Perez v. State

464 S.W.3d 34

Antonio Ruiz Perez, Appellant

v.The State of Texas, Appellee

NO. 01–12–01001–CR

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

Opinion issued March 17, 2015

Rehearing Overruled April 14, 2015

Discretionary Review Refused January 27, 2016

Joseph Salhab, Houston, TX, for Appellant.

Devon Anderson, District Attorney, Eric Kugler, Assistant District Attorney, Houston, TX, for State of Texas.

Panel consists of Justices Keyes, Higley, and Massengale.

OPINION ON REHEARING

Evelyn V. Keyes, Justice

Appellant, Antonio Ruiz Perez, moved for rehearing of our March 11, 2014 opinion. We grant rehearing, withdraw the opinion and judgment dated March 11, 2014, and issue this opinion and judgment in their stead.¹ Appellant's motion for en banc reconsideration is dismissed as moot.

A jury convicted appellant of driving while intoxicated (“DWI”), third offense, and the trial court assessed his punishment at twenty-five years' confinement. In two points of error, appellant argues that the trial court erred in denying his motion to suppress because: (1) the arresting officer lacked probable cause to arrest him without a warrant and (2) the warrantless taking of his blood sample violated his rights under the Fourth Amendment.

We reverse and remand.

Background

At approximately 11:50 p.m. on June 10, 2011, Officer B. McCandless observed a red Corvette failing to maintain a single marked lane and followed it for several miles. After observing further unsafe driving, Officer McCandless initiated a traffic stop, and the Corvette exited the highway and stopped in the outside lane of the service road. Upon approaching the Corvette, Officer McCandless observed that appellant was the driver and that a strong odor of alcohol was coming from the vehicle. Officer McCandless testified that appellant stated that he had been drinking, so he administered the horizontal gaze nystagmus (“HGN”) test and determined that appellant showed signs of intoxication. Officer McCandless detained appellant and decided to conduct additional sobriety testing in a safer environment.

However, appellant refused to provide a breath specimen.

Pursuant to his detention of appellant, Officer McCandless obtained appellant's criminal history through the station's dispatch system and determined that appellant had two prior DWI convictions. Officer McCandless then took appellant to a hospital where appellant's blood was drawn at approximately 1:20 a.m. on June 11. The blood test revealed that appellant had a blood alcohol level of 0.17, more than twice the legal limit.

At trial, appellant filed a general motion to suppress that did not specifically mention the blood draw but instead argued generally that the evidence offered by the State was not obtained “pursuant to a search warrant, was absent exigent circumstances, and made without probable cause to believe the Accused was engaged in criminal activity or that such evidence, if any, was in danger of being destroyed.” Officer McCandless was the only witness at the hearing on the motion to suppress. He testified that a little before midnight on June 10, 2011, he observed a red Corvette “swerving and failing to maintain a single marked lane” in a manner that posed a danger to the surrounding vehicles. The officer testified that, based on his “past experience and the past arrests that [he] had made, just seeing the way that [the Corvette driver] was acting, the time of night and the roadway that [they] were on, that led me to believe that he was possibly intoxicated” or impaired by some means. Officer McCandless then initiated the traffic stop. Appellant cross-examined Officer McCandless on the basis for his probable cause to initiate the traffic stop. Appellant then asked “that the court suppress the arrest as well as the video.” The trial court denied the motion to suppress.

Appellant's attorney then stated:

On the record, I am making an objection to the mention, to the admission, to any reference to the blood test, taking results or anything dealing with the blood test of my client, [appellant], based on the failure of the State to get a warrant for the blood taking under the Statute 725, I believe it is, 12(b).

There is no authority for the officer to take the blood of my client without a warrant, and that is what he did in this case.

My client was under arrest. He invoked his right to counsel prior to the taking of—or the request for the blood. He refused to do the request for blood and breath. He was taken to the hospital.

He further stated that the officer failed to fill out the “THP–51” form correctly because he did not check one of the boxes and the officer “used this authority to withdraw blood against my client's consent and denied him of his constitutional right of illegal search and seizure in this case.” He went on to argue that Officer McCandless “didn't follow the statutory authority that required him to in this particular case to have a warrant before he withdrew the blood from my client.” Appellant asked the trial court to suppress “any aspects of a blood test in this case.”

The State responded that Transportation Code section 724.012 was the controlling authority in this case and that it did not require that a search warrant be obtained if one of the listed criteria was met. The State also argued that the “THP–51 form is merely a form with regard to liability” and that “the officer's testimony would be the best form of evidence as to this case and why a mandatory blood draw was a necessity.”² Appellant responded:

Therefore, it will be the Constitution of the United States as well as the statutory laws of the State of Texas on the search and seizure law; and I don't believe that the State has properly followed the law when they withdrew the blood here and the statutory and the constitutional law and case law regarding withdrawal of blood with a warrant. They didn't obtain a warrant. This is a warrantless search while the person was in custody under arrest and while the person also invoked his right to counsel; and therefore, a mandatory warrant would be the only way that they could withdraw blood in this case.

The trial court verified that the State was relying on Transportation Code section 724.012(b)(3)(B). It then denied appellant's motion to “suppress or deny the admission of the blood test.”

At trial, Officer McCandless testified before the jury regarding his arrest of appellant for DWI. He testified again regarding his observations that led him to initiate the traffic stop. He stated that when he made contact with appellant he “could smell a strong odor of alcoholic beverage emitting from the vehicle.” He further testified that appellant “admitted to having been drinking” and “could not remember how many he had to drink.” Officer McCandless also observed when appellant exited the vehicle that appellant was “slightly unsteady” and “not balanced.” He testified that he then administered the HGN test to appellant, which is a test “where we check the eyes and have them follow a stimulus or your finger with both of their eyes to check to see if there is equal tracking, to check to see if there is any involuntary jerking or bouncing of the eye.” Officer McCandless observed “a lack of smooth pursuit,” which indicated to him that appellant was intoxicated.

Rather than completing the remainder of the HGN test, he decided “to detain [appellant] to get us off of the roadway for my safely and his.” Officer McCandless testified that he believed it would have been unsafe to administer the full battery of field sobriety tests at the location where appellant stopped his vehicle because they were “in a moving lane of traffic,” making it more likely that they could be struck by traffic exiting the nearby highway or driving along the service road. He handcuffed appellant and placed him in the police vehicle to “take him back to [the] station to complete the standardized field sobriety tests in a controlled environment.”

However, upon returning to the station, appellant refused to complete any of the field sobriety tests. At that point, based on appellant's driving, “the strong odor of alcohol emitting from the vehicle, the time of night, [and] the fact that he started drinking at 7:00 and [could not] remember how many alcoholic beverages he had consumed,” Officer McCandless placed appellant under arrest for suspicion of DWI and asked for a breath or blood specimen. He read appellant a statutory warning advising that he was under arrest for DWI, that a refusal to submit a specimen would result in having his license taken away, and that such a refusal could be used as potential evidence of guilt in any future proceedings. Appellant refused to give a breath or blood sample and refused to sign the statutory warning.

At that point, Officer McCandless asked the station's dispatch to run appellant's criminal history, and he discovered that appellant had at least two prior DWI convictions. At trial, appellant stipulated, for jurisdictional purposes only, to the existence of two prior DWI convictions. Officer McCandless testified that the two prior convictions satisfied the statutory requirement for obtaining a mandatory blood specimen, stating, “At the time of the suspect's arrest, I possessed or received reliable information from a credible source that on two or more occasions the suspect had previously been convicted of or placed on community supervision of an offense under [the appropriate sections of the] Texas Penal Code.” He transported appellant to a local hospital where his blood was drawn at 1:20 a.m. on June 11, 2011.

Wesley Colwell, the nurse who drew appellant's blood, testified regarding the procedure he employed to take appellant's blood sample. Dr. Jeff Walterscheid, the assistant chief toxicologist at the Harris County Institute of Forensic Sciences, testified regarding the results of appellant's blood test. He testified that appellant had a blood alcohol level of 0.17, which was “roughly double” the legal limit.

The jury...