Court of Appeals of Texas, Fourteenth District, Houston
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[Copyrighted Material Omitted]
Mark Ryan Thiessen, Houston, for appellant.
Eric Kugler, Houston, for the State of Texas.
Panel consists of CHRISTOPHER, DONOVAN, and BROWN
MARC W. BROWN, Justice.
Appellant, Phillip Brandon Adkins, was convicted of driving while intoxicated. In his first three issues, appellant challenges the admission of the blood-test evidence on constitutional and reliability grounds. Specifically, appellant argues that the trial court erred in admitting the blood-test evidence because (1) the search for his blood was unreasonable under the Fourth Amendment; (2) he was denied his right under the Sixth Amendment Confrontation Clause to confront the nurse who drew his blood; and (3) admission of the blood-test evidence violated the third prong of the reliability test enunciated in Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992). In his fourth issue, appellant argues that the trial court committed reversible error when it submitted a jury instruction that included a definition of reasonable doubt. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by information with the offense of driving while intoxicated.
Appellant was driving his black Jeep Wrangler westbound on Highway 290 in Harris County, when he was stopped by Officer Ciers of the Houston Police Department at approximately 2:30 a.m. on July 2, 2011. Ciers testified that appellant was weaving outside his lane and that appellant nearly struck nearby vehicles. Appellant claimed that his erratic driving was due to a mechanical problem on his Jeep that affected his ability to steer. Ciers smelled alcohol on appellant's breath, observed that appellant's eyes were red and glassy, noticed that appellant's speech was slurred, and observed that appellant was unsteady on his feet. Appellant denied drinking when Ciers was interviewing him during the traffic stop, but appellant testified at trial that he drank three or four glasses of red wine at a bar prior to the traffic stop.
Appellant refused to participate in a battery of field sobriety tests. He also refused to provide a sample of his breath and refused to voluntarily give a sample of his blood. As a result of appellant's refusals, Ciers took appellant to the police station and obtained a search warrant to draw appellant's blood. A registered nurse drew the blood in a room reserved for blood draws. Ciers, who was present during the blood draw, testified that the room was sanitary. The nurse wiped appellant's
arm with Betadine, a cleansing agent, and drew appellant's blood. A video recording of the blood draw was admitted into evidence. The State's blood analyst testified that the blood test showed appellant's blood alcohol content to be .180 grams of alcohol per 100 milliliters of blood, which exceeded the maximum permitted by statute. See Tex. Penal Code Ann. § 49.04 (West 2011) (stating that a person commits a Class A misdemeanor if his blood alcohol concentration level is 0.15 or more while operating a motor vehicle).
The jury found appellant guilty of driving while intoxicated. He timely appealed.
A. The blood draw was not an unreasonable search under the Fourth Amendment.
We review de novo the question of whether a search is reasonable under the Fourth Amendment. Kothe v. State, 152 S.W.3d 54, 62 (Tex.Crim.App.2004); see State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008). Appellant argues that the blood draw was unreasonable under the Fourth Amendment because the nurse who drew the blood was not qualified. We disagree.
A blood draw is a search under the Fourth Amendment. See State v. Johnston, 336 S.W.3d 649, 658 (Tex.Crim.App.2011). A warrant-based search is presumptively reasonable, and it is the defendant's burden to prove that a search is unreasonable. See Amador v. State, 221 S.W.3d 666, 672 (Tex.Crim.App.2007). We assess the reasonableness of a warrant-based search by analyzing the totality of the circumstances. Johnston, 336 S.W.3d at 661.
The Court of Criminal Appeals adopted the United States Supreme Court's analysis in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), to assess the reasonableness of a warrant-based search involving a blood draw. See Johnston, 336 S.W.3d at 658. Under this analysis, we first determine whether the police had a legal justification to conduct the search. Id. at 658. Here, the police had a legal justification to conduct the search because they had a valid search warrant, which appellant does not challenge.
Second, we address whether the method by which the search warrant was executed in this case was reasonable. Id. We note that venipuncture blood-draw tests are presumptively reasonable under the Fourth Amendment. Id. at 659. To make a determination on this issue, we must assess the totality of the circumstances. Id. at 661. We look to the qualifications of the person who drew the blood and the environment in which the blood was drawn. See id. at 662. A reasonable environment does not mean a medical environment; rather, the environment must be " a safe place ...