No. 13-06-356-CR
Memorandum opinion delivered and filed this July 5, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On appeal from the County Court at Law No. 1 of Nueces County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA. Memorandum Opinion by Justice YaÑez.
LINDA REYNA YAÑEZ, Justice.
Appellant, Philip Bohrer, was charged by information with misdemeanor driving while intoxicated. Appellant filed a pretrial motion to suppress the results of his blood test; the motion was denied. Through two issues on appeal, appellant asserts the trial court erred in denying the motion. We affirm.
Standard of Review
The appropriate standard for reviewing most trial court's rulings on a motion to suppress is a bifurcated standard of review, giving almost total deference to the trial court's determination of historical facts and reviewing de novo the court's application of the law. Discussion
In his first issue, appellant asserts that his blood test should have been suppressed because it was not administered in accordance with section 724.017 of the transportation code. According to section 724.017, "Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter." This section further states that a "`qualified technician' does not include emergency medical services personnel." In the instant case, the record clearly establishes that Richard Rhode, an "emergency medical technician" (or "paramedic"), was responsible for taking appellant's blood specimen. Accordingly, appellant asserts that Rhode was not a "qualified technician" as required by section 724.017, and that the blood test results should be suppressed as a result. The limitations on medical personnel who may take samples apply only when the samples are taken "at the request or order of a peace officer." These limitations do not apply when the tests are conducted by medical personnel solely for medical purposes. There is no evidence that the samples in this case were taken at the request of a peace officer. The only evidence in this case demonstrates that the blood sample was taken from appellant in order to assess appellant's medical condition. Appellant's first issue is therefore overruled. In his second issue, appellant asserts that his blood results should have been suppressed because "no subpoena was issued for the State to obtain a blood sample or the results of the blood test." In response to this issue, the State contends that this complaint is waived since appellant "entirely failed to raise any complaint in his motion to suppress or at the hearing concerning the legality of the manner by which the State obtained the test results, nor did he raise any constitutional challenge to the evidence." A motion to suppress is a specialized objection to the admissibility of evidence. Therefore, a suppression motion must meet the requirements of an objection. It must be timely and sufficiently specific to inform the trial court of the complaint. The specificity requirement has a dual objective: (1) to inform the trial court of the basis for the objection; and (2) to provide opposing counsel the opportunity to cure the objection or supply other testimony. The only complaint appellant raised at the hearing or in his motion to suppress related to the requirements of section 724.017; no complaint regarding the existence of a subpoena was ever raised. In his reply brief, appellant argues that he did not waive his complaint because his motion to suppress stated, "The results of the blood test were obtained in a manner that requires their exclusion in accordance with the provisions of Article 38.23 of the Texas Rules of Criminal Procedure." According to article 38.23 of the code of criminal procedure: No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. We first note that appellant's motion to suppress referenced article 38.23 immediately after stating that his blood specimen was "collected in violation of Section 724.017." Accordingly, we find that appellant's reference to article 38.23 was simply an extension of his argument regarding section 724.017. Second, we find that appellant cannot rely solely on his referencing of article 38.23 to contest the waiver of this second issue because such reliance fails to satisfy appellant's burden to be sufficiently specific in informing the trial court of his complaint. Appellant's second issue is overruled. Conclusion
We affirm the trial court's judgment.