Case Information

*0 FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS 7/9/2015 11:17:11 AM VIVIAN LONG CLERK *1 ACCEPTED 07-15-00009-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 7/9/2015 11:17:11 AM Vivian Long, Clerk

No. 07-15-00009-CR I N THE

C OURT OF A PPEALS FOR THE S EVENTH S UPREME J UDICIAL D ISTRICT S ITTING AT A MARILLO , T EXAS _________________________________________________ T ONY H ARRELL -M AC N EIL , A PPELLANT V.

THE STATE OF TEXAS ___________________________________________ A N A PPEAL OF A C ONVICTION FOR D RIVING W HILE I NTOXICATED C AUSE N O . 20134973CR1 F ROM THE C OUNTY C OURT AT L AW N O . 1 OF M C L ENNAN C OUNTY , T EXAS ____________________________________________ S TATE ' S B RIEF ____________________________________________ ABELINO "ABEL" REYNA STERLING HARMON

Criminal District Attorney Appellate Division Chief

McLennan County, Texas State Bar No. 09019700

219 North 6th Street, Suite 200 Waco, Texas 76701 [Tel.] (254) 757-5084 [Fax] (254) 757-5021 [Email] sterling.harmon@co.mclennan.tx.us i

Identity of Parties and Counsel Appellant Tony Harrell-MacNeil

Appellant’s Trial and

Appellate Attorney Mr. Walter M. Reaves, Jr.

100 North Sixth Street, Suite 802

Waco, Texas 76701

State’s Trial Attorneys Mr. David Shaw

Assistant Criminal District Attorney 219 North 6 th Street, Suite 200 Waco, Texas 76701 State’s Attorney on Appeal Abelino ‘Abel’ Reyna

Criminal District Attorney Sterling Harmon Appellate Division Chief 219 North 6 th Street, Suite 200 Waco, Texas 76701 ii

Table of Contents Identity of Parties and Counsel …………………………………………………….. ii

Table of Contents .................................................................................................. iii

TABLE OF AUTHORITIES .................................................................................. iv

Issue Presented ....................................................................................................... v

Statement of Facts ................................................................................................... 1

Summary of Argument ……………………………………………………… 2

Argument ………………………………………………………………….… 2

Reasonableness of a Blood Draw…………………………………………….. 2

Abuse of Discretion ………………………………………………………… 3

Analysis ……………………………………………………………………….. 4

Prayer ………………………………………………………………………… 7

Certificate of Compliance ………………………………………………… 8

Certificate of Service ............................................................................................... 8

iii *4 TABLE OF AUTHORITIES Federal Opinions

Schmerber v. California , 384 U.S. 758, 86 S.Ct. 1826 (1966) ……………… 2, 6

State Opinions

Bailey v. State , 2014 WL 3893069

(Tex. App. – Austin, August 8, 2014) ………………………………. 2, 4, 5

Carmouche v. State , 10 S.W. 3d 323 (Tex. Crim. App. 2000) ………………. 3

DeMoss v. State , 12 S.W. 3d 553

(Tex. App. – San Antonio 1999, pet. ref’d ) ………………………………. 5

Garner v. State , 2012 WL 6674488

(Tex. App. – Waco, December 20, 2012) ……………………………… 5, 6

Guzman v. State , 955 S.W. 2d 85 (Tex. Crim. App. 1997) …………………. 3

Haynes v. State , 457 S.W. 2d 739 (Tex. Crim. App. 1971) …………………. 5

Martinez v. State , 348 S.W. 3d 919 (Tex. Crim. App. 2011) ……………….. 3

State v. Dixon , 206 S.W. 3d 587 (Tex. Crim. App. 2008) …………………… 3

State v. Johnson , 336 S.W. 3d 649 (Tex. Crim. App. 2011) ……………… 3, 6

State v. Kelly , 204 S.W. 3d 808 (Tex. Crim. App. 2006) ……………………. 3

State v. Robinson , 334 S.W. 3d 776 (Tex. Crim. App. 2011) ……………….. 3

Valtierra v. State , 310 S.W. 3d 442 (Tex. Crim. App. 2010) ………………… 3

Rules

Tex. R. App. P. 9.4(e) ………………………………………………………….. 8

Tex. R. App. P. 9.4(i) …………………………………………………………… 8

Tex. R. App. P. 9.4(i)(1) ………………………………………………………… 8

iv *5 Issue Presented Did the trial court err in denying Appellant’s motion to suppress due

to the executing officer’s failure to comply with a term of the search

warrant?

v

*6 Statement of Facts Appellant was charged by information with the offense of Driving While Intoxicated. (CR I – 5). Appellant filed a Motion to Suppress,

challenging the admission of blood test results. (CR I – 11, et seq.). The

basis alleged for suppression was that the executing officer failed to

comply with the warrant provision requiring that Appellant’s blood be

drawn at a hospital. (CR I – 11, et seq.).

The trial court conducted a hearing on the Motion to Suppress. (RR I).

Appellant entered into evidence the Search Warrant with appended Order

for Assistance in Execution of Search Warrant (RR I, Defendant’s Exhibit 1);

and the Affidavit of Person Who Withdrew Blood (RR I, Defendant’s

Exhibit 2). The parties stipulated to the facts surrounding the issuance and

execution of the search warrant. (RR I – 9). Those facts, as articulated by

Appellant’s counsel, were that the investigating officer obtained a search

warrant for Appellant’s blood; that the warrant directed the officer to

transport Appellant to a hospital for the blood draw; and that the blood

draw was instead performed at the county jail. (RR I – 5).

Appellant argued that the blood test result should be suppressed

because the officer did not comply with the provision requiring that the

blood be drawn at a hospital. (RR I – 5-6). The State took the position that

the hospital requirement was “boilerplate” language from a preprinted

form which should not outweigh considerations of reasonableness, as

required by the Fourth Amendment. (RR I – 6).

The trial court denied the Motion to Suppress by written order. (CR I

– 16). In its order, the trial noted that the Affidavit of Person Who

Withdrew Blood indicated that the blood specimen was taken “by a

Licensed Vocational Nurse … using reliable procedures as recognized by

the scientific community in the state of Texas and in a sanitary place.” (CR

I – 16). The court further cited its reliance on Bailey v. State , 2014 WL

3893069 (Tex. App. – Austin, August 8, 2014). Appellant subsequently

entered his guilty plea, preserving his right to appeal the suppression. (CR

I – 22-24).

Summary of Argument The trial court did not abuse its discretion in denying Appellant’s

motion to suppress, as the executing officer’s failure to comply with a term

of the search warrant did not prejudice the Appellant.

Argument Reasonableness of a Blood Draw

The United States Supreme Court addressed warrantless blood draws in the case of Schmerber v. California , 384 U.S. 758, 86 S.Ct. 1826

(1966). In finding that a blood draw constituted a search, the Supreme

Court determined that the means and procedures employed in taking a

subject’s blood must respect relevant Fourth Amendment standards for

reasonableness. Schmerber at 768. In analyzing blood draw searches in

light of the Schmerber requirements, the Texas Court of Criminal Appeals

has determined that blood drawn in accordance with acceptable medical

practices is reasonable. State v. Johnson , 336 S.W. 3d 649, 664 (Tex. Crim.

App. 2011). In the case at bar, Appellant introduced the Affidavit of Person

Who Withdrew Blood, showing that Appellant’s blood was taken “by a

Licensed Vocational Nurse … using reliable procedures as recognized by

the scientific community in the state of Texas and in a sanitary place.”

There is no evidence in the record contrary to the proposition that the

manner of taking Appellant’s blood was unreasonable.

Abuse of Discretion

The standard of review applicable to a trial court’s ruling on a motion to suppress is abuse of discretion. Martinez v. State , 348 S.W. 3d 919, 922

(Tex. Crim. App. 2011); State v. Dixon , 206 S.W. 3d 587, 590 (Tex. Crim.

App. 2008). As such, the trial court’s ruling will be overturned only if it

falls outside the zone of reasonable disagreement. The reviewing court

applies a bifurcated standard, giving almost total deference to the trial

court’s findings of historical fact; and reviewing de novo the trial court’s

application of the law of search and seizure. Carmouche v. State , 10 S.W. 3d

323, 327 (Tex. Crim. App. 2000); Guzman v. State , 955 S.W. 2d 85, 89 (Tex.

Crim. App. 1997). The reviewing court views the evidence in the light

most favorable to the ruling. State v. Robinson , 334 S.W. 3d 776, 778 (Tex.

Crim. App. 2011); State v. Kelly , 204 S.W. 3d 808, 819 (Tex. Crim. App. 2006).

The trial court’s ruling will be upheld if it is reasonably supported by the

record and correct on any applicable theory of law. Valtierra v. State , 310

S.W. 3d 442, 448 (Tex. Crim. App. 2010); Dixon at 590.

Analysis

The historical facts of the case are undisputed. The search warrant

commanded any peace officer to search for, seize and maintain as evidence

human blood from the body of the Appellant. The warrant further directed

that Appellant be transported to a hospital in McLennan County, where the

search was to be conducted. No claim has been asserted that the warrant

was in any way invalid.

It is further undisputed that the blood draw was done at the

McLennan County Jail by a licensed vocational nurse, using reliable

procedures recognized by the scientific community in the State of Texas

and in a sanitary place.

In the case at bar, Appellant argues that the executing officer’s “blatant

disregard” of explicit directions contained in a search warrant cannot be

reasonable, and the evidence obtained through the warrant must be

suppressed. In considering this assertion, and disregarding it, the trial was

guided by an unpublished opinion of the Austin Court of Appeals, Bailey v.

State , 2014 WL 3893069 (Tex. App. – Austin, August 8, 2014). In Bailey , the

appellant complained that the blood search warrant was executed at a

hospital rather than the county jail, as directed in the warrant. Bailey at 1.

The Austin court noted that appellant cited to no authority holding

that blood obtained pursuant to a valid search warrant may be drawn only

at the location specified in the warrant. Bailey at 2. The court found that

transporting the appellant to a hospital to draw blood did not violate any

federal or state constitutional or statutory law. Id .

The Austin Court of Appeals noted the well-established rule that,

while the scope of a search warrant is limited by its terms, the search may

be as extensive as is reasonably required to locate the items described in the

warrant. Id . In support of this proposition, the court cited to Haynes v.

State , 457 S.W. 2d 739, 741-742 (Tex. Crim. App. 1971) and DeMoss v. State ,

12 S.W. 3d 553, 558 (Tex. App. – San Antonio 1999, pet. ref’d ). Bailey , fn. 10.

While the appellant in Bailey argued that the search was unreasonable

because the officer exceeded the warrant requirement by transporting him

to the hospital, Appellant in the case at bar takes the contrary position that

the blood draw was unreasonable because the officer neglected to avail

himself of the full range of acts authorized to accomplish the purpose of the

warrant. To adopt this position would be to insist on an illogical, hyper-

technical interpretation of warrants which, in fact, is not reasonable.

The Waco Court of Appeals has rejected a hyper-technical analysis of

search warrants. In the unpublished opinion of Garner v. State , 2012 WL

6674488 (Tex. App. – Waco, December 20, 2012), that court reviewed the

denial of a motion to quash predicated on a claim that the serving officers

failed to provide the appellant a copy of the written inventory. The

appellant claimed that the officers “clearly chose to disregard the law” and

because of this, he was unaware of the nature of the search warrant, the

allegations in the affidavit, the directives of the warrant and the evidence

taken when the warrant was executed. Garner at 2.

The Court noted that Garner had been given a copy of the search

warrant and inventory by his attorney before trial, and there was nothing

in the record to show that he was surprised, harmed or prejudiced by the

failure of the officers to provide him with a copy of the search warrant and

inventory at the scene. Id . Finding that the purpose of serving the

inventory had been accomplished, the Court found that Garner had not

been prejudiced by the officers’ failure to comply with the applicable

provision of the Code of Criminal Procedure. Id . As such, the Court found

that the trial court had not abused discretion in denying the motion to

quash. Id .

By analogy, Appellant in the case at bar has likewise failed to

demonstrate prejudice. The warrant directed that Appellant be taken to a

hospital for the blood draw. The purpose of this provision was clearly to

assure that the blood draw was done in a reasonable manner in accordance

with acceptable medical practices. Johnson at 664. The evidence adduced

at the suppression hearing showed that a qualified person performed the

blood draw using reliable procedures as recognized by the scientific

community in the state of Texas and in a sanitary place. The purpose of the

the provision having been fulfilled, Appellant suffered no prejudice.

The reasonableness of the blood draw, as required by Schmerber and

Johnson , having been shown by the evidence, the trial court did not abuse

its discretion in finding that Appellant was not prejudiced by taking his

blood at the county jail.

Appellant’s point of error is without merit.

Prayer For the foregoing reasons, the State of Texas prays that this Honorable Court affirm the trial court’s denial of the motion to suppress,

and prays for such other and further relief as may be provided by law.

Respectfully Submitted: A BELINO ‘A BEL ’ R EYNA Criminal District Attorney McLennan County, Texas /s/ Sterling Harmon_________ S TERLING H ARMON Appellate Division Chief 219 North 6 th Street, Suite 200 Waco, Texas 76701 [Tel.] (254) 757-5084 [Fax] (254) 757-5021 [Email] sterling.harmon@ co.mclennan.tx.us State Bar No. 09019700 *13 Certificate of Compliance This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document

also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if

applicable, because it contains 1,546 words, excluding any parts exempted

by Tex. R. App. P. 9.4(i)(1).

Certificate of Service I certify that I caused to be served a true and correct copy of this State’s Brief by E-Filing Service on Appellant’s attorney of record.

D ATE : 7/9/15____ / S / S TERLING H ARMON __________

S TERLING H ARMON