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Kressin v. State

Court of Appeals of Texas, Fourteenth District

April 27, 2017

BRITTINI KRESSIN, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 351st District Court Harris County, Texas Trial Court Cause No. 1404917

          Panel consists of Chief Justice Frost and Justices Donovan and Wise.

          OPINION

          John Donovan Justice.

         Appellant Brittini Kressin challenges her conviction for intoxication manslaughter on the sole ground that the trial court erred in denying her motion to suppress evidence of the first of two blood draws taken after a fatal freeway accident. Because the record evidence shows the challenged blood draw was taken pursuant to a valid warrant, we conclude the trial court did not abuse its discretion in refusing to suppress the evidence.

         Background

         Shortly after midnight appellant drove her car onto an exit ramp to the Katy Freeway. She hit another car while traveling the wrong direction. After striking the car, appellant continued to drive the wrong way on the freeway about another 1300 to 1400 feet before the car came to a stop. Witnesses saw sparks coming from appellant's car due to damage caused by the accident. One witness reported seeing appellant, after the accident, sitting in the car in the middle of the freeway. Appellant's car was pointing the wrong direction and she was trying to move the car. Two witnesses stopped, pulled appellant out of her car, and placed her in one of their cars for appellant's safety. The passenger in the back seat of the car appellant hit suffered severe internal injuries from the crash and died shortly after the accident. The other passengers were injured but did not go to the hospital.

         Shortly after appellant was pulled from her car, German Arias, who was riding a motorcycle the right direction on the freeway, did not see appellant's disabled car due to smoke from the wreck. Arias struck appellant's car, was thrown from the motorcycle, and landed on the freeway on his back. He suffered severe injuries and was transported to a hospital.

         Appellant was charged with intoxication manslaughter. Before trial appellant filed a written motion to suppress blood draw evidence and a written motion to suppress her oral statement made after the accident. In appellant's written motion to suppress the blood specimen, appellant argued that the blood evidence seized was obtained without a valid search warrant. The trial court held a hearing outside the presence of the jury on both motions.

         During the suppression hearing, Officer Salvador Corral, a member of the Houston Police Department Driving While Intoxicated Task Force, testified that he was dispatched to the scene of the accident. When he arrived he spoke with appellant and noticed she put off an odor of alcoholic beverage, and had bloodshot, droopy eyes. Corral moved appellant off of the freeway to a safe location and began the first portion of the investigation. At that time, appellant voluntarily agreed to talk with Corral and he heard appellant's slurred speech. Corral noticed no injuries on appellant. Appellant told Corral that she had been at a bar called Anvil, where she had consumed three drinks, the last one at 5:00 p.m. Appellant said she left Anvil to meet a friend at a restaurant. Appellant told Corral that she was at the restaurant until 7:30 p.m. When Corral asked where appellant was between 7:30 p.m. and midnight, appellant answered that she must have fallen asleep because she was drinking. Appellant had no memory of the accident, which occurred just after midnight.

         Corral performed three standardized field sobriety tests on appellant, horizontal gaze nystagmus (HGN), walk-and-turn, and one-leg stand. Appellant failed the HGN and walk-and-turn tests, but passed the one-leg stand test. Corral also asked appellant to recite the alphabet from A to Z, and appellant was unable to correctly recite the alphabet. Corral then read the standard statutory warning that explains the consequences of refusing consent for a breath or blood sample. Appellant refused consent.

         After appellant refused consent, Corral contacted the District Attorney's office and swore an affidavit for a search warrant. The search-warrant affidavit details the facts surrounding Corral's encounter with appellant and appellant's performance on the sobriety-field tests. In the body of the affidavit Corral correctly notes that the accident occurred on October 15, 2013, but underneath Corral's signature, the affidavit reads, "Sworn to and Subscribed before me on this October 15, 2012, A.D. at 4:16 AM." The date on the jurat inaccurately reflects the year the accident happened as 2012 rather than 2013. The search warrant, signed by Judge Villareal, a magistrate in Harris County, states that it was signed on October 15, 2013, at 4:14 a.m. Corral explained that the incorrect year in the jurat was a computer glitch caused when filling out the template. The body of the affidavit contained the correct date. Corral also explained that Officer Roman, who witnessed Corral's signature, filled out the time that the affidavit was signed at 4:16. Judge Villareal filled out the time, 4:14, on the search warrant. The two-minute discrepancy was due to the individuals checking the time with different timepieces. According to Corral, he completed and signed the affidavit before the magistrate signed the search warrant. Corral testified that Judge Villareal administered an oath and that Corral swore in front of the magistrate that the facts in the affidavit were within his personal knowledge.

         After obtaining the search warrant, Corral took appellant to the hospital, where an emergency room nurse drew appellant's blood at 4:31 a.m. and again at 5:04 a.m. Corral testified that both blood draws were done after he had received the search warrant. The purpose of taking the second blood draw was to show metabolization of alcohol.

On cross-examination, Corral testified:
Q. And you got two blood draws from that one warrant; is ...

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