Opinion
No. 4-04-00844-CR
Delivered and Filed: January 4, 2006. DO NOT PUBLISH.
Appeal from the County Court at Law No. 1, Bexar County, Texas, Trial Court No. 819831, Honorable Phil Chavarria, Judge Presiding. Affirmed.
Although the Honorable Al Alonso, the presiding judge of the County Court at Law No. 1 of Bexar County, Texas, signed the judgment, the Honorable Phil Chavarria, senior judge sitting by assignment, heard Pina's motion to suppress and signed the order denying the motion.
Sitting: Saran B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Ramon J. Pina appeals the trial court's order denying his motion to suppress test results of blood that was withdrawn after Pina was taken to a hospital for minor injuries he sustained when he crashed his truck into the concrete barriers lining Northwest Loop 410. We affirm. 1. Pina first argues the trial court erred in denying his motion to suppress because the statutory presumption of consent does not apply because reasonable grounds did not exist for his arrest. See Bell v. State, 881 S.W.2d 794, 797-98 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd). However, Pina waived this complaint by failing to present it to the trial court at the suppression hearing. See State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App. 1998) (holding points not argued at trial are deemed waived on appeal). 2. Pina next argues the trial court erred in denying his motion to suppress because the arresting officer "admitted that he never had any conversations with [Pina] where [Pina] could have give the officer consent" and that he has "shown, through the [arresting] officer's testimony, that [he] was not conscious during any period where the [arresting] officer may have asked [him] for consent to draw his blood." However, the evidence to which Pina refers establishes only that the arresting officer could not specifically remember these matters when he was asked about them at the suppression hearing, more than two years after Pina's arrest. Just because the arresting officer could not remember these events more than two years after the arrest establishes nothing, particularly since the arresting officer testified that his offense report, upon which he relied while testifying, indicated Pina voluntarily consented; and he would have not made such a notation had Pina not consented. And, even if Pina were unconscious, it is statutorily presumed that he did not withdraw the implied consent emanating from his arrest for driving while intoxicated. See Tex. Transp. Code Ann. § 724.014 (Vernon 1999). Because Pina failed to rebut the direct evidence and statutory presumption of consent, we hold the trial court did not abuse its discretion in denying Pina's motion to suppress and therefore affirm the trial court's judgment.