Balderas v. State

629 S.W.3d 610

Jiuliano Florentino BALDERAS, Appellant

v.The STATE of Texas, Appellee

NO. 01-20-00174-CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued April 29, 2021

Christopher M. Perri, 1504 West Ave., Austin, Texas 78701, for Appellant.

Kim Ogg, District Attorney, Harris County, Texas, Eric Kugler, Assistant District Attorney, Harris County, Texas, 500 Jefferson, Ste. 600, Houston, Texas 77002, for Appellee.

Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.

OPINION

Veronica Rivas-Molloy, Justice

A jury convicted appellant, Jiuliano Florentino Balderas, of the first-degree felony offense of murder. The trial court assessed appellant's punishment at twenty-six years' confinement in the Texas Department of Criminal Justice, Institutional Division. In his sole point of error, appellant contends that the trial court erred in denying his motion to suppress the forensic analysis of his blood specimen because the search warrant pursuant to which the State collected the specimen did not authorize the State to analyze the private contents of his blood. We affirm.

Background

On June 25, 2017, at approximately 11:00 p.m., Raul Perez, the complainant, was traveling westbound on West Little York Road in Harris County, Texas. Appellant, who was traveling eastbound against traffic in the westbound lane of West Little York Road, collided with Perez's vehicle, killing him. Two children, ages four and eleven, were passengers in appellant's vehicle at the time of the collision.

Deputy David Bass with the Harris County Sheriff's Office (HCSO) was dispatched to the scene of the accident. Deputy Bass testified that when he arrived, appellant was standing next to his vehicle and the complainant was pinned inside of his truck. Deputy Bass testified that the complainant, who was not breathing, was deceased. Appellant provided Deputy Bass with his name and date of birth and stated, "I know I'm going away for a long time." An ambulance transported appellant and the two children to the hospital.

As part of the fatality motor vehicle investigation, HCSO Deputy Blake Bondurant went to the hospital to speak with appellant. He testified that appellant exhibited multiple signs of intoxication: appellant emitted an odor of alcohol from his breath and person, his eyes were bloodshot, and his speech was slurred. Appellant admitted that he had consumed three alcoholic drinks earlier that day, the first at 4:00 p.m. and the last at 8:00 p.m. Appellant told Deputy Bondurant that he was the driver of the Tahoe involved in the accident and that two children were in the Tahoe at the time of the collision. The emergency medical records admitted at trial showed that the children were appellant's four-year-old son and an eleven-year-old girl.

Based on appellant's signs of intoxication and his admission that he had consumed alcohol prior to the accident, Deputy Bondurant administered the horizontal gaze nystagmus (HGN) test to appellant. Deputy Bondurant testified that the HGN test consists of a total of six clues (three for each eye), that four clues in an individual suggests intoxication, and that appellant exhibited all six clues. Deputy Bondurant did not administer the other two standardized field sobriety tests—the walk-and-turn test and the one-leg stand test—because appellant was lying in a hospital bed and was not ambulatory.

Deputy Bondurant presented appellant with a DIC-24 Form advising him that he was under arrest for driving while intoxicated and requesting a blood specimen. After appellant refused to consent to a blood draw, Deputy Bondurant obtained a search warrant to take a blood sample. The warrant issued by the magistrate, which referenced Deputy Bondurant's complaint establishing probable cause for issuance of the warrant, provided:

YOU ARE THEREFORE COMMANDED to forthwith search the body of the person therein named, to wit: JIULIANO FLORENTINO BALDERAS, ... with the authority to search for and to seize any and all evidence that may be found therein, namely blood sample.

FURTHERMORE, pursuant to Article 18.08 Texas Code of Criminal Procedure, the officer executing this warrant may call to his or her aid any number of citizens in Harris County, who shall be bound to aid in the execution of this search warrant. The officer executing this warrant is therefore directed to execute this warrant by taking the subject to any medical personnel, paramedic, nurse, doctor, or other person qualified to draw blood and that person is hereby bound to assist the officer in his attempt to obtain the requested sample.

The search warrant does not expressly state that forensic analysis or chemical testing of the collected blood specimen is authorized.

A hospital nurse drew appellant's blood on June 26, 2017, at 2:39 a.m., pursuant to the warrant. The State then had the blood specimen tested for the presence of alcohol.

Appellant moved to suppress the results of the blood alcohol analysis. Relying on State v. Martinez ,¹ defense counsel argued that the blood kit blood draw was inadmissible because the search warrant authorized only the drawing of appellant's blood and not the analysis of the blood sample. Defense counsel further argued that the analysis of appellant's blood was not completed within three days of the warrant's issuance and was, therefore, untimely. In response, the State argued that Martinez does not require a separate search warrant for the analysis of a blood sample drawn pursuant to a valid search warrant or that the search warrant explicitly authorize analysis of the blood sample. As to the timeliness issue, the State argued that Texas Code of Criminal Procedure article 18.04 does not mandate that a warrant be executed within a stated period, and that the warrant in this case complied with all statutory requirements. The trial court denied appellant's motion to suppress.

Jason Gaswint, a toxicologist with the Harris County Institute of Forensic Sciences (HCIFS), tested appellant's blood sample. He testified that the test results showed that appellant's blood-alcohol concentration (BAC) was 0.126 grams of ethanol per 100 milliliters of blood, which is above the legal limit of 0.08.

Amy Kelly, the HCIFS Deputy Chief toxicologist, performed a retrograde extrapolation of appellant's blood sample to determine appellant's BAC at the time of the accident. Kelly testified that, based on her calculations, appellant's BAC was 0.191 at the time of the collision.

At the conclusion of trial, the jury found appellant guilty of murder as charged in the indictment.² The trial court assessed appellant's punishment at twenty-six years' confinement. This appeal followed.

Discussion

Appellant challenges the trial court's denial of his motion to suppress the results of his blood alcohol analysis.

A. Standard of Review

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. State v. Ruiz , 577 S.W.3d 543, 545 (Tex. Crim. App. 2019) ; State v. Martinez , 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). Under the bifurcated standard, the trial court is given almost complete deference in its determination of historical facts, especially if based on an assessment of demeanor and credibility, and the same deference is afforded the trial court for its rulings on application of law to questions of fact and to mixed questions of law and fact, if resolution of those questions depends on an evaluation of demeanor and credibility. Martinez , 570 S.W.3d at 281 (quoting Crain v. State , 315 S.W.3d 43, 48 (Tex. Crim. App. 2010) ). Our review of questions of law is de novo. Id. We view the record in the light most favorable to the trial court's ruling and uphold the ruling if it is supported by the record and is correct under any theory of the law applicable to the case. Ruiz , 577 S.W.3d at 545.

B. Applicable Law

Under the Fourth Amendment, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. CONST. amend. IV. A Fourth Amendment claim may be based on a trespass theory of search, where one's own personal effects have been trespassed, or a privacy theory of search, where one's own expectation of privacy has been breached. Martinez , 570 S.W.3d at 283 ; State v. Rodriguez , 521 S.W.3d 1, 9 (Tex. Crim. App. 2017). Under the privacy theory, a person has standing to contend that a search or seizure was unreasonable if (1) he has a subjective expectation of privacy in the place or object searched, and (2) society is prepared to recognize that expectation as reasonable or legitimate. Martinez , 570 S.W.3d at 283.

To comply with the Fourth Amendment, a search warrant must describe the things to be seized with sufficient particularity to avoid the possibility of a general search. See Groh v. Ramirez , 540 U.S. 551, 558–61, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (discussing various purposes for particularity requirement); see also U.S. CONST. amend. IV (providing that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"); TEX. CODE CRIM. PROC. art. 18.01(c) (setting out requirements for affidavits supporting search warrants). The degree of specificity required is flexible and will vary according to the crime being investigated, the item being searched, and the types of items being sought. See Gonzales v. State , 577 S.W.2d 226, 228–29 (Tex. Crim. App. 1979) ; see also Thacker v. State , 889 S.W.2d 380, 389 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd) (holding that items to be seized must be described with sufficient particularity such that executing officer is not left with any discretion to decide what items may be seized, but "requirements for the particularity of a description of an item may vary according to the nature of the thing to be seized"). To determine whether a search and seizure falls...