*1 ESCAMILLA, Appellant, Eddie Texas, Appellee.
Thе STATE No. 53660. Appeals Texas. Court of Criminal May for Denied State’s Motion Nov. Steelman, Bryan,
Frank for appellant. McDonald, Jr., T. Atty. W. Dist. J. Bradley Smith, Dist. Atty., Bryan, Asst. Vollers, Atty., Jim D. and David S. State’s, McAngus, Atty., Austin, Asst. the State.
OPINION PHILLIPS, Judge. vehicle; burglary
The offense is V.T.C.A., punishment, enhanced under Pe- Code, 12.42(a), years. nal Sec. per In a curiam opinion delivered Janu- 12, 1977, ary appeal was dismissed be- show appellant’s record did not prior motion new trial was overruled pronouncement supplemen- of sentence. A transcript tal reveals the motion for new trial was overruled and the sentence was appeal is timely. therefore reinstated. among challenges, other sufficiency things, evidence and concerning the admission of evidence appellant. taken *2 7Q7 Tamez, lie witness, Appellant intoxication. was taken to complaining Bessie The arm, Bryan hospital the for treatment of his and went to Ted’s Place in testified she Fickey by he he cut a knife told Officer was p. m. June 1975. She about 10:00 him guys jumped another bar when some street, truck the parked pickup her across take his money. and tried to doors, purse and she her on locking the left p. to the 10:30 m. she returned seat. About of a investigation An the scene revealed the had the and noticed vent window truck leading complain- trail of blood from the it; missing, and purse a her was hole in dumpster a the corner. ant’s truck to on rock, the a blue glass on seat. there was patches four blood on the There were bandana, and polka dotted handkerchief or Williams, Witness forensic handkerchief. a inches were found in long a stick about 21 County Criminal serologist Dallas on side the The door the driver’s Investigation truck. testified the Laboratory, A, point type unlocked because the of a Rh could not be blood on the handkerchief was positive M&N, been broken off in the lock. and this was the same knife had type appellant’s. as further stat- blood She Veracruz, an Ted’s Roy employee of only percent ed nine population has the Place, he Tamez testified escorted Mrs. type. blood of flagged and down a pickup back to the then There were no lifted from fingerprints the police officer. While officer wаs pickup the truck and the contents of the information, saw down the Mr. Veracruz purse not recovered. complainant’s were appellant couple and a his friends enter appellant The offered no evidence at the the Club. He told the offi- Conquistador El guilt stage of the trial. might belong appel- cer handkerchief to the polka lant he had noticed a blue because on Detective Miller testified that October sticking appel- out of dotted handkerchief 3, 1975, he, appellant, attorney appellant’s 4:30 pocket about that afternoon lant’s attorney and the assistant district went to was in Place. Wit- appellant while Ted’s a County the Brazos Health Unit where left appellant ness testified had appellant. Veracruz nurse took from blood 9:00 pursuant the about 4:40 and returned about taken order bar This action was to an 9:30, leaving granting about 9:50. Vera- entered the or 9:45 or the court October to had State’s motion obtain a blood appellant cruz did not notice whether under Rule Tex.R.Civ.P.1 the when returned that handkerchief he evening. alleged appellant The motion was vehicle, burglary charged with a that his Fickey Bryan Police De-
Officer would be and type controversy, blood burglary partment investigating was necessary to that it was obtain a to Veracruz directed his attention when Mr. his blood to determine whether his blood entered the appellant. Fickey As Officer as that a handker- was the same found on club, put saw him and his head chief in the vehicle. Fickey asked his elbows. Officer down on step outside talk with him appellant to and order to court’s directed why, said he asked and then and procedures necessary submit to all to obtain appel- go. Fickеy grabbed Officer County wouldn’t Dr. sample, blood Buck of the was wrist and there Department noticed to obtain lant’s Health ordered proce- arm. by medically approved his hand use blood on Hamilton was ordered pub- arrest for dures. Sheriff Appellant placed under states, legal may 167a(a) or control. The made mental or order “When the Rule good group) physical (including on motion cause shown condition custody person person to be and to all party, or notice to the examined or of time, specify parties place, legal party, man- in contro- and shall control under conditions, ner, scope pending versy, action is of the examination the court in person persons by party or to be to a or whom it is order the submit pro- physician mental examination made.” custody person in his for examination duce madе available Dr. to be ment. testing procedures Such plainly complying doctor in Buck and to assist the constitute ‘persons,’ searches of and de- with the order. pend antecedently upon ‘per- seizures of sons,’ meaning within the of that Amend- contends evidence concern- ment. ing sup- the blood test should have been pressed because constituted *3 a search of [*] [*] [*] [*] [*] [*] person the and the search was conducted begin We assumption with thе I, without consent and violation Art. privilege against once the self-in- 9, of the Texas Constitution. Sec. has crimination been found not to bar 1975, 9, a On December filed compelled intrusions into body the suppress motion to evidence obtained from analyzed content, blood to be for alcohol illegal (1) alleging an search the the Fourth proper Amendment’s function blood his was violation the Fourth and constrain, tois not against all intrusions the Constitution Fifth Amendments of U.S. such, as intrusions which are (2) taking is a search and there justified circumstances, not showing probable was no sworn affidavit which are improper made an manner.” 1.06, required by cause as Art. V.A.C.C.P. 767-768, pages Schmerber at 86 S.Ct. at January hearing was held the motion on A on page 1834. 1976, suppress and the motion to was the holding defendant’s Fourth January day on the same the denied Amendment to be free of unreason- testimony Although came to trial. the case able searches and seizures was not violated hearing to suppress of the on the motion case, Supreme that, in that the Court found ap a of the part was not made record on although arresting the not officer did have peal, question preserved the has been warrant, an arrest or search he did have State, Tex.Cr.App., review. Graves 513 probable might cause and he reasonably 57; Riojas Tex.Cr.App., S.W.2d the have believed situation was an emer- S.W.2d 298. Cf. Writt v. Tex.Cr. gency and there was not time to seek out a App., 541 424. S.W.2d magistrate and secure a warrant. “Given In Schmerber v. 384 U.S. facts, special these we conclude that 86 S.Ct. L.Ed.2d involv- attempt to secure blood-alcohol ing driving a conviction for while intoxicat- content in this case an appropriate ed, rejected the Supreme argu- Court petitiоner’s incident arrest.” at page Id. ment withdrawal 771, 86 page S.Ct. at 1836. The Court also receipt a accused’s blood and of evidence of found test chosen to measure the blood analysis of the blood violated the chemical alcohol level was a reasonable one and was clause of self incrimination Fifth performed in a reasonable manner. However, the Amendment. Court further We hold the of a bloоd sam stated: a ple is search and within seizure the mean “But compulsory if administration of ing I,Art. 9 of the Texas Sec. Constitu implicate does not the Fifth test tion, required thus the to comply State Amendment, involves plainly provisions Chapter Art. broadly conceived reach of a search and 18, V.A.C.C.P.2 seizure under the Fourth Amendment reasonably permission
. could not be ar- “motion for gued . the administration to obtain a of defendant’s blood” this cаse was free of not an requirements of the blood test in does meet affi davit may the constraints of Fourth Amend- a search warrant Davis, psycho parte Tex.Cr.App., compel Ex court was See also not authorized corpus logical S.W.2d where we held a habeas examination under Rule Tex.R. capital relating proceeding denial of in a bail Civ.P. and the case is a criminal case trial murder' Yes, sir, A allegation an that an ac he could have resisted or Assuming issue. indicted is a sufficient show has been argued cused about it. He did not. cause, not the motion is
ing probable Q mean, You if he had argued, you all 18.01(b), Art. 1.06 and Art. to. See sworn blood, would not have taken the with a Further, order does the court’s V.A.C.C.P. signed Court Order? of a search war requirements meet the Yes, sir, A signed Order, with a Court See Poindex 18.01, supra. Art. rant under we would have taken blood. State, Tex.Cr.App., 545 ter Q you signed Did have a Court Order? a search warrant issued We note that Yes, sir. warrant, as invalid would be an seize blood blood is not one of the items for which [*] [*] [*] [*] [*] [*] Art. issue under Q Order, With a Court did Mr. Escamil- V.A.C.C.P.3 la have choice? *4 contends consented The State choice, A He really any did not have but test, testimony relying on the to the blood he not resist violently any did or offer Detective Miller shows argument.” finding the nurse in a vein assisted circumstances, ap- Under these we find which to draw blood. pellant did not consent to the blood test. to search must be shown to Consent Further, the search was not incident positive unequivocal be and the burden emer- arrest and was conducted under by is the State to show clear and circumstances. Cf. Perez gency exigent or convincing evidence that the consent was State, Tex.Cr.App., 514 748. S.W.2d Allen v. freely voluntarily given. Thus, appellant’s person the search of State, Tex.Cr.App., 487 120. This S.W.2d the seizure of the blood were not authorized discharged burden be by showing cannot no I, by Art. Sec. 9 of Texas Constitution acquiescence more than to a claim of lawful and the results of the blood test were erro- State, authority. Kolb v. Tex.Cr.App., 532 neously admitted. 87; State, Evans v. Tex.Cr.App., S.W.2d S.W.2d also find evidence insuffi We support cient to Although the conviction. The record shows appellant was in present аt Ted’s Place 10 to custody at the time of the blood al arrival, 15 minutes before the complainant’s though he had been released on a $1500 Trillo, he was not parte bond. Ex seen around or pickup near the Tex.Cr.App., truck. Cf. Chenault Detective Tex.Cr.App., S.W.2d 728. Miller testified he 540; Ewing appellant gave did not remember whether Tex.Cr. consent, he did remember “there was no App., S.W.2d 911. The hassle about it.” Witness Miller further which connects with the сrime is testified: possession his five and one-half hours be
“Q
fore the offense of a
Did he have
handkerchief similar
[DEFENSE COUNSEL]
gave
a choice as to whether or not he
to a handkerchief found in the truck after
the illegal entry
presence
blood?
and the
of blood
provides:
“(5) gambling
equipment,
Art.
devices or
altered
gambling equipment,
gambling parapherna-
or
issued
search
“A search
lia;
for and seize:
(6)
kept
prepared
obscene materials
or
for
(1)
acquired by
any
property
in
theft or
other
exhibition, subject
commercial distribution or
acquisition
penal
manner which makes its
law;
by
to the
set
additional rules
forth
offense;
(7) drugs kept, prepared,
in
made,
or manufactured
(2) property specially designed,
or
state;
violation of the laws of this
commonly
adapted
for or
used
the commis-
(8) any property
possession
offense;
of which is
sion of an
law;
by
prohibited
(3)
kept
prepared
and munitions
arms
(9) implements
riot;
purpose
or instruments used in the
of insurrection or
Code;
prohibited
(4) weapons
commission of a crime.”
the Penal
on the handkerchief and on appellant’s arm down
requirements
certain
issuing
shortly after the offense.
not,
warrants does
however, mean
that a warrant
indispensable
to the exist-
reasons,
foregoing
For the
judgment
ence of a valid search and seizure.
is reversed and the cause remanded.
Searches and
prohibited
seizures
without a
warrant are those which are unreasonable.”
DOUGLAS, J., dissents.
Appellant was charged with burglary of a
DOUGLAS, Judge, dissenting on State’s
vehicle. Some months after the crime was
motion for rehearing.
committed, the State filed a motion under
The majority overrules the State’s Motion
Rule
Texas Rules of
Procedure,
Civil
For
without written opinion.
alleging that
it was necessary to secure a
holds that
the extraction
of a
sample of his blood to determine whether
appellant’s blood pursuant
to an order of
his blood type was identical to that discov-
the district court was in violation of Article
ered on a handkerchief
1, Section 9 of the
Constitution,
Texas
vehicle. Rule
provides
167a
that when the
that there was at the time it was taken no
condition,
mental оr physical
including the
statutory authority for
group,
party
of a
is in controversy,
sample.
doing,
In so
the majority holds
the court
pending
which the action is
that a district court order under a rule may order the
party
to submit to
approved by the Legislature was unreason-
by physician upon
or mental examination
and that
showing
good
cause and notice to the
*5
blood from
was unreasonable.
person to be examined.
majority
The
reasons that the extraction
The
establishing probable
evidence
of blood is a search and seizure within the
grant
the order
the blood test will be
meaning
1,
9,
of Article
26,
Section
and that as
summarized. On the afternoon of June
such,
1975,
performed
offense,
cannot be
in
prior
the absence
to the commission of the
of a search
compliance
carrying
issued in
was seen
a blue polka
provisions
pocket.
Artiсles
dotted handkerchief in his
At the
18.02,
breath,
V.A.C.C.P.
In one
the Court
time of his arrest later that evening he no
complied
longer
possession
asserts that
must have
had the bandana in his
State
with
supra,
Fickey
Article
and in the next it
and Officer
observed blood on the
compliance
impossible
appellant’s right
observes that such
is
wrist. On the floorboard
vehicle,
in that blood is not an item for which a
of the
whose vent win-
broken,
polka
search warrant
issue.
dow had been
a blue
dotted
bandana like the one
had been
1,
Article
9 of the Texas Constitu-
Section
carrying earlier was found. The handker-
people
tion states that
shall be secure
“[t]he
chief was blood stained. Appellant was
houses,
persons,
papers
their
posses-
in
Bryan hospital
taken to a
for treatment
sions, from all unreasonable seizures or
examining
where the
physician determined
(Emphаsis supplied)
. .”
searches
that the cut on his arm was fresh. Ample
This section has never been held to consti-
justification existed for determining wheth-
guarantee against
tute a
all searches and
er appellant’s blood type matched that of
seizures,
Vargas v.
lished that
the extraction of
consti-
(Tex.Cr.
Olson v.
In the
narrow
of
nature
that the
area
the law
self-incrimination
intrusions,
privilege
body
implicated
there
is not
precedents.
of
are three
under such cir
v.
cumstances. The Fourth
supra;
Rоc
hin
Brei
Amendment issue
was not
Abram,
confronted in Olson.
thaupt
v.
352
77
U.S.
S.Ct.
fornia, supra. cases reveal that forc These types physical evidence compellable are oUpvidence body by ible removals from the from an accused consistent with the Fifth unconstitutional, pumping are stomach partial Amendment. A list of types those samples, though while extractions of blood fingerprints, evidence follows: examina- to, may nоt assented not be. tongue, fingernail tion of the scrapings, footprints, requiring an accused to stand at There, leading is the case. Schmerber up, a line requiring an accused to raise his driving defendant was convicted for while hand jury, paraffin before the intoxicated. The that the war- Court found requiring an to put accused on clothes and rantless, nonconsensual withdrawal of his speak jury. before the blood was not an unreasonable search be- arresting probable cause the officer had Those types general- evidence reasonably ly subject cause and because that officer are challenge to on Fourth suspect by the arms while another the same to hold grounds many Amendment inap- Amendment is spat up that the Fifth choked him until he four balloons of reasons physical attributes they involve plicable: heroin. No public. to thе
normally displayed The Court should hold was not involved. or seizure is unreasonable for a nurse to take authori has some inherent The trial court pursuant to a rule blood under a court order of evi physical production ty compel approved by Legislature. the trial court authority dence. fingerprint submit to an accused to compel implicitly example, seems to
ing, for Fourth or Fifth no valid recognized because See, g. e. claim be raised. Amendment (Tex.Cr.App. Price 1969). Crowder, U.S.App.
United States leading (1976), is the F.2d 312 D.C. Deryle WHITEHEAD, Appellant, Artis surgical recovery which sanctions case mur was convicted of Crowder of a bullet. Texas, Appellee. The STATE re surgically bullet which der. damaging proved to be his arm moved from No. 55024. of Co him. The District Appeals Court of Criminal of Texas. Appeals held that Court lumbia Circuit were rights Amendment Fourth Crowder’s Oct. trial court ordered when the not violated State’s Motions for The main focus of the bullet. the removal Denied Nov. concerned majority opinion process. with due compliance government’s Amendment addressing the Fourth that Crowder
claim, majority observed hearing. adversary a full given been had probable judge determined The trial and ordered Crowder was established “care- The order was surgery. to submit protect hedged so as fully drawn and .’’ The and life. health Crowder’s was reason- the order concluded that Court and affirmed. circumstances under the *7 Leg- by the approved has been Rule 167a judge followed A district islature. ordering that a rule has Legislature be extracted. warrants to subsequently authorized This follows evidence.1 issued for authorizes already rule sample. in Hernandez has held The Court (Tex.Cr.App.1977), 548 S.W.2d officer for an unreasonable it was not V.A.C.C.P., warrants for for the issuance of search vides as amended 1. Article page evidence. Chapter Section enacted in pro- May now 1977. It 1977 effective