Summary
deferring to trial court's resolution of conflicting evidence regarding consent for blood draw
Summary of this case from Glaser v. StateOpinion
No. 05-10-00610-CR
02-10-2012
JAMES GREGORY KING, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued February 10, 2012
On Appeal from the 86th Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 27772-86
OPINION
Before Justices Moseley, FitzGerald, and Richter
Opinion By Justice FitzGerald
Shortly after three o'clock in the afternoon of March 1, 2009, appellant James Gregory King was driving his truck on Interstate 20, east of Terrell, Texas. Appellant lost consciousness. His truck crossed a lane of traffic, drove into the grass median, went airborne, and struck the roof of an automobile headed in the opposite direction. The impact of the collision killed both the driver of that automobile and her passenger. Appellant was treated at the hospital, his blood was drawn for testing, and he was arrested. The blood tests established appellant's blood alcohol level was more than twice the legal limit approximately one hour after the accident. A jury found appellant guilty of two counts of intoxication manslaughter and assessed his punishment at twenty years' confinement and a $10,000 fine for each offense. In four issues, appellant questions the trial court's rulings on his voir dire challenges for cause and on the admissibility of blood test results. Appellant also challenges the sufficiency of the evidence supporting the jury's verdict. We affirm the trial court's judgments.
Challenges for Cause
In his first issue, appellant contends the trial court erroneously denied appellant's challenges to two prospective jurors for cause. According to appellant, both jurors (number 34 and 35 in the venire) stated they could not consider the entire range of punishment for a defendant convicted of intoxication manslaughter. That punishment range is from probation to twenty years' imprisonment and a fine of $10,000.
During the State's voir dire, the prosecutor asked whether any prospective jurors had a problem considering the full range of punishment. No individual expressed such a problem. During the defense voir dire, counsel informed the venire that the indictment charged appellant with causing the deaths of two different people. He also explained that if appellant were convicted, he would request probation. Counsel then asked:
My question is, is there anybody here who feels, right now, without knowing anything other than what I've told you, you are of the opinion that you're saying, wait a minute, I've just got through finding him guilty of intoxication manslaughter, driving while intoxicated, and causing the death of not one but two people, we know that going in, and now [defense counsel] is asking that you probate that sentence. Is there anybody here who says to themselves, that's just too low? (Emphasis added.)The prosecutor objected that the question was an improper commitment question, and the court sustained that objection. Shortly thereafter, defense counsel asked whether any of the prospective jurors were unable to consider giving probation in an intoxication manslaughter case. Jurors number 34 and 35 were among those who raised their hands this time. The trial court called up a number of prospective jurors after voir dire for follow-up questions. When Juror 34 was questioned, he stated that he could consider giving probation in an intoxication manslaughter case. (He conceded that learning the additional fact that two people had died in the accident, rather than one, caused him to change his mind earlier.) Likewise, Juror 35, when questioned, stated she "definitely" could consider the entire range of punishment-including probation-for the offense. The trial court refused to excuse either juror.
The trial court has broad discretion over the process of selecting a jury. Allridge v. State, 762 S.W.2d 146, 167 (Tex. Crim. App. 1988). That discretion is abused only when a proper question about a proper area of inquiry is prohibited. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). A voir dire question is proper if it seeks to discover a potential juror's views on an issue applicable to the case. Id. at 39. An otherwise proper question will be disallowed, however, if it attempts to commit the juror to a particular verdict based on particular facts. Id. The Court of Criminal Appeals has recently addressed the specific issue before us:
Both the State and defense are entitled to jurors who can consider the entire range of punishment for the particular statutory offense-i.e., from the maximum to the minimum and all points in between. Jurors must be able to consider both "a situation in which the minimum penalty would be appropriate and . . . a situation in which the maximum penalty would be appropriate." Therefore, both sides may question the panel on the range of punishment and may commit jurors to consider the entire range of punishment for the statutory offense. A question committing a juror to consider the minimum punishment is both proper and permissible. However, counsel veers into impermissible commitment questions when he attempts to commit a veniremember to consider the minimum sentence based on specific evidentiary facts. For example, a party may ask the potential juror if he could consider the minimum of five years' imprisonment in a murder case, but he may not ask if the juror could consider five years in prison in a case in which the State alleged that the defendant "tortured, garroted, poisoned, and pickled" the victim.Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010) (footnoted citations omitted). In this case, both of the challenged jurors stated that they could consider the minimum punishment for intoxication manslaughter, i.e., a probated sentence. The trial court disallowed questions concerning whether the jurors could consider the minimum punishment when the case involved two deaths rather than one. We conclude the court correctly disallowed such questions, which attempted to commit the two jurors "to consider the minimum sentence based on specific evidentiary facts." See id. Absent the improper evidentiary facts presented by the defense, both jurors stated they could consider the entire range of punishment for intoxication manslaughter. Therefore, the trial court did not abuse its discretion in refusing to grant appellant's challenge to those jurors. We overrule appellant's first issue.
Suppression of Blood Test Results
In his second issue, appellant contends the trial court erroneously admitted evidence concerning a blood test taken at the hospital before he was formally arrested. Appellant moved to suppress the test results, arguing (1) drawing the sample when appellant was not placed under arrest was a violation of his rights to be free of illegal search or seizure, and (2) the technician who drew the blood was not qualified by statute to do so. The trial court heard and then denied the motion. In response to appellant's request, the trial court dictated the following findings of fact and conclusions of law:
All right. The court does find that the defendant gave consent for the blood draw, as a finding of fact, and that the blood draw was taken by a qualified technician.We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We do not engage in our own factual review; the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost complete deference to the trial court in determining historical facts, and we review de novo the court's application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We will uphold the trial court's ruling on the motion if that ruling was supported by the record and was correct under any theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
As a finding of law the court finds that defendant's consent was not required, and that all of the proper procedures were followed.
Consent to Blood Draw
In his second issue, appellant contends the trial court abused its discretion by admitting evidence of the blood alcohol test taken in the hospital because it was taken before he was formally arrested and charged. Appellant relies on chapter 724 of the transportation code, which provides, inter alia, a mechanism for obtaining breath or blood alcohol test results "if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person . . . while intoxicated was operating a motor vehicle in a public place." Tex. Transp. Code Ann. § 724.012(a) (West 2011). The officer "shall require" the test under certain circumstances if the person is arrested and refuses to submit to the test voluntarily. Id. § 724.012(b). Among the circumstances in which an officer may require the test is the situation in which the person to be tested was driving a motor vehicle involved in an accident and another person has died as a result of the accident. Id. § 724.012(b)(1)(A). Appellant contends he was not arrested at the time his blood was drawn, so his blood was not taken in compliance with chapter 724. Thus, he argues, the blood test results based on that draw should have been suppressed.
Appellant was taken by ambulance from the scene of the accident to the hospital. Highway Patrol Trooper Jason West was dispatched to the hospital to obtain a blood sample from appellant. West testified at the hearing on the motion to suppress that when he told appellant he was there to get a blood sample from him, appellant replied that he would give him a blood sample. Appellant was cooperative, and West took appellant's responses to indicate he was giving consent to the blood draw. Chris Martin, the Emergency Room Department technician who drew appellant's blood at the hospital, also testified appellant agreed to give a blood sample. Appellant testified at the hearing that he never gave permission or consent to the blood draw. He stated he was unconscious at the time. Nevertheless, the trial court specifically found that appellant had consented to giving the blood sample.
At trial, Martin testified appellant held his arm out for Martin to draw the blood.
The trial court is the sole judge of the credibility of witnesses at a hearing on a motion to suppress. Guzman, 955 S.W.2d at 89. Thus, we defer to the court on its resolution of the conflicting evidence concerning consent for the blood draw. And we need not address appellant's statutory arguments because he consented to giving the blood sample. See Subrias v. State, 278 S.W.3d 406, 408 (Tex. App.-San Antonio 2008, pet. ref'd) ("Section 724.012 does not apply when a person consents to having his or her blood drawn."). "No statute is needed to confer authority to obtain a specimen of breath or blood from someone who freely and expressly consents to every single draw." State v. Neesley, 239 S.W.3d 780, 786 (Tex. Crim. App. 2007). We overrule appellant's second issue.
Qualifications of Technician
In his third issue, appellant argues the blood test results were inadmissible because Martin was not qualified to draw the blood. Appellant relies on section 724.017, which provides that "[o]nly 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." Tex. Transp. Code § 724.017(a). However, we have concluded that Martin drew appellant's blood with appellant's consent. Thus the procedures employed, including Martin's qualifications, were not required to meet Chapter 724's statutory requirements. We overrule appellant's third issue.
Sufficiency of the Evidence
In his fourth issue, appellant challenges the factual sufficiency of the evidence supporting the State's proof that his intoxication was the cause of the two deaths at issue in this case. The court of criminal appeals' decision in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality op.), overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and concluded the Jackson v. Virginia standard is the only standard a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95. Under that standard, we examine the evidence in the light most favorable to the judgment and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. at 899-900. We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id.
Appellant contends the evidence of his intoxication is too weak to support the finding of guilt beyond a reasonable doubt. He points to testimony that he had experienced a scattered history of blackouts on prior occasions, and he claims this "undiagnosed medical condition" could have caused the accident rather than intoxication.
Evidence from two separate blood tests established appellant's blood alcohol level was more than two times the legal limit an hour after the accident. West and Martin-the two individuals involved in drawing appellant's blood at the hospital-each testified that, in his opinion, appellant was intoxicated. And as to appellant's driving, witnesses described his truck crossing the median airborne, crushing the other car, and killing its occupants. Rational jurors could certainly have concluded beyond a reasonable doubt that appellant's intoxication caused the accident. To the extent testimony concerning any prior blackouts provided conflicting evidence of the accident's cause, we defer to the jury's resolution of that conflict. See id. at 899-900. When we examine the evidence in the light most favorable to the judgment, we conclude that ample evidence supports the jury's finding that appellant's intoxication was the cause of the accident. Id. We overrule appellant's fourth issue as well.
Conclusion
We have decided each of appellant's issues against him. Accordingly, we affirm the trial court's judgment.
KERRY P. FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100610F.U05