Rodriguez, Hector L. ( 2015 )

PD-1479-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/16/2015 3:48:24 PM
Accepted 12/18/2015 12:51:39 PM
December 18, 2015 ABEL ACOSTA
NO. PD-1479-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
______________________________________________________________________________
NO. 01-12-00970-CR
IN THE COURT OF APPEALS
FOR THE
FIRST JUDICIAL DISTRICT OF TEXAS
HOUSTON, TEXAS
THE STATE OF TEXAS § APPELLEE
§
V. §
§
HECTOR L. RODRIGUEZ § APPELLANT
APPEAL FROM COUNTY COURT AT LAW NO. 5
HARRIS COUNTY, TEXAS
TRIAL COURT NO. 1726063
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________
W. Troy McKinney J. Gary Trichter
Schneider & McKinney, P.C. Trichter & Murphy, P.C.
Texas Bar No. 13725020 Texas Bar No. 20216500
440 Louisiana, Suite 800 420 Heights Blvd.
Houston, Texas 77002 Houston, Texas 77007
(713) 951-9994 (713) 524-1010
(713) 224-6008 (FAX) (713) 524-1080 (FAX)
E-mail: wtmhousto2@aol.com E-mail: gary@texasdwilaw.com
ATTORNEYS FOR APPELLANT
APPELLANT REQUESTS ORAL ARGUMENT
Identity of Parties and Counsel
The following is a complete list of all parties to the trial court’s judgment,
and the names and addresses of all trial and appellate counsel:
Hector L. Rodriguez - Appellant.
State of Texas - Appellee.
W. Troy McKinney - Appellant’s retained counsel at trial
Schneider & McKinney, P.C. and on appeal.
440 Louisiana, Suite 800
Houston, Texas 77002
J. Gary Trichter - Appellant’s retained counsel at trial
Trichter & Murphy, P.C. and on appeal.
420 Heights Blvd.
Houston, Texas 77007
George Stuart Tallichet - Assistant District Attorneys at trial.
Lewis Ashton Thomas
1201 Franklin
Houston, Texas 77002
Melissa P. Hervey - Assistant District Attorneys on
Stuart Tallichet appeal.
1201 Franklin
Houston, Texas 77002
Hon. Margaret Harris - Trial Judge.
i
Table of Contents
Identities of Parties and Counsels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
List of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Grounds for Review – Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Arguments for Granting Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Grounds One Through Six. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Is there a Fourth Amendment expectation of privacy and standing to
challenge either the acquisition of hospital blood test results or
medical records generally and did the court of appeals err in failing to
address the general medical records issue? Should Hardy be
overruled?
Grounds Seven Through Ten. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Even if there is not Fourth Amendment standing or an expectation of
privacy, does Hardy preclude exclusion sought under Article 38.23
for a violation of state or federal law and, Hardy not withstanding,
does a violation of state or federal law require suppression under
Article 38.23, without regard to whether there is Fourth Amendment
standing or an expectation of privacy. Is the court of appeals decision
contrary to Wilson v. State and are the statutes relating to grand jury
ii
subpoenas, the MPA, or the HIPAA regulations a basis for
suppression under Article 38.23, as a violation of a state or federal
law related to the acquisition of evidence?
Conclusion and Prayer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Appendix A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Appendix B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Appendix C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Appendix D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
iii
List of Authorities
Cases
Dickerson v. State,
965 S.W.2d 30
(Tex. App.--Houston [1st Dist.] 1998,
pet. dism’d, improvidently granted). . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19
Dickerson v. State,
986 S.W.2d 618
(Tex. Crim. App. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19
Ferguson v. City of Charleston,
532 U.S. 67 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 15
Hailey v. State,
50 S.W.3d 636
(Tex. App.—Waco 2001),
rev'd on other grounds,
87 S.W.3d 118
(Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Hardy v. State,
963 S.W.2d 516
(Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Kennemur v. State,
280 S.W.3d 305,
(Tex. App.—Amarillo 2008, pet. ref'd),
cert. denied , 556 U.S. 1191,
129 S. Ct. 2005,
173 L. Ed. 2d 1101 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
iv
Kirsch v. State,
276 S.W.3d 579
(Tex. App.--Houston [1st Dist]. 2008),
aff’d on other grounds,
306 S.W.3d 738
(Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 22
Maldonado v. State,
No. 05-09-00383-CR,
2011 Tex. App. LEXIS 1984,
2011 WL 924352
(Tex. App.--Dallas, Mar. 18, 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . 10
Murray v. State,
245 S.W.3d 37
(Tex. App.--Austin 2007, pet. ref'd). . . . . . . . . . . . . . . . . . . . . . . 7, 8, 16, 22
Owens v. State,
No. 01-12-00075-CR,
2013 Tex. App. LEXIS 13767
2013 WL 5947336
(Tex. App–Houston [1st Dist.],
Nov. 7, 2013, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Spebar v. State,
121 S.W.3d 61
(Tex. App.–San Antonio 2003, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
State v. Comeaux,
818 S.W.2d 46
(Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
v
State v. Jewell,
No. 10-11-00166-CR,
2013 Tex. App. LEXIS 930,
2013 WL 387800
(Tex. App.--Waco, Jan. 31, 2013, no pet.) . . . . . . . . . . . . . . . . . . . . . . . 8, 16
State v. Kelly,
204 S.W.3d 808
(Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Village of Ridgefield Park v. New York Susquehanna
& Western Railway Corp.,
163 N.J. 446,
750 A.2d 1104, 1111 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Wilson v. State,
311 S.W.3d 452
(Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
vi
Statutes
42 U.S.C. § 1320d-6(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
45 C.F.R. §
160.103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
160.203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
164.512(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
164.512(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
164.512(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
164.512(f)(1)(ii)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Tex. R. App. P.
66.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
66.3(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
66.3(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Tex. Code Crim. Pro Art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
TEX. OCC. CODE
§ 159.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 159.002(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 159.003(a)(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 159.003(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§159.003(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tex Rev.Civ. Stat, Art. 4495b §5.08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
vii
Other
Emergency Medical Services Act,
Texas Health and Safety Code Chapter 773. . . . . . . . . . . . . . . . . . . . . . . 7, 18
Note, Developments in the Law:
The Law of Media,
120 HARV. L. REV. 990 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
viii
To the Honorable Judges of the Court of Criminal Appeals:
Hector L. Rodriguez, Appellant, through his attorneys, W. Troy McKinney and
J. Gary Trichter, submits this petition for discretionary review.
Statement Regarding Oral Argument
Appellant requests oral arguments in this case on the basis that both the legal
and factual issues involve not only important issues of state and federal law, but also
because this case presents a compilation of complex issues arising from and following
this Court’s decision in Hardy v. State and subsequent state and federal laws
impacting its scope and continued viability. As evidenced by over 100 appellate
decisions on issues arising from Hardy, the bench and bar of this State need guidance
from this Court concerning the scope and applicability of Hardy. Oral arguments
would aid this Court in evaluating and deciding the important issues in this case.
Statement of the Case
On September 25, 2010, Appellant was charged by information with driving
while intoxicated. CR3. Appellant filed a Motion to Suppress evidence and a hearing
was held on August 10, 2012. 2RR. On August 20, 2012, the court denied Appellant’s
motion to suppress. CR171. On September 17, 2012, pursuant to a plea bargain, the
court assessed punishment at 180 days confinement, probated for one year, and a
$750 fine. CR199. The trial court specifically gave Appellant permission to appeal.
1
CR208. A motion for new trial was timely filed on October 12, 2012. CR238. It was
overruled by operation of law. On October 4, 2012, timely written notice of appeal
was filed. CR212.
Statement of Procedural History
Appellant moved to suppress the introduction of his medical records and blood
alcohol test results. The trial court conducted an evidentiary hearing consisting of
live testimony, two witness affidavits, multiple physical exhibits, and several
stipulations. The factual evidence was undisputed. The trial court entered extensive
findings of fact and conclusions of law and denied the motion to suppress. 3RR-25.
Supp CR.1 Following denial of his motion to suppress, Appellant pled guilty and
appealed the denial of his motion to suppress.
The Court of Appeals delivered its published opinion on June 25, 2015. A
copy of the opinion is attached as Appendix A. A motion for rehearing was filed on
August 10, 2015, and overruled on October 15, 2015. This petition is due not later
than December 17, 2015.
1
A copy of the findings is contained in Appendix C.
2
Grounds for Review – Questions Presented
1. Is there a Fourth Amendment expectation of privacy in blood test results
when the blood is drawn and analyzed by a hospital for medical purposes?
2. Does a defendant in a criminal case have Fourth Amendment standing
to challenge the legality of the method of the acquisition of his blood test results
when the blood is drawn and analyzed by a hospital for medical purposes?
3. Is Hardy v. State still valid law in light of intervening legal events and
should it be overruled?
4. Is there a Fourth Amendment expectation of privacy in medical records
generally (other than blood test results)?
5. Does a defendant in a criminal case have Fourth Amendment standing
to challenge the legality of the method of the acquisition of his medical records
generally (other than blood test results)?
6. Did the Court of Appeals err in only addressing the Fourth Amendment
standing issue with respect to the blood test results and in failing to address the
expectation of privacy and standing issues with respect to medical records generally?
7. Does a defendant have standing to challenge the legality of the method
of the acquisition, and thus the admissibility, of his blood test results and medical
records under Tex. Code Crim. Pro Art. 38.23, when the blood is drawn and analyzed
3
for medical purposes and when his medical records relate to his treatment, without
regard to whether there is Fourth Amendment standing?
8. Did the Court of Appeals err in holding that Hardy v. State governed
and controlled the determination of the Article 38.23 suppression issue when the
Court in Hardy expressly limited its holding to the Fourth Amendment issue
presented to it?
9. Is the Court of Appeals decision contrary to this Court’s decision in
Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010), which held (1) that
whether evidence is obtained in violation of the United States Constitution is an
entirely different inquiry – and does not control – whether evidence is subject to
suppression under Article 38.23; and (2) that suppression under 38.23 is warranted
when there is a violation of a penal or other law related to the acquisition of evidence
when that violation is the method used to acquire the evidence and the evidence is
acquired as a result of a violation of applicable state law?
10. Is a violation of the statutes relating to grand jury subpoenas, the
Medical Practices Act, or the regulations under HIPAA a basis for suppression
under Article 38.23, as a violation of a state or federal law penal law, a privacy law,
or a law related to the acquisition of evidence?
4
Statement of Facts
The facts in this case are simple and undisputed. Appellant was arrested and
taken to the police station. He fell while being escorted into the jail and was taken
to the hospital where blood was drawn and analyzed for medical purposes.
A civilian Houston Police Department (HPD) employee requested a grand jury
subpoena from the District Attorney’s Office (HCDAO) for Appellant’s medical
records and blood test results. Consistent with its practice and policy, a paralegal with
the HCDAO, affixed a stamped signature of a HCDAO lawyer to a document labeled
grand jury subpoena without consulting or obtaining approval from any attorney in
the HCDAO.
The purported grand jury subpoena was served on the hospital. The hospital
provided the records to the paralegal, who forwarded them to the HPD civilian
employee, where they were retained. The purported grand jury subpoena issued from
a grand jury whose term had expired at the time the records were produced. The
records were never delivered to either any grand jury or the District Clerk.2
Arguments for Granting Review
In State v. Comeaux, 818 S.W.2d 46 (Tex. Crim. App. 1991), an officer,
2
A detailed statement of facts, referencing the trial court’s findings of fact, is attached
as Appendix B.
5
following a traffic accident, requested a hospital nurse who had drawn blood from
Comeaux on the request of a physician solely for medical purposes to give him a
portion of the blood draw. When the nurse declined, the officer ordered her to give
him a portion of the sample and gave her a mandatory blood draw form. The officer
seized the sample and had it tested by a state lab. The trial court suppressed the blood
test results and the court of appeals affirmed. A four-judge plurality of this Court
determined that Comeaux had a reasonable expectation of privacy for Fourth
Amendment purposes based on the then existing provisions of the Texas Medical
Practices Act (MPA).3 The concurring judge, who formed the majority for affirming
suppression, would have decided the case solely on the basis of a violation of the
MPA and would have suppressed the results under Article 38.23.4
Six years later, this Court addressed a similar issue in Hardy v. State, 963
S.W.2d 516 (Tex. Crim. App. 1997) where the state obtained records of hospital
blood test results with a grand jury subpoena. The blood had been drawn and
analyzed and a report prepared solely for medical purposes. Hardy claimed that his
3
The Court noted in its opinion that the portions of the MPA at issue had been
repealed at the time of its decision in Comeaux, but had been in effect at the time of the seizure
of Comeaux’s blood. The terms of the MPA that existed at that time were similar to, but not the
same as, those that exist today. The MPA today appears to be broader that it was at the time of
Comeaux.
4
The plurality declined to review the Article 38.23 claim because it was not an
issue on which the State had sought discretionary review. Comeaux at n.6.
6
blood test results had been unlawfully obtained in violation both of Texas statutory
provisions5 and in violation of the Fourth Amendment. With respect to the Fourth
Amendment issue, the Court framed the question to be answered as, “whether the
government's acquisition of the written report infringed upon a societally-recognized
expectation of privacy.” Id., at 524.
This Court, in a 5-4 decision, held:
We express no opinion concerning whether society recognizes a reasonable
expectation of privacy in medical records in general, or whether there are
particular situations in which such an expectation might exist. We note only
that, given the authorities discussed, whatever interests society may have in
safeguarding the privacy of medical records, they are not sufficiently strong to
require protection of blood-alcohol test results from tests taken by hospital
personnel solely for medical purposes after a traffic accident.
Id., at 527.
Hardy answered only the very narrow Fourth Amendment expectation of
privacy question in blood test reports when blood is drawn for medical purposes
following a traffic accident. Murray v. State, 245 S.W.3d 37, 41 (Tex. App.--Austin
2007, pet. ref'd); Kirsch v. State, 276 S.W.3d 579 (Tex. App.--Houston [1st Dist].
5
In the trial court, Hardy alleged a violation of the MPA, Tex Rev.Civ. Stat, Art.
4495b §5.08 (repealed as to criminal law matters 12-18-85), and on discretionary review alleged
a violation of the Emergency Medical Services Act, Texas Health and Safety Code Chapter 773.
The Court held that the relevant portions of the MPA had been repealed when the Court adopted
the Texas Rules of Evidence and did not apply and that there was no violation of the Emergency
Services Practices Act. The Court never suggested that Hardy lacked standing to raise the claim
based on state statutes.
7
2008), aff’d on other grounds, 306 S.W.3d 738 (Tex. Crim. App. 2010). Unlike
Comeaux, it did so without considering the provisions of the MPA that had been
relied on in Comeaux. It did not address, much less answer, any other legal question,
including (1) whether Article 38.23 requires exclusion of evidence obtained in
violation of state or federal statutes, (2) whether there was an expectation of privacy
in medical records generally. Murray, 245 S.W.3d at 41-42 (recognizing that Hardy
did not decide any issue with respect to medical records generally); see also State v.
Jewell, No. 10-11-00166-CR, 2013 Tex. App. LEXIS 930, 2013 WL 387800 (Tex.
App.--Waco, Jan. 31, 2013, no pet.) (finding an expectation of privacy in medical
records generally), or (3) whether a person could challenge the use of a grand jury
subpoena to obtain blood test result records on any legal basis, such as Article 38.23,
other than when raised as a Fourth Amendment claim.
Though much has changed since Hardy was decided and though there have
been over 100 court of appeals decisions deciding issues related to Hardy, this Court
has not yet weighed in on any of the issues.
Since Hardy was decided, the Health Insurance Portability and Accountability
Act (HIPAA) became effective. Federal regulations promulgated pursuant to HIPAA
regarding privacy and confidentiality of health information became effective on April
14, 2003. To the extent any state law is less stringent than HIPAA, it is preempted.
8
45 C.F.R. § 160.203. While HIPAA expressly preempts any contrary state law, which
includes state judicial decisions, states are free to adopt more stringent standards than
those promulgated pursuant to HIPAA.6 See Village of Ridgefield Park v. New
York Susquehanna & Western Railway Corp., 163 N.J. 446, 455, 750 A.2d 1104,
1111 (1999).
Under the HIPAA regulations, a "covered health care provider," rendering
medical services in a "covered transaction" is prohibited from disclosing "protected
health information" without the patient's consent, unless it is authorized by 45 C.F.R.
§ 164.512(f). "Health information" includes any information relating to the past,
present, or future mental or physical condition of an individual, including a person's
identity. 45 C.F.R. § 160.103.
While HIPAA generally provides for privacy and confidentiality of protected
health care information, it does allow for disclosure if the "use or disclosure is
required by law and the use or disclosure complies with and is limited to the relevant
requirements of such law." 45 C.F.R. §164.512(a); see also Note, Developments in
the Law: The Law of Media, 120 HARV. L. REV. 990, 1060 (2007). A “covered entity
6
The MPA, infra, appears facially more stringent that HIPAA with respect to the
privacy of medical information and records: that is, the MPA provides privacy protections greater
than those provided by HIPAA both in the first instances – as to confidentiality and as a privilege
-- and in the substantially narrower scope of exceptions, especially with respect to disclosure in
relationship to criminal proceedings and prosecutions.
9
may disclose protected health information for a law enforcement purpose to a law
enforcement official” when, as applicable to the instant case, it is “ [i]n compliance
with and as limited by the relevant requirements of . . . a grand jury subpoena.” 45
C.F.R. § 164.512(f)(1)(ii)(B). Maldonado v. State, No. 05-09-00383-CR, n. 2, 2011
Tex. App. LEXIS 1984, 2011 WL 924352 (Tex. App.--Dallas, Mar. 18, 2011, no pet.)
(recognizing that HIPAA requires that a disclosure of protected health information
may only be made “without the individual's consent to the extent the disclosure is
required by law and the disclosure is limited to the relevant requirements of the
applicable law” and that “the disclosure must meet the requirements of 164.512 (c),
(e), or (f). 45 C.F.R. 164.512(a)(2).”);7 see also Kennemur v. State, 280 S.W.3d 305,
311 n.5 (Tex. App.—Amarillo 2008, pet. ref'd), cert. denied , 556 U.S. 1191, 129 S.
Ct. 2005, 173 L. Ed. 2d 1101 (2009)(same).
42 U.S.C. § 1320d-6(a) makes it a federal crime, and in some instances a
felony, for a person to knowingly obtain or disclose "individually identifiable health
information relating to an individual [or another person]."
HIPAA is widely and uniformly recognized as establishing a nationwide
minimum level of privacy and confidentiality in health care information.
7
The court in Maldonado never reached the merits of the 38.23 issue because trial
counsel stated “no objection” when the records were offered at trial, thus waiving the pretrial
ruling denying his motion to suppress.
10
Since Hardy was decided, the portions of the Medical Practices Act (MPA)
that this Court repealed in 1985 when it adopted the Texas Rules of Evidence, Hardy,
at 519-523, have been reenacted by the Texas Legislature and, since 1999, have been
codified in the Texas Occupations Code. TEX. OCC. CODE § 159.001, et seq.
TEX. OCC. CODE § 159.002 (b) provides that a “record of the identify,
diagnosis, evaluation, or treatment of a patient by a physician that is created or
maintained by a physician is confidential and privileged and may not be disclosed
except as provided by this chapter.” Section 159.003 (a)(10) provides an exception
to the privilege of confidentiality “in a criminal prosecution in which the patient is
a victim, witness, or defendant.” Despite the general exception to confidentiality in
criminal prosecutions in (a)(10), § 159.003 (b) expressly provides that § 159 does
“not authorize the release of confidential information to investigate or substantiate
criminal charges against a patient,” and § 159.003 (c) expressly provides that
“[r]ecords or communications are not discoverable under Subsection (a)(10) until the
court in which the prosecution is pending makes an in camera determination as to the
relevancy of the records or communications or any portion of the records or
communications. That determination does not constitute a determination as to the
admissibility of the information.”
The MPA recognizes that notwithstanding and despite the lack of a privilege
11
in the Rules of Evidence (and notwithstanding and despite this Court’s prior repeal
of a prior version of the statute) regarding the ultimate admissibility of confidential
medical information, there nonetheless exists a privilege and confidentiality in those
records with respect to discovery of them “to investigate or substantiate criminal
charges against a patient” and a limited privilege requiring a prior in camera
inspection in all other instances involving a criminal prosecution.
Since Hardy was decided, the Supreme Court decided Ferguson v. City of
Charleston, 532 U.S. 67 (2001), in which the Court was asked to decide the
constitutionality of a program where there was a joint effort by law enforcement,
prosecutors, and a state hospital to turn over to law enforcement and prosecutors
urine drug test results conducted on pregnant women and those giving birth when
test results showed the presence of illegal drugs or those potentially harmful to the
fetus or newborn child.
Relying on the amicus briefs of the American Medical Association and the
American Public Health Association, and in the context of unauthorized disclosure
of information to third parties, the Court held that "[t]he reasonable expectation of
privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that
the results of those tests will not be shared with nonmedical personnel without her
consent." 532 U.S. at 79. The Court predicated its foregoing statement with its
12
observation that unauthorized disclosure of medical test information to third parties
was a greater privacy intrusion than when the results were used solely for other
purposes. The Court wrote.
In the previous four [special needs] cases, there was no
misunderstanding about the purpose of the test or the potential use of
the test results, and there were protections against the dissemination of
the results to third parties. The use of an adverse test result to
disqualify one from eligibility for a particular benefit, such as a
promotion or an opportunity to participate in an extracurricular activity,
involves a less serious intrusion on privacy than the unauthorized
dissemination of such results to third parties.
Id., at 79.
It would have been impossible to make a comparison of the degrees of
intrusion of the expectation of privacy if there was not a general expectation of
privacy in medical test results and records. If there had been no general expectation
of privacy in all medical records, it would have been unnecessary to even consider
whether a disclosure might have been “unauthorized.”
Importantly, the Court specifically rejected the idea that the purpose of the
program (the investigation and detection of crime) was sufficient to make the search
reasonable and it did not come even close to holding that the purpose of the program
(like the purpose of grand jury subpoenas) would mean that there was no expectation
of privacy. If the basis for the intrusion – as occurs when one says that those who
13
have had blood taken at a hospital for medical purposes have no expectation of
privacy in the results because they might show evidence of a crime – was sufficient
to eliminate the expectation of privacy, nothing beyond such a conclusion would
have been necessary in Ferguson because the results of the urine drug tests in
Ferguson may be evidence of a crime just as hospital blood-alcohol test results may
be evidence of DWI.
Since Hardy was decided, over 100 court of appeals decisions have been
issued with respect to these and a number of other Hardy related issues. Despite the
self-limiting holding in Hardy, every court of appeals decision, including the
decision in this case, has expanded Hardy’s scope beyond its stated holding.
These issues continued to be litigated and appealed in a significant number of
cases because of the lack of guidance from this Court. The bench and bar of this
State need guidance from this Court, which will only occur by this Court granting
discretionary review.
Grounds One Through Six
Is there a Fourth Amendment expectation of privacy and standing to
challenge either the acquisition of hospital blood test results or medical
records generally and did the court of appeals err in failing to address
the general medical records issue? Should Hardy be overruled?
Though Hardy resolved the important issue of federal law relating to standing
14
and an expectation of privacy as of 1997, this Court has not spoken on this issue in
the intervening 19 years during which much of the legal landscape has changed with
respect to the basis for this Court’s holding in Hardy.
Whether Hardy’s expectation of privacy and standing holdings remains viable
in light of intervening legal events is, pursuant to TEX. R. APP. P. 66.3(b), as it was
in 1997, an important issue question of state and federal law that has not been, but
should be, settled by this Court.
Whether there is an expectation of privacy in medical records generally, and
whether the Court of Appeals in this case improperly expanded Hardy’s expectation
of privacy and standing holdings to include all medical records is, pursuant to TEX.
R. APP. P. 66.3(b), as it was in 1997, an important question of state and federal law
that has not been, but should be, settled by this Court.
Whether the court of appeals decision is contrary to the Supreme Court’s
decision in Ferguson on an important question of federal constitutional law, review
is proper pursuant to TEX. R. APP. P. 66.3(c).
Whether the Court of Appeals erred in only addressing the blood test issue and
in failing to address general medical records issue, despite the issue being raised in
the trial court, in Appellant’s brief, in the trial court’s findings, and in Appellant’s
motion for rehearing, warrants review pursuant to TEX. R. APP. P. 66.3(f), because
15
the court of appeals has so far departed from the accepted and usual course of
judicial proceedings as to call for an exercise of this Court’s power of supervision.
Importantly, while neither Hardy nor the Court of Appeals in this case
decided whether there was an expectation of privacy in medical records generally,
other courts of appeals have done so. See Murray v. State, 245 S.W.3d 37, 41-42
(Tex. App.--Austin 2007, pet. ref'd) (Hardy did not decide any issue with respect
to medical records generally); State v. Jewell, No. 10-11-00166-CR (Tex. App.--
Waco, Jan. 31, 2013, no pet.) (finding an expectation of privacy in medical records
generally).
If the Court of Appeals opinion can be read to apply to medical records
generally, review is warranted pursuant to Tex. R. App. P. 66.3(a), because it
conflicts with the decisions of the Austin and Waco Court of Appeals’ decisions in
Murray and Jewell.
Grounds Seven Through Ten
Even if there is not Fourth Amendment standing or an expectation of
privacy, does Hardy preclude exclusion sought under Article 38.23 for
a violation of state or federal law and, Hardy not withstanding, does
a violation of state or federal law require suppression under Article
38.23, without regard to whether there is Fourth Amendment standing
or an expectation of privacy. Is the court of appeals decision contrary
to Wilson v. State and are the statutes relating to grand jury
subpoenas, the MPA, or the HIPAA regulations a basis for suppression
under Article 38.23, as a violation of a state or federal law related to the
16
acquisition of evidence?
Hardy was a narrow, limited holding. By its terms it decided only whether
there was an expectation of privacy in the results of a blood test conducted for
medical purposes: that is, only whether there was standing to raise a Fourth
Amendment claim.
Though Hardy never addressed, much less decided, whether exclusion of the
results of a blood test conducted for medical purposes was independently
suppressible under Article 38.23 if the results were obtained in violation of state or
federal law, the court of appeals in this case, and every other court of appeals that
has decided the issue, relied solely on Hardy for concluding that the absence of an
expectation of privacy and the lack of Fourth Amendment standing also precluded
suppression under Article 38.23.
The first case decided after Hardy was Dickerson v. State, 965 S.W.2d 30
(Tex. App.--Houston [1st Dist.] 1998, pet. dism’d, improvidently granted).8 After
rejecting the identical constitutional claim raised in Hardy, the court also rejected
claims of defects in the grand jury subpoena process. It held, “[i]n the absence of
8
Dickerson v. State, 986 S.W.2d 618 (Tex. Crim. App. 1999) (Johnson, J,
dissenting to the dismissal of the petition for discretionary review) (“While the records [obtained
with a “so called” grand jury subpoena] might have ultimately been discoverable, Deputy
Swango chose to take an improper shortcut; his actions were both improper and premature. For
the reasons stated in Judge Price's dissent to Hardy . . . . (Price, J., dissenting), I dissent to the
improvident grant.”)
17
any constitutional or statutory reasonable expectation of privacy, appellant has no
standing to complain of defects in the grand jury subpoena process. See Comeaux
v. State, 818 S.W.2d 46, 51 (Tex. Crim. App. 1991).”
The court’s reliance on Comeaux for such a broad proposition was misplaced.
Comeaux did not involve a grand jury subpoena or blood test results. It involved
an unlawful command by a police officer to a nurse to turn over the actual blood
drawn. In Comeaux, the Court had no occasion to decide whether the statutes
regulating grand jury subpoenas created an expectation of privacy or constituted
violation of a law for purposes of exclusion under Article 38.23. Comeaux did
recite, as did Hardy, the well established proposition that there had to be an
expectation of privacy for a Fourth Amendment claim, which was the basis on which
the court affirmed exclusion of the evidence as unlawfully obtained, but that is as far
as it went.
The major difference between Hardy and Comeaux is that in Comeaux the
MPA was still in effect and by the time of Hardy, the MPA had been repealed.
Thus, in Comeaux, the Court went no further than the MPA in finding a statutorily
based expectation of privacy and in Hardy, the court had to look more broadly
because the MPA no longer applied. Even though the court in Hardy looked more
broadly, it only considered the Emergency Services Practices Act. The court in
18
Hardy did not consider whether a violation of any other statute would provide a
basis to exclude medical record evidence under Article 38.23 and certainly never
decided whether a violation of statutes regulating grand jury subpoenas would be a
basis for exclusion under Article 38.23. Had Dickerson limited its holding to “no
standing to complain of defects in the grand jury subpoena process for Fourth
Amendment purposes,” it may have been correct – at least at the time and pursuant
to Hardy.9 But, it did not do so, and the effect of the overly broad statement in
Dickerson has been that every other court of appeals to have decided the issue since
that time has also blindly followed Dickerson or its progeny.10
The initial misstating or over broadening of the holdings in Comeaux and
Hardy has led to blind adoption of that standard even though neither case made any
such pronouncement other than as applicable to a Fourth Amendment claim.
Texas appellate courts have, however, held that if the blood was drawn at the
hospital without consent, it would constitute an assault and suppression of the blood
test results under 38.23 would be proper.11 Not one of these cases suggested that
9
Dickerson does not suggest that a claim for exclusion under 38.23 based on
statutory violations was raised. Either no 38.23 claim was raised or the court did not analyze it
separately.
10
A complete list of these cases is contained in Appendix D.
11
Hailey v. State, 50 S.W.3d 636, 640 (Tex. App.—Waco 2001), rev'd on other
grounds, 87 S.W.3d 118 (Tex. Crim. App. 2002) (blood drawn by hospital without consent was
19
there was no standing to seek suppression under Article 38.23 based on the evidence
being obtained by a criminal assault (even though the results were later obtained
with a grand jury subpoena) just because there was no standing to raise a Fourth
Amendment claim. The merits of these claims were addressed precisely because
whether there was a valid Fourth Amendment claim was legally irrelevant to whether
suppression was required under Article 38.23.
Article 38.23 protects more interests than just those included in the
constitutional expectation of privacy analysis. Though “[t]he underlying purpose of
both the federal exclusionary rule and article 38.23 is the same: to protect a suspect’s
privacy, property, and liberty rights against overzealous law enforcement,” Wilson
v. State, 311 S.W.3d 452, 458-59 (Tex. Crim. App. 2010) , the scope and remedies
under Article 38.23 are much different than Fourth Amendment standing. A Fourth
Amendment violation requires suppression of evidence only if the federal
exclusionary rule requires it. However, even if the federal exclusionary rule does not
an assault and illegally obtained for purposes of 38.23; reversed on basis that there was no lack of
consent). Compare State v. Kelly, 204 S.W.3d 808, 820-21 (Tex. Crim. App. 2006) (hospital
staff did not assault defendant and thus defendant's blood test results were admissible); Owens
v. State, No. 01-12-00075-CR, 2013 Tex. App. LEXIS 13767; 2013 WL 5947336 (Tex.
App–Houston [1st Dist.], Nov. 7, 2013, no pet)(published)(no lack of consent and blood draw
justified to provide emergency care); Spebar v. State, 121 S.W.3d 61, 64 (Tex. App.—San
Antonio 2003, no pet.) (distinguishes Hailey because of factual deficiencies in the record and
factual differences that would not show an abuse of discretion by trial judge in implicitly finding
no assault); Ramos v. State, 124 S.W.3d at 336 (evidence supported trial court's implied finding
of consent for medical treatment).
20
require suppression, such as for inevitable discovery, the same Fourth Amendment
violation would require suppression under Article 38.23.
In Wilson, this Court held that Article 38.23 may be “invoked for statutory
violations [...]related to the purpose of the exclusionary rule or to the prevention of
the illegal procurement of evidence of crime.” Id., at 459. “The primary purpose of
article 38.23(a) is to deter unlawful actions which violate the rights of criminal
suspects in the acquisition of evidence for prosecution.” Id. It is not just privacy
rights or the expectation of privacy that are within the scope of Article 38.23. “[T]he
type of law violation that the Texas Legislature intended to prohibit when it enacted
article 38.23 [is] conduct by overzealous police officers who, despite their laudable
motives, break the penal laws directly related to gathering and using evidence in
their investigations.” Id, at 461. Whether evidence is obtained in violation of the
Constitution is an entirely different inquiry – and does not control – whether
evidence is subject to suppression under Article 38.23. Id., 463-464.
HIPAA, the MPA and the grand jury statutes regulate the methods by which
evidence may be obtained and may have penal consequences. Under Wilson, they
are within the scope of laws for which a violation requires exclusion under 38.23.
Even though argued in Appellant’s brief and raised in the motion for rehearing, the
court of appeals declined to even acknowledge, much less follow, this Court’s
21
decision in Wilson. The court of appeals erred in holding that Appellant could not
seek suppression under 38.23 based on violations of these statutes in the acquisition
of the evidence of his blood test results and his medical records in general.
Because the court of appeals decision in this case conflicts with the important
question of state law decided by this Court in Wilson and Comeaux, review is
proper pursuant to TEX. R. APP. P. 66.3(c).
Because the court of appeals has decided that this Court’s decision in Hardy
applied to standing to seek 38.23 suppression, review is proper pursuant to TEX. R.
APP. P. 66.3(b) because the court of appeals has decided an important question of
state law that has not been, but should be settled by this Court.
Because the court of appeals decision in this case, that Hardy decided the
38.23 issue, conflicts with the Austin and Houston (First) court of appeals decisions
in Murray and Kirsch, review is proper pursuant to Tex. R. App. P. 66.3(a).
.
22
Conclusion and Prayer
Appellant prays that this Court grant discretionary review to decide the
important issues in this case and either vacate the court of appeals opinion and
remand this case for consideration of the issues not addressed by the Court of
Appeals, or, alternatively, decide all of the issues presented and reverse the judgment
of the Court of Appeals and remand this case to the trial court for a new trial.
Respectfully submitted,
/s/ W. Troy McKinney
W. Troy McKinney
Schneider & McKinney, P.C.
Texas Bar NO. 13725020
440 Louisiana, Suite 800
Houston, Texas 77002
(713) 951-9994
(713) 224-6008 (FAX)
Email: wtmhousto2@aol.com
/s/ J. Gary Trichter
J. Gary Trichter
Trichter & Murphy, P.C.
Texas Bar No. 20216500
420 Heights Blvd.
Houston, Texas 77002
(713) 524-1010
(713) 524-1080 (FAX)
E-mail: gary@texasdwilaw.com
Attorneys for Appellant
23
Certificate of Service
This is to certify that a true and correct copy of the attached and foregoing
document has been served on the Harris County District Attorney’s Office at 1201
Franklin, Houston, Texas 77002, and on the State Prosecuting Attorney at P.O. Box
3046, Austin, Texas 78711, by electronic service on this 16th day of December,
2015.
/s/ W. Troy McKinney
W. Troy McKinney
Certificate of Compliance
I certify that this document was prepared with Word Perfect X3, and that,
according to that program’s word-count function, the sections covered by TEX. R.
APP. P. 9.4(i)(1) contain 4499 words.
/s/ W. Troy McKinney
W. Troy McKinney
24
Appendix A
Opinion
25
Opinion issued June 25, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00970-CR
———————————
HECTOR L. RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 5
Harris County, Texas
Trial Court Case No. 1726063
OPINION
The State charged Hector L. Rodriguez by information with Class B
misdemeanor driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04
(West Supp. 2014). Before trial, Rodriguez moved to suppress evidence of his
blood-test results. After a hearing, the trial court denied the requested relief.
Pursuant to a plea bargain with the State, Rodriguez pleaded guilty to the charge.
The trial court accepted the plea and agreed to follow the State’s punishment
recommendation, sentencing Rodriguez to 180 days’ confinement and suspending
that sentence conditioned on successful completion of one year of community
supervision.
The trial court certified Rodriguez’s right to appeal its ruling on his motion
to suppress. On appeal, Rodriguez contends that the trial court erred in denying
the motion because the State obtained his medical records and blood-test results in
violation of state and federal law and his rights under the Fourth Amendment of
the United States Constitution. We affirm.
Background
The parties do not dispute the facts material to Rodriguez’s motion to
suppress. Close to 2:00 A.M. in late September 2010, Officer J. Roberts and
Officer Pitts of the Houston Police Department were in the course of arresting two
individuals for driving while intoxicated (DWI) in downtown Houston when they
observed Rodriguez driving toward them, heading the wrong direction down a one-
way street. The officers instructed Rodriguez to pull over, and Rodriguez came to
a stop near Officer Pitts’s patrol car.
After Officer Roberts secured the other two DWI suspects in the back of his
patrol car, he approached Rodriguez’s car. He noticed that Rodriguez had red,
2
glassy eyes and slurred speech, and smelled strongly of alcohol, as did the interior
of his car. Rodriguez admitted that he had begun drinking beer at 3:00 P.M. the
previous afternoon and that he had just left a nightclub.
Officer Roberts administered the horizontal gaze nystagmus (HGN) test on
Rodriguez and observed all six of the possible clues for intoxication. Rodriguez
refused to participate in any other field sobriety tests and was placed under arrest
for suspicion of DWI. According to protocol, Officer Roberts handcuffed
Rodriguez’s hands together at the back and placed him in the backseat of Officer
Pitts’s patrol car.
When they arrived at the police station, Officer Pitts attempted to escort
Rodriguez from the patrol car into the station by holding onto Rodriguez’s arm.
Rodriguez told Officer Pitts, “Don’t touch me. I can do this” and pulled away from
Officer Pitts’s grasp. Rodriguez then lost his balance and fell face forward onto
the concrete. He remained on the ground, bleeding heavily from his face, head,
and nose. Officer Pitts immediately called for an ambulance. Paramedics with the
Houston Fire Department arrived and transported Rodriguez to a nearby hospital.
Officer Roberts followed the ambulance to the hospital emergency room,
where he read Rodriguez his statutory warnings and asked him for a blood
specimen. Rodriguez refused to provide one. Officer Roberts asked the attending
nurse whether he would be drawing Rodriguez’s blood for medical purposes. The
3
nurse responded that he would. Roberts asked the nurse to use Betadine instead of
alcohol to disinfect the site of the blood draw, which the nurse did.
Officer Roberts submitted his “DWI case report” to an HPD civilian
evidence technician, who in turn contacted a paralegal in the Harris County District
Attorney’s Office to have a grand jury subpoena issued for Rodriguez’s medical
records and blood-test results. The day after the incident, the District Attorney’s
Office issued a grand jury subpoena to the hospital’s custodian of records seeking
Rodriguez’s medical records. The hospital’s records custodian responded by
providing a copy of them. The records revealed that the blood-alcohol
concentration in the sample drawn from Rodriguez at 4:21 A.M. was .209.
Officer Roberts included the blood-alcohol concentration data in his
probable cause affidavit and contacted the District Attorney’s Office intake
division about filing a DWI charge against Rodriguez. The District Attorney’s
Office filed an information charging Rodriguez with DWI on December 16, 2010.
No grand jury was in session when the subpoena issued and no grand jury
deliberated whether to bring charges against Rodriguez.
The trial court made the findings of fact and conclusions of law supporting
the denial of Rodriguez’s motion to suppress, including:
• Office Roberts had reasonable articulable suspicion to detain Rodriguez and
had probable cause to arrest him for DWI;
4
• Rodriguez’s blood was drawn and tested solely for the purpose of medical
treatment.
• The Fourth Amendment of the United States Constitution does not provide a
reasonable expectation of privacy in blood-alcohol test results acquired
through tests performed by hospital personnel on samples or specimens of
blood drawn solely for medical purposes after a traffic accident.
• The same privacy concerns related to obtaining medical records in Hardy 1
apply in this case, where medical personnel drew Rodriguez’s blood for the
purpose of medical treatment following an accident in the course of a DWI
investigation.
• Rodriguez did not have a reasonable expectation of privacy in the results of
the blood-alcohol test administered on the sample of Rodriguez’s blood that
was drawn by hospital personnel for a legitimate medical purpose.
• Because Rodriguez did not have a reasonable expectation of privacy in his
medical records obtained by grand jury subpoena process following an
accident, Rodriguez lacks standing under federal or state law to contest the
process by which the records were acquired.
Discussion
I. Standard of review
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard. See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The
trial court is the sole trier of fact and judge of the weight and credibility of the
evidence and testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.
2007). Accordingly, we defer to the trial court’s determination of historical facts if
1
State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997).
5
the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial
court’s application of the law to those facts. Id. “[T]he prevailing party is entitled
to ‘the strongest legitimate view of the evidence and all reasonable inferences that
may be drawn from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465
(Tex. Crim. App. 2011) (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241
(Tex. Crim. App. 2008)). A trial court’s ruling will be sustained if it is “reasonably
supported by the record and correct on any theory of law applicable to the case.”
Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v.
State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).
II. Reasonable Expectation of Privacy
Rodriguez claims that the denial of his motion to suppress violates his
privacy rights under the Fourth Amendment, the federal Health Insurance
Portability and Accountability Act of 1996 (HIPAA), and the Texas Medical
Practices Act. He also complains that the State failed to comply with the grand
jury procedures set forth in Chapter 20 of the Texas Code of Criminal Procedure.
These violations of state and federal law, Rodriguez contends, require suppression
pursuant to article 38.23(a) of the Code of Criminal Procedure, which declares that
“[n]o evidence obtained by an officer or other person in violation of [any state or
federal law] shall be admitted in evidence against the accused.” TEX. CODE CRIM.
PROC. ANN. art. 38.23(a) (West 2005).
6
The trial court concluded that Rodriguez lacked standing under any of the
state or federal laws he invokes because he had no reasonable expectation of
privacy in his blood-test results or medical records. Our primary consideration,
therefore, is whether the trial court correctly concluded that none of those laws
affords Rodriguez a reasonable expectation of privacy in his blood-test results,
which were performed for medical purposes and obtained by the State for
Rodriguez’s prosecution.
A. State v. Hardy and the Fourth Amendment
The trial court relied on the Court of Criminal Appeals’ decision in State v.
Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997), to hold that Rodriguez lacked a
reasonable expectation of privacy in protecting his blood-test results from
disclosure to the District Attorney’s Office. In Hardy, the Court of Criminal
Appeals specifically held that the Fourth Amendment does not support a
reasonable expectation of privacy protecting blood-test results from tests taken by
hospital personnel solely for medical purposes after a traffic accident. Id. at 527.
The Fourth Amendment protects an individual from the government’s search
or seizure of a place or thing and from the government’s physical intrusion into a
place or thing if the individual has a reasonable expectation of privacy in the place
searched or item seized. See U.S. CONST. amend. IV; United States v. Jones, ___
U.S. ___, 132 S. Ct. 945, 950–51 (2012); Rakas v. Illinois, 439 U.S. 128, 143, 99
7
S. Ct. 421, 430 (1978). A legitimate expectation of privacy exists when the
individual seeking Fourth Amendment protection maintains a “subjective
expectation of privacy” in the area searched “that society recognizes as
reasonable.” Kyllo v. United States, 533 U.S. 27, 31–33, 121 S. Ct. 2038, 2041–42
(2001).
A defendant has standing to challenge the admission of evidence obtained by
an unreasonable search or seizure if he proves that he “had a legitimate expectation
of privacy. . . .” State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013);
Rakas, 439 U.S. at 143, 99 S. Ct. at 430; Castleberry v. State, 425 S.W.3d 332, 334
(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The trial court found that
Rodriguez had a subjective expectation of privacy in his medical records, but
Rodriguez had the further burden to prove that society recognizes his subjective
expectation as objectively reasonable. See Betts, 397 S.W.3d at 203. The trial
court concluded that Rodriguez did not meet this further burden.
We agree with the trial court. Rodriguez contends that circumstances
surrounding his blood draw differ materially from those in Hardy. Together with
changes in the legal landscape since Hardy, these differences, he contends, support
recognition of a privacy right in his blood-test results. He argues that “Hardy
answered only the very narrow Fourth Amendment expectation of privacy in
blood-test reports when blood is drawn for medical purposes following a traffic
8
accident,” and not whether article 38.23 would require exclusion of evidence
obtained in violation of state or federal law, or whether a reasonable expectation of
privacy exists with respect to medical records generally. We examine both the
factual and legal distinctions in turn.
Factually, Rodriguez distinguishes Hardy by pointing out that the blood test
in that case took place after a traffic accident, whereas his did not. Our court did
not find this to be a meaningful distinction in Fourth Amendment terms in Owens
v. State, 417 S.W.3d 115 (Tex. App.—Houston [1st Dist.] 2013, no pet.). In that
case, the defendant suffered an asthma attack shortly after his arrest. Id. at 116.
The officer called an ambulance. Id. At the emergency room, the defendant
presented with shortness of breath, and his blood pressure and heart rate were
elevated. Id. Over the defendant’s objection, the treating physician ordered a
blood draw to rule out the possibility of other life-threatening conditions, such as a
heart attack. Id. We held that the evidence supported a reasonable conclusion that
the hospital staff acted out of medical necessity in drawing his blood and, as a
result, article 38.23(a) did not bar the admission of his blood-test results that were
eventually obtained via a grand jury subpoena. Id. at 118.
The undisputed evidence in this case demonstrates that hospital staff drew
and tested Rodriguez’s blood for medical purposes. Officer Roberts listed
Rodriguez’s fall in the parking lot, which caused his injury, as one of the facts
9
supporting his opinion that Rodriguez was intoxicated on September 25, 2010.
Rodriguez does not identify any policy reason to support his proposed exception
for the case in which a hospital patient was treated for injuries received in an
accidental fall as opposed to injuries received in a traffic accident, and we have
found none. See Owens, 417 S.W.3d at 116.
Legally, according to Rodriguez, Ferguson v. City of Charleston, 532 U.S.
67, 121 S. Ct. 1281 (2001), recognizes a reasonable expectation of privacy for
“those who undergo diagnostic tests in hospitals that—absent other considerations
not present here (like a legal duty to disclose)—the results of their tests will not be
shared with non-medical third parties.” We do not read Ferguson so broadly.
There, the public hospital performed diagnostic tests at the State’s behest to obtain
evidence of a patient’s criminal conduct for law-enforcement purposes without
first obtaining the patient’s consent. See id. at 84–85, 121 S. Ct. at 1291–92. Here,
the blood draw and blood-alcohol content test results were performed for medical
treatment. This distinction renders Ferguson inapposite. See Murray v. State, 245
S.W.3d 37, 42 (Tex. App.—Austin 2007, pet. ref’d); see also State v. Villarreal,
No. PD-0306-14, 2014 WL 6734178, at *15 (Tex. Crim. App. 2014) (explaining
that drug-testing policy was invalidated in Ferguson because immediate objective
of searches was to generate evidence for law enforcement purposes); Garcia v.
State, 95 S.W.3d 522, 526–27 n.1 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
10
(following Hardy post-Ferguson and applying Hardy to appellant’s challenge
under Texas Constitution). Ferguson does not support Rodriguez’s contention that
the Fourth Amendment protects his expectation of privacy in the medical records
containing the blood-test results.
B. Texas Medical Practices Act
The Texas Medical Practice Act (MPA) protects “record[s] of the identity,
diagnosis, evaluation, or treatment of a patient by a physician that is created or
maintained by a physician is confidential and privileged and may not be disclosed
except as provided.” TEX. OCC. CODE ANN. § 159.002(b) (West 2012). When the
Court of Criminal Appeals adopted the Texas Rules of Evidence in 1985, it
repealed the confidentiality provision of the MPA’s precursor in Rule 509, which
abrogates the physician-patient privilege in criminal cases. See Hardy, 963 S.W.2d
at 519–23 (citing TEX. R. CRIM. EVID. 509 (“There is no physician-patient privilege
in criminal proceedings.”) (now TEX. R. EVID. 509(b))).
The Legislature later re-enacted the MPA without reference to Rule of
Evidence 509. Rodriguez contends that the MPA’s re-enactment means that,
despite Rule 509, he retains a limited privilege and confidentiality in his medical
records with respect to their discovery in criminal proceedings.
We disagree. The MPA excepts from its general rule of physician-patient
confidentiality “any criminal prosecution where the patient is a victim, witness or
11
defendant” and for response to “a court or a party to an action under a court order
or subpoena.” TEX. OCC. CODE ANN. § 159.003(a)(10), (12) (West 2012).
Rodriguez points to section 159.003(b) of the Occupations Code, which provides:
“This section does not authorize the release of confidential information to
investigate or substantiate criminal charges against a patient.” Id. § 159.003(b).
Like the rest of the chapter, this provision is directed at the physician’s authority or
lack thereof to disclose a patient’s records; it does not limit the State’s access to
those records through subpoena. See id. § 159.003(a)(10), (12), see also id.
§ 159.004(1) (West 2012) (excepting to privilege of confidentiality in allowing for
disclosure of medical records in situation other than court or administrative
proceeding to “a governmental agency, if the disclosure is required or authorized
by law”). Under the circumstances here, the MPA does not provide any basis for
protecting Rodriguez’s medical records or blood-test results from disclosure
pursuant to subpoena and, as a result, it does not provide Rodriguez with grounds
to assert a reasonable expectation of privacy.
C. Grand jury statute
Rodriguez further contends that the State procured his medical records in
violation of the Texas grand jury statute because the assistant district attorney
improperly delegated her authority to issue a subpoena. See TEX. CODE CRIM.
PROC. ANN. arts. 20.02–20.05, 20.13 (West 2015). The attorney stipulated that she
12
routinely delegated the issuance of a subpoena to a member of her clerical staff,
who, acting under the attorney’s authority, signed the subpoena in the attorney’s
name with an ink stamp. Rodriguez also observes that the hospital provided the
records directly to the investigating officer and that the grand jury was not in
session when the district attorney’s office issued the subpoena. But Rodriguez has
not shown that he was personally aggrieved by any deviation from the regular
grand jury subpoena procedure, and the hospital did not challenge the subpoena; it
simply turned over the records.
During oral argument, Hernandez relied on Boyle v. State, which involved a
challenge to the validity of law enforcement’s use of a grand jury material witness
attachment, to take Boyle, a truck driver, into custody. 820 S.W.2d 122 (Tex.
Crim. App. 1989), overruled on other grounds by Gordon v. State, 801 S.W.2d 899
(Tex. Crim. App. 1990). The police officers investigating the homicide honed in
on Boyle as a suspect, but admittedly “lacked sufficient probable cause to conduct
an investigatory search or to procure the issuance of an arrest warrant” for him. Id.
at 125, 129. The officers nonetheless acquired a grand jury material witness
attachment, signed by a district judge, to arrest Boyle and take him into custody.
Id. at 125–26. The officers read Boyle his Miranda warnings, interrogated him,
and asked for consent to search his truck, which he gave. Id. at 126. An arrest
13
warrant charging Boyle with capital murder was issued a short time after the
officers completed the investigatory search of the truck. Id.
Boyle moved to suppress the evidence procured during the interrogation and
search, contending that the officers used his arrest pursuant to the material witness
attachment to gain his permission to search the truck when they could not have
done so by following procedures consistent with his rights under the federal and
state constitutions. Id. at 127. The Court of Criminal Appeals examined the
district attorney’s affidavit supporting the attachment and concluded that it did not
comply with the Code of Criminal Procedure’s requirements for its issuance. 2 Id.
at 129. The Court held that “the procedure utilized in placing the appellant under
arrest . . . was a pretext, subterfuge, and deceptive artifice intentionally employed
to circumvent the principles and tenets of the Fourth and Fourteenth Amendments
to the United States Constitution and Art. I, Sec. 9 of the Texas Constitution,”
making his arrest illegal. Id. at 129–30. But for the trucking company’s
independent consent to search the truck Boyle was driving, which the State first
argued on rehearing, the admission of evidence seized during the truck’s search
would have amounted to harmful constitutional error. Id. at 136–37, 143.
2
Defects in process included: the violation of a provision restricting issuance to
county residents, which Boyle was not; the absence of a required sworn statement
that the district attorney believed that the witness was about to move out of the
county; an affidavit that set bond without statutory authorization; and no showing
that the witness failed to obey a properly served subpoena before the attachment
was issued. Boyle v. State, 820 S.W.2d 122, 128–29 (Tex. Crim. App. 1989).
14
The main distinction that renders Boyle inapposite is the admitted lack of
probable cause when the attachment issued in Boyle and the admitted existence of
probable cause when the subpoena issued in this case. Rodriguez has not
suggested that the police could not have obtained the medical records other than by
violating the grand jury subpoena process.
We consistently have held that, because a defendant does not have any
constitutional or statutory reasonable expectation of privacy in blood-test results
obtained for medical purposes while the defendant is under criminal investigation
for DWI, he does not have standing to complain of any defects in the grand jury
subpoena process. Kirsch v. State, 276 S.W.3d 579, 587 (Tex. App.—Houston [1st
Dist.] 2008), aff’d on other grounds, 306 S.W.3d 738, 749 (Tex. Crim. App. 2010);
Garcia v. State, 95 S.W.3d 522, 526–27 (Tex. App.—Houston [1st Dist.] 2002, no
pet); Dickerson v. State, 965 S.W.2d 30, 31 (Tex. App.—Houston [1st Dist.]
1993), pet. dism’d, improvidently granted, 986 S.W.2d 618 (Tex. Crim. App.
1999); accord Tapp v. State, 108 S.W.3d 459, 461 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d). We thus reject his challenge to the admissibility of the
blood-test results based on any procedural irregularity in the grand jury process.
D. HIPAA
Finally, Rodriguez contends that his blood-test results should have been
suppressed because the grand jury subpoena did not comply with the statutory
15
requirements for its issuance, and accordingly, the release in response to the
subpoena violated HIPAA. In Kirsch, we agreed with other Texas courts of
appeals that HIPAA does not protect from disclosure a patient’s medical records
and blood-test results obtained through lawful process and under circumstances
that suggest the patient has committed the offense of DWI. 276 S.W.3d at 586–87
(citing Kennemur v. State, 280 S.W.3d 305, 312 (Tex. App.—Amarillo 2008, pet.
ref’d), and Murray v. State, 245 S.W.3d 37, 42 (Tex. App.—Austin 2007, pet.
ref’d)).
Rodriguez relies on the following HIPAA regulation:
(f) Standard: Disclosures for law enforcement purposes. A covered
entity may disclose protected health information for a law
enforcement purpose to a law enforcement official if the
conditions in paragraphs (f)(1) through (f)(6) of this section are
met, as applicable.
(1) Permitted disclosures: Pursuant to process and as
otherwise required by law. A covered entity may disclose
protected health information:
(i) As required by law including laws that require the
reporting of certain types of wounds or other
physical injuries, except for laws subject to
paragraph (b)(1)(ii) or (c)(1)(i) of this section; or
(ii) In compliance with and as limited by the relevant
requirements of:
(A) A court order or court-ordered warrant, or a
subpoena or summons issued by a judicial
officer;
(B) A grand jury subpoena; or
16
(C) An administrative request, including an
administrative subpoena or summons, a civil
or an authorized investigative demand, or
similar process authorized under law,
provided that:
(1) The information sought is relevant
and material to a legitimate law
enforcement inquiry;
(2) The request is specific and limited in
scope to the extent reasonably
practicable in light of the purpose for
which the information is sought; and
(3) De-identified information could not
reasonably be used.
45 C.F.R. § 164.512(f). Specifically, Rodriguez claims that the subpoena failed to
comply with the statutory requirements for its issuance and thus violates subsection
(f)(ii)(B).
Any irregularity in the subpoena’s issuance in this case does not support
suppression of the blood-test results. When the Department of Health and Human
Services (DHHS) promulgated the HIPAA regulations, it declared: “We shape the
rule’s provisions with respect to law enforcement according to the limited scope of
our regulatory authority under HIPAA, which applies only to the covered entities
and not to law enforcement officials.” 65 Fed. Reg. 82462, 82679 (Dec. 28, 2000)
(agency’s response to public comments in connection with promulgation of final
rule). HIPAA defines as “covered entities” health plans, health care
clearinghouses, and health care providers who transmit health information
17
electronically. See 45 C.F.R. §§ 160.102(a), 164.104(a). An individual who
believes his rights under HIPAA have been violated may file a complaint against a
covered entity with DHHS’s Office of Civil Rights. 45 C.F.R. § 160.306; see 42
U.S.C. §§ 1320d-5, 1320d-6 (providing for imposition of monetary fines on a
covered entity in the event of a violation). But, as DHHS recognized, “under the
HIPAA statutory authority, [DHHS] cannot impose sanctions on law enforcement
officials or require suppression of evidence.” 65 Fed. Reg. at 82679.
The State did not violate HIPAA because it is not a covered entity under
HIPAA and accordingly, its conduct is not governed by HIPAA. See United States
v. Elliott, 676 F. Supp. 2d 431, 440 (D. Md. 2009). Moreover, even if the State
had violated HIPAA standards, we cannot read the exclusionary rule into a statute
when its remedial provision is silent on suppression. See, e.g., Sanchez-Llamas v.
Oregon, 548 U.S. 331, 346, 126 S. Ct. 2669, 2679 (2006) (suppression is not
proper remedy for violation of Article 36 of the Vienna Convention; reading rule
requiring suppression into Convention would supplement terms and enlarge U.S.
obligations, which would be “entirely inconsistent with the judicial function”);
Transam. Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S. Ct. 242, 247
(1979) (declaring that “it is an elemental canon of statutory construction that where
a statute expressly provides a particular remedy or remedies, a court must be chary
of reading others into it”). “HIPAA was passed to ensure an individual’s right to
18
privacy over medical records; it was not intended to be a means for evading
prosecution in criminal proceedings.” United States v. Zamora, 408 F. Supp. 2d
295, 298 (S.D. Tex. 2006); accord Elliott, 676 F. Supp. 2d at 437–38 (denying
motion to suppress on basis that government’s interest in obtaining medical records
with blood-test results and in addressing drunk-driving problem outweighed any
privacy interest violated through use of improper subpoena).
We abide by Kirsch and hold that that HIPAA does not provide Rodriguez
with a reasonable expectation of privacy in his medical records and blood-test
results in connection with medical treatment for injuries sustained while in custody
under suspicion of intoxication. See 276 S.W.3d at 587. As a result, the trial court
did not err in denying Rodriguez’s motion to suppress on this ground.
III. Article 38.23 Standing
Article 38.23 provides that “[n]o evidence obtained by an officer or other
person in violation of any provisions of the Constitution or laws of the State of
Texas, or of the Constitution or laws of the United States of America, shall be
admitted in evidence against the accused on the trial of any criminal case.” TEX.
CODE CRIM. PROC. ANN. art. 38.23. Its purpose is “to protect a suspect’s privacy,
property, and liberty rights against overzealous law enforcement . . . [and] to deter
unlawful actions which violate the rights of criminal suspects in the acquisition of
19
evidence for prosecution.” Wilson v. State, 311 S.W.3d 452, 458–59 (Tex. Crim.
App. 2010).
We have held that none of the laws that Rodriguez relies on supports his
claim to a reasonable expectation of privacy in these circumstances, and he does
not identify any other personal right that the State violated in obtaining the records.
An accused does not have standing to complain about evidence that is illegally
obtained unless it was done so in violation of his rights. See Chavez v. State, 9
S.W.3d 817, 819 (Tex. Crim. App. 2000). Absent a substantive personal right,
Rodriguez is not entitled to exclusion of the evidence under article 38.23.
Conclusion
We hold that the trial court did not err in denying Rodriguez’s motion to
suppress. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
20
Appendix B
Statement of Facts
26
Appendix B
Statement of Facts
On September 25, 2010, Appellant was arrested for driving while intoxicated.
There was probable cause for the arrest. FOF-6-11.1 COL-1 There was no traffic
accident. After Appellant arrived at “Central Intox,” and while being escorted into
the station, Appellant pulled away from the officer, lost his balance, and fell forward
onto the parking lot, suffering injuries to his head and face that required medical
attention. FOF-13-14. An ambulance was called and Appellant was transported to
St. Joseph’s Hospital. FOF-15. Houston Police Department Officer Roberts followed
the ambulance to the hospital. Appellant remained in custody at the hospital. FOF-
17-18. At the hospital, Roberts requested a specimen of Appellant’s blood.
Appellant refused. FOF-18.
Appellant’s blood was drawn at the hospital by medical personnel (not as
agents of law enforcement) for medical purposes. FOF-19,23, COL-2. Because
Appellant was admitted for treatment, he was released from custody. FOF-24.
Based on a conversation with Roberts, an assistant district attorney agreed to
accept charges on a “to be” basis following receipt of the blood alcohol test results
1
References in this statement of facts to FOF are to the court’s findings of fact and to
COL are to the court’s conclusions of law. This is the only document contained in the
supplemental clerks’ record.
1
from the hospital. Roberts completed a “to-be” police report and placed it in the
designated place at HPD for later processing. FOF-25.
MacKenzie Gaston-Winne (Winne), a civilian evidence technician at HPD,
received and processed the “to be” police report. In accordance with HPD policy,
Winne emailed Rhonda Watson, a paralegal at the Harris County DA’s office, and
requested a grand jury subpoena for Appellant’s medical records and blood test
results. When Winne received the paperwork (variously referred to as a grand jury
subpoena or alleged grand jury subpoena) dated September 28, 2010, from Watson,
she attached an HPD cover sheet and transmitted it to the hospital. No peace officer
was involved in this process. The documents obtained by Winne from Watson are
contained in state’s exhibit 2 and defense exhibit 1. FOF-26.
The hospital responded to the records request by transmitting Appellant’s
medical records to Watson on November 9, 2010. On November 10, 2010, Watson
transmitted them to Winne. The records were never filed with either the District
Clerk or any grand jury. FOF-50, COL-16.
A copy of the records were filed with the HPD accident division and the
original were placed in the original “officer’s packet” for his use. At no time were
the records sent to the Grand Jury Division of the District Attorney’s office, any
Grand Jury, or to the District Clerk. FOF-27. Following receipt of the records,
2
Roberts prepared a probable cause affidavit that was presented to an assistant district
attorney and charges were filed. FOF-51.
Catherine Evans was the Chief of the Vehicular Crimes Section of the DA’s
office. Watson worked under Evans. FOF-28. Watson had been issued a signature
stamp by Evans with Evans’ name on it for Watson’s use when officers were seeking
grand jury subpoenas. Watson was not an attorney or an assistant district attorney.
FOF-29.
In a typical case, when a law enforcement officer wanted a grand jury subpoena
and contacted Watson, she would verify that the records were being sought in
connection with a pending investigation, would collect the necessary descriptive
information, prepare a document labeled “grand jury subpoena,” use the stamp
provided by Evans to affix Evans’ stamped signature to the document, and provide
the document to the requesting officer. FOF-31. In a typical case, Watson was
authorised to use the stamp to affix Evans’ signature to a document labeled “grand
jury subpoena” without obtaining express permission or consent from Evans or any
other assistant district attorney. Watson could, if she chose to, consult with an
assistant district attorney, but that decision was solely within her discretion. FOF-32.
Watson issued more documents labeled “grand jury subpoena” using Evans’
stamp without obtaining express permission or consent from Evans or any assistant
3
district attorney than she did where she was given express permission on a specific
case. FOF-9. Watson issued more documents labeled “grand jury subpoena” using
Evans’ stamp than Evans issued. FOF-34. More often than not, Evans was not aware
when Watson used her signature stamp to issue a document labeled “grand jury
subpoena.” FOF-35. Watson issued the vast majority of documents labeled “grand
jury subpoena” in misdemeanor DWI cases without the specific approval of Evans or
any other assistant district attorney. FOF-37.
Watson was also given the discretion to choose which of the sitting grand juries
she would designate as seeking the records sought by the document labeled “grand
jury subpoena.” FOF-38.
The District Attorneys’s Office provided no written instructions to officers who
obtained medical records with a grand jury subpoena or a document labeled “grand
jury subpoena” as to what was to be done with the records once they were obtained.
FOF-39. Such officers were not required to turn over the medical records they
received to either the District Clerk or to the grand jury designated on the document.
FOF-40. In typical cases, the records were kept at the law enforcement agency that
obtained the records and in some cases copies were turned over to the district
attorney’s office, where they would be maintained in the case file for which they had
been sought. FOF-41.
4
Officers who received records obtained with a grand jury subpoena or a
document labeled “grand jury subpoena” received no instructions on maintaining
privacy or secrecy of the medical records aside from the language contained within
the grand jury subpoena or document labeled “grand jury subpoena” and the
accompanying “HIPAA letter.” FOF-42. The District Attorneys Office had no policy
or procedure to protect and maintain the secrecy of the records obtained with a grand
jury subpoena or a document labeled “grand jury subpoena” from other assistant
district attorneys or other employees of the office not involved in the grand jury
process. FOF-43.
Even though the District Attorney’s Office was aware of the HPD standard
procedure for handling documents obtained with a grand jury subpoena or a
document labeled “grand jury subpoena” and placing them in files that may have been
accessible to other police employees, the DA’s office did not issue any instructions
concerning grand jury secrecy. FOF-44.
It was the policy of the DA’s office to exempt all law enforcement personnel
from grand jury secrecy provisions. FOF-46. It was the policy and practice of the
DA’s Office not to require any witness served with a grand jury subpoena or a
document labeled “grand jury subpoena” for medical records in misdemeanor DWI
cases to appear before any grand jury or court so long as the witness produced the
5
requested medical records. FOF-47.
Watson never dealt with any peace officer in relation to this case. FOF-49.
Upon receipt of the request from Winne, Watson placed Evans’ stamped signature
on the document labeled “grand jury subpoena” and caused it to be delivered to
Winne. Watson acted solely in her delegated capacity and never received express
approval in this case from any assistant district attorney to issue the document labeled
“grand jury subpoena.” FOF-49.
No person related to this case ever testified before a grand jury in relation to
this case. FOF-52. There is no order from any court releasing the records obtained
from the hospital from grand jury secrecy. FOF-53.
Appellant had a subjective expectation of privacy in his medical records and
the blood test results. FOF-54. There is no other process (such as a subpoena, grand
jury subpoena, summons, or attachment) related to obtaining records in this case other
than the documents admitted into evidence. FOF-55. The term of the 185th grand
jury was from August 3, 2010, through October 28, 2010. FOF-56.
6
Appendix C
Court’s Findings of Fact and Conclusions of Law
27
Appendix D
Cases
28
Appendix D
List of Cases Following or Relying on Dickerson
Sullivan v. State, No. 03-98-00151-CR, 1999 Tex. App. LEXIS 3150, 1999 WL
249412 (Tex. App–Austin, Apr. 29, 1999, pet ref’d)(relying on Dickerson; 38.23
only mentioned as a remedy for the alleged fourth amendment violation).
Mazzucco v. State, No. 09-98-513-CR, 1999 Tex. App. LEXIS 6466; 1999 WL
650864 (Tex. App--Beaumont, Aug 25, 1999, no pet.)(relying on Dickerson and
Comeaux; article 38.23 not mentioned).
Garcia v. State, 95 S.W.3d 522, 526-27 (Tex. App.--Houston [1st Dist.] 2002, no
pet.)(relying on Dickerson; article 38.23 not mentioned).
Tapp v. State, 108 S.W.3d 459, 462 (Tex. App.--Houston [14th Dist.] 2003, pet.
ref’d) (relying on Dickerson and Garcia and without any discussion or additional
authority, expressly extending them to reject an Article 38.23 claim).
1
Harmon v. State, No. 01-02-00035-CR, 2003 Tex. App. LEXIS 6172; 2003 WL
21665488 (Tex. App–Houston [1st Dist.], Jul. 17, 2003, no pet.)(relying on Dickerson
and Garcia; article 38.23 not mentioned).
Hicks v. State, No. 01-02-00165-CR, 2003 Tex. App. LEXIS 9280; 2003 WL
22456045 (Tex. App.--Houston [1st Dist], Oct. 30, 2003, no pet)(relying on
Dickerson and Garcia; article 38.23 not mentioned).
Ramos v. State, 124 S.W.3d 326, 339 (Tex. App.—Fort Worth 2003, pet.
ref'd)(relying on Dickerson, Garcia, and Tapp, and claiming that this was also a
holding of Hardy; article 38.23 not mentioned with respect to this issue).
Murray v. State, 245 S.W.3d 37, 42 (Tex. App.--Austin 2007, pet ref'd)(relied on
Ramos and Tapp and without any additional analysis applied them to find no
standing to raise an Article 38.23 claim).
Kennemur v. State, 280 S.W.3d at 312 (relying on Ramos and, without discussion
or analysis, broadened to include no standing to raise a claim that HIPAA was
violated; article 38.23 not mentioned).
2
Mitchell v. State, No. 05-06-01479-CR, 2008 Tex. App. LEXIS 6085; 2008 WL
3318883 (Tex. App--Dallas, Aug 12, 2008, no pet.)(relying on Ramos, generally, and
Murray and Tapp in relation to no standing in relation to the HIPAA claim; 38.23
not mentioned).
Kirsch v. State, 276 S.W.3d 879 (Tex. App.–Houston [1st Dist.] 2008), aff’d on
other grounds, 306 S.W.3d 738 (Tex. Crim. App. 2010)(relying on Garcia, Tapp,
Ramos and Murphy; broadened to include no standing to raise a claim that HIPAA
was violated; article 38.23 not mentioned).
State v. Jewell, No. 10-11-00166-CR, 2013 Tex. App. LEXIS 930, 2013 WL 387800
(Tex. App.--Waco, Jan. 31, 2013, no pet.)(relying on Murray and citing article 38.23
to affirm suppression of all medical records other than blood test results).
3