State v. Christopher Lamar Stewart

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00421-CR
____________________
THE STATE OF TEXAS, Appellant
V.
CHRISTOPHER LAMAR STEWART, Appellee
_______________________________________________________ ______________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 12-08-08546 CR
________________________________________________________ _____________
MEMORANDUM OPINION
In this appeal, the State challenges the trial court’s decision to suppress
evidence—a sample of Christopher Lamar Stewart’s blood—seized in a
warrantless search following his arrest for driving while intoxicated. The State
argues that under the circumstances, a warrant was not required; it concludes the
trial court abused its discretion in finding otherwise. For the reasons explained in
State v. Anderson, No. 09-13-00400-CR, 2014 Tex. App. LEXIS 11151, **26-27
(Tex. App.—Beaumont Oct. 8, 2014, no pet. h.), we affirm the trial court’s order.
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Background
On an evening in May 2012, Jay Smith, a trooper employed by the
Department of Public Safety, responded to a call about a car accident on FM 1484.
When he arrived at the scene, he noticed a sedan on its roof in a ditch. The driver
of the sedan, Stewart, was being treated in the back of an ambulance by emergency
medical responders. Trooper Smith spoke to Stewart; he noticed that Stewart had
an injury to his face, a strong odor of alcohol on his breath, and red glassy eyes.
Stewart told Trooper Smith that he had been driving, had been drinking, and that
“he might have blacked out.” Trooper Smith administered the horizontal gaze
nystagmus exam, a field sobriety test used by law enforcement. Stewart exhibited
six out of six clues on that exam, indicating that Stewart’s ability to drive was
impaired.
O.D., who indicated that she had been following Stewart in another vehicle,
was also on the scene when Trooper Smith arrived. When he spoke to O.D.,
Trooper Smith noticed that she too had red glassy eyes and that she had the smell
of alcohol on her breath. After doing field sobriety tests, Trooper Smith determined
that O.D. was intoxicated and arrested her.
On the way to the hospital where Stewart was taken, Trooper Smith learned
that Stewart had three prior convictions for driving while intoxicated. At the
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hospital, Trooper Smith also learned that the hospital had drawn a sample of
Stewart’s blood. After Stewart was given the statutory warnings 1 relating to
Trooper Smith’s request for a voluntary sample, Stewart refused to give a sample
of his blood. According to Trooper Smith, “[a]t that point, statutory authorization,
the mandatory blood specimen was used.” 2 See Tex. Transp. Code Ann. §
724.012(b)(3)(B) (West 2011).
After the State charged Stewart with driving while intoxicated, Stewart filed
a motion contending his Fourth Amendment rights were violated. Stewart asked
the trial court to suppress the test results from the sample Trooper Smith obtained
at the hospital. Relying on Missouri v. McNeely, 133 S. Ct. 1552 (2013), Stewart
argued that absent exigent circumstances, an officer cannot legally draw a
suspect’s blood without the person’s consent or a valid search warrant. Stewart
1
The statutory warning, referred to as the “DIC 24 Mandated Statutory
Warning,” requires law enforcement officials to warn those arrested for driving
while intoxicated of the consequences of refusing to consent to the State’s request
for a breath or blood specimen and that the officer, if refused the specimen, may
apply for a warrant authorizing a specimen to be taken. See Tex. Transp. Code
Ann. § 724.011 (West 2011), § 724.015 (West Supp. 2014).
2
Smith’s testimony is an apparent reference to section 724.012(b)(3)(B) of
the Texas Transportation Code, which provides that the peace officer “shall”
obtain a blood or breath specimen if the person being arrested for driving while
intoxicated has, on two or more occasions, previously been convicted of or placed
on community supervision for driving while intoxicated. Tex. Transp. Code Ann. §
724.012(b)(3)(B) (West 2011).
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claimed that no exigent circumstances existed to excuse Trooper Smith’s failure to
obtain a warrant.
In response, the State argued that section 724.012 of the Texas
Transportation Code authorized Trooper Smith to obtain the sample, given
Stewart’s three prior convictions for driving while intoxicated. See Tex. Transp.
Code Ann. § 724.012(b)(3)(B). Additionally, the State asserted that exigent
circumstances existed to justify the warrantless search. Finally, the State suggests
the trial court erred by failing to excuse Smith’s decision to conduct a warrantless
search even if it violated Smith’s Fourth Amendment rights, arguing that Trooper
Smith acted in good faith by relying on section 724.012. According to the State, at
the time Trooper Smith relied on the statute to conduct the warrantless search at
issue, McNeely had not been decided. The trial court granted Stewart’s motion to
suppress. In its findings, the trial court concluded that the “blood specimen taken in
this case was an invalid warrantless search and seizure in violation of [Stewart’s
rights under the] Fourth Amendment[.]”
In four issues, the State contends the trial court abused its discretion by
granting Stewart’s motion to suppress. In issues one and two, the State suggests
that section 724.012 of the Transportation Code authorized Trooper Smith’s
decision to obtain Stewart’s blood sample without a warrant regardless of whether
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exigent circumstances existed. In issue three, the State contends that it established
that exigent circumstances existed with respect to the seizure at issue, allowing the
State to conduct a warrantless search. In issue four, the State argues that the trial
court abused its discretion by rejecting Trooper Smith’s explanation that he was
acting under the authority he was given by the Transportation Code requiring that
he obtain a sample of Stewart’s blood, given Stewart’s prior convictions for
driving while intoxicated.
Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013).
Factual findings that a trial court made in a suppression hearing are reviewed using
an abuse of discretion standard. Id. Under that standard, the trial court’s
determination of historical facts based on credibility assessments, when supported
by the record, are given almost total deference. Crain v. State, 315 S.W.3d 43, 48
(Tex. Crim. App. 2010). Legal questions and mixed questions of law and fact that
do not turn on credibility assessments are reviewed using a de novo standard. Id.
In suppression hearings, the trial court acts as the exclusive trier of fact and
judges the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.
Crim. App. 2002). Acting as the trier of fact, a trial court may choose to believe or
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disbelieve all or any part of a witness’s testimony. State v. Ross, 32 S.W.3d 853,
855 (Tex. Crim. App. 2000). In reviewing rulings from suppression hearings, we
view the evidence in the light most favorable to the ruling, and we are obligated to
uphold the ruling when it is supported by the record and is correct under any
applicable theory of law. State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim.
App. 2011); Ross, 32 S.W.3d at 855-56.
Analysis
The Fourth Amendment to the U.S. Constitution provides protection from
unreasonable searches. See Anderson, 2014 Tex. App. LEXIS 11151, at *10; see
also U.S. Const. amend. IV. Only under certain specific exceptions are searches
reasonable absent a warrant. Anderson, 2014 Tex. App. LEXIS 11151, at **10-11
(citing Riley v. California, 134 S. Ct. 2473, 2482 (2014); McGee v. State, 105
S.W.3d 609, 615 (Tex. Crim. App. 2003)). It is the State’s burden to show that a
warrantless search falls within one of the permissible exceptions. McGee, 105
S.W.3d at 615.
In this case, the State asserts that section 724.012 of the Transportation Code
authorized Trooper Smith’s decision, given Stewart’s refusal, to obtain a sample of
Stewart’s blood without a warrant. The State relies on subsection
724.012(b)(3)(B), which provides:
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(b) A peace officer shall require the taking of a specimen of the
person’s breath or blood . . . if the officer arrests the person for an
offense under Chapter 49, Penal Code, involving the operation of a
motor vehicle . . . and the person refuses the officer’s request to
submit to the taking of a specimen voluntarily:
....
(3) at the time of the arrest, the officer possesses or receives reliable
information from a credible source that the person:
....
(B) on two or more occasions, has been previously convicted of or
placed on community supervision for an offense under Section 49.04,
49.05, 49.06, or 49.065, Penal Code[.]
Tex. Transp. Code Ann. § 724.012(b)(3)(B).
We rejected the same statutory authorization argument the State raises in this
case in Anderson; nothing in the State’s brief indicates that we need to revisit those
same arguments here. Anderson, 2014 Tex. App. LEXIS 11151, at *26; see also
McNeely, 133 S. Ct. at 1565-66. For the reasons we explained in Anderson, issues
one and two are overruled.
In issue three, the State argues that Trooper Smith faced circumstances that
required his immediate action, justifying his failure to obtain a warrant. However,
the trial court, at the conclusion of the suppression hearing, concluded otherwise,
noting “there was insufficient evidence of exigent or extenuating circumstances
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that would have prevented [Trooper] Smith from obtaining a valid blood search
warrant signed by a judge.”
In reviewing the trial court’s conclusion that exigent circumstances did not
exist to justify a warrantless search, we examine the “totality of the
circumstances,” and then analyze the facts on a case-by-case basis. See McNeely,
133 S. Ct. at 1556, 1558-59, 1563. “We apply an objective standard of
reasonableness to determine whether a warrantless search was justified, and we
take into account the facts and circumstances known to the police at the time of the
warrantless search.” Anderson, 2014 Tex. App. LEXIS 11151, at *31 (citing
Colburn v. State, 966 S.W.2d 511, 519 (Tex. Crim. App. 1998)).
Here, Trooper Smith was the only officer on the scene of a one-vehicle
accident that occurred around 11:15 p.m. Although he suspected Stewart of
drinking and driving, he was then occupied at the scene by another driver who he
also suspected had been driving while intoxicated. Although that driver, O.D.,
initially consented to Trooper Smith’s request for a voluntary blood sample, she
later withdrew her consent.
Around 12:30 a.m., Trooper Smith contacted the on-duty assistant district
attorney at the jail about contacting a judge to obtain a warrant for O.D’s blood.
Trooper Smith testified that the assistant district attorney told him that a judge was
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not available; however, the trial court, as the finder of fact, was free to reject
Trooper Smith’s testimony that he was told a judge was not available. The trial
court could have also reasonably concluded that even if the officer was told that no
judge was available for O.D.’s case, a case involving no prior driving while
intoxicated convictions, that did not mean that a judge would not necessarily have
been available under the circumstances involving Stewart’s case.
Stewart refused Trooper Smith’s request for a blood sample around 12:51
a.m. Trooper Smith did not attempt to contact the assistant district attorney again to
request assistance in finding a judge to issue a warrant for Stewart’s blood. At 1:30
a.m., Trooper Smith decided to obtain a mandatory blood sample because he
believed the Transportation Code authorized him to do so without a warrant, given
Stewart’s three prior convictions. There was no evidence in the record that
compelled the trial court to find that no judge would have been available had the
circumstances of Stewart’s case been related to the assistant district attorney on
call that night.
Based upon the testimony and evidence submitted at the suppression
hearing, the trial court could have reasonably concluded that Trooper Smith
decided to obtain the sample without a warrant because he thought he could do so
under the Transportation Code. Trooper Smith conceded that he did not attempt to
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obtain a search warrant for Stewart’s blood. Viewing the evidence in the light most
favorable to the trial court’s ruling, and considering the trial court’s right to weigh
and decide questions about the credibility of the evidence before it, and the amount
of time that Trooper Smith had to seek a warrant authorizing him to obtain a
sample of Stewart’s blood, the trial court’s decision to reject the State’s claim that
no warrant was needed is a matter the trial court resolved in a reasonable manner.
We overrule the State’s third issue.
In its fourth issue, the State argues the trial court failed to apply a good faith
exception to the rule requiring it to exclude the evidence of an illegal search by
granting Stewart’s motion. See Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).
We rejected this same argument in Anderson, and we explained that “[t]he stated
exception in article 38.23(b) expressly applies only when a warrant has been issued
by a neutral magistrate and the officer relied upon the warrant.” Anderson, 2014
Tex. App. LEXIS 11151, at *37. Because no warrant issued in Stewart’s case, the
statutory exception found in article 38.23(b) does not apply. Id. We overrule the
State’s fourth issue.
Having overruled all of the State’s issues, we affirm the trial court’s order.
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AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on June 12, 2014
Opinion Delivered November 12, 2014
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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