Bonsignore v. State

497 S.W.3d 563

Jeremy Aaron Bonsignore, Appellant

v.The State of Texas, State

NO. 02–14–00146–CR

Court of Appeals of Texas, Fort Worth.

DELIVERED: June 30, 2016

Danny D. Burns, Fort Worth, TX, for Appellant.

Sharen Wilson, Criminal District Attorney; Debra A. Windsor, Chief of The Postconviction Division; Tanya S. Dohoney, Brian S. Eppes, Assistant Criminal District Attorneys for Tarrant County, Fort Worth, TX, for State.

PANEL: LIVINGSTON, C.J.; GARDNER, J.; and CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment).

OPINION

ANNE GARDNER, JUSTICE

Appellant Jeremy Aaron Bonsignore filed a motion to suppress the results of a warrantless blood draw. After an evidentiary hearing on the motion, Appellant pled guilty, received a two-year sentence, and appealed from his conviction for felony DWI, complaining of the denial of his motion to suppress.¹ In his sole point, Appellant contends that the blood draw was taken without his consent and without obtaining a search warrant, in violation of Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and State v. Villarreal, 475 S.W.3d 784 (Tex.Crim.App.2014), petition for cert. filed, 84 U.S.L.W. 3484 (U.S. Feb. 19, 2016) (No. 15–1063). We reverse and remand for a new trial.

I. Evidence and Arguments Presented at the Hearing on Appellant's Motion to Suppress

A. Testimony

Sergeant Jeremy West was working as a patrol officer for the City of Lake Worth on the night of January 4, 2013. Sergeant West testified that around 1:24 am, he noticed in his rearview mirror a vehicle going eighty miles per hour in a forty-mile-per-hour zone. As Sergeant West caught up with the vehicle, the vehicle pulled into a parking lot of a Waffle House restaurant. Sergeant West activated his emergency lights and pulled up behind the parked vehicle.

The driver, Appellant, left the vehicle and walked toward the restaurant. Because Appellant did not appear to be aware he was being pulled over, Sergeant West yelled at him. Appellant turned around, stumbled, lost his balance slightly, and began walking toward Sergeant West. When Sergeant West spoke with Appellant, he noticed a strong odor of alcohol and described Appellant's eyes as red, watering, and glossy. When Sergeant West asked Appellant for his driver's license and insurance, Appellant admitted not having any insurance. Appellant had difficulty getting his license out of his wallet and moved slowly and deliberately. Sergeant West asked Appellant if he had been drinking, and Appellant answered that he had had four or five mixed drinks at the Crowbar, which was a nearby bar.

Sergeant West then initiated field sobriety testing and began with the horizontal gaze nystagmus test; Appellant showed six clues, which were indicators of possible intoxication. When Sergeant West attempted to have Appellant perform the walk and turn test, Appellant assumed the instruction position, lost his balance, and thereafter refused to perform any more tests. Sergeant West placed Appellant under arrest for the offense of driving while intoxicated. It was 1:49 a.m.

Sergeant West inventoried Appellant's vehicle and then took Appellant to the Lake Worth Police Department. Once there, Sergeant West read Appellant his statutory warnings² and attempted to conduct further field sobriety tests, but Appellant refused to comply. After reading Appellant the DIC–24, Sergeant West requested both breath and blood specimens, but Appellant refused.³ Sergeant West asked his dispatcher to run a criminal history on Appellant, and the dispatcher informed Sergeant West that Appellant had two prior convictions for DWI. Sergeant West said that information meant he had a felony repetition case, so he instructed Officer Gomez to take Appellant to the hospital for a mandatory blood draw pursuant to section 724.012 of the Texas Transportation Code. Officer Gomez drove Appellant to JPS Hospital, where a nurse performed a blood draw at 2:55 a.m.

By January 4, 2013, Sergeant West estimated he had obtained around thirty search warrants for blood draws. Since that date to the time of trial, he had obtained perhaps another twenty warrants for blood draws. Sergeant West said the Lake Worth Police Department used the LEADRS program. Sergeant West estimated that it would take anywhere from thirty to forty-five minutes to fill out or input the information required by the LEADRS system. The Lake Worth Police Department used Fort Worth municipal magistrates to obtain the warrants. Lake Worth magistrates were not available that night. Sergeant West faxed their affidavits to the Fort Worth municipal magistrates. After the magistrate reviewed the affidavit, if the magistrate approved the warrant, the magistrate would fax it back to the Lake Worth Police Department. Sergeant West explained that he would, in turn, fax the warrant to JPS Hospital to the officer who was waiting with the defendant. Once that officer received his fax at JPS Hospital, that officer would have the nurse do the blood draw procedure.

Sergeant West said this was not a no-refusal weekend.⁴ When it was not a no-refusal weekend, Sergeant West estimated that from the time of the DWI stop to the time he faxed a warrant to JPS Hospital averaged between two and three hours.

The last search warrant for blood he obtained, only two days before he testified, took him three hours to go through the same procedure.

Sergeant West said Officer Gomez was his assist officer. During a traffic investigation, Officer Gomez's primary function was officer safety. After the arrest, Officer Gomez was the one who transported the defendant to the hospital for the blood draw procedure. Consequently, obtaining and executing a blood draw search warrant usually involved two officers. On January 4, 2013, there were three Lake Worth officers on duty. Sergeant West said they “run four officers,” but three officers on duty at night was “typical.”

When asked if Appellant's two prior convictions were his only authority for obtaining the blood draw, Sergeant West said that the two prior convictions were the reason he procured the blood draw. Sergeant West acknowledged he did not have and did not attempt to get a search warrant. He acknowledged Appellant did not give his consent to have his blood drawn. Sergeant West acknowledged that his authority for the blood draw without a warrant or consent was the mandatory blood draw statute.

B. Argument

During arguments in the trial court, the State acknowledged that McNeely held that there was no per se exception to the requirement of a warrant based solely on dissipation of alcohol over time but pointed out McNeely also recognized cases would arise in which anticipated delays in obtaining a warrant would justify the failure to obtain a warrant. The State maintained that this was such a case. In other words, the State argued that the dissipation of alcohol from the defendant's system plus other exigent circumstances excused the requirement of a warrant. The State pointed out that, in addition to the gradual destruction of evidence over time, the offense was serious—a felony DWI. The State also noted that it was a small police department and that pursuing a warrant would have occupied two out the three available officers; it then pointed to Sergeant West's testimony that the most recent warrant he had obtained had taken three hours; and it concluded that for a small police department, it just took time and was “burdensome.”

II. Standard of Review

We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007) ; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990) ; Best v. State, 118 S.W.3d 857, 861 (Tex.App.–Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.Crim.App.2007) ; State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor, and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673 ; Montanez, 195 S.W.3d at 108–09 ; Johnson v. State, 68 S.W.3d 644, 652–53 (Tex.Crim.App.2002). But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673 ; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005) ; Johnson, 68 S.W.3d at 652–53.

When reviewing the trial court's ruling on a motion to suppress, we must view the evidence in the light most favorable to the trial court's ruling. Wiede, 214 S.W.3d at 24 ; State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App.2006). When the record is silent on the reasons for the trial court's ruling, or when there are no explicit fact findings and neither party timely requested findings and conclusions from the trial court, we imply the necessary fact findings that would support the trial court's ruling if the evidence, viewed in the light most favorable to the trial court's ruling, supports those findings. State v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008) ; see Wiede, 214 S.W.3d at 25. We then review the trial court's legal ruling de novo unless the implied fact findings supported by the record are also dispositive of the legal ruling. Kelly, 204 S.W.3d at 819. We must uphold the trial court's ruling if it is supported by the record and correct under any theory of law applicable to the case...