Court of Appeals of Texas, Third District, Austin
COUNTY COURT AT LAW NO. 8 OF TRAVIS COUNTY NO. C-1
-CR-17-209624 THE HONORABLE CARLOS HUMBERTO BARRERA, JUDGE
Justices Goodwin, Baker, and Kelly
L. KELLY, JUSTICE
Thomas Fikes was charged by information with driving while
intoxicated. He filed a motion to suppress the results of a
blood-alcohol analysis. The trial court granted the motion to
suppress, and the State now appeals. We will reverse the
trial court's order suppressing the evidence and remand
this cause to the trial court for further proceedings.
Morton was the phlebotomist who drew Fikes's
blood. Before the blood draw, Morton had arranged
various items on the top of the "sharps container,"
also called the "biohazard bin." After Fikes
entered the room, Morton removed a pair of gloves from the
top of the sharps container and put them on. While wearing
the gloves, she ran her hands through her hair and put on a
sweater. Fikes sat in a chair that was near both the sharps
container and a small trash can. Morton applied a tourniquet
to Fikes's arm that she had removed from the top of the
sharps container. She then removed two unopened packages of
disinfectant wipes from the top of the sharps container,
opened one package, and wiped Fikes's arm. She threw the
package and used wipe into the trash can, opened the other
package, wiped Fikes's arm again, and threw the second
package and wipe into the trash. Morton then removed a piece
of gauze that was not in a package from the top of the sharps
container and placed it on the armrest of Fikes's chair.
She also removed a syringe in a package from the top of the
sharps container, opened the package, and filled two vials
with Fikes's blood.
drawing the blood, Morton removed the tourniquet, threw the
used syringe into the opening on the top of the sharps
container, and placed the gauze on Fikes's arm, placing
the side of the gauze that had been facing up when it was
sitting on the sharps container on his arm. Morton labeled
the vials and then removed an adhesive bandage from the top
of the sharps container. The bandage's wrapper was
partially opened, and the exposed part of the bandage had
been sticking to the container. She applied the bandage to
Fikes's arm. Morton then threw the bandage wrapper and
her gloves into the trash can.
suppression hearing, Morton testified to the following:
• She used the top of the sharps container because
"it provides a nice, flat surface to have everything
there so that you're not having to turn around." She
did not like to turn her back to the arrestees, who might not
• The sharps container has a one-way valve so that
nothing comes back out of the container.
• Based on her usual practice, she assumes that she used
bleach wipes to wipe down all the surfaces in the room,
including the top of the sharps container, at the beginning
of her shift.
• The people from whom she draws blood are not always
clean. As Morton testified, "[T]he level of cleanliness
of the person I'm drawing the blood on is a huge factor
because there are plenty of people who haven't showered
in days, who just came from wrestling in the gravel, who
totaled their car."
• She does not usually clean the sharps container
between blood draws.
• She does not know whether Fikes was the first blood
draw of her shift.
• She cannot name anyone else who uses the sharps
container as a workstation.
• She does not know whether using the sharps container
as a workstation is recognized by the scientific community or
is standard medical practice.
• She now has a table to use as a workstation, and the
sharps container is attached to the wall. She cannot remember
when the table was installed.
• The part of the bandage that touched the puncture in
Fikes's arm was still closed when the bandage was stuck