Stephen J. Ramirez v. StateStephen J. Ramirez v. State
OPINION
A jury convicted appellant Stephen J. Ramirez of felony driving while intoxicated (DWI). See
BACKGROUND
Because appellant does not challenge the sufficiency of the evidence 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 appеllant‘s truck stopped on the Highway 249 connector ramp above him. According to 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. Acсording to Avila, there was little room to pass.
Avila shined a spotlight at appellant. 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
At that point, Avila began performing 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 refusеd to participate in further field sobriety tests, Avila drove appellant to the nearest 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 serve four years in prison.1 This appeal followed.
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 mоtion to suppress the results of the analysis of his blood on the same day that the jury was impaneled in his case. He 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 motiоn to suppress prior to the start of appellant‘s trial.2 The written motion was instead addressed during a break in the 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.
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 when it refused to exclude the blood analysis evidence from his trial because the extraction of the blood and the subsequent analysis of that blood constitute two distinct searches which required the State to obtain two search warrants. Appellant cites the Court of Criminal Appeals’ recent State v. Martinez opinion in support of his argument. 570 S.W.3d 278, 292 (Tex. Crim. App. 2019). Appellant contends that since the State obtained only a single search warrant, for the extraction of appellant‘s blood, which he does not challenge, the subsequent analysis of that blood sample infringed upon his Fourth Amendment rights against unreasonable government intrusion into his legitimate expectation of privacy. Because Martinez is distinguishable on its facts, we disagree.
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 рurposes.” 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 separate 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 rejectеd 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 determination 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 аppellant‘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 to suppress because the search warrant was timely executed.
Appellant further argues in his first issue that the trial court abused its discretion when it denied his motion to suppress the results of the State‘s testing of his blood because the State did not conduct the analysis within three days of the issuance оf the search warrant. Appellant cites article 18.07(a)(3) of the Texas Code of Criminal Procedure, which states the general three-day-period for a search warrant to be executed, in support of his argument. In other words, appellant‘s issue requires us to determine what it means to “execute” a search warrant pursuant to chapter 18 of the Code of Criminal Procedure. This appears to be an issue of first impression.
Statutory construсtion 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 could not
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 article 18.01(a). It defines “search warrant” as “a written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same and bring it before such magistrate . . . .”
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
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 apрellant‘s view, Avila did not possess reasonable suspicion to stop appellant. The State responds that appellant failed to preserve this issue for appellate review because 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 appellant.3 Appellant also
III. Appellant was not egregiously harmed by the trial court‘s incorrect instructiоn 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 a 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 evidеnce 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 under 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 not, however, identify the conflicting evidence. Avila was the only witness who testified regarding the events preceding the traffic stop. Those events were not recorded by Avila‘s dash camera. In addition, Avila‘s testimony remained consistent that he observed a
Finally, Avila consistently testified during direct and cross-examination, that he saw appеllant‘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 entered 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.
Having overruled appellant‘s issues on appeal, we affirm the trial court‘s final judgment.
/s/ Jerry Zimmerer
Justice