Escamilla v. State

OPINION

PHILLIPS, Judge.

The offense is burglary of a vehicle; the punishment, enhanced under V.T.C.A., Penal Code, Sec. 12.42(a), 15 years.

In a per curiam opinion delivered January 12, 1977, this appeal was dismissed because the record did not show appellant’s motion for new trial was overruled prior to pronouncement of sentence. A supplemental transcript reveals the motion for new trial was overruled and the sentence was therefore timely. The appeal is reinstated.

Appellant challenges, among other things, the sufficiency of the evidence and the admission of evidence concerning a blood sample taken from appellant.

The complaining witness, Bessie Tamez, testified she went to Ted’s Place in Bryan about 10:00 p. m. June 26, 1975. She parked her pickup truck across the street, locking the doors, and she left her purse on the seat. About 10:30 p. m. she returned to the truck and noticed the vent window had a hole in it; her purse was missing, and there was glass on the seat. A rock, a blue polka dotted handkerchief or bandana, and a stick about 21 inches long were found in the truck. The door on the driver’s side could not be unlocked because the point of a knife had been broken off in the lock.

Roy Veracruz, an employee of Ted’s Place, testified he escorted Mrs. Tamez back to the pickup and then flagged down a police officer. While the officer was taking down the information, Mr. Veracruz saw appellant and a couple of his friends enter the El Conquistador Club. He told the officer the handkerchief might belong to appellant because he had noticed a blue polka dotted handkerchief sticking out of appellant’s pocket about 4:30 that afternoon while appellant was in Ted’s Place. Witness Veracruz testified appellant had left the bar about 4:40 and returned about 9:00 or 9:30, leaving about 9:45 or 9:50. Veracruz did not notice whether appellant had the handkerchief when he returned that evening.

Officer Fickey of the Bryan Police Department was investigating the burglary when Mr. Veracruz directed his attention to appellant. As Officer Fickey entered the club, appellant saw him and put his head down on his elbows. Officer Fickey asked appellant to step outside and talk with him and appellant asked why, and then said he wouldn’t go. Officer Fickey grabbed appellant’s right wrist and noticed there was blood on his hand from appellant’s arm. Appellant was placed under arrest for pub-lie intoxication. Appellant was taken to the hospital for treatment of his arm, and he told Officer Fickey he was cut by a knife at another bar when some guys jumped him and tried to take his money.

An investigation of the scene revealed a trail of blood leading from the complainant’s truck to a dumpster on the corner. There were four patches of blood on the handkerchief. Witness Williams, a forensic serologist with the Dallas County Criminal Investigation Laboratory, testified the blood on the handkerchief was type A, Rh positive M&N, and that this was the same type blood as appellant’s. She further stated only nine percent of the population has blood of this type.

There were no fingerprints lifted from the pickup truck and the contents of the complainant’s purse were not recovered. The appellant offered no evidence at the guilt stage of the trial.

Detective Miller testified that on October 3, 1975, he, appellant, appellant’s attorney and the assistant district attorney went to the Brazos County Health Unit where a registered nurse took blood from appellant. This action was taken pursuant to an order of the court entered October 2, granting the State’s motion to obtain a blood sample under Rule 167a, Tex.R.Civ.P.¹

The State’s motion alleged appellant was charged with burglary of a vehicle, that his blood type would be in controversy, and that it was necessary to obtain a sample of his blood to determine whether his blood was the same as that found on a handkerchief in the burglarized vehicle.

The court’s order directed appellant to submit to all procedures necessary to obtain a blood sample, and Dr. Buck of the County Health Department was ordered to obtain blood by use of medically approved procedures. Sheriff Hamilton was ordered to cause appellant to be made available to Dr. Buck and to assist the doctor in complying with the order.

Appellant contends the evidence concerning the blood test should have been suppressed because this constituted a search of the person and the search was conducted without consent and in violation of Art. I, Sec. 9, of the Texas Constitution.

On December 9, 1975, appellant filed a motion to suppress evidence obtained from an illegal search alleging (1) the taking of his blood was in violation of the Fourth and Fifth Amendments of the U.S. Constitution and (2) taking blood is a search and there was no sworn affidavit showing probable cause as required by Art. 1.06, V.A.C.C.P. A hearing was held on the motion on January 9, 1976, and the motion to suppress was denied on January 12, the same day the case came to trial. Although the testimony of the hearing on the motion to suppress was not made a part of the record on appeal, the question has been preserved for review. Graves v. State, Tex.Cr.App., 513 S.W.2d 57; Riojas v. State, Tex.Cr.App., 530 S.W.2d 298. Cf. Writt v. State, Tex.Cr.App., 541 S.W.2d 424.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), involving a conviction for driving while intoxicated, the Supreme Court rejected the argument that withdrawal of a sample of the accused’s blood and receipt of evidence of a chemical analysis of the blood violated the self incrimination clause of the Fifth Amendment. However, the Court further stated:

“But if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment . It could not reasonably be argued . . . that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of ‘persons,’ and depend antecedently upon seizures of ‘persons,’ within the meaning of that Amendment.

* * * * * *

We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol content, the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Schmerber at pages 767-768, 86 S.Ct. at page 1834.

In holding the defendant’s Fourth Amendment right to be free of unreasonable searches and seizures was not violated in that case, the Supreme Court found that, although the arresting officer did not have an arrest or search warrant, he did have probable cause and he might reasonably have believed the situation was an emergency and there was not time to seek out a magistrate and secure a warrant. “Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.” Id. at page 771, 86 S.Ct. at page 1836. The Court also found the test chosen to measure the blood alcohol level was a reasonable one and was performed in a reasonable manner.

We hold the taking of a blood sample is a search and seizure within the meaning of Art. I, Sec. 9 of the Texas Constitution, thus the State was required to comply with the provisions of Art. 1.06 and Chapter 18, V.A.C.C.P.²

The State’s “motion for permission to obtain a sample of defendant’s blood” does not meet the requirements of an affidavit upon which a search warrant may issue. Assuming an allegation that an accused has been indicted is a sufficient showing of probable cause, the motion is not sworn to. See Art. 1.06 and Art. 18.01(b), V.A.C.C.P. Further, the court’s order does not meet the requirements of a search warrant under Art. 18.01, supra. See Poindexter v. State, Tex.Cr.App., 545 S.W.2d 798. We note that a search warrant issued to seize blood would be an invalid warrant, as blood is not one of the items for which a search warrant may issue under Art. 18.02, V.A.C.C.P.³

The State contends appellant consented to the blood test, relying on the testimony of Detective Miller that shows appellant assisted the nurse in finding a vein from which to draw blood.

Consent to search must be shown to be positive and unequivocal and the burden is upon the State to show by clear and convincing evidence that the consent was freely and voluntarily given. Allen v. State, Tex.Cr.App., 487 S.W.2d 120. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. Kolb v. State, Tex.Cr.App., 532 S.W.2d 87; Evans v. State, Tex.Cr.App., 530 S.W.2d 932.

The record shows appellant was in custody at the time of the blood test, although he had been released on a $1500 bond. Ex parte Trillo, Tex.Cr.App., 540 S.W.2d 728. Detective Miller testified he did not remember whether appellant gave consent, but he did remember “there was no hassle about it.” Witness Miller further testified:

“Q [DEFENSE COUNSEL] Did he have a choice as to whether or not he gave blood?

A Yes, sir, he could have resisted or argued about it. He did not.

Q You mean, if he had argued, you all would not have taken the blood, with a signed Court Order?

A Yes, sir, with a signed Court Order, we would have taken the blood.

Q Did you have a signed Court Order?

A Yes, sir.

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Q With a Court Order, did Mr. Escamil-la have a choice?

A He did not really have any choice, but he did not resist violently or offer any argument.”

Under these circumstances, we find appellant did not consent to the blood test. Further, the search was not incident to arrest and was not conducted under emergency or exigent circumstances. Cf. Perez v. State, Tex.Cr.App., 514 S.W.2d 748.

Thus, the search of appellant’s person and the seizure of the blood were not authorized by Art. I, Sec. 9 of the Texas Constitution and the results of the blood test were erroneously admitted.

We also find the evidence insufficient to support the conviction. Although appellant was present at Ted’s Place 10 to 15 minutes before the complainant’s arrival, he was not seen around or near the pickup truck. Cf. Chenault v. State, Tex.Cr.App., 494 S.W.2d 540; Ewing v. State, Tex.Cr.App., 400 S.W.2d 911. The only evidence which connects appellant with the crime is his possession five and one-half hours before the offense of a handkerchief similar to a handkerchief found in the truck after the illegal entry and the presence of blood on the handkerchief and on appellant’s arm shortly after the offense.

For the foregoing reasons, the judgment is reversed and the cause remanded.

DOUGLAS, J., dissents.

1 . Rule 167a(a) states, “When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”

2 . See also Ex parte Davis, Tex.Cr.App., 542 S.W.2d 192, where we held a habeas corpus proceeding relating to denial of bail in a capital murder' case is a criminal case and the trial court was not authorized to compel a psychological examination under Rule 167a, Tex.R.Civ.P.

3 . Art. 18.02 provides:

“A search warrant may be issued to search for and seize:

(1) property acquired by theft or in any other manner which makes its acquisition a penal offense;

(2) property specially designed, made, or adapted for or commonly used in the commission of an offense;

(3) arms and munitions kept or prepared for the purpose of insurrection or riot;

(4) weapons prohibited by the Penal Code;

“(5) gambling devices or equipment, altered gambling equipment, or gambling paraphernalia;

(6) obscene materials kept or prepared for commercial distribution or exhibition, subject to the additional rules set forth by law;

(7) drugs kept, prepared, or manufactured in violation of the laws of this state;

(8) any property the possession of which is prohibited by law;

(9) implements or instruments used in the commission of a crime.”