State v. Comeaux

• Decision Date: 21 February 1990
• Docket Number: No. 3-88-091-CR,3-88-091-CR
• Citation: 786 S.W.2d 480
• Court: Texas Court of Appeals
• Parties: The STATE of Texas, Appellant, v. Pervis Joseph COMEAUX, Appellee.

Page 480

786 S.W.2d 480

The STATE of Texas, Appellant, v. Pervis Joseph COMEAUX, Appellee.

No. 3-88-091-CR.

Court of Appeals of Texas Austin.

Feb. 21, 1990.

Discretionary Review Granted

May 23, 1990.

Jim Mattox, Atty. Gen. and Ann Gray, Asst. Atty. Gen., Austin, for appellant.

Christopher M. Gunter, Fitzgerald, Meissner, Augustine & Gunter, Austin, for appellee.

Before SHANNON, C.J., and CARROLL and ABOUSSIE, JJ.

ABOUSSIE, Justice.

The State of Texas appeals the trial court's order granting appellee's motion to suppress evidence of his blood-alcohol test results. We will affirm the trial court's order.

On appeal, the State claims that the trial court erred by granting the motion because (1) appellee consented to the search, and (2) any search was private because it was not conducted by a state agent. The State discusses facts which the trial court allegedly "assumed," "found," and "felt," but the trial court did not file any findings of fact.

The trial court has broad discretion in ruling on pretrial matters and in determining whether evidence is admissible. Whether to suppress the results of a search is committed to the trial court's discretion. State v. Carr, 774 S.W.2d 379 380 (Tex.App.1989, no pet.); Gilmore v. State, 666 S.W.2d 136, 148 (Tex.App.1983, pet. ref'd). In reviewing a trial court's ruling on a motion to suppress evidence, the appellate court will not reverse that decision absent a clear showing that the trial court abused its discretion. Williams v. State, 535 S.W.2d 637, 639-40 (Tex.Cr.App.1976); Gilmore, 666 S.W.2d at 148. As the sole trier of fact at the hearing on the motion, the trial judge is free to believe or disbelieve all or any part of any witness's testimony. Taylor v. State, 604 S.W.2d 175, 177 (Tex.Cr.App.1980); Carr, 774 S.W.2d at 380; Hamilton v. State, 772 S.W.2d 571, 574 (Tex.App.1989, pet. ref'd). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Clark v. State, 548 S.W.2d 888, 889 (Tex.Cr.App.1977). The same rules necessarily apply in cases where the State appeals the trial court's adverse decision. Carr, 774 S.W.2d at 380. In the instant cause, the trial court granted the motion to suppress, and we are concerned only with whether it clearly abused its discretion in doing so. The reasons behind the trial court's exercise of its judgment will not create reversible error if the decision itself, regardless of any purported basis, did not exceed the limits of the court's discretion. Quinones v. State, 592 S.W.2d 933, 940 (Tex.Cr.App.1980).

On August 6, 1987, the State charged appellee Pervis Comeaux with the offense of driving while intoxicated on July 20, 1986. TEX.REV.CIV.STAT.ANN. ART. 6701L-1 (SUPP.1990)¹. Shortly before 2:00 a.m. on Sunday, July 20, 1986, a car collided with a van driven by appellee on Hamilton Pool Road in Travis County. The evidence suggests that, at the time of the accident, appellee and his passengers were returning from a party that they had catered, where they apparently had been working, cooking, and serving food and beverages. The driver of the car died at the scene. Appellee and his two passengers sustained injuries.

Department of Public Safety Trooper Chester L. Dixon arrived at the scene at approximately 2:12 a.m. Many volunteers and emergency medical personnel already were present. Dixon saw appellee, but did not approach him. Felicia Barron, one of appellee's passengers, told the officer that, while driving in an easterly direction, oncoming headlights suddenly appeared in their lane. Dixon's accident reconstruction confirmed that the deceased's car crossed the double yellow lane markers, entered the eastbound lane, and collided head-on with appellee's van. Dixon found no evidence to indicate any fault on appellee's part. Appellee later corroborated Barron's version of the events.

Appellee was taken to Brackenridge Hospital in Austin. Dixon continued his investigation at the scene. Among items on the ground that emergency personnel had removed from the van, Dixon found an ice chest containing two unopened cans of beer. No open or empty cans were discovered, and Dixon stated that he had no reason to suspect that appellee had consumed any alcohol or was in any way at fault. As part of his investigation, Dixon radioed the Department of Public Safety dispatcher to obtain a blood sample from appellee. City of Austin police officer Craig Jackson received the request while on duty at the hospital.

At the hospital, Dr. Peter Davidson examined appellee and ordered a blood sample to be drawn for testing to assist in diagnosis and treatment of appellee's injuries. Nurse Kay Mikus drew the sample at 3:43 a.m. The doctor did not order a blood-alcohol analysis for medical purposes because no need was indicated. Neither the doctor nor the nurse noted any signs of intoxication on appellee's chart.

After the blood had been drawn, Jackson requested that Mikus give him part of the sample for analysis. Jackson signed and gave the nurse a form entitled "Statutory Authorization Mandatory Blood Test Specimen." The form stated that Jackson had arrested appellee and was requesting a sample of blood pursuant to Tex.Rev.Civ.Stat.Ann. art. 6701l-5 (Supp.1990). Jackson had not spoken to appellee at that time, appellee was not under arrest, and Jackson had no reason to suspect appellee was intoxicated or was a criminal suspect.

When Dixon arrived at the hospital, Jackson gave him the blood sample. Dixon interviewed appellee at about 5:00 a.m. The State contends that appellee gave consent to the blood test during this interview. The Department of Public Safety later tested appellee's blood sample at Dixon's request and to his surprise reported a .17 level of blood alcohol concentration. Appellee eventually was charged with driving while intoxicated. At a pretrial hearing on March 24, 1988, the trial court granted appellee's motion to suppress the blood test results. The State perfected this appeal pursuant to Tex.Code Cr.P.Ann. art. 44.01 (Supp.1990).

In its first point of error, the State argues that appellee consented to the State's obtaining his blood sample for testing; therefore, the results of the test are admissible and should not have been suppressed. Because appellee was not under arrest, statutory consent was not required. See Article 6701l -5 (statute requires consent from one under arrest).

Both the United States and the Texas Constitutions prohibit unreasonable governmental search and seizure. Kolb v. State, 532 S.W.2d 87, 89 (Tex.Cr.App.1976). As a general rule, the taking of a blood sample is considered a search and seizure within the meaning of the Fourth Amendment to the United States Constitution, and Article I, Section 9, of the Texas Constitution. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833-34, 16 L.Ed.2d 908 (1966); Aliff v. State, 627 S.W.2d 166, 169 (Tex.Cr.App.1982); Escamilla v. State, 556 S.W.2d 796, 798 (Tex.Cr.Ap .1977). A search conducted without a warrant is per se unreasonable, subject only to a few limited exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Reyes v. State, 741 S.W.2d 414, 430 (Tex.Cr.App.1987). When the legality of the search is put in issue, the State has the burden to prove by clear and convincing evidence that a warrantless search falls within an exception. Valcarcel v. State, 765 S.W.2d 412, 414 (Tex.Cr.App.1989); Lalande v. State, 676 S.W.2d 115, 116 (Tex.Cr.App.1984). It is agreed that during the time in question, appellee was not under arrest and that no warrant for a search or for his arrest had been sought or obtained. Because there was no search warrant, any search conducted was per se unreasonable and, therefore, unconstitutional, unless the State proved it was permissible under an exception. Reyes, 741 S.W.2d at 430.

One exception to the rule requiring both a warrant and probable cause applies where the search is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); Juarez v. State, 758 S.W.2d 772, 776 (Tex.Cr.App.1988). If the State is relying on this ground to legitimate a warrantless search, it must prove by clear and convincing evidence that the consent was freely and voluntarily given. Reyes, 741 S.W.2d at 430; Lalande, 676 S.W.2d at 117. The consent must be positive and unequivocal, and police must not have employed duress or coercion, actual or implied, in obtaining permission to search. Reyes, 741 S.W.2d at 430; Meeks v. State, 692 S.W.2d 504, 509 (Tex.Cr.App.1985); Escamilla, 556 S.W.2d at 799. If the State proved that appellee consented to a search, any deficiencies would be cured, and the results of the search would be admissible. See Juarez, 758 S.W.2d 772; Reyes, 741 S.W.2d 414. Texas has adopted the "totality of the circumstances" test to determine whether consent to a search was voluntarily obtained. Reyes, 741 S.W.2d at 430; Meeks, 692 S.W.2d at 510. Thus, whether there was consent, and whether the consent was voluntary, are questions of fact to be determined under the totality of all circumstances. Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48; Juarez, 758 S.W.2d at 775; Dickey v. State, 716 S.W.2d 499, 504 (Tex.Cr.App.1986). In this instance, the fact was to be decided initially by the trial court from the evidence adduced at the hearing. Oliver v. State, 414 S.W.2d 679 (Tex.Cr.App.1967).

Jackson, Dixon, and Davidson testified at the hearing; appellee did not. Dixon testified that he first spoke to appellee at the hospital after Jackson gave him the blood sample. The emergency department was extremely busy and crowded. He went to the x-ray table where appellee was awaiting x-ray examination and began talking to him about the accident. It was approximately 5:00 a.m., three and one-half hours after the accident. Dixon testified that appellee's face was swollen, and that h...