State v. Kelly

• Decision Date: 25 October 2006
• Docket Number: No. PD-1136-05.,PD-1136-05.
• Parties: The State of TEXAS v. Evon KELLY, Appellee.
• Court: Texas Court of Criminal Appeals

204 S.W.3d 808

The State of TEXAS v. Evon KELLY, Appellee.

No. PD-1136-05.

Court of Criminal Appeals of Texas.

October 25, 2006.

Joseph V. Collina, Corpus Christi, for appellant.

Lance A. Watt, Asst. D.A., Corpus Christi, Matthew Paul, State's Attorney, Austin, for state.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., KEASLER, HOLCOMB and COCHRAN JJ., joined.

The issue in this case is whether the Court of Appeals misapplied the appellate standard of review in reversing the trial court's order granting appellee's motion to suppress. We will affirm the judgment of the Court of Appeals.

At approximately 8:00 a.m. on March 5, 2001, appellee and her minor son were involved in an accident in a car that appellee was driving. They were taken to a hospital emergency room for emergency medical treatment. An emergency-room technician/phlebotomist (Gosson) drew appellee's blood for medical treatment purposes. Hospital testing of this blood indicated that appellee's blood-alcohol concentration was above the legal limit. Soon after this, the police came to the emergency room and asked appellee for a specimen of her blood. She refused. Several days later, the State obtained appellee's hospital blood-test results through a grand-jury subpoena.

On May 5, 2001, an information was filed charging appellee with DWI. On May 14, 2003, appellee filed a motion to suppress her hospital blood-test results. This motion alleged that the "use of the results of testing on [appellee's] blood is not authorized by law and violates [appellee's] Federal and State constitutional rights."¹ The only factual claim that appellee made in her motion to suppress was that Gosson drew appellee's blood without appellee's "effective and informed consent."

The trial court held a hearing on appellee's motion to suppress on July 31, 2003. At the beginning of this hearing, appellee abandoned any claim that Gosson obtained her blood in violation of the Fourth Amendment and that the Fourth Amendment's exclusionary rule, therefore, excluded her hospital blood-test results. Instead, she claimed that Gosson assaulted her in the emergency room when he drew her blood for medical treatment purposes without her consent,² and that her hospital blood-test results, therefore, should be suppressed under our state-law exclusionary rule in Article 38.23(a), TEX.CODE CRIM. PROC., which requires exclusion of evidence that is "obtained" in violation of the law.³ Appellee explained to the trial court:

[THE DEFENSE]: The law states that the hospital — if they're not being directed by police officers to draw blood, the police—the hospital workers have to have consent of the person who is being treated to draw blood; otherwise, unless there's been life-threatening injuries or unless they're incoherent or unable to consent, they have to have consent; otherwise, it's an assault, and it's excludable under 38.23 of the Code of Criminal Procedure.

* * *

The way it occurred in this case and the way we're prepared to develop, Judge, is there was an automobile accident. My client was taken to the hospital. She did not give consent for a blood draw. I believe her husband gave consent,[⁴] but she did not give consent for a blood draw, but they just took blood from her. She did give consent later on for a surgical procedure [to treat a collapsed lung] but not to the blood draw. And—and if—I'll show the Court our cases. Judge, in Hailey the situation was almost identical, Judge. That—that contains not only Hailey but also the cases that are cited in Hailey. In Hailey the police took a guy who had been involved in an accident to the hospital. They wanted him tested for possible alcohol poisoning. The Defendant refused to permit the blood draw. The hospital employee took it anyway, and the Court held that that was an assault and it was excludable under 38.23. Because the— 38.23, the exclusionary rule, says the actions of a peace officer or other individual if they commit an illegal act to obtain evidence, then it's excludable.

* * *

Okay. So we're not talking about a Fourth Amendment seizure. And, in fact, if you look at the Hailey case, it specifically addresses that issue, and it says, "Look, under the Fourth Amendment of the Constitution of the United States it would be admissible, but under 38.23 and under the laws of the State of Texas we can be more cautious than the United States Constitution." And 38.23 says that if the State or any other person illegally seizes the evidence, then it's not admissible. If you look at the J. Johnson case, that case is a Court of Criminal Appeals En Banc case in a capital murder case which you know there's never any good law out for a Defendant in a capital murder case where they suppressed evidence that was taken from the scene by private citizens. And they said, "Look, 38.23 says other people —" plain reading of the statute says nobody else — I mean, that that's illegal. It's basically a theft and so it's suppressed, and they suppressed this in a capital murder case. What happened in this case is there's a car wreck, she's taken to the hospital, she's alert as the medical records and the ambulance records that are—that have been filed with the Court shows. She is alert and oriented. She is answering questions. If you look at the neurological scale she makes a 15 on a scale of 15 as far as being oriented and able to answer questions and spontaneous. They take her in. Her husband signs a consent to treatment. She doesn't sign it. So once she doesn't sign that consent to treat, and I think we have two statutes, Judge, on—and these may be what the Court was referring to, consent for medical care under 773.008 of the Texas Health & Safety Code is a consent for emergency care and outlines that they have [sic] to be consent unless an individual is unable to communicate because of injury, accident, illness or is unconscious and suffering from what appears to be life-threatening injuries or illness, so it's conjunctive, meaning all of those things have to be there. 313.004 is consent for medical treatment in a non-emergency situation but basically has the same language. If an adult patient in a hospital or nursing home is comatose, incapacitated, or otherwise mentally or physically incapable of communication, an adult surrogate from the following list can consent. The problem is under the State's own records that they have admitted into court, [appellee] was alert. She was conscious. She responded to questions appropriately. She was able to answer questions about her medical history. And I can direct the Court—I have tabbed some of these things for the Court to see. The first one is one of their records talking about her neurological, and it has a scale over here on how well she was oriented and the questions that they asked her. Let's see. The second one also talks about being alert. The GC scale is 15. That's the neurological scale. That she is cooperative. That she is not drowsy. She is not comatose and that [sic] she is not disoriented. And this is all on this second page in the medical records that the State has offered to you. The consent is also in here, and I'm sure I marked it, and I can find it for the Court, but it is—here it is. It's signed by Mr. Kelly, William Kelly.

Whether appellee consented to Gosson's blood draw was the only factual issue litigated at the suppression hearing. Gosson testified at this hearing that he obtained appellee's consent to draw her blood and that he would not have drawn her blood without her consent.

Q. [PROSECUTION]: Can you please describe the procedure as to how you went about drawing [appellee's] blood on that day?

A. [GOSSON]: First, I obtained the orders on meditech, which is a set of orders that tells us the type of blood draw to draw, and I went to the patient's room after obtaining the necessary materials that are needed for that blood draw and I identified myself to the patient, and I took her arm which had an arm band on it, and I made sure that the arm band and the meditech orders matched, that her name matched on the meditech orders, and I told her what my job title was, what I needed to do, and asked for a consent to draw her blood.

Q. Did you obtain that consent?

A. I obtained her consent.

Q. She didn't tell you "No, you can't have my blood"?

A. I wouldn't have drew [sic] it.

Q. Okay.

A. She didn't tell me no.

Q. If she had told you you can't draw her blood you indicated that you wouldn't have done it. What would you have done after that?

A. If she had stated that I could not obtain her blood from her I would have told her that's okay. I wouldn't have drew [sic] her blood. I would have left. I would have reported that to the nurse and, you know, that's all I can do.

On cross-examination, Gosson testified that appellee did not refuse to let him draw her blood which he interpreted to be consent.

Q. [THE DEFENSE]: All right. So when you're talking about consent, she merely acquiesced and she didn't withdraw or recoil, is that true—correct?

A. [GOSSON]: She did not refuse.

Q. So she didn't affirmatively refuse?

A. Correct, she didn't.

Q. That's your testimony here today?

A. Correct.

Q. And you're interpreting that lack of refusal to be consent?

A. Yes, sir.

When called by the defense to testify at the suppression hearing, appellee initially testified that she did not recall consenting to Gosson's blood draw. She eventually testified that she did not consent to this blood draw, which caused her physical pain.

Q. [THE DEFENSE]: Did they ever ask you for consent to do that?

A. [APPELLEE]: Not that I recall, no.

Q. When they drew the sample were you conscious?

A. Yes, I was.

Q. Were you aware of your circumstances?

A. Yes.

Q. Were you able to answer questions of people who were treating you?

A. Yes.

Q. Do you recall any—any person asking you whether or not you gave consent or approval for the blood draw?

A. No, I do not.

Q. Okay. And...