Cole v. State

• Decision Date: 18 December 2014
• Docket Number: No. 06–13–00179–CR,06–13–00179–CR
• Citation: 454 S.W.3d 89
• Parties: Steven Cole, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

454 S.W.3d 89

Steven Cole, Appellant

v.The State of Texas, Appellee

No. 06–13–00179–CR

Court of Appeals of Texas, Texarkana.

Submitted: September 24, 2014

Decided: December 18, 2014

Discretionary Review Granted April 22, 2015.

Ebb B. Mobley, Attorney at Law, Longview, TX, for appellant.

Zan Colson Brown, Assistant District Attorney, Longview, TX, for appellee.

Before Morriss, C.J., Carter and Moseley, JJ.

OPINION

Opinion by Justice Carter

Steven Cole drove a Ford F–250 through downtown Longview, Texas, at 10:20 p.m., ran a red light, and collided with a Toyota Tundra driven by Jim Hightower. Witnesses described the collision as an explosion. Hightower died instantly, and the Toyota caught fire and burned. Cole admitted that he had taken methamphetamine that night. Police attempted to obtain a voluntary blood sample from Cole, but he refused. In accordance with Texas statutory law, a nurse obtained a sample of Cole's blood, which contained methamphetamine and amphetamine. Cole moved to suppress evidence pertaining to the blood specimen claiming that the specimen was seized without a warrant, consent, or exigent circumstances. The trial court found that exigent circumstances existed and admitted the blood test into evidence. A jury found Cole guilty of intoxication manslaughter and assessed a life sentence.¹

Cole argues that the trial court erred in denying his motion to suppress the evidence obtained through a warrantless, nonconsensual blood draw. We find that no exigent circumstances existed to justify the warrantless blood draw and reverse the judgment and remand to the trial court for further proceedings.

I. Factual Background

This collision occurred around 10:20 p.m., December 1, 2011, in downtown Longview, Texas. Several witnesses testified that Cole was speeding just prior to impact. Hightower was killed in the crash, and when emergency responders arrived, Hightower's Toyota was engulfed in flames. In order to remove Cole from his truck, police officers had to break out the rear window of the truck and pull him out. Prior to the arrival of emergency medical personnel, Officer Audrey Wright arrived on the scene and spoke briefly with Cole. Cole stated his address was on Texas Street, but he did not know where Longview was and had no idea why he was in Longview. Paramedics examined Cole, and he was suffering pain “all over,” specifically in the chest. He also had lacerations to his hands. During the examination, Cole told one of the paramedics that he had taken two hits of methamphetamine that night. Cole was taken by ambulance to Good Shepherd Hospital. During the ambulance ride, Cole again indicated that he had taken methamphetamine that night, even commenting that he was “getting too old for this shit,” apparently referring to methamphetamine.

Being on call that week and also being an accident investigator, Longview Police Officer Jeremy Higginbotham was called to the scene of the accident shortly after it occurred. Higginbotham arrived at approximately 11:00 p.m. After examining the vehicles involved, taking measurements, and making calculations, Higginbotham estimated that Cole was driving about 110 miles per hour when he collided with the Toyota Tundra. Higginbotham left the scene at approximately 2:00 a.m. and went to the police station to complete his initial report and some other documentation. He returned to the scene around 3:45 a.m., when the trucks involved were being loaded onto wreckers.

Officer Wright accompanied Cole to the hospital, and she communicated, both directly and through another officer, with Higginbotham and told him that Cole had admitted taking methamphetamine and that he was “tweaking,” making involuntary movements, mumbling to himself, and not making any sense.² Wright was told to read the DIC–24 form, give Cole his statutory warnings, and obtain a blood sample. Wright gave Cole the warnings, and Cole was arrested at 11:38 p.m. Cole did not consent to having his blood drawn, and at 12:20 a.m., his blood was drawn involuntarily, pursuant to the mandatory blood-draw statute. Wright testified that, while she was reading him the warnings, he repeatedly interrupted her saying that he was not drunk but rather that he had taken methamphetamine.

About a dozen officers were working the accident scene and the surrounding area. Due to the accident, the officers on the scene had to block traffic at the intersection where the accident occurred as well as nearby intersections. The fire department was also on the scene to deal with the burning Toyota. Higginbotham testified that all available officers were performing necessary functions either at the scene or at the hospital with Cole and that there was not an officer available to pursue a warrant for Cole's blood.

Justin Schwane, a toxicological chemist at Dallas County Southwestern Institute of Forensic Science, tested Cole's blood sample. The test revealed that Cole's blood had a 0.2 level of amphetamine and a 0.23 level of methamphetamine. Schwane testified that that level of methamphetamine in Cole's blood “would be at the very high end of a therapeutic range” but that, in terms of other drug levels, this was a “moderate dose.” That level of methamphetamine could cause intoxication, but he could not say with 100 percent certainty that Cole was intoxicated.

II. Admissibility of Evidence Obtained Through the Warrantless Blood Draw

At trial, Cole moved to suppress the evidence obtained through the warrantless blood draw. The State argued that there were exigent circumstances negating the need for a search warrant.³ After the issue was addressed during the voir dire of Higginbotham—the officer in charge of the accident scene—the trial court made detailed findings, denied Cole's motion, and admitted evidence regarding the results of the blood test. In his first point of error, Cole contends that the trial court erred in denying his motion to suppress because the State failed to sufficiently “establish exigent circumstances to justify a warrantless[,] nonconsensual blood draw.”

A. Standard of Review

We review a trial court's ruling on a motion to suppress under a bifurcated standard. Vasquez v. State, 324 S.W.3d 912, 918 (Tex.App.–Houston [14th Dist.] 2010, pet. ref'd) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) ). The trial court is the sole finder of fact and is free to believe or disbelieve any or all of the testimony presented at a suppression hearing. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.Crim.App.2007). When, as here, there are no explicit findings of historical fact, we review the evidence in the light most favorable to the trial court's ruling, assuming that the trial court made implicit findings of those facts that are supported by the record and that buttress its ruling. Carmouche v. State, 10 S.W.3d 323, 327–28 (Tex.Crim.App.2000). We will uphold the court's ruling if it is correct under any theory of law applicable to the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005).

Although we “give almost total deference to [the] trial court's express or implied determination of historical facts,” we “review de novo the court's application of the law of search and seizure to those facts.” Shepherd v. State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008). To be sure, the reasonableness of a seizure is a fact-sensitive inquiry, but it is “ultimately a question of substantive Fourth Amendment law.” Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004). Therefore, we assume that the trial court made findings of historical fact favorable to its ruling, but whether those facts amount to a reasonable seizure is a question of law that we review de novo. See id.

B. Requirement of a Search Warrant

The Fourth Amendment to the United States Constitution provides, “The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue” unless certain requirements are met. U.S. Const. Amend. IV ; see also Tex. Const. art. I, § 9. This right “proscribes all unreasonable searches and seizures,” Gonzales v. State, 369 S.W.3d 851, 854 (Tex.Crim.App.2012), and its “basic purpose ... is to safeguard the privacy and security of individuals against arbitrary invasion by government officials,” Haynes v. State, 475 S.W.2d 739, 741 (Tex.Crim.App.1971).

“Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, [the Supreme Court of the United States] has inferred that a warrant must generally be secured.” Kentucky v. King, –––U.S. ––––, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). Thus, “it is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’ ” Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ); Gonzales, 369 S.W.3d at 854. “ ‘Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.’ ” Bray v. State, 597 S.W.2d 763, 765 n. 1 (Tex.Crim.App. [Panel Op.] 1980) (quoting McDonald v. United States, 335 U.S. 451, 455, 69 S.Ct. 191, 93 L.Ed. 153 (1948) ). The warrant requirement has been described as one of “the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.” Johnson v. United States, 333 U.S. 10, 17, 68 S.Ct. 367, 92 L.Ed. 436 (1948).⁴

“The exceptions to the rule that a search must rest upon a search warrant have been jealously and carefully drawn....” Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). Those exceptions include “voluntary consent to search, search under exigent circumstances, and search incident to arrest.” McGee v. State, 105...