network Systems, Inc., 876 F.Supp. 748 (E.D.N.C.1995).

9
AFFIRMED.

1
 The defendants claim that the effect of the opt-out decision is not before the North Carolina Department of Insurance.  The hearing officer responsible for this case has said, however, that any relevant issue, including opt-out, will be dealt with if raised

2
 We deny the defendants' motion to dismiss the appeal of the district court's dismissal of the state law coverage claims


                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 13-4480

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DONNELL DEAN BENSON, a/k/a Dizzy,

                Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (5:11-cr-00122-D-1)

Submitted:   January 30, 2014             Decided:   February 14, 2014

Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dhamian A. Blue, BLUE STEPHENS & FELLERS LLP, Raleigh, North
Carolina, for Appellant.     Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Donnell       Dean    Benson           appeals     his     conviction       and

sentence for conspiracy to distribute and to possess with intent

to   distribute    more    than    280    grams       of     cocaine    base   and     five

kilograms of cocaine, in violation of 21 U.S.C. § 846 (2012).

Benson pled guilty pursuant to a written plea agreement and was

sentenced     to   372     months’       imprisonment          and     five    years    of

supervised release.        On appeal, counsel for Benson filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

that there are no meritorious issues for appeal in light of

Benson’s waiver of his right to appeal.                       Benson did not file a

supplemental pro se brief, despite notice of his right to do so.

The Government elected not to file a response to the Anders

brief.

            Although       counsel       is        correct     that     Benson’s       plea

agreement contained an appellate waiver, the Government has not

sought to enforce the waiver in this case.                             Accordingly, we

conduct a review of the record as required by Anders.                                  See

United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007)

(“If an Anders brief is filed, the government is free to file a

responsive brief raising the waiver issue (if applicable) or do

nothing,    allowing      this    court       to    perform    the     required    Anders

review.”).

                                              2
            In accordance with the requirements of Anders, we have

examined the entire record and have found no meritorious issues.

We therefore affirm the district court’s judgment.                              This court

requires that counsel inform Benson, in writing, of the right to

petition    the    Supreme      Court   of       the    United      States     for   further

review.     If     Benson      requests      that       a   petition      be    filed,    but

counsel believes that such a petition would be frivolous, then

counsel    may    move    in    this    court      for      leave    to   withdraw       from

representation.      Counsel’s motion must state that a copy thereof

was served on Benson.

            We dispense with oral argument because the facts and

legal    contentions      are    adequately            presented     in   the    materials

before    this    court   and    argument         would     not     aid   the   decisional

process.

                                                                                AFFIRMED

                                             3