STEPHEN J. RAMIREZ, Appellant v. THE STATE OF TEXAS, Appellee
NO. 14-19-00433-CR
Fourteenth Court of Appeals
October 27, 2020
On Appeal from the 183rd District Court, Harris County, Texas, Trial Court Cause No. 1569210
Affirmed and Opinion filed October 27, 2020.
A jury convicted appellant Stephen J. Ramirez of felony driving while intoxicated (DWI). See
BACKGROUND
Because appellant does not challenge the sufficiency of the еvidence supporting his conviction, we include only those facts necessary to address the issues he raises on appeal.
Deputy Constable Avila of the Harris County Precinct 4 Constable‘s office was driving eastbound on the northwest corner of the Sam Houston Tollway early in the morning of October 31, 2017. As Avila approached the interchange with Highway 249, he saw appellant‘s truck stopped on the Highway 249 connector ramp above him. According tо Avila, appellant had stopped his truck on the connector ramp and the truck was impeding traffic. In addition, Avila saw appellant exit his stopped truck and walk over to the passenger side of his truck, where he appeared to urinate. Avila observed traffic trying to get around appellant‘s truck, which was stopped on the one-lane flyover. According to Avila, there was little room to pass.
Avila shined a spotlight at appellаnt. Avila testified appellant ignored the spotlight shining up at him. According to Avila, appellant eventually walked back to the driver‘s side of his truck, got into the truck, and then started driving down the ramp toward the Sam Houston Tollway. Once appellant began driving down the ramp Avila drove forward and pulled over to the shoulder where he waited for appellant‘s truck to enter the Sam Houston Tollway. When Avila saw appellant‘s truck drive onto the tollway, Avila initiatеd a traffic stop. When Avila approached appellant in his truck, Avila observed that appellant had red, glassy eyes, and when he questioned appellant, appellant slurred his speech, and stated he was “coming from home” and “going home.” Avila also smelled a strong “odor of an alcoholic beverage emanating from” appellant‘s breath or body. Appellant admitted to having “had a few beers.”
At that point, Avila began pеrforming field sobriety tests on appellant. Avila initially conducted the horizontal gaze nystagmus (HGN) test. According to Avila, appellant showed all six clues on the HGN test. Avila testified that this showing indicated to him that appellant “was over the State limit” and might be intoxicated. Appellant refused to perform the remainder of the field sobriety tests. Because appellant refused to participate in further field sobriety tests, Avila drove appellant to the nеarest police station where Avila could obtain a search warrant and have appellant‘s blood drawn. According to Avila, during the drive to the police station, appellant was so intoxicated that he believed Avila was taking him home.
Once at the police station a search warrant was obtained to take samples of appellant‘s blood. The samples were obtained and subsequent testing revealed that appellant had a blood-alcohol concentration above the legal limit. At the conclusion of the evidence the jury found appellant guilty and the trial court sentenced him to
ANALYSIS
I. The trial court did not err when it refused to exclude evidence of the analysis of appellant‘s blood.
In his first issue, appellant argues that the trial court abused its discretion when it refused to exclude the analysis of his blood sample because, in appellant‘s view, the State was required to obtain a second search warrant to conduct the analysis of the blood sample. Appellant also argues that the trial court should have excluded the blood analysis because the search warrant was stale by the time the actual analysis was performed. We disagree with both arguments.
A. Standard of review and applicable law
Appellant filed a motion to suppress the results of the analysis of his blood on the same day that the jury was impaneled in his case. Hе did not, however, argue in the motion to suppress that a second warrant was required to conduct the blood analysis. Appellant instead argued that the trial court should exclude the blood analysis because the search warrant was stale. The record establishes that the trial court did not conduct a hearing on appellant‘s motion to suppress prior to the start of appellant‘s trial.2 The written motion was instead addressed during a break in thе trial. In addition to the argument raised in the written motion, appellant argued during the hearing that a second search warrant was required before the State could conduct an analysis of appellant‘s blood. The trial court heard appellant‘s arguments and the State‘s response before denying appellant‘s motion to suppress.
We review a trial court‘s denial of a motion to suppress for an abuse of discretion. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). In conducting the review, we give almost total deference to a trial court‘s express or implied determination of historical facts and consider de novo the court‘s application of law to the facts. Alford v. State, 358 S.W.3d 647, 652 (Tex. Crim. App. 2012). We view the evidence in the light most favorable to the trial court‘s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). The trial court is the sole trier of fact and judge of the credibility of witnesses and the weight to be given to their testimony. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We will sustain the trial court‘s ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).
B. The trial court did not abuse its discretion when it denied appellant‘s motion to suppress because two search warrants were not required.
In his first issue appellant argues that the trial court abused its discretion
In Martinez the defendant was involved in a traffic accident. Martinez, 570 S.W.3d 281. Martinez was taken to the hospital where his blood was drawn for medical purposes. Id. Martinez was subsequently indicted for intoxication manslaughter. Id. The State later acquired Martinez‘s blood pursuant to a grand jury subpoena. Id. at 282. The State then tested Martinez‘s blood without first obtaining a search warrant. Id. at 281. Martinez filed a motion to suppress arguing, among other things, that his blood was obtained in violation of his rights against unreasonable searches and seizures under the Fourth Amendment of the United States Constitution and article 1, section 9 of the Texas Constitution. Id. at 282. The trial court granted Martinez‘s motion to suppress and the court of appeals affirmed. Id. at 282-83. The Court of Criminal Appeals affirmed the court of appeals, holding that “there is a privacy interest in blood that has already been drawn for medical purposes.” Id. at 292. The Court of Criminal Appeals continued that Martinez
had a subjective expectation of such a privacy interest in his blood, and the State‘s subsequent testing of the blood was a Fourth Amendment search separаte and apart from the seizure of the blood by the State. Because no exception to the warrant requirement applied, the State was required to obtain a warrant before testing [Martinez‘s] blood.
The Court of Criminal Appeals has now directly addressed and rejected the same argument appellant raises in the first part of his first issue. See Crider v. State, ___ S.W.3d ___, 2020 WL 5540130, at *3 (Tex. Crim. App. Sept. 16, 2020). In Crider the Court of Criminal Appeals distinguished Martinez on its facts. Id. The court explained that
the State obtained the blood sample by way of a magistrate‘s determinatiоn that probable cause existed to justify its seizure—for the explicit purpose of determining its evidentiary value to prove the offense of driving while intoxicated. That magistrate‘s determination was sufficient in this case to justify the chemical testing of the blood. And this is so, we hold, even if the warrant itself did not expressly authorize the chemical testing on its face.
The facts in the present case are, for all practical purposes, identical to those in Crider. Therefore, we reject appellant‘s contention that the State was required to obtain a second search warrant before testing appellant‘s blood for the reasons stated by the Court of Criminal Appeals in Crider. Id. We hold that the trial court did not abuse its discretion when it denied appellant‘s motion to suppress the results of the State‘s analysis of his blood samples.
C. The trial court did not abuse its discretion when it denied appellant‘s motion tо suppress because the search warrant was timely executed.
Statutory construction is a question of law, and our review of the trial court‘s construction of a statute is de novo. Ramos v. State, 303 S.W.3d 302, 306 (Tex. Crim. App. 2009). We construe a statute according to its plain meaning, unless such a construction would lead to absurd results that the Legislature сould not possibly have intended or the language is found to be ambiguous. Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). To determine plain meaning, we examine the wording and structure of the statute, construing the words and phrases according to the rules of grammar and usage, unless they are defined by statute or have acquired a particular meaning. Id. We also presume that every word has been used for a purpose and that each word, phrase, clause, and sentence should be given effeсt if reasonably possible. Id.
In his argument appellant mentions only article 18.07 of the Code of Criminal Procedure and he ignores the remainder of chapter 18 of the Code. We, however, begin with
This conclusion fits within the purpose of time restrictions on the execution of search warrants, which is to ensure that probable cause, as found by the neutral magistrate who signs the warrant, continues to exist. See United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005) (“The policy behind the ten-day time limitation in Rule 41 is to prevent the execution of a stale search warrant.“). This policy of requiring timely execution of warrants seeks to avoid a situation where, due to the passage of time, the information underlying the probable cause determination is no longer valid. See United States v. Grubbs, 547 U.S. 90, 95 (2006) (stating that “the probable-cause requirement looks to whether the evidence will be found when the search is conducted“) (emphasis in original). Here, the search warrant was obtained, served on appellant, and appellant‘s blood was drawn and preserved, within hours of the initial traffic stop. We hold that the undisputed fact that the forensic analysis of appellant‘s blood occurred аt a date beyond the three-day window for execution of the search warrant did not render the search warrant stale.
Therefore, the trial court did not abuse its discretion when it denied the part of appellant‘s motion to suppress in which appellant asserted that the search warrant was not timely executed.
Having addressed and rejected both arguments raised in appellant‘s first issue, we overrule that issue.
II. Appellant did not preserve his second issue for appellate review.
In appellant‘s second issue he argues that the trial court abused its discretion when it refused to suppress all evidence related to Avila stopping appellant‘s vehicle because, in appellant‘s view, Avila did not possess reasonable suspicion to stop appellant. The State responds that appellant failed to preserve this issue for appellate review beсause he waited to object until after Avila had completed his testimony regarding his detention and arrest of appellant. Having reviewed the record, we agree with the State.
To preserve error for appellate review, a complaint must be timely and sufficiently specific to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.
Here, appellant did not object during Avila‘s testimony describing the events leading up to the traffic stop and his decision to arrest apрellant.3 Appellant also affirmatively notified the trial court that he had no objection to (1) State‘s Exhibit 4, the video of the traffic stop made by the
III. Appellant was not egregiously harmed by the trial court‘s incorrect instruction on the definition of “impeding traffic.”
Appellant argues in his third issue that the trial court erred when it gave an incorrect article 38.23 instruction and that he was egregiously harmed as а result. See
An article 38.23 instruction is proper only when there are “disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible.” Madden v. State, 242 S.W.3d 504, 509-510 (Tex. Crim. App. 2007). The statute is “mandatory, and when an issue of fact is raised, a defendant has a statutory right to have the jury charged accordingly. The only question is whether undеr the facts of a particular case an issue has been raised by the evidence so as to require a jury instruction. Where no issue is raised by the evidence, the trial court acts properly in refusing to charge the jury.” Id. at 510.
Appellant asserts there were disputed fact issues regarding the legality of Avila stopping appellant‘s truck based on whether appellant‘s vehicle was impeding traffic prior to the stop by Avila. Appellant does
Finally, Avila consistently testified during direct and cross-examination, that he saw appellant‘s white pick-up truck impeding traffic on the connector ramp and that he stopped that same truck once it came down off the ramp and enterеd the tollway. Having reviewed the record, we conclude there was not a disputed fact issue regarding the legality of the traffic stop and appellant was therefore not entitled to an article 38.23 instruction. Because appellant was not entitled to the instruction, any error contained therein is harmless. See Hughes v. State, 897 S.W.2d 285, 301 (Tex. Crim. App. 1994) (concluding that when defendant was not entitled to a mitigating evidence instruction, any error in the instruction actually given by the trial court was harmless because it could not have contributed to the jury‘s answers). We overrule appellant‘s third issue.
CONCLUSION
Having overruled appellant‘s issues on appeal, we affirm the trial court‘s final judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Chief Justice Frost and Justices Zimmerer and Poissant.
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