Ramirez v. State

611 S.W.3d 645

Stephen J. RAMIREZ, Appellant

v.The STATE of Texas, Appellee

NO. 14-19-00433-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed October 27, 2020

Discretionary Review Refused January 27, 2021

Matthew DeLuca, Houston, for Appellant.

Zachary Gibson, Houston, for Appellee.

Panel consists of Chief Justice Frost and Justices Zimmerer and Poissant.

Jerry Zimmerer, Justice

A jury convicted appellant Stephen J. Ramirez of felony driving while intoxicated (DWI). See Tex. Penal Code Ann. §§ 49.04, 49.09(b)(2). Appellant stipulated to the existence of two prior DWI convictions and the trial court sentenced appellant to serve four years in prison. Appellant raises three issues on appeal. In his first and second issues, appellant argues that the trial court abused its discretion when it refused to exclude evidence related to (1) the lab analysis of his blood, and (2) the initial traffic stop by the police. We conclude that the trial court did not abuse its discretion when it refused to exclude evidence related to the lab analysis of his blood because the blood was drawn, and subsequently analyzed, pursuant to a search warrant. We deny appellant's second issue because the deputy constable who stopped appellant had reasonable suspicion that appellant had engaged in, or was about to engage in, criminal activity. In his third issue appellant argues that the trial court erred when it incorrectly defined the relevant law in the jury charge. We overrule this issue because any error in the charge was harmless. We therefore affirm the trial court's judgment.

BACKGROUND

Because appellant does not challenge the sufficiency of the evidence supporting his conviction, we include only those facts necessary to address the issues he raises on appeal.

Deputy Constable Avila of the Harris County Precinct 4 Constable's office was driving eastbound on the northwest corner of the Sam Houston Tollway early in the morning of October 31, 2017. As Avila approached the interchange with Highway 249, he saw appellant's truck stopped on the Highway 249 connector ramp above him. According to Avila, appellant had stopped his truck on the connector ramp and the truck was impeding traffic. In addition, Avila saw appellant exit his stopped truck and walk over to the passenger side of his truck, where he appeared to urinate. Avila observed traffic trying to get around appellant's truck, which was stopped on the one-lane flyover. According to Avila, there was little room to pass.

Avila shined a spotlight at appellant. Avila testified appellant ignored the spotlight shining up at him. According to Avila, appellant eventually walked back to the driver's side of his truck, got into the truck, and then started driving down the ramp toward the Sam Houston Tollway. Once appellant began driving down the ramp Avila drove forward and pulled over to the shoulder where he waited for appellant's truck to enter the Sam Houston Tollway. When Avila saw appellant's truck drive onto the tollway, Avila initiated a traffic stop. When Avila approached appellant in his truck, Avila observed that appellant had red, glassy eyes, and when he questioned appellant, appellant slurred his speech, and stated he was "coming from home" and "going home." Avila also smelled a strong "odor of an alcoholic beverage emanating from" appellant's breath or body. Appellant admitted to having "had a few beers."

At that point, Avila began performing field sobriety tests on appellant. Avila initially conducted the horizontal gaze nystagmus (HGN) test. According to Avila, appellant showed all six clues on the HGN test. Avila testified that this showing indicated to him that appellant "was over the State limit" and might be intoxicated. Appellant refused to perform the remainder of the field sobriety tests. Because appellant refused to participate in further field sobriety tests, Avila drove appellant to the nearest police station where Avila could obtain a search warrant and have appellant's blood drawn. According to Avila, during the drive to the police station, appellant was so intoxicated that he believed Avila was taking him home.

Once at the police station a search warrant was obtained to take samples of appellant's blood. The samples were obtained and subsequent testing revealed that appellant had a blood-alcohol concentration above the legal limit. At the conclusion of the evidence the jury found appellant guilty and the trial court sentenced him to serve four years in prison.¹ This appeal followed.

ANALYSIS

I. The trial court did not err when it refused to exclude evidence of the analysis of appellant's blood.

In his first issue, appellant argues that the trial court abused its discretion when it refused to exclude the analysis of his blood sample because, in appellant's view, the State was required to obtain a second search warrant to conduct the analysis of the blood sample. Appellant also argues that the trial court should have excluded the blood analysis because the search warrant was stale by the time the actual analysis was performed. We disagree with both arguments.

A. Standard of review and applicable law

Appellant filed a motion to suppress the results of the analysis of his blood on the same day that the jury was impaneled in his case. He did not, however, argue in the motion to suppress that a second warrant was required to conduct the blood analysis. Appellant instead argued that the trial court should exclude the blood analysis because the search warrant was stale. The record establishes that the trial court did not conduct a hearing on appellant's motion to suppress prior to the start of appellant's trial.² The written motion was instead addressed during a break in the trial. In addition to the argument raised in the written motion, appellant argued during the hearing that a second search warrant was required before the State could conduct an analysis of appellant's blood. The trial court heard appellant's arguments and the State's response before denying appellant's motion to suppress.

We review a trial court's denial of a motion to suppress for an abuse of discretion. State v. Story , 445 S.W.3d 729, 732 (Tex. Crim. App. 2014). In conducting the review, we give almost total deference to a trial court's express or implied determination of historical facts and consider de novo the court's application of law to the facts. Alford v. State , 358 S.W.3d 647, 652 (Tex. Crim. App. 2012). We view the evidence in the light most favorable to the trial court's ruling. Wiede v. State , 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). The trial court is the sole trier of fact and judge of the credibility of witnesses and the weight to be given to their testimony. St. George v. State , 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We will sustain the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Dixon , 206 S.W.3d 587, 590 (Tex. Crim. App. 2006).

B. The trial court did not abuse its discretion when it denied appellant's motion to suppress because two search warrants were not required.

In his first issue appellant argues that the trial court abused its discretion when it refused to exclude the blood analysis evidence from his trial because the extraction of the blood and the subsequent analysis of that blood constitute two distinct searches which required the State to obtain two search warrants. Appellant cites the Court of Criminal Appeals' recent State v. Martinez opinion in support of his argument. 570 S.W.3d 278, 292 (Tex. Crim. App. 2019). Appellant contends that since the State obtained only a single search warrant, for the extraction of appellant's blood, which he does not challenge, the subsequent analysis of that blood sample infringed upon his Fourth Amendment rights against unreasonable government intrusion into his legitimate expectation of privacy. Because Martinez is distinguishable on its facts, we disagree.

In Martinez the defendant was involved in a traffic accident. Martinez , 570 S.W.3d at 281. Martinez was taken to the hospital where his blood was drawn for medical purposes. Id. Martinez was subsequently indicted for intoxication manslaughter. Id. The State later acquired Martinez's blood pursuant to a grand jury subpoena. Id. at 282. The State then tested Martinez's blood without first obtaining a search warrant. Id. at 281. Martinez filed a motion to suppress arguing, among other things, that his blood was obtained in violation of his rights against unreasonable searches and seizures under the Fourth Amendment of the United States Constitution and article 1, section 9 of the Texas Constitution. Id. at 282. The trial court granted Martinez's motion to suppress and the court of appeals affirmed. Id. at 282–83. The Court of Criminal Appeals affirmed the court of appeals, holding that "there is a privacy interest in blood that has already been drawn for medical purposes." Id. at 292. The Court of Criminal Appeals continued that Martinez

had a subjective expectation of such a privacy interest in his blood, and the State's subsequent testing of the blood was a Fourth Amendment search separate and apart from the seizure of the blood by the State. Because no exception to the warrant requirement applied, the State was required to obtain a warrant before testing [Martinez's] blood.

Id.

The Court of Criminal Appeals has now directly addressed and rejected the same argument appellant raises in the first part of his first issue. See Crider v. State , 607 S.W.3d 305, 308–09 (Tex. Crim. App. 2020). In Crider the Court of Criminal Appeals distinguished Martinez on its facts. Id. The court explained that

the State obtained the blood sample by way of a magistrate's determination that probable cause existed to justify its seizure–for the explicit purpose of determining its evidentiary value to prove the offense of driving while intoxicated. That magistrate's determination was sufficient in

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