Hailey v. State

• Decision Date: 25 September 2002
• Docket Number: No. 1437-01.,1437-01.
• Citation: 87 S.W.3d 118
• Parties: Bobby BAILEY, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

87 S.W.3d 118

Bobby BAILEY, Appellant, v. The STATE of Texas.

No. 1437-01.

Court of Criminal Appeals of Texas.

September 25, 2002.

Kelly R. Myers, Corsicana, for appellant.

Matthew Paul, State's Atty., Austin, for state.

OPINION

HERVEY, J., delivered the unanimous opinion of the Court.

In this case we decide that the Court of Appeals should not have reversed appellant's felony DWI conviction under a theory that appellant did not raise at trial or on appeal.

The evidence showed that appellant was the driver of a car involved in a traffic accident. Appellant appeared to be extremely intoxicated to the two police officers who arrived at the scene. At their request appellant blew into a portable breathalyzer instrument resulting in a reading of [.337] which was more than three times the legal limit. In similar situations, the police usually took the intoxicated person to jail, but, concerned that appellant was suffering from alcohol poisoning, the police transported appellant to a hospital instead. At the hospital, appellant refused a police request to submit a specimen of his blood for testing. A hospital worker later drew a specimen of appellant's blood which after testing indicated a blood-alcohol concentration of [454.24]. A [.400] level is usually fatal. The State later obtained the results of this blood-alcohol test through a subpoena.

During trial, appellant claimed that the results of his blood-alcohol test should have been suppressed, arguing that the blood drawn by the hospital worker constituted an unreasonable search and seizure by the police under the Fourth Amendment to the United States Constitution. Appellant's theory was that the blood was drawn at the request of the police and that the police used the hospital "as a way to still obtain a blood test from [appellant]."

Your Honor, first, like I say, we filed a motion to suppress, and it's basically our position that it was an illegal search. It was a search that was actually conducted by the State. Like I said from the officer it was Simmons's testimony that he had an opportunity to question [appellant] whether or not he wanted to take the [blood-alcohol] test. So, your Honor, it's, our position is that at that time [appellant] was not intoxicated or was able to understand and it was not, we're not under the doctrine of it was an emergency on [appellant's] safety. At that time [appellant] was able to respond and basically was mentally competent.

And it's, our position is that at that point the officer still, after [appellant] refused he used the hospital as a way to still obtain a blood test for [appellant].

The only testifying witnesses at the hearing on appellant's motion to suppress were the two police officers who observed appellant at the accident scene and transported him to the hospital. These officers testified that they did not request hospital personnel to draw appellant's blood after appellant refused their request for his blood. These officers also testified that appellant was transported to the hospital because of their concern that appellant was suffering from alcohol poisoning. The trial court denied appellant's motion to suppress after finding, among other things, that the "blood test was not taken as a result of the directive of any law enforcement officer" and that "it was reasonable for the hospital to obtain a blood sample and for (sic) testing based on the existing circumstances" of appellant's extreme intoxication.

Appellant's theory on appeal for suppressing the results of his blood-alcohol test bore little resemblance to the theory he presented at trial. Appellant's sole point of error on appeal presented a statelaw claim under the Texas Transportation Code asserting that appellant's blood was illegally seized because appellant did not consent to the taking of his blood by the police or any other person and because no one "die[d] as a result of the accident," which is one of the conditions for seizing someone's blood without their consent under Section 724.012(b), Texas Transportation Code. Appellant's brief in the Court of Appeals summarized his arguments as follows:

In summary, [appellant] was under arrest while he was in the hospital because his freedom was restricted and the DIC 24 [Texas Transportation Code statutory] warning had been read to him. Since he was under arrest, a sample of his blood could not be taken without his consent unless all the provisions of Section 724.012(b) were applicable. It is clear from the evidence that subsection (3) did not apply, therefore no blood could be taken from [appellant] without his consent. [Appellant] clearly did not consent to having his blood taken, therefore, the taking of his blood by the officer or any other person would be inadmissible under Article 38.23(a) of the Code of Criminal Procedure.¹

The 2-1 majority opinion of the Court of Appeals decided that the police did not seize appellant's blood in violation of the Fourth Amendment or the Texas Transportation Code because the hospital worker who drew appellant's blood "was not acting at the request of law enforcement." Hailey v. State, 50 S.W.3d 636, 639-40 (Tex.App.-Waco 2001, pet. granted) (not yet reported). The majority opinion, however, also decided that the results of appellant's blood-alcohol test should have been suppressed because the hospital worker's blood draw, without appellant's consent, constituted an unlawful assault. Id.² The dissenting opinion criticized the majority opinion for "reversing this case on a theory never argued by any party at any time." See Hailey, 50 S.W.3d at 641 (Gray, J. dissenting).

We exercised our discretionary authority to review the decision of the Court of Appeals. Specifically, we granted review to address the following questions:

1. Is it proper for an appellate court to reverse a trial court's judgment on a novel theory of law never presented to the trial court or raised on appeal, where that new theory does not implicate constitutional rights or fundamental fairness, and where the appellate court never gave the parties notice or the opportunity to be heard on that theory?

2. Does a hospital employee commit the crime of assault pursuant to Penal Code Section 22.01 by drawing blood from a patient for medical purposes?

3. Does Art. 38.23, C.C.P., require suppression of evidence obtained by a hospital employee who, without a request from law enforcement, drew a sample of the defendant's blood for medical purposes?

4. Did the...