Douds v. State, No. 14–12–00642–CR.

• Court: Court of Appeals of Texas
• Writing for the Court: Justices CHRISTOPHER
• Citation: 434 S.W.3d 842
• Parties: Kenneth Lee DOUDS, Appellant v. The STATE of Texas, Appellee.
• Docket Number: No. 14–12–00642–CR.
• Decision Date: 05 June 2014

434 S.W.3d 842

Kenneth Lee DOUDS, Appellant
v.
The STATE of Texas, Appellee.

No. 14–12–00642–CR.

Court of Appeals of Texas,
Houston (14th Dist.).

June 5, 2014.

[434 S.W.3d 844]

Charles Dewitt Adams, Pearland, for Appellant.

Jeri Yenne, Angleton, for State.

Before the court en banc.

EN BANC OPINION
J. BRETT BUSBY, Justice.

Appellant Kenneth Lee Douds was charged with driving while intoxicated.

[434 S.W.3d 845]

After the trial court denied appellant's motion to suppress his blood specimen drawn without a warrant and the results of a blood alcohol test of the specimen, he pleaded guilty to a reduced charge as part of a plea agreement. In this appeal, he challenges the suppression ruling on both statutory and constitutional grounds. Having granted appellant's motion for reconsideration en banc, we hold that the taking of appellant's blood was an unreasonable warrantless seizure in violation of the Fourth Amendment. We therefore reverse the judgment and remand for further proceedings consistent with this opinion.

Background

On May 16, 2010, Officer Andre Tran of the Pearland Police Department responded to a call regarding a car accident that had been reported at 2:33 a.m. Two cars were involved in the accident, and the occupants of both cars were friends. The appellant and his wife were in one car, and appellant was driving when he failed to stop and struck the other car from behind. Officer Timothy Niemeyer and Pearland Emergency Medical Services (EMS) were already at the scene when Officer Tran arrived at 2:36 a.m. and began investigating the crash.

Officer Niemeyer had called Pearland EMS to address injuries at the scene. Appellant's wife complained of chest and rib pain and said she could not move her right arm, but she refused to be taken to the hospital by Pearland EMS. Video from the dashboard camera of Officer Tran's police car indicates that Pearland EMS left the scene at 2:54 a.m. Officer Tran suggested to the driver of the other car that appellant's wife needed to be checked out and possibly have some X-rays taken. The driver replied “we're taking her,” which Officer Tran testified he understood to mean she would be taking appellant's wife to a hospital or emergency center.

After conducting field sobriety tests, which reinforced his initial suspicion that appellant was intoxicated, Officer Tran placed appellant under arrest at 3:19 a.m.¹ The dashboard camera video indicates that Officer Tran and appellant left the scene at 3:29 and arrived at the Pearland Police Department at 3:33 a.m. One of the other officers stayed at the scene to inventory appellant's vehicle and handle towing.²

At the police department, Officer Tran read a statutory warning to appellant regarding his ability to refuse to supply a breath sample voluntarily. The DWI Specimen Report reflects that Officer Tran delivered the warning at 3:45 a.m. When Officer Tran requested a breath sample, the appellant refused to consent. At that point, “based on the total circumstances” and his belief that appellant's wife was hurt and needed medical attention, Officer Tran took the appellant to a local medical center, Texas Emergency Care, for a mandatory blood draw. Officer Tran testified his decision to obtain a blood draw was based on his reasonable belief that section 724.012 of the Texas Transportation Code had been satisfied and allowed him to do so.

The DWI Specimen Report lists the time of extraction as 4:45 a.m.—one hour after Officer Tran delivered the statutory

[434 S.W.3d 846]

warning, 76 minutes after the pair left the scene of the accident, at least 86 minutes after Officer Tran arrested appellant, and more than two hours after officers arrived at the scene. Nothing in the record suggests that any officer attempted to obtain a warrant authorizing the blood draw at any point. Indeed, the evidence does not mention a warrant at all.

Appellant was charged by information with Class A misdemeanor driving while intoxicated. SeeTex. Penal Code Ann. §§ 49.04(a), 49.09(a) (West Supp.2013). Appellant filed a motion to suppress the specimen taken during the mandatory blood draw and the results of a blood alcohol test of the specimen. After holding an evidentiary hearing and considering briefing by both parties, the trial court signed an order denying appellant's motion to suppress. Appellant then pleaded guilty to a Class B misdemeanor as part of a plea agreement, and the trial court certified his right to appeal. In this appeal, appellant challenges the trial court's denial of his motion to suppress, contending that the court's ruling was erroneous on both statutory and constitutional grounds.

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 fact supported in the record 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 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.

Analysis I. The record supports the trial court's implied finding that the statutory requirements for a mandatory blood draw were met.

In his first issue, appellant contends the trial court should have granted his motion to suppress because Officer Tran did not have statutory authority to require the taking of a blood specimen. Officer Tran testified that he ordered the mandatory blood draw under the authority of section 724.012 of the Texas Transportation Code. In relevant part, that section provides:

(b) A peace officer shall require the taking of a specimen of the person's breath or blood under any of the following circumstances if the officer arrests the person for [driving while intoxicated] and the person refuses

[434 S.W.3d 847]

the officer's request to submit to the taking of a specimen voluntarily:

(1) the person was the operator of a motor vehicle or watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident:

* * *

(C) an individual other than the person has suffered bodily injury and has been transported to a hospital or other medical facility for medical treatment.

Tex. Transp. Code Ann. § 724.012(b) (West 2011).

Appellant argues that the evidence provides no “support for the possible assertion that anyone had ‘been transported to a hospital or [other] medical facility for medical treatment.’ ” This argument misstates the statutory requirement. The Transportation Code does not require that someone actually be transported to a medical facility for medical treatment; rather, it requires that the police officer ordering the mandatory blood draw reasonably believe that an injured individual has been transported to a medical facility for medical treatment. See id.; see also Mitchell v. State, 821 S.W.2d 420, 424–25 (Tex.App.-Austin 1991, pet. ref'd) (construing predecessor of section 724.012 to authorize involuntary blood sample, although accident victim survived, because officer could reasonably have believed victim “was likely to die”). Therefore, the key issue is whether Officer Tran reasonably believed that appellant's wife had been transported to a medical facility for treatment.

An officer's reasonable beliefs are issues of fact. See, e.g., Holmes v. State, 248 S.W.3d 194, 200 (Tex.Crim.App.2008) (identifying whether officer reasonably believed defendant was holding a garden hoe, was involved in a disturbance, and was running away as questions of fact); Hayes v. State, 728 S.W.2d 804, 808 (Tex.Crim.App.1987) (“Whether the appellant's beliefs were reasonable and justifiable ... were fact questions ....”). Because the trial court denied appellant's motion to suppress, we assume that the trial court implicitly determined that Officer Tran possessed the reasonable belief required to support a mandatory blood draw as long as that determination is supported by the record. See Ross, 32 S.W.3d at 855.

Although there was evidence that appellant's wife and her friends intended to go at least initially to Santa Fe, when Officer Tran stated that appellant's wife was “not OK” and should get checked out and possibly have X-rays taken, the driver of the other vehicle replied “we're taking her.” Officer Tran testified he understood this statement to mean the friends would be taking appellant's wife to a hospital or emergency center. This evidence supports a determination that Officer Tran reasonably believed appellant's wife had been transported to a medical facility to treat her injuries.³See Wiede, 214 S.W.3d at 25; Ross, 32 S.W.3d at 855. Therefore, the trial court could conclude that section 724.012 required Officer Tran to...