Darland v. State

• Decision Date: 20 June 1979
• Docket Number: Nos. 57521,No. 1,57522,s. 57521,1
• Citation: 582 S.W.2d 452
• Parties: Robert Michael DARLAND, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 452

582 S.W.2d 452

Robert Michael DARLAND, Appellant, v. The STATE of Texas, Appellee.

Nos. 57521, 57522.

Court of Criminal Appeals of Texas, Panel No. 1.

June 20, 1979.

Philip S. Green, Houston, for appellant.

Carol S. Vance, Dist. Atty., Calvin A. Hartmann, and Frank Harmon, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal from two convictions for involuntary manslaughter. ¹ The jury assessed appellant's punishment in each case at three years confinement.

While driving Interstate Highway 610 in Houston on September 25, 1976 at approximately 12:30 a. m., Kelly Bitner and his fiancee observed appellant's then new 1977 black truck pass them headed south. The couple lost sight of the truck at the San Felipe overpass, but on coming over a rise they saw sparks at the far right side of the highway, and then observed appellant's truck careening across the freeway toward the left guard rail. An old pickup truck which had apparently been parked on the shoulder of the road because of a flat tire, rested off the right shoulder in the grass in a position 180 degrees from the way it had been parked on the shoulder. Two people were killed as a result.

Appellant's three grounds of error attack the admission of the results of an analysis made of his urine, a sample of which was obtained without appellant's consent a few hours after the collision.

Outside the presence of the jury, the following testimony was developed: Officer K. D. McGinn, a Houston Police Department accident investigator, obtained information at the collision scene which led him to seek appellant who had been taken to Ben Taub Hospital. On confronting appellant McGinn asked what had happened. Appellant replied, "I don't know what happened. I don't even know what I hit." McGinn testified that he could smell a strong odor of alcohol on appellant; from this, coupled with observations of appellant's walk, slurred speech and inability to sign his name on a consent to treatment form, McGinn formed an opinion that appellant was intoxicated.

McGinn talked with appellant as he lay on a stretcher; appellant said he needed to go to the restroom. McGinn checked with the nurse in charge who said appellant could do so, and McGinn obtained a styrofoam cup from the nurse as appellant got down from the stretcher. McGinn accompanied appellant into the restroom; after appellant had begun to urinate, McGinn placed the styrofoam cup in front of appellant so as to collect a specimen of urine. According to McGinn, appellant was aware of what the officer was doing and neither affirmatively consented nor objected in any way.

McGinn then left the hospital in order to deliver the specimen to the Houston Police Department where he left it in a crime lab lock box. Approximately 21/2 hours later McGinn and another officer returned to Ben Taub Hospital in order to place appellant under arrest and confine him in the county jail.

After the trial court ruled McGinn's testimony admissible and it was elicited before the jury, the State called a police department chemist and toxicologist who testified that analysis of appellant's urine revealed a .15% Blood alcohol content. ²

Appellant now specifically complains that "seizure" of the urine sample from him was without consent, and because he was under arrest at the time of the non-consensual "seizure," Art. 6701L -5, Section 1, V.A.C.S. ³ prohibited the admission into evidence of the results of the analysis.

Appellant correctly states that Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), ⁴ and this Court's opinion on rehearing in Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972), "have removed the constitutional impediment of consent as to the taking of a blood test or other chemical tests;" however, "this does not obviate the necessity of compliance with statutory provisions, even though statutory requirements may not now be constitutionally required." Olson, at 772.

Our statutory prohibition ⁵ against admission of non-consensual chemical analysis for blood alcohol content other than by breath analysis, has been held "by its explicit terms (to apply) only to persons who have been arrested." Bennett v. State, 522 S.W.2d 507, 509 (Tex.Cr.App.1975). Therefore, the dispositive issue presented by this ground is whether appellant was under arrest at the time Officer McGinn obtained the specimen of his urine.

Appellant urges that the surrounding facts and circumstances illustrate that he was restrained in his liberty of movement at the hospital, and therefore, an arrest had been effected notwithstanding the fact that appellant was not actually taken into custody. There is, however, nothing in the record before us which supports this assertion.

Officer McGinn testified that he neither restrained appellant in any way, nor instructed any other officer to guard appellant during McGinn's 2 1/2 hour absence from the hospital. According to McGinn, no one would have stopped appellant had he attempted to leave at anytime before he was taken physically into police custody. McGinn testified that he did nothing to compel the collection of the sample of appellant's urine. Appellant testified on cross-examination that the first time he saw McGinn was when he and Officer D. H. Mays took appellant into custody at approximately 4:30 a. m. Appellant denied that McGinn had earlier questioned him about what had happened at the scene of the collision, and further denied that McGinn had either accompanied him to the restroom or obtained any of his urine.

Under this state of facts, we hold that appellant was not under arrest, and evidence of the chemical analysis of the urine McGinn obtained without affirmative consent from appellant was admissible. Bennett, supra. This ground of error is overruled.

Appellant next contends that securing a urine sample from him without his consent constituted an unreasonable seizure under the Fourth Amendment ⁶ to the United States Constitution. The thrust of appellant's complaint is that Officer McGinn's actions were "unreasonable" under the circumstances in that the urine sample was not "taken by a physician in a hospital environment according to accepted medical practices" as blood had been extracted in Schmerber, supra, and thereafter approved by the Supreme Court. While appellant concedes that McGinn's actions did not involve an intrusion into his body, he nevertheless contends that they "did involve a collection of appellant's body fluids, which is arguably an extension of his body." Appellant further urges that "appellant's sanctity as a human being was violated by the search and seizure method which Officer McGinn utilized, (because) appellant never consented;" and finally, "appellant's constitutional right of privacy was violated by this unreasonable, involuntary seizure of his urine . . . where there were no extreme circumstances to warrant the intrusion."

A thorough review of the record before us reveals no written motion to suppress challenging the seizure of the urine on the ground now urged; nor did appellant offer any objection to the evidence based on a Fourth Amendment breach at either the time the State offered McGinn's testimony or the expert testimony concerning the analysis of the urine sample. Because a primary purpose of requiring timely specific objections is to apprise the trial court of a party's complaint and thereby afford the judge an opportunity to rule, ⁷ it is elementary that only those grounds which have been urged in the court below may be presented to this Court for appellate review. Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976). Appellant's failure to raise his Fourth Amendment claim at trial constitutes a waiver of that complaint. Writt v. State, 541 S.W.2d 424 (Tex.Cr.App.1976); Connally v. State, 492 S.W.2d 578 (Tex.Cr.App.1973).

Notwithstanding such waiver the record as a whole contradicts appellant's complaint that he was the victim of an invasion of privacy, establishment of which is a prerequisite to contest of the validity of a search and seizure. Kleasen v. State, 560 S.W.2d 938 (Tex.Cr.App.1978); see also, Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, Not by those who are aggrieved solely by the introduction of damaging evidence. (Emphasis supplied) Alderman, 394 U.S. at 171, 172, 89 S.Ct. at 965.

In addition to appellant's failure to make affirmative complaint of his subjection to an unreasonable search and seizure at trial, appellant's direct testimony was that McGinn neither accompanied him to the restroom nor procured any of his urine; restated, appellant denied that a search of his person or a seizure of his "body fluid" ever occurred.

Clearly, alleged injury incident to a search and seizure necessarily assumes that a search and seizure was conducted. Cf. Warren v. State, 565 S.W.2d 931 (Tex.Cr.App.1978) (wherein the rationale for denying the defense of entrapment to one who denies commission of the offense involved is stated as being that the defense of entrapment necessarily assumes that the act charged was committed). Appellant has accordingly failed to establish resultant injury to himself which would preclude the introduction of testimony against him gained as a result of the seizure he attacks on appeal. Cf. Hensley v. State, 494 S.W.2d 816 (Tex.Cr.App.1973). ⁸ Appellant's second ground of error is without merit.

Lastly, appellant contends that the non-consensual seizure of the urine sample from him was so offensive as to "shock...