The STATE of Texas v. Nancy N. NEESLEY, Appellee.
No. PD-1396-06.
Court of Criminal Appeals of Texas.
Nov. 7, 2007.
239 S.W.3d 780
EXECUTION PROTOCOL
In point of error thirteen, appellant contends that the trial court erroneously denied his pretrial motion to preclude the death penalty in violation of the Eighth and Fourteenth Amendments to the United States Constitution. In appellant‘s motion, he specifically challenged the use of pancuronium bromide in the lethal-injection procedure. Appellant‘s execution is not imminent. The method in which the lethal injection is currently administered is not determinative of the way it will be administered at the moment of appellant‘s execution. Doyle v. State, No. AP-74,960, 2006 WL 1235088, at *4, 2006 Tex.Crim. App. LEXIS 925, at *11 (Tex.Crim.App. May 10, 2006). Thus, his claim is not ripe for review. Id. Point of error thirteen is overruled.
We affirm the judgment of the trial court.
WOMACK, J., concurred.
Eric Kugler, Asst. D.A., Houston, Mаtthew Paul, State‘s Attorney, Austin, for State.
OPINION
PRICE, J., delivered the opinion of the Court in which MEYERS, WOMACK, KEASLER, HOLCOMB and COCHRAN, JJ., joined.
This case addresses the questions of how the term “specimen” should be interpreted in the context of
THE FACTS AND PROCEDURAL POSTURE
On July 26, 2004, the appellee was involved in a head-on automobile collision with Cynthia Perez. Deputy Leo Anders, an accident investigator with the Harris County Sheriff‘s Department, testified that he spoke with a witness who claimed that the appellee veered into Perez‘s lane. The witness told Anders that he was traveling northbound on Boudreaux Road directly in front of Perez‘s vehicle when the appellee, who was traveling southbound, veered into the northbound lane. The witness said that, after he swerved to the right to avoid a collision with the appellee, the appellee continued driving partially in the northbound lane and that as the witness watched her in his rearview mirror, he saw her collide with Perez.
When Anders spoke to the appellee, he detected a “moderate” odor of alcоhol. Thinking that alcohol may have contributed to the accident, Anders sought to verify the witness‘s claim that the appellee veered into oncoming traffic. Meanwhile, the appellee was transported to Hermann Hospital for treatment of her injuries resulting from the accident. After investigating the scene of the accident, Anders determined that the collision occurred one foot inside of Perez‘s lane. At that point, Anders asked the chief paramedic about Perez‘s medical condition. The paramedic replied that Perez was critically injured and still trapped behind the steering wheel of her vehicle. Rescue workers attempted to free Perez from the wreckage, but during the rescue attempt she went into cardiac arrest and died at the scene. Anders contacted Deputies Marines and Hernandez, told them that the appellee‘s blood would have to be analyzed at the hospital in order to determine whether the appellee was intoxicated, and assigned them to handle the blood sampling.
At the hospital, Deputy Hernandez spoke with the appellee and also detected an odor of alcohol. He then performed a field sobriety test, on the basis of which both he and Deputy Marines concluded
Subsection (b) of
ANALYSIS
Statutory Construction
§ 724.012. Taking of Specimen
(a) One or more specimens of a person‘s breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:
(1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or
(2) was in violation of Section 106.041, Alcoholic Beverage Code.
(b) A peace officer shall require the taking of a specimen of the person‘s breath or blood if:
(1) the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft; (2) the person was the оperator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense;
(3) at the time of the arrest the officer reasonably believes that as a direct result of the accident:
(A) any individual has died or will die; or
(B) an individual other than the person has suffered serious bodily injury; and
(4) the person refuses the officer‘s request to submit to the taking of a specimen voluntarily.
(c) The peace officer shall designate the type of specimen to be taken.
(d) In this section, “serious bodily injury” has the meaning assigned by Section 1.07, Penal Code.7
In its first ground for review, the State argues that the court of appeals erred in holding that the statute‘s requirement that officers take “a specimen” was actually a limitation prohibiting officers from taking more than one specimen even where the first specimen was not usable. Our role in interpreting the wording of
If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider, in arriving at a sensible interpretation, such extratextual factors as executive or administrative interpretations of the statute or legislative history.9
Thus, the first step of our analysis is to determine whether the plain language of
In thе context of statutory construction, “ambiguity exists when a statute is capable of being understood by reasonably well-informed persons in two or more different senses.”10 In contrast, a statute is unambiguous where it “admits of no more than one meaning.”11 The segment of
How Many Specimens Are Permitted?
With rеspect to the question of how many specimens are permitted, the
- Interpretation A: The taking of one and only one specimen is permitted.
Interpretation B: The taking of an unlimited number of specimens is permitted (though constitutional concerns, such as due process, might independently impose an upper limit). - Interpretation C: The taking of as many specimens as are needed to acquire a usable sample is permitted (again, within constitutional bounds).
It might appear, then, that the statute is ambiguous with respect to this question, read in isolation. However, reading
Therefore, while
Accordingly, we hold that, even under the circumstances enumerated in
What Does “Specimen” Mean?
Nowhere in the statute is the word “specimen” defined.14 Reasonably well-informed persons could interpret it in more than one sense. For example:
- Interpretation 1: A specimen refers to any sample taken, regardless of its content (e.g., A sample that is 99.99% saline and 0.01% blood is a specimen of blood).
- Interpretation 2: A specimen refers to a pure sample. (e.g., Only a sample that is 100% blood is a specimen of blood).
- Interpretation 3: A specimen refers to a sample containing a substantial, but not necessarily usable, percentage of a particular material (e.g., A sample that is 0.01% less pure than usable is a specimen).
Interpretation 4: A specimen refers to a sample that is usable.
Since reasonably well informed persons could interpret the word “specimen” in any of these different senses, we hold that the statute is ambiguous. Consequently, we are permitted, in accordance with Boykin, to look to extratextual factors in order to arrive at a sensible interpretation. Thus, the second step of our analysis is to determine which of the above interpretations is best supported by extratextual factors.
In relevant part, the
(1) object sought to be attained;
(2) circumstances under which the statute was enacted;
(3) legislative history;
* * *
(5) consequences of a particular construction.15
In our analysis of how to interpret the term specimen as it is used in
Subsection (b) of
Each of the extratextual factors cited weigh in favor of interpreting “specimen” to mean a usable sample. In order to decrease the number of casualties caused by drunk drivers, it is necessary to first determine whether a driver is intoxicated. An unusable sample provides no useful information to assist in making this determination. It is implausible that the Legislature would have enacted a statute that requires a procedure as invasive as drawing a blood sample unless that procedure was intended to result in a usable sample. Thus, both Interpretations 1 and 3, above, run contrary to legislative intent. Interpretation 2, on the other hand, applies too strict of a standard which, aside from being practically unfeasible, also provides no information in addition to that which could be acquired by testing any usable sample. Therefore, we find that the most sensible interpretation of the term “specimen” is Interpretation 4, that is, to construe “specimen” to mean a usable sample.
We hold that in cases which satisfy the conditions for mandatory taking of a specimen under
KELLER, P.J., filed a concurring opinion in which HERVEY, J., joined.
JOHNSON, J., filed a dissenting opinion.
KELLER, P.J., filed a concurring opinion in which HERVEY, J., joined.
Express consent can be absent under two possible circumstances: (1) the person refuses consent, (2) the person is incapаble of giving or refusing consent. The Legislature has set forth rules governing implied consent in both circumstances. First, the Legislature has decreed that “a specimen” may not be taken if the person refuses consent “[e]xcept as provided by Section 724.012(b).”3 Second, the Legislature has decreed that a person who is “dead, unconscious, or otherwise incapable of refusal” has not “withdrawn” his implied consent,4 and thus, “a specimen” may be taken by certain authorized entities.5
All of the provisions that specifically prescribe the application of implied consent under the various circumstances in which implied consent would be needed refer to the taking of “a specimen.” If the “a” before “specimen” meant “one and only one,” then the general authority conferred by
Consequently, reading
I concur only in the Court‘s judgment.8
JOHNSON, J., filed a dissenting opinion.
The state has challenged the decision of the court of appeals to affirm the trial court‘s suppression of the results of two blood tests. The trial court held an extended hearing and received evidence from six witnesses. It then suppressed the blood-test results, the first pursuant to Rules of Evidence 104, 702, and 705, and the second pursuant to
Deputy Anders
Appellee was involved in a head-on automobile collision. The time of the collision is unclear. The state‘s first witness, Leo Anders, a Harris County Deputy Sheriff and accident investigator, testified that he was dispatched to the scene at about 5:00 p.m.1 Two cars were involved, with one driver, Ms. Perez, pinned inside her car. The other driver, appellee, was lying a ditch by the side of the road. Before Anders could talk to appellee, another driver, Sergio Parroquin “confronted” Anders. Parroquin told Anders that he had been driving ahead of Perez; appellee veered into his lane, he swerved to avoid her, and appellee then continued to drive partially in the oncoming lane and hit Perez. Parroquin saw the collision in his rearview mirror.
Anders spoke with appellee long enough to establish her identity. Even though she was wearing an oxygen mask at the time, he noticed a moderate odor of alcohol on her breath. Anders was unable to form an opinion at the scene as to appellee‘s level of intoxication because her injuries prevented him from administering sobriety tests. Appellee was taken to Memorial
Anders contacted Deputies Arturo Marines and Lawrence Hernandez, two other accident investigators, and asked them to go to the hospital and get a blood sample from appellee. He contacted them a second time to inform them that Perez had died.
Anders also talked with Ashley Carranza, who was driving 300 yards behind Perez at the time of the collision. Carranza told Anders that Perez had been driving erratically and crossed the center line a few times, apparently in an effort to pass vehicles that were ahead of her. Physical evidence at the scene indicated that Perez was in her own lane at the time of impact. Another deputy took Carranza‘s written statement.
Deputy Marines
Deputy Marines testified that, at 7:13 p.m., he was on his way to the scene when Anders called him and asked him to go to the hospital to get a blood sample, voluntarily if possible. The request was changed to a mandatory draw after Perez died. Marines found appellee in Trauma Room 3, lying on a gurney and attended by two nurses, Nancy Lopez and Penny Pope. He detected a strong odor of alcohol on appellee‘s breath. Marines read appellee the statutory warning, form DIC-24, which begins “[y]ou are under arrest for ... operating a motor vehicle ... in a public place while intoxicated ...,” and requested a voluntary blood sample. Appellee refused. She did not sign the refusal because both arms had been broken in the collision.2
Marines then filled out form THP-51, Statutory Authorization for Mandatory Blood Specimen. He was present when the nurses drew the first specimen at 8:35 p.m., 2 vials for the sheriff‘s office and other vials for the hospital laboratory. He did not administer sobriety tests because appellee was being treated and had two broken arms. She did, however, answer his questions appropriately.
At about 9:15 p.m., one of the nurses told Marines that the first specimen had been rejected by the hospital laboratory as “contaminated.” Marines did not repeat his request for a voluntary sample or file out a second THP-51, but instructed the nurses to do another draw. The second draw was done at 9:25 p.m., 50 minutes after the first and at least two and a half hours after the collision. The same nurses took the second specimen.
Deputy Hernandez
Deputy Hernandez testified that he was dispatched to the scene of a fatality collision, i.e., after Perez died. Anders asked him to go to the hospital and assist Marines with getting a blood sample. He talked briefly with appellee, who was lying on a gurney with an IV in her arm. He detected “an odor” of alcohol on appellee‘s breath. While appellee was lying on the gurney, he performed a horizontal gaze nystagmus test (HGN) and “found all six clues and vertical gaze nystagamus.” He concluded that appellee was intoxicated on alcohol and also сoncluded that she might have other intoxicants in her system because of the vertical nystagmus.3
On cross-examination, Hernandez agreed that the standards for the administration of sobriety tests are set by the National Highway Traffic and Safety Administration (NHTSA). He also agrеed that those standards require that, before performing an HGN, he was supposed to inquire about past or present head injuries and current medications, both of which can affect an HGN. Faced with a subject who had just been in a fatal collision and who was hooked up to an IV, he asked none of the required questions. He also conceded that HGN standards specify a subject standing with arms at the sides and that appellee was lying flat on a gurney; he administered an HGN anyway. He conceded that she followed his instructions, indicating normal use of mental faculties.
Nurse Pope
Nurse Penny Pope testified that she drew blood from appellee‘s left arm for the deputies and the hоspital laboratory at the same time. She stated that appellee had an IV in her left wrist that had been in place when appellee arrived at the hospital, presumably inserted by the EMTs who transported appellee from the scene of the collision. The vial for hospital tests were sent to the hospital laboratory, which rejected it as “contaminated” and asked for another specimen. She repeated the draw, 50 minutes later and using appellee‘s right arm, again drawing for the hospital and the deputies at the same time. She also testified that, until after the second draw, appellee received no pain medication to her knowledge and that this was the usual practice; pain killers can lower blood pressure that is already low because of trauma even further and cause death.
For the purposes of the suppression hearing, the trial court admitted hospital laboratory results for the second draw only.
Danielson, ME‘s office
Terry Danielson, a toxicologist in the ME‘s office, testified that both specimens were tested using gas chromatography. When questioned by the state about dilution of blood with saline, he testified that he had seen, in the literature, an example in which a man was given two liters of saline and “it resulted in a 4 percent dilution.” He opined that he would not be able to distinguish between such diluted blood and undiluted blood.4
Dr. Lykissa
Appellee called Ernest Lykissa, the scientific director of ExperTox Laboratories in Houston. He testified that he holds both Ph.D. and M.D. degrees, teaches at Baylor College of Medicine, and works with law enforcement and state and federal agencies on toxicology issues and protocols. Before the hearing, he had reviewed appellee‘s medical records in regard to her injuries from the collision except for the EMS records.
He agreed with Pope that saline and lactate are given to trauma patients to
Lykissa testified at length about homeostasis—equilibrium in a human body. He opined that introducing saline would disrupt homeostasis for about two hours after the IV was removed, but that homeostasis could be delayed beyond that time by concurrent stressors, such as bleeding and active trauma.
With regard to blood-alcohol levels, Lykissa noted that alcohol has a high affinity for water. As a result, alcohol that has been absorbed by tissue, and that would normally remain there for a period of time during burn-off, migrates into the preferred water/salt solution being pumped into the body via the IV. This raises the alcohol level in the blood/saline mixture beyond what it would be if the body were uninjured and in homeostasis.
In appellee‘s case, she had been receiving saline since about 7:00 p.m. She continued to receive saline in the 50 minutes between draws and, at the same time. She continued to bleed internally from tears in her colon. Lykissa testified that he believed that the second draw was also “contaminated” because of the continued IV saline and the concurrent and continuing effects of her injuries.
Lykissa also testified that he was certified to administer HGN, which he uses to look for head injuries in trauma patients. He stated that, according to NHTSA standards, a valid test requires a standing subject.
Questioning by the state clarified that hospital laboratories and law-enforcement laboratories use laboratory tests in different ways and for different purposes. For hospitals, a degree of inaccuracy is an acceptable trade-off for rapid results that enable timely treatment. The opposite is true for law-enforcement laboratories; they have little time pressure and a greater need for a higher degree of accuracy.5 The trial court also briefly questioned Lykissa for clarification on the migration of alcohol frоm tissue to saline. Lykissa‘s final answer on redirect examination was that when a foreign substance, in this case saline, is mixed into blood, the integrity of the blood specimen is compromised and “you cannot have a valid specimen.” In his opinion, both specimens were compromised.
Argument
Appellee argued to the trial court that it was an issue of admissibility, not weight. Neither side contested that the first draw was invalid—the hospital laboratory had said so. But, “just because the second one might not be as bad as the first one, it is still compromised ...,” by the additional 50 minutes of saline drip.
The state argued that it was an issue of weight, not admissibility; the jury should be the fact finder.
The trial court ruled on appеllee‘s suppression motion pursuant to Rule 702 and found that the first draw was not reliable and suppressed it, but allowed the second draw. It then addressed appellee‘s motion to suppress pursuant to
Discussion
One issue here is requiring that the specimen be “usable.” The question is: usable by whom and for what purpose? The only penal context of “usable” that I am aware of is “a usable quantity” of marijuana. The definition of “usable” in
A second issue is that we are to use the plain language of the statute in making our rulings. Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991). Presumably, the legislature recognized the difference between “a” and “one or more” and the markedly different level of invasiveness between a voluntary blood specimen and an forcible one. “A” is not ambiguous. To say that the legislature, recognizing those differences, intentionally selected those terms for the two subsections does not produce an absurd result, nor can we say that it produces a result that the legislature could not possibly have intended. If it was an oversight or a mistake, the legislature is free to amend
The decision of the court of appeals should be affirmed. Because the Court does not do so, I respectfully dissent.
Jermaine Donte MURPHY, Appellant v. The STATE of Texas.
No. PD-1297-06.
Court of Criminal Appeals of Texas.
Nov. 7, 2007.