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State v. Fikes

Court of Appeals of Texas, Third District, Austin

September 6, 2019

The State of Texas, Appellant
v.
Thomas Fikes, Appellee

          FROM COUNTY COURT AT LAW NO. 8 OF TRAVIS COUNTY NO. C-1 -CR-17-209624 THE HONORABLE CARLOS HUMBERTO BARRERA, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Kelly

          OPINION

          CHARI L. KELLY, JUSTICE

         Appellee 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.

         BACKGROUND

         Rebecca Morton was the phlebotomist who drew Fikes's blood.[1] 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.

         After 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.

         At the 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 be cooperative.
• 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 ...

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