Opinion
14-19-00735-CR
08-19-2021
RONALD THOMAS HILL, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish - Tex. R. App. P. 47.2(b).
On Appeal from the 212th District Court Galveston County, Texas Trial Court Cause No. 17-CR-2029
Panel consists of Justices Spain, Hassan, and Poissant.
MEMORANDUM OPINION
MARGARET “MEG” POISSANT, JUSTICE
Appellant Ronald Thomas Hill appeals his conviction for driving while intoxicated (DWI), third offense or more, a third-degree felony. See Tex. Penal Code Ann. §§ 49.04, 49.09(b). In three issues we address as two, appellant argues (1) the trial court erred in denying his motion to suppress, and (2) there was insufficient evidence of his prior DWI convictions. We affirm.
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.
On September 21, 2016, Officer Luis Velasquez of the Dickinson Police Department witnessed appellant strike a concrete pillar with his truck at a gas station in Dickinson, Texas. Appellant parked the truck in a parking space in front of the gas station. Officer Velasquez approached appellant and noticed a smell of alcohol on appellant's breath. Believing appellant exhibited signs of intoxication, Officer Velasquez asked appellant if he would do standard field sobriety tests, and appellant replied yes. Officer Velasquez administered a horizontal gaze nystagmus (HGN) test. During the HGN test, Velasquez observed all six clues of intoxication, handcuffed appellant, and transported him to the police station. At the police station, appellant refused to submit to further testing. Based on Officer Velasquez's affidavit, a magistrate issued a search warrant for appellant's blood, and a sample was obtained. The State performed an analysis of appellant's blood over 100 days later, which showed appellant's blood alcohol level to be 0.260 grams of ethanol per 100 milliliters of blood.
In July 2017, appellant was indicted for the underlying offense. The indictment alleged that appellant was previously convicted of DWI offenses on August 5, 1994, and June 22, 1998, thereby enhancing appellant's underlying DWI offense to a third-degree felony. See id. § 49.09(b); Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999) ("The prior intoxication-related offenses, whether they are felonies or misdemeanors, serve the purpose of establishing whether the instant offense qualifies as felony driving while intoxicated."). The indictment further alleged that appellant was previously convicted of two additional felony offenses for DWI on November 27, 2007, and July 12, 2012, thereby elevating his punishment for the underlying DWI offense to that of a habitual-felony offender. Tex. Penal Code Ann. § 12.42(d) (elevating the punishment range for habitual-felony offenders to "any term of not more than 99 years or less than 25 years"); see also Gibson, 995 S.W.2d at 696 ("We conclude that prior intoxication-related convictions serve the purpose of enhancing the offense in [§] 49.09(b) whereas the prior convictions used in [§] 12.42(d) serve the purpose of enhancing punishment.").
On February 14, 2019, appellant filed a "Second Motion to Suppress,"seeking to suppress "the blood analysis search of [appellant's] blood" because the blood analysis was made without a warrant. Specifically, appellant argued that: (1) the extraction of his blood and the analysis of his blood constituted two separate searches, and therefore, the State was required to obtain a second warrant for the analysis of his blood, which the State failed to do; and (2) the analysis of his blood was not executed within the three-day timeframe provided in the warrant.
Appellant had previously filed another motion to suppress, which he abandoned.
The search warrant executed by Officer Velasquez provided:
Now, therefore, you are commanded to take custody of the suspect and transport the suspect to a physician, registered nurse, qualified technician, phlebotomist or medical laboratory technician skilled in the taking of blood from the human body, in Galveston County, Texas, where the said physician, registered nurse, qualified technician or medical laboratory technician shall, in the presence of a law enforcement officer, take samples of the blood from the body of [appellant].
Law enforcement officers are authorized to use all reasonable force necessary to assist the physician registered nurse, qualified technician, phlebotomist or medical laboratory technician to take the samples from the body suspect. After obtaining the samples of [b]lood, the physician, registered nurse, qualified technician, phlebotomist or medical laboratory technician shall deliver the said samples to the said law enforcement officer.
Herein fail not, but have you then and there this warrant within three days, exclusive of the day of its issuance, with your return thereon, showing how you have executed the same.
The trial court denied appellant's motion and did not issue findings of fact or conclusions of law.
At trial, the trial court admitted into evidence an "Order Granting Probation" as proof of appellant's DWI conviction from 1994 and an "Order Granting Community Supervision" as proof of appellant's DWI conviction from 1998. The jury found appellant guilty of the offense, found the enhancement allegations to be true, and assessed punishment at thirty-five years imprisonment in the Texas Department of Justice Institutional Division. This appeal followed.
II. Motion to Suppress
In his first issue, appellant argues that the trial court erred in denying his motion to suppress because: (1) the analysis of his blood required a second warrant because it was a separate search from the blood draw, and (2) the lab analysis was not performed within the three-day window provided for in the search warrant.
A. Standard of Review
In reviewing a trial court's ruling on a motion to suppress, appellate courts apply a bifurcated standard of review. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019).
The trial court is given almost complete deference in its determination of historical facts, especially if those are based on an assessment of credibility and demeanor. The same deference is afforded the trial court with respect to its rulings on application of the law to questions of fact and to mixed questions of law and fact, if resolution of those questions depends on an evaluation of credibility and demeanor. However, for mixed questions of law and fact that do not fall within that category, a
reviewing court may conduct a de novo review.Id. Additionally, we review de novo questions of law. Id. 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. Applicable Law
The Fourth Amendment protects individuals against unreasonable searches and seizures. U.S. Const. amend. IV; see Riley v. California, 573 U.S. 373, 381-82 (2014) ("[T]he ultimate touchstone of the Fourth Amendment is reasonableness."); see also Tex. Const. art I, section 9. A warrantless search is per se unreasonable. Marcopoulus v. State, 538 S.W.3d 596, 599 (Tex. Crim. App. 2017); see Meekins v. State, 340 S.W.3d 454, 458 (Tex. Crim. App. 2011).
A compulsory blood draw conducted at the direction of a law enforcement officer constitutes a search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767-68 (1966); State v. Johnston, 336 S.W.3d 649, 65758 (Tex. Crim. App. 2011). "[W]hen the State itself extracts blood from a DWI suspect, and when it is the State that conducts the subsequent blood alcohol analysis, two discrete 'searches' have occurred for Fourth Amendment purposes." State v. Huse, 491 S.W.3d 833, 840 (Tex. Crim. App. 2016); see Martinez, 570 S.W.3d at 290-91; see also State v. Hardy, 963 S.W.2d 516, 523 (Tex. Crim. App. 1997) ("Where the drawing of blood is instigated by the government, a subsequent analysis of the blood by the government agents also constitutes an invasion of a societally recognized expectation of privacy."). However,
[a] neutral magistrate who has approved a search warrant for the extraction of a blood sample, based upon a showing of probable cause to believe that a suspect has committed the offense of driving while intoxicated, has necessarily also made a finding of probable cause that
justifies the chemical testing of that blood. Indeed, that is the purpose of the blood extraction. This means that the constitutional objective of the warrant requirement has been met: the interposition of a neutral magistrate's judgment between the police and the citizen to justify an intrusion by the State upon the citizen's legitimate expectation of privacy.Crider v. State, 607 S.W.3d 305, 307-08 (Tex. Crim. App. 2020).
C. Analysis 1. Blood Analysis
Appellant first argues that the State was required to obtain a second warrant to perform the lab analysis on his blood drawn under the warrant and relies on the Texas Court of Criminal Appeals' opinion in Martinez v. State. See Martinez, 570 S.W.3d at 290. In Martinez, the State obtained and tested, without a warrant, Martinez's blood from vials drawn by hospital staff for medical purposes when Martinez received medical treatment after a vehicular accident. See id. at 281. Martinez was subsequently indicted for intoxication manslaughter. Id. The court of criminal appeals upheld the suppression of the analysis of Martinez's blood because the State never obtained a warrant and because Martinez had a reasonable expectation of privacy in the "private facts" contained in the blood drawn by the medical personnel. See id. at 288-92. In doing so, the court of criminal appeals rejected the State's argument that Martinez had no expectation of privacy in the vials containing samples of his blood and reiterated that the chemical testing of blood constitutes a separate and discrete invasion of privacy for Fourth Amendment purpose from the physical extraction of that blood. Id. at 284, 292; see also Huse, 491 S.W.3d at 840; Hardy, 963 S.W.2d at 523.
The court of criminal appeals concluded that there was evidence that Martinez had a subjective expectation of privacy in his blood sample because he asked that no tests be performed on it and because he did not abandon his blood when he abruptly left the hospital. State v. Martinez, 570 S.W.3d 278, 285-86 (Tex. Crim. App. 2019). Martinez's expectation of privacy in the blood was reasonable because there was no evidence that he voluntarily gave his blood to be tested. Id at 287-88. And Martinez's expectation of privacy in the "private facts" in his blood was not frustrated by the hospital staff because the hospital did not perform any tests on his blood. Id. at 282, 291-92.
Appellant does not challenge the warrant authorizing the blood draw or Officer Velasquez's affidavit in support thereof reciting that there was probable cause that appellant committed a DWI offense. Instead, appellant argues that the court of criminal appeals' decision in Martinez necessarily means that the State is required to obtain two warrants-i.e., one for the blood draw and one for the forensic analysis. However, since appellant filed his brief, the court of criminal appeals has rejected this same argument based on Martinez and clarified that a warrant authorizing the draw of an individual's blood also authorizes the chemical testing of that blood for Fourth Amendment purposes. See Crider, 607 S.W.3d at 307-08. This Court has drawn the same conclusion. Ramirez v. State, 611 S.W.3d 645, 649-50 (Tex. App.-Houston [14th Dist.] 2020, pet. ref'd) ("[W]e 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 [Texas] Court of Criminal Appeals in Crider."). Therefore, we reject appellant's argument that the State was required to obtain a second, separate warrant to perform chemical testing of his blood obtained pursuant to a valid warrant. See Crider, 607 S.W.3d at 307-08; Ramirez, 611 S.W.3d at 650; see also Hyland v. State, 595 S.W.3d 256, 261 (Tex. App.- Corpus Christi-Edinburg 2019, no pet.) ("[U]nlike Martinez, the search here was not warrantless.").
2. The Warrant's Three-day Deadline
Appellant also argues that the blood analysis should have been suppressed because 105 days passed between the blood draw and the forensic analysis of the blood. In other words, appellant argues, the trial court should have suppressed the results of the blood analysis because the analysis did not occur within the three-day deadline provided for in the warrant. Appellant cites to the Code of Criminal Procedure in support of this contention. See Tex. Code Crim. Proc. Ann. arts. 18.06(a) (providing that "a search warrant must be executed within three days from the time of its issuance"), 18.07(a)(3) ("The period allowed for the execution of a search warrant, exclusive of the day of its issuance and of the day of its execution is . . . three whole days if the warrant is issued for a purpose other than that described by Subdivision (1) or (2)."). However, we have recently rejected this argument. See Ramirez, 611 S.W.3d at 651-52 (analyzing chapter 18 of the Code of Criminal Procedure and concluding that "the three-day requirement for the execution of a search warrant sets the limit for the actual search for and seizure of the evidence by a peace officer, not the timing of any subsequent forensic analysis that may be conducted on the seized evidence").
The lab analysis report's "issue date" is January 10, 2017, which is 108 days after the warrant expired.
Here, the search warrant authorized the drawing of appellant's blood within the three days following its issuance, and it is undisputed that appellant's blood was drawn within that three-day deadline. Because we have previously concluded that the three-day requirement does not apply to the subsequent forensic analysis of the legally seized sample of appellant's blood, we reject appellant's argument that the blood analysis was inadmissible. See id. at 652 ("We hold that the undisputed fact that the forensic analysis of appellant's blood occurred at a date beyond the three-day window for execution of the search warrant did not render the search warrant stale."); see also Schneider v. State, 623 S.W.3d 38, 44 (Tex. App.-Austin 2021, pet. filed) ("[W]e similarly conclude that the forensic analysis occurring more than three days after the warrant issued did not render the results of the testing inadmissible."); State v. Jones, 608 S.W.3d 262, 264-65 (Tex. App.-Dallas 2020, pet. ref'd) (noting that article 18.07(a)(3) "merely provides the deadlines for seizing the evidence, not analyzing it").
Appellant's first issue is overruled.
III. Jurisdictional Enhancement Offenses
In his second issue, appellant argues the State failed to present sufficient evidence of the prior convictions used to enhance his offense to a third-degree felony. Appellant argues that exhibits five and six-the documents introduced to prove his 1994 and 1998 DWI convictions-are not judgments, and thus, the State failed to introduce evidence that the prior DWIC convictions existed because there is no proof that a judgment of guilt was entered by the court, which appellant contends is necessary to be "finally convicted of DWI."
A. Applicable law
An offense for DWI is elevated from a misdemeanor to a third-degree felony if the defendant has been previously convicted of two offenses related to the operation of a motor vehicle while intoxicated. See Tex. Penal Code Ann. §§ 49.04, 49.09(b)(2). These prior convictions are jurisdictional requirements for the district court. See Puente v. State, 71 S.W.3d 340, 343 (Tex. Crim. App. 2002) ("A district court has jurisdiction over felony offenses. It does not have jurisdiction over misdemeanor charges, except those involving official misconduct.").
To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that (1) a prior conviction exists, and (2) the defendant is linked to that conviction. No specific document or mode of proof is required to prove these two elements. There is no "best evidence" rule in Texas that requires that the fact of a
prior conviction be proven with any document, much less any specific document. While evidence of a certified copy of a final judgment and sentence may be a preferred and convenient means, the State may prove both of these elements in a number of different ways, including (1) the defendant's admission or stipulation, (2) testimony by a person who was present when the person was convicted of the specified crime and can identify the defendant as that person, or (3) documentary proof (such as a judgment) that contains sufficient information to establish both the existence of a prior conviction and the defendant's identity as the person convicted.Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007) (footnotes omitted).
For a DWI offense that occurred between January 1, 1984, and September 1, 1994, "a conviction . . . is a final conviction, whether or not the sentence for the conviction is probated." See Tex. Penal Code Ann. § 49.09(c)(1)(C); Ex parte Serrato, 3 S.W.3d 41,42-43 (Tex. Crim. App. 1999) (per curiam); see also Gonzales v. State, 309 S.W.3d 48, 50, 52 (Tex. Crim. App. 2010) (rejecting argument that the trial court's judgment was not a final DWI conviction, despite the judgment stating that "the finding of guilty herein shall not be final, that no judgment be rendered thereon, and that Defendant be, and is hereby placed on probation in this cause for a period of two years"). Likewise, for a DWI offense occurring after September 1, 1994, "a conviction . . . is a final conviction, whether the sentence for the conviction is imposed or probated." Tex. Penal Code Ann. § 49.09(d); see id. § 49.04; see also Belle v. State, No. 14-05-01111-CR, 2006 WL 2074662, at *1-2 (Tex. App.- Houston [14th Dist.] July 27, 2006, no pet.) (mem. op., not designated for publication).
B. Standard of Review
When examining the legal sufficiency of the evidence, we consider the combined and cumulative force of all admitted evidence in the light most favorable to the conviction to determine whether, based on the evidence and reasonable inferences therefrom, any rational trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ramsey v. State, 473 S.W.3d 805, 808 (Tex. Crim. App. 2015). In doing so, we give deference to the responsibility of the jury as factfinder to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from facts. Harmon v. State, 167 S.W.3d 610, 613 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd); Johnson v. State, 419 S.W.3d 665, 671 (Tex. App.-Houston [1st Dist.] 2013, pet. ref'd). Inferences based on mere speculation, however, are insufficient to support a criminal conviction. Ramsey, 473 S.W.3d at 809.
We measure the legal sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge for the offense. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Byrd, 336 S.W.3d at 246; Malik, 953 S.W.3d at 240.
C. Analysis
Here, a hypothetical jury charge would instruct the jury that, in order to convict appellant of the charged DWI offense, it needed to find beyond a reasonable doubt that appellant was: (1) convicted for DWI on August 5, 1994, in cause number 79839B in the County Court at Law No. 3 and Probate Court of Brazoria County, Texas; and (2) convicted for DWI on June 22, 1998, in cause number 97419 in the County Court at Law No. 2 and Probate Court of Brazoria County, Texas. See Tex. Penal Code Ann. §§ 49.04, 49.09(b); Byrd, 336 S.W.3d at 246; Gibson, 995 S.W.2d at 696 ("The prior intoxication-related offenses are elements of the [felony] offense of driving while intoxicated.").
1. The 1994 DWI Conviction
The State offered an "Order Granting Probation" from August 5, 1994, as proof of appellant's conviction for a DWI offense from July 2, 1994. The order was entered in cause number 79839B in the County Court at Law No. 3 and Probate Court of Brazoria County. The order states:
Ronald Thomas Hill, in person, (having knowingly, intelligently, and voluntarily waived the right to counsel) . . . appeared in court. Whereupon, the Court proceeded to arraign [Hill] by fixing his identity and hearing his plea of (guilty) . . . to the charge of DWI-1st offense.... [T]he Court accepted such plea and entered the same on the docket of the Court. [Hill] having been found guilty as charged in the information and assessed his punishment at a fine of $200.00 Dollars and 90 days confinement in the County Jail. However, it being the opinion of the Court that the ends of justice and the best interest of society, as well as that of [Hill], will be served by granting [Hill] probation, the Court hereby grants [Hill] probation.
It is therefore ORDERED, ADJUDGED AND DECREED by the Court that a judgment shall be entered on such finding of guilt at this time but that [Hill] shall be placed on probation ....
Contrary to appellant's argument, this order granting probation evidences a final conviction for the purposes of the enhancement statute for DWI offenses because "a conviction . . . is a final conviction, whether or not the sentence for the conviction is probated." See Tex. Penal Code Ann. § 49.09(c)(1)(C)-(D); Gonzales, 309 S.W.3d at 50, 52; Ex parte Serrato, 3 S.W.3d at 42-43. Therefore, appellant's argument that the State needed to produce evidence that a separate judgment of conviction was entered for his 1994 DWI offense is without merit. See Gonzales, 309 S.W.3d at 5152; Flowers, 220 S.W.3d at 921-22.
At trial, the State commented to the trial court that it confirmed with the Brazoria County Clerk "that there is no separate judgment, beyond that order granting probation."
2. The 1998 DWI Conviction
Similarly, the State offered an "Order Granting Community Supervision" from June 22, 1998, as proof of appellant's conviction for a DWI offense that occurred on November 9, 1997. The order was entered in cause number 97419 in the County Court at Law No. 2 and Probate Court of Brazoria County. The order states:
Whereupon, the Court proceeded to arraign [Hill] by fixing his identity and hearing his plea of (guilty) . . . to the charge of DWI-2nd-Class A . . . having been committed on the 9th day of November, 1997. And both sides having announced ready for trial, [Hill] in open court waived a trial by jury and requested that his cause be submitted to the court for decision. And [Hill] waived the reading of the information and after having been duly admonished of the consequences thereof by the Court, insisted on entering his plead to said charge as alleged in the information.... [T]he Court accepted such plea and entered the same on the docket of the Court. [Hill] having been found guilty as charged in the information and assessed his punishment at a fine of $750.00 Dollars and 365 days confinement in the County Jail. However, it being the opinion of the Court that the ends of justice and the best interest of society, as well as that of [Hill], will be served by granting [Hill] community supervision, the Court hereby grants [Hill] community supervision.
It is therefore ORDERED, ADJUDGED AND DECREED by the Court that a judgment shall be entered on such finding of guilt at this time but that [Hill] shall be placed on community supervision ....
Again, this order granting community supervision evidences a final conviction for the purposes of the enhancement statute for DWI. See Tex. Penal Code Ann. §§ 49.04, 49.09(d) ("For the purposes of this section, a conviction for [a DWI offense] that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated."); Gonzales, 309 S.W.3d at 5152 (concluding that similar language in a trial court's order indicated a final conviction for enhancement purposes because of the statutory language providing that a conviction is final whether the sentence is imposed or probated). Therefore, appellant's argument that the State needed to produce evidence that a separate judgment of conviction was entered for his 1998 DWI offense is without merit. See Gonzales, 309 S.W.3d at 51-52; Flowers, 220 S.W.3d at 921-22.
Furthermore, there is no best-evidence requirement that a prior conviction be proved with any specific document. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007). For the reasons discussed in this opinion, the orders here were sufficient to show that appellant was previously convicted of DWI in 1994 and 1998. See Tex. Penal Code Ann. § 49.09(b)(2), (c)(1)(C)-(D), (d). Appellant also argues that the orders from the 1994 and 1998 DWI offenses did not include guilty findings as to those offenses before his sentences were suspended and community supervision was imposed, as required by the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42.01, § 1 ("A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant."). To the extent appellant complains of errors in the orders or of failure by the trial courts to properly document his convictions, we conclude that any such errors were not structural errors and were waived by failing to raise the issue on direct appeal from those orders. See Wiley v. State, 410 S.W.3d 313, 317-18 (Tex. Crim. App. 2013) (holding that appellant forfeited sufficiency complaint "because he failed to bring it as a claim in a direct appeal from the order originally imposing community supervision"); Gray v. State, 159 S.W.3d 95, 96-97 (Tex. Crim. App. 2005) ("[M]any-perhaps most-statutes are designed to help ensure the protection of one constitutional right or another. Having such a purpose does not convert a statutory right into a one of federal constitutional dimension, much less a right whose violation is considered to be structural error."); see also Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991) (enumerating "structural defects"- violations of federal constitutional prescripts held to be so "basic" to the reliable functioning of the criminal justice system that they are not subject to a harm analysis); Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004) ("Most constitutional errors are not 'structural'; that is, they can be harmless.").
We conclude there was legally sufficient evidence of appellant's 1994 and 1998 DWI convictions. See Ramsey, 473 S.W.3d at 808. Appellant's third issue is overruled.
IV. Conclusion
Having overruled each issue raised by appellant, we affirm the trial court's judgment as challenged on appeal.