Opinion
No. 04-14-00389-CR No. 04-14-00390-CR
05-17-2017
Paul Anthony GARCIA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 216th Judicial District Court, Kendall County, Texas
Trial Court Nos. 5397 & 5398
Honorable N. Keith Williams, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice REVERSE AND REMAND FOR NEW TRIAL
This appeal is on remand from the Texas Court of Criminal Appeals. Paul Anthony Garcia appeals from his conviction for reckless bodily injury to a child and intoxication manslaughter. In an opinion dated July 29, 2015, this court reversed Garcia's conviction after concluding the trial court erred by denying his motion to suppress evidence obtained in a warrantless blood draw. See Garcia v. State, Nos. 04-14-00389-CR & 04-14-00390-CR, 2015 WL 4554289 (Tex. App.—San Antonio July 29, 2013), rev'd & remanded, No. PD-1118-15 & PD-1119-15, 2016 WL 4491521 (Tex. Crim. App. Aug. 24, 2016) (per curiam).
In the original appeal, Garcia asserted the trial court erred by (1) denying his motion to suppress; (2) admitting certain medical records into evidence; and (3) denying his motion for mistrial based on the State's alleged improper jury argument. Because we agreed the trial court erred in denying Garcia's motion to suppress and because that issue was dispositive, we did not address Garcia's other two issues.
On the State's appeal to the Court of Criminal Appeals, the Court determined the State could raise, for the first time on appeal to that Court, a complaint that this court erred by reversing the trial court without considering whether there were exigent circumstances justifying the warrantless blood draw. The Court remanded the cause to this court for consideration of the State's argument. We permitted both parties to rebrief the issue on remand. We again conclude the trial court erred in denying Garcia's motion to suppress, and we reverse and remand for a new trial.
In its appeal to the Court of Criminal Appeals, the State raised other grounds for review; however, the Court refused those grounds with prejudice.
ANALYSIS
The "drawing of a suspect's blood constitutes a search within the meaning of the Fourth Amendment." State v. Villarreal, 475 S.W.3d 784, 808 (Tex. Crim. App. 2014). A warrantless search of the person is reasonable only if it falls within a recognized exception to the warrant requirement. Cole v. State, 490 S.W.3d 918, 923 (Tex. Crim. App. 2016); Weems v. State, 493 S.W.3d 574, 578 (Tex. Crim. App. 2016); Villarreal, 475 S.W.3d at 812. One such exception, and the one at issue on remand here, is the so-called exigency exception.
"The exigency exception operates 'when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.'" Weems, 493 S.W.3d at 578 (citation omitted). Whether law enforcement faced an emergency that justifies acting without a warrant calls for a case-by-case determination based on the totality of circumstances. Cole, 490 S.W.3d at 923; Weems, 493 S.W.3d at 578. An exigency analysis requires an objective evaluation of the facts reasonably available to the officer at the time of the search. Id. In both Cole and Weems, the Court of Criminal Appeals recognized several circumstances relevant to an exigency analysis of a warrantless blood draw: the elimination or dissipation rate of any alcohol or drugs from the suspect's system; the availability of other law enforcement officers to obtain a warrant; the procedures in place for obtaining a warrant; the availability of a magistrate judge; and the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence. Cole, 490 S.W.3d at 925-26; Weems, 493 S.W.3d at 580-81.
Appellate review of a trial court's ruling on a motion to suppress is ordinarily limited to the record at the time of the suppression hearing. Turrubiate v. State, 399 S.W.3d 147, 150-51 (Tex. Crim. App. 2013). However, our review may include evidence adduced at trial if the suppression issue was consensually re-litigated by the parties during trial. Id. at 151. The parties do not contend, and our review of the record does not reveal, the suppression issue was re-litigated at trial. Therefore, our review is limited to the record before the trial court at the suppression hearing.
At the suppression hearing, DPS Trooper Eric Kendrick testified he was dispatched to the scene of a two-vehicle accident at approximately 11:45 p.m. on a September evening. Trooper Kendrick arrived at the scene about ten minutes later, by which time another officer was already at the scene. After speaking briefly with the other officer and after noting the driver of one of the overturned vehicles was already deceased, Trooper Kendrick made contact with Garcia, who was the driver in the second vehicle. Because Garcia was trapped in his driver's-side seat, Trooper Kendrick spoke to him through the passenger-side window. As Kendrick asked Garcia questions about the accident, Kendrick noticed Garcia was disoriented and did not have normal use of his mental faculties. A "short time later," Garcia was extricated from his vehicle and airlifted to a hospital. Kendrick thought Garcia had a broken leg. A passenger in the other vehicle also was airlifted to a hospital.
Although Kendrick did not initially believe Garcia was intoxicated, after Garcia was airlifted away from the accident scene, Kendrick discovered an open container of alcohol and a marijuana pipe inside Garcia's vehicle. This discovery, as well as knowing Garcia had been driving the wrong way on the road and was disoriented during their conversation, led Kendrick to believe Garcia was intoxicated. Kendrick contacted DPS San Antonio Communications, which in turn, dispatched another officer to the hospital to perform a mandatory blood draw on Garcia.
Kendrick conceded there was "nothing about this circumstance that would have prevented [him] from getting a search warrant at the time." Kendrick did not explain why he did not ask another officer to obtain a search warrant; instead, he said the blood draw was done pursuant to the statute. Kendrick stated that, while Garcia was at the hospital, DPS Trooper Zarate informed Garcia he would take a mandatory blood draw, and Garcia did not refuse. According to a report admitted into evidence, a nurse drew Garcia's blood at about 2:00 a.m. No other witnesses testified at the hearing, and no other details about the investigation of the accident or the circumstances at the hospital were presented.
On remand, the State argues all of the Weems factors are satisfied in this case. The State contends this case is not a "routine" DWI case, but "rather a fatality crash involving multiple vehicles and two severely injured people, one of whom was [Garcia, and] both [people] required emergency transport to the hospital by helicopter from the scene that night." The State contends Trooper Kendrick suspected Garcia may have been intoxicated on substances other than alcohol thereby further contributing to the need for an immediate blood draw to preserve evidence. The State insists Garcia was "severely" injured and it could be reasonably inferred that medical treatment, including the administration of pain medication, would occur at the hospital thereby resulting in further destruction or compromising of blood evidence.
In Weems, Weems was involved in a one-car accident when he drove himself and a friend home from a bar where the two had been drinking alcohol. 493 S.W.3d at 575. On the way home, Weems's car veered off the road, flipped over, and hit a utility pole. Id. A nearby witness saw Weems crawl out of the vehicle from the driver's side window, and when the witness asked if Weems was okay, Weems said he was drunk. Id. Weems then fled the scene. Id. The witness called 911, and Deputy Munoz responded to the call and later found Weems hiding under a nearby-parked car, nearly forty minutes after the accident. Id. at 575-76, 581.
Deputy Bustamante testified he took custody of Weems and noticed Weems's bloodshot eyes, slurred speech, bloodied face, inability to stand, and a strong smell of alcohol on Weems's breath. Id. at 576. Because Bustamante believed Weems had sustained injuries in the accident, the officer did not conduct field sobriety tests. Id. Based upon his observations, the officer arrested Weems on suspicion of driving while intoxicated. Weems refused to give a breath sample or blood sample, and EMS provided treatment to Weems at the location of his arrest, and then transported Weems to the hospital for further treatment. Id. Deputy Bustamante followed the ambulance to the hospital, which took only a couple of minutes, and Bustamante filled out a form for the hospital to draw blood from Weems. Id. Bustamante was not the only deputy charged with investigating the accident, and he was accompanied by Deputy Shannon, Bustamante's instructor. Id. at 582. Because the hospital was busy that evening, Weems's blood was not drawn until about two hours after Weems was arrested. Id. at 576. Prior to his trial, Weems filed a motion to suppress the evidence relating to the warrantless blood draw, which the trial court denied. Id.
On review, the Court of Criminal Appeals held that "[o]n review of the totality of the circumstances found in the record, we conclude that Weems's warrantless blood draw was not justified by exigent circumstances." Id. at 580. The Court explained, "[a]side from Weems's own self-imposed delay" when he fled the scene and the forty minutes worth of alcohol dissipation caused by Weems, "little else in the record lends support to finding exigency in this case." Id. at 581. The record was silent as to whether Deputy Bustamante knew it would take over two hours for the hospital to draw the blood, but the testimony from Bustamante suggested substantial delay in obtaining Weems's blood was "at least forseeable." Id. Bustamante described the routine practice of transporting suspects to the magistrate's office, and if the suspect refused to consent to the blood draw, then the deputy would draw up an affidavit and present it to the magistrate for a warrant. Id. There was no testimony in the record about how long the process would take. Id. The record did not reflect what procedures were in place, if any, for obtaining a warrant when the suspect is taken to the hospital or whether Bustamante could have reasonably obtained a warrant. Id. The Court concluded it was unable to weigh the time and effort required to obtain a warrant against the circumstances that informed Bustamante's decision to order the warrantless blood draw. Id.
Additionally, because the officer testified the hospital was only a "couple of minutes" away from the scene of the accident, "transporting Weems to the hospital did not necessarily make obtaining a warrant impractical or unduly delay the taking of Weems's blood to the extent that natural dissipation would significantly undermine a blood test's efficacy." Id. at 582. Finally, the arresting officer "was not alone charged with both investigating the scene of the accident and escorting Weems to the hospital for treatment." Id. There was another officer who had accompanied Weems and the arresting officer "throughout the investigation and while they were at the hospital waiting for Weems's blood to be drawn," and this other officer's "continued presence . . . militates against a finding that practical problems prevented the State from obtaining a warrant within a time frame that preserved the opportunity to obtain reliable evidence." Id. "On this record," the Court concluded, "the State [was] unable to demonstrate that practical problems existed in obtaining a warrant 'within a timeframe that still preserved the opportunity to obtain reliable evidence'" and thus had "failed to meet its burden and establish that exigen[t] circumstances existed to satisfy the Fourth Amendment's reasonableness standard." Id.
The record before the trial court at the suppression hearing in this appeal contains even less evidence of exigent circumstances than did the record in Weems. Trooper Kendrick arrived at the scene of the accident shortly before midnight, and a nurse drew Garcia's blood approximately two hours later, at 2:00 a.m. Although dissipation of alcohol in a suspect's system is a factor, "dissipation alone does not permit a warrantless search of a suspect's blood." Id. at 580. An exigency analysis requires an objective evaluation of the facts reasonably available to the officer at the time of the search. Cole, 490 S.W.3d at 923; Weems, 493 S.W.3d at 579.
At the time Trooper Kendrick requested the blood draw, he knew dispatch initially reported a wrong-way driver; the driver of one of the vehicles was deceased and another passenger in that vehicle was injured; Garcia was sitting in his own vehicle in the driver's seat and, although disoriented and not in possession of his mental faculties, Garcia was able to speak with Kendrick and provide his name, date of birth, and that he was leaving Bandera on his way to a friend's house on 1604. There is no evidence Garcia's injuries were "severe," and Kendrick thought Garcia only had a broken leg. Kendrick did not state he believed Garcia may have ingested any drugs. In fact, other than blood-shot eyes and Garcia's disorientation, Kendrick did not testify about other hallmarks of intoxication such as slurred speech or the smell of alcohol, and Kendrick admitted he did not reach a conclusion that Garcia was intoxicated until after Garcia was airlifted from the scene. There was no testimony about what procedures, if any, were in place for obtaining a warrant when a suspect is transported to a hospital. Kendrick took the time to call for assistance from another officer to go to the hospital, but not to obtain a warrant. Kendrick's only stated reason for requesting the blood draw was that a statute allowed for mandatory blood draws.
On review of the totality of the circumstances found in the record, we conclude Garcia's warrantless blood draw was not justified by exigent circumstances. Although there is an aspect of the circumstances surrounding Garcia's blood draw weighing in favor of finding an exigency, the totality of the circumstances found in the record do not warrant an exigency finding.
CONCLUSION
"[W]here police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so." Weems, 493 S.W.3d at 582 (citation omitted). On this record, the State is unable to demonstrate that practical problems existed in obtaining a warrant "within a timeframe that still preserved the opportunity to obtain reliable evidence." Id. Therefore, we conclude the State failed to meet its burden and establish that exigent circumstances existed to satisfy the Fourth Amendment's reasonableness standard. Accordingly, because the warrantless blood draw violated Garcia's rights under the Fourth Amendment, and we cannot say beyond a reasonable doubt that the erroneous admission of the blood draw results did not contribute to his conviction, we reverse the trial court's judgment and remand this matter to the trial court for a new trial.
Marialyn Barnard, Justice Do not publish