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deferring to trial court's resolution of conflicting evidence regarding whether officer reasonably believed person had suffered bodily injury and been transported to hospital or other medical facility for treatment
Summary of this case from Whitaker v. StateOpinion
No. 05-11-00119-CR
03-29-2012
JANET LYNN GLASER, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed March 29, 2012.
On Appeal from the County Court at Law No. 6
Collin County, Texas
Trial Court Cause No. 006-81720-2010
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Myers
Appellant, Janet Glaser, was convicted of driving while intoxicated and sentenced to 180 days in jail, suspended for eighteen months, and a $1500 fine. In two points of error, appellant argues the trial court erred by admitting evidence of her blood alcohol level and the State failed to show the blood sample was drawn in a sanitary place. We affirm the trial court's judgment. Discussion
First Point of Error
In her first point of error, appellant asserts the trial court erred by denying her motion to suppress that challenged the admissibility of the evidence of appellant's blood alcohol level, including the blood sample, the laboratory report containing testing results, and testimony concerning the testing results.
We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We do not engage in our own factual review; the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give almost complete deference to the trial court in determining historical facts, and we review de novo the court's application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We will uphold the trial court's ruling on the motion if that ruling was supported by the record and was correct under any theory of law applicable to the case. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
Both parties call our attention to section 724.012(b) of the Texas Transportation Code, which provides a mechanism for obtaining breath or blood alcohol test results. The statute reads in part:
(b) A peace officer shall require the taking of a specimen of the person's breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer's request to submit to the taking of a specimen voluntarily:
(1) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense and, at the time of the arrest, the officer reasonably believes that as a direct result of the accident:
(A) any individual has died or will die;
(B) an individual other than the person has suffered serious bodily injury; or
(C) an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment;
Tex. Transp. Code Ann. § 724.012(b) (West 2011) (emphasis added). Appellant contends the State did not establish an exception to the warrant requirement for taking a sample of appellant's blood pursuant to section 724.012(b) because the officer that requested the blood sample, Justin Shaffer of the Dallas Police Department, "did not have a reasonable belief that an individual other than the person has suffered bodily injury and been transported to a hospital or other medical facility for medical treatment." See id.
The evidence at trial showed that, on the evening of January 29, 2010, appellant was arrested for driving while intoxicated after her car struck from behind a Ford Expedition driven by Dr. David Roberts. The impact "smashed in" the front of appellant's green Honda and caused Roberts's SUV, which also carried his wife, four children, and a babysitter, to lurch forward. After appellant was transported to the county jail, she was taken to the intoxilyzer room, where she refused to consent to the taking of a blood sample. Shaffer then obtained a mandatory blood sample pursuant to section 724.012(b). Results of the blood analysis showed appellant's blood alcohol concentration was .18 grams of ethanol per 100 milliliters of blood. It is undisputed that no one was, in fact, transported to a hospital or medical facility for medical treatment following the accident.
Conflicting evidence was presented as to whether Shaffer reasonably believed a person other than appellant had suffered bodily injury and was transported to a hospital or medical facility for treatment. Dr. Roberts testified he asked an officer if his wife and children could leave the scene of the accident, but he never indicated she was going to the hospital. However, both Shaffer, who was the first officer to arrive at the scene, and Officer Robert Bernal, who was in the Dallas Police Department's accident investigation unit, testified Dr. Roberts told them his wife was leaving the scene of the accident to seek medical treatment. Shaffer testified Dr. Roberts asked if a "family friend could come and pick them up and take his wife to the hospital." Later, while Shaffer was talking to appellant, "that family friend came and picked up the wife, the four children, and the nanny." Shaffer "asked the husband where she went, and he told me that they took her--his wife to the hospital." Bernal testified Dr. Roberts told him "his wife did have some injuries," and that "she was going to a facility to go get checked out shortly after." Bernal recalled the medical facility was "[l]ike a Care Now facility," or "[o]ne of those places where you can go late at night." The trial court is the sole judge of the credibility of witnesses at a hearing on a motion to suppress. Guzman, 955 S.W.2d at 89; see also Castro v. State, 227 S.W.3d 737, 743 (Tex. Crim. App. 2007) ("The trial judge decides what to believe and what information to disregard"); King v. State, No. 05-10-00610-CR, 2012 WL 414801, at *4 (Tex. App.--Dallas Feb. 10, 2012, no pet.) (not designated for publication) (deferring to trial court's resolution of conflicting evidence regarding consent for blood draw). Here, we defer to the trial court's resolution of the conflicting evidence regarding whether the officer reasonably believed a person other than appellant had suffered bodily injury and been transported to a hospital or medical facility for treatment. We overrule appellant's first point.
Second Point of Error
In her second point of error, appellant argues the trial court erred by denying her motion to suppress, and admitting the blood sample and any related evidence, because the State "failed to produce any evidence demonstrating that the blood sample was drawn in a sanitary place." See Tex. Transp. Code Ann. § 724.017(a) (West 2011) ("Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place.").
In State v. Johnston, 336 S.W.3d 649, 662 (Tex. Crim. App. 2011), the court of criminal appeals noted that "[t]hough a medical environment may be ideal, it does not mean that other settings are unreasonable under the Fourth Amendment," and, "[a]ccording to our research, reasonableness depends upon whether the environment is a safe place in which to draw blood." In Johnston, the court concluded a room inside the Dalworthington Gardens police station was a safe place to draw blood, and this satisfied the statutory requirement that blood be drawn in sanitary place. See id. The evidence included a description of the room as "clean, but not sterile," with furniture that "could be cleaned with a commercial sanitizer before each use." Id. at 652.
Appellant argues the State failed to show the blood sample was drawn in a sanitary place, as required by § 724.017(a). Appellant points to the testimony of Zelda Darlene Welter, the certified medical assistant and certified phlebotomy technician that administered the blood draw. Under cross-examination by defense counsel, Welter testified as follows:
Q: Okay. So, for example, you wouldn't then put the glove on and put your hand down on a messy spill on the desk because that would make--that would render the glove unsanitary, wouldn't it?
A: Correct.
Q: Or, you know, if you put your hand up against the wall where somebody else had been leaning their sweaty body, you could potentially come--your gloved hand could become unsanitary by doing that as well?
A: Correct.
Q: Okay. I mean, you don't use these sanitary wipes to go wipe down the entire room?
A: No, sir.
Q: You wipe down the surfaces that you are going to use?
A: Yes, sir.
Welter testified, however, that it was "very common" for her to use the intoxilyzer room at the jail, where appellant's blood sample was collected, to draw blood samples. She testified she was familiar with how the room was cleaned and that it was swept and mopped by "trustees" two or three times per day. She also testified that a product she described as a "disinfectant," "Saniwipes," was used "to clean and sterilize the room." Welter testified that, in her opinion, the intoxilyzer room was a sanitary place in which to collect blood samples.
Shaffer also testified it was "common" for blood samples to be drawn in the intoxilyzer room when a blood sample was requested.
Appellant contends the video of the intoxilyzer room, taken while appellant was in the room, is further evidence the intoxilyzer room was not a sanitary place and that appellant's blood was not taken in a sanitary manner because Welter "leaned against a wall with her gloved hand prior to drawing appellant's blood," and the procedures used to clean the room were inadequate.
But appellant never showed that any of the conditions she raised, such as Welter putting a gloved "hand down on a messy spill on the desk" (there is no evidence in the record this occurred), or Welter putting a gloved hand "up against the wall," rendered the intoxilyzer room unsanitary. Other evidence, in fact, showed the intoxilyzer room was regularly cleaned and sanitary wipes were used to clean and sterilize it. See Johnston, 336 S.W.3d at 652, 662.
We again emphasize that the trial court is the sole judge of the credibility of witnesses at a hearing on a motion to suppress. Guzman, 955 S.W.2d at 89. The trial court did not abuse its discretion by denying the motion to suppress. We overrule appellant's second point of error.
We affirm the trial court's judgment.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110119F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JANET LYNN GLASER, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00119-CR
Appeal from the County Court at Law No. 6 of Collin County, Texas. (Tr.Ct.No. 006- 81720-2010).
Opinion delivered by Justice Myers, Justices Morris and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 29, 2012.
LANA MYERS
JUSTICE