Roberts v. State

JEENA ROBERTS, APPELLANT v. THE STATE OF TEXAS, APPELLEE

No. 07-15-00282-CR

No. 07-15-00283-CR

Court of Appeals Seventh District of Texas at Amarillo

June 28, 2017

On Appeal from the 140th District Court Lubbock County, Texas

Trial Court Nos. 2010-429,389 and 2010-429,390, Honorable Jim Bob Darnell, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

We here resolve the out-of-time appeals granted appellant Jeena Roberts¹ from her convictions of the offenses of intoxication assault and intoxication manslaughter.²Appellant pleaded guilty in November 2012 after the trial court denied her pretrial motions to suppress evidence. Consistent with the State's recommendation, she received concurrent sentences of eight years and fifteen years of imprisonment. On appeal, she presents three issues, two challenging the trial court's denial of her motions to suppress, and the third contending the court erred by denying her a new trial. We will overrule the issues and affirm the trial court's judgments.

Background

Both of appellant's charges arose from an October 2010 vehicle collision. Appellant filed a motion to suppress in each case, seeking an order requiring the exclusion from evidence of blood-alcohol test results and of statements she made to police officers. The trial court held a hearing in July 2012, after which it denied appellant's motions. Thereafter, as noted, appellant pleaded guilty before the court in each cause.

According to what appellant told officers, on the day of the wreck, appellant went on a field trip with her Texas Tech University classmates. The record shows the students travelled by bus and appellant consumed alcohol while on the bus. When they arrived back in Lubbock, appellant got into her car to drive home. On the way, she collided with another vehicle, causing a passenger in that vehicle to be ejected. The passenger died at the scene.³

Lubbock police officer Nicholas Knowlton was the only witness called to testify at the hearing on appellant's motion to suppress. A recording from the camera in hispatrol car also was admitted into evidence. Three ambulances and several other emergency and law enforcement vehicles are visible in the video and most have their emergency lights blinking.

Knowlton testified his first impression of the scene was of an "unknown female lying on the street." He concluded that because the emergency personnel were not attending to the female, she was "already deceased." Knowlton told the court he saw "one vehicle that was flipped over and sitting on its roof. Behind that vehicle was a black Chrysler 300." Knowlton told the court he made contact with appellant as she sat in the driver's seat of the Chrysler. As Knowlton asked appellant some questions, he noted a strong odor of alcohol on her breath and noted she responded slowly to his questions. He asked her several times for her driver's license, eventually finding it on the floorboard. Knowlton noted appellant's speech was not natural and opined it was "slurred."

After several minutes, Knowlton decided he need to "continue [his] investigation" so he escorted appellant to his patrol car, parked nearby. He told the court appellant was "unsteady" and "combative. She tried to pull away from me and walk in another direction." He also testified appellant had been combative and uncooperative with emergency personnel who were trying to assess her. She did not allow them to place a neck brace. When they reached the car, Knowlton attempted to place appellant in the back of the car "[j]ust to secure her in a position where [he could] continue his investigation." Appellant continued to be belligerent and tried to pull away. He handcuffed her. He said he placed handcuffs on appellant to "secure her" and so "she's not flailing her arms around." These actions are not visible on the patrol car video but the interaction between appellant and Knowlton can be heard via the audio recording.

After being handcuffed, appellant told Knowlton she had been on a field trip and admitted to drinking alcohol, to speeding, and to being "out of control" when the collision occurred. Appellant is not visible on the patrol car video at the time she makes these statements but her conversation with Knowlton is audible.

Knowlton testified he then drove to a nearby parking lot "to get her further away from the scene, possibly do standardized field sobriety tests." He continued, "[w]e wanted to get her away from the scene, away from all the lights and to a flat surface where we could continue our investigation."⁴ Before asking appellant for a specimen of her blood, the officer read appellant the warnings required by the Texas Transportation Code.⁵ Appellant refused to provide the specimen. Knowlton also read appellant her Miranda and article 38.22⁶ warnings and she orally waived her right to remain silent. Based on his observations and appellant's admissions, Knowlton arrested appellant for intoxication manslaughter.

Knowlton testified he took appellant to the hospital. She continued to exhibit aggressive and uncooperative behavior while her blood was being drawn. During her evaluation, she told medical personnel she drank "five Budweiser Select beers and a shot of Bacardi" on the bus and then attempted to drive home. Appellant was later transported to the city jail.

Analysis

Motions to Suppress

Standard of Review

We review a ruling on a motion to suppress evidence for abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008) (citation omitted). In so doing, we view the facts in the light most favorable to the trial court's decision. Id. (citation omitted). We give almost total deference to a trial court's express or implied determination of historical facts and review de novo the court's application of the law of search and seizure to those facts. Id. (citation omitted).

The trial court is the "sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony." Fears v. State, 491 S.W.3d 884, 887 (Tex. App. Houston [1st Dist.] 2016, pet. ref'd) (citing St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007)). The trial court may choose to believe or disbelieve any part or all of a witness's testimony. Id. (citation omitted). We sustain the trial court's ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Id. (citing Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003)).

Motion to Suppress Evidence of Blood Draw

In her first issue, appellant contends the trial court erred in denying her motion to suppress the evidence of the results of the blood draw conducted at the hospital. She argues the trial court should have suppressed the evidence because the State failed toobtain a warrant for the blood draw and did not meet its burden of showing exigent circumstances existed to justify taking her blood over her objection without a warrant.

The State argues appellant's first issue is not preserved for appellate review because it is not the same contention she presented to the trial court. In order to preserve an issue for appeal, a timely objection must be made that states the specific ground of objection, if the specific ground was not apparent from the context. Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015). Rule of Appellate Procedure 33.1(a) provides that, "[a]s a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion" stating the grounds for the ruling sought "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Id., quoting TEX. R. APP. P. 33.1(a)(1)(A). There are two reasons the law requires a timely, specific objection. First, it informs the court of the basis of the objection and affords the judge an opportunity to rule on it. Id. Second, it affords opposing counsel an opportunity to respond to the complaint. Id. A timely objection will enable the trial court to hear the complaint when the court is in a proper position to do something about it. See Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009). Issues on appeal must correspond or comport with objections and arguments made at trial. Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref'd) (citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998)).

On appeal, appellant relies on the United States Supreme Court's 2013 opinion in Missouri v. McNeely,⁷ addressing the requirements under the Fourth Amendment forwarrantless blood draws. She cites also our 2014 opinion in Sutherland v. State, 436 S.W.3d 28 (Tex. App.—Amarillo 2014, pet. ref'd), and the Texas Court of Criminal Appeals' opinion in State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2015), both also concerning the circumstances under which a nonconsensual blood draw may be taken without a warrant. None of those opinions, of course, were available to counsel or the trial court at the time of the July 2012 hearing on appellant's motion.

In Douds, the Court of Criminal Appeals took note that the motion-to-suppress hearing in that case also took place well before the McNeely opinion was issued, and that the parties therefore would not have been aware of its holding or its implications for the constitutionality of mandatory blood draws conducted under the Texas Transportation Code. 472 S.W.3d at 672 n.7. The court went on to hold that "isolated statements globally asserting that a blood draw was conducted without a warrant" were not, in the context of the entire record in that case, sufficient to apprise the trial court that it must consider whether there were exigent circumstances authorizing the warrantless blood draw. Id. at 674. Instead, it held, Douds' arguments in that case fairly presented "a challenge to the admissibility of the blood...