Opinion
No. 07-20-00092-CR
08-25-2020
Kevin HUNTER, Appellant v. STATE of Texas, Appellee
Jeffrey S. Ford, for Appellee. Mehr Singh, for Appellant.
Jeffrey S. Ford, for Appellee.
Mehr Singh, for Appellant.
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Brian Quinn, Chief Justice
Kevin Hunter appeals the trial court's denial of his motion to suppress the results of a blood test. After the trial court denied his motion to suppress, appellant pleaded guilty to the offense of driving while intoxicated and was sentenced to 180 days in county jail, said sentence being suspended for twenty-four months. Through three issues here, he maintains that the trial court misapplied the law to conclude that he voluntarily consented to the blood draw following his accident. We affirm.
Factual Background
In the early morning hours of August 4, 2017, appellant lost control of his car and crashed into a residence causing his vehicle, the house, and another nearby vehicle to catch fire. Responding officers confirmed that no one in the house was injured and found appellant lying in the yard of a neighboring residence with visible injuries, bloodshot eyes, and slurred speech. He was still responsive, however. The attending EMT, Andrea Perez, testified at the hearing that appellant was conscious, alert, oriented, but in severe pain. Appellant was transported by ambulance to the hospital.
While appellant received medical attention at the hospital, Officer Caleb Miller approached appellant, noting that appellant was able to communicate normally with him. He asked appellant for consent to draw blood; appellant dismissed the question with a hand gesture and announced he needed to sneeze. Miller then read appellant the statutory DIC-24 warning and again asked appellant for consent to draw blood. Appellant stated to Miller that he understood and directed Miller to "do [his] job." Seeking clarification, Miller asked again, and appellant nodded up and down. Miller sought further clarity, requesting that appellant say "yes" or "no." Ultimately, appellant said, "Yes, sir. Do your job." Miller testified that appellant did not further communicate, either verbally or nonverbally, that he wished to withdraw his consent. A nurse then drew appellant's blood.
Issues One and Two: Trial Court's Application of Amaya and Harm
In his first two issues, appellant maintains that the trial court improperly placed upon him the burden of disproving that consent was voluntarily and knowingly given and that the error was harmful. The topic of who bore the burden of proof was a topic of discussion at the suppression hearing and, apparently, resulted in some confusion. However, for the reasons that follow, we overrule the issues.
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Cole v. State , 490 S.W.3d 918, 922 (Tex. Crim. App. 2016). First, we afford almost total deference to a trial court's determination of historical facts. Id. Second, we review a trial court's application of the law to the facts de novo. Id. We will sustain the trial court's ruling if the record reasonably supports that ruling and is correct on any theory of law applicable to the case. Id.
The focus of appellant's concern centers on the intermediate appellate court opinion in State v. Amaya , 221 S.W.3d 797 (Tex. App.—Fort Worth 2007, pet. ref'd). The State cited it to the trial court, arguing it placed the burden on appellant to prove he did not consent to a blood draw. That is, it said: "And so that's the argument here, [ Amaya ] is saying, Your Honor, the burden is upon the Defense to show that consent was not voluntarily given, not upon the State to prove that consent was voluntarily given."
Amaya dealt with the implied consent statute found in § 724.011 of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011) (like version in effect in Amaya , stating that, "[i]f a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated ... the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person's breath or blood for analysis"). Given the particular statute, the Amaya court held that "the defendant bears the initial burden at the suppression hearing to show that evidence exists rebutting the statutory presumption that he voluntarily consented to submit a breath specimen." Amaya , 221 S.W.3d at 800–01 ; see also Miller v. State , 387 S.W.3d 873, 880 (Tex. App.—Amarillo 2012, no pet.) (stating the same and citing Amaya ).
During the years since Amaya , though, our Court of Criminal Appeals held that 1) "the warrantless, nonconsensual testing of a DWI suspect's blood does not categorically fall within any recognized exception to the Fourth Amendment's warrant requirement," State v. Villarreal , 475 S.W.3d 784, 787 (Tex. Crim. App. 2014) ; 2) a suspect cannot "be held to have validly and irrevocably waived his Fourth Amendment rights in advance of a search through the existence of implied consent on the sole basis of his receipt of the privilege of driving on Texas roadways," Id. at 805 ; 3) "the provisions in the Transportation Code do not, taken by themselves, form a constitutionally valid alternative to the Fourth Amendment warrant requirement," Id. at 813 ; and 4) "a nonconsensual search of a DWI suspect's blood conducted pursuant to the mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken in the absence of a warrant or any applicable exception to the warrant requirement, violates the Fourth Amendment." Id. at 815. So too has it most recently reiterated that, per the Fourth Amendment, a search of someone pursuant to a criminal investigation requires a search warrant or a recognized exception to the warrant requirement. State v. Ruiz , 581 S.W.3d 782, 785 (Tex. Crim. App. 2019). And while a warrantless search may be found reasonable and legitimate by obtaining consent from the suspect or detainee, "[w]hen the State relies on consent to justify a search, it must prove that the consent was freely and voluntarily given." Id. at 786. And, to trigger imposition of this burden to prove the validity of consent, the accused must offer proof rebutting the presumption of legitimate police conduct and can do so by alleging that the search or seizure occurred without a warrant. Delafuente v. State , 414 S.W.3d 173, 176 (Tex. Crim. App. 2013) ; Abney v. State , 394 S.W.3d 542, 547 (Tex. Crim. App. 2013) ; Dang v. State , No. 14-18-00155-CR, 2020 WL 1619768, at *4, 2020 Tex. App. LEXIS 2748, at *9 (Tex. App.—Houston [14th Dist.] Apr. 2, 2020, no pet.) (mem. op., not designated for publication); Smirl v. State , No. 07-13-00084-CR, 2014 WL 5141662, at *2-3, 2014 Tex. App. LEXIS 11316, at *6 (Tex. App.—Amarillo Oct. 13, 2014, pet. ref'd) (mem. op., not designated for publication).
The effect of Villarreal and the other cases causes us to question the continued validity of Amaya and Miller , to the extent they impose some manner of burden on the accused to negate consent. This is not to say that the State need prove consent if the accused does not question it, though. Taking at face value the statements in Villarreal about 1) a suspect not being "held to have validly and irrevocably waived his Fourth Amendment rights in advance of a search through the existence of implied consent on the sole basis of his receipt of the privilege of driving on Texas roadways" and 2) "the provisions in the Transportation Code ... not, taken by themselves, form[ing] a constitutionally valid alternative to the Fourth Amendment warrant requirement" means implied consent is not a substitute for actual consent. See State v. Arredondo , No. 13-13-00589-CR, 2015 WL 5895072, at *3, 2015 Tex. App. LEXIS 10374, at *7 (Tex. App.—Corpus Christi Oct. 8, 2015, pet. ref'd) (mem. op., not designated for publication) (holding that "the Fourth Amendment requires ‘actual’ consent" and "statutorily ‘implied’ consent does not obviate the need for a warrant"). The latter is what recent precedent requires, and the burden to prove it lies with the State per like precedent.
Here, appellant disputed the voluntariness of his consent by moving to suppress evidence of the draw. Furthermore, no one disputed the fact that the draw occurred without prior issuance of a search warrant. That was enough to trigger the State's burden to prove the constitutionality of the seizure. By invoking consent as the means of satisfying the latter, the State, not the appellant, had to prove actual, free, and voluntary consent by clear and convincing evidence. See Holder v. State , 595 S.W.3d 691, 698 n.15 (Tex. Crim. App. 2020) (reiterating that voluntariness of consent must be proved by clear and convincing evidence); Fienen v. State , 390 S.W.3d 328, 333 (Tex. Crim. App. 2012) ("The validity of an alleged consent is a question of fact, and the State must prove voluntary consent by clear and convincing evidence."). In arguing otherwise before the trial court, the State erred.
The same can be said of the trial court to the extent it entered an inaccurate conclusion of law saying "[t]he initial burden at a suppression hearing is on the Defendant to rebut the statutory presumption of voluntariness." But, it ameliorated the effect of the inaccuracy, as evinced by other legal conclusions it entered. They consist of the court saying 1) "[t]he validity of consent is a question of fact, and the State must prove voluntary consent by clear and convincing evidence," and 2) "[t]he State has shown by clear and convincing evidence that consent was given voluntarily." From them, we see that the ultimate burden of proof was foisted upon the shoulders of the State. And, we have nothing of record to suggest that these latter conclusions were empty statements.
Appellant stated in his brief that "the trial court was handcuffed to viewing evidence through this lens," i.e., the Amaya lens, and "[a]t the conclusion of evidence, the trial court ruled on the motion to suppress from the bench under the standard adopted by Amaya at the outset of the hearing." In denying the motion to suppress, the trial court actually said nothing about Amaya.
Issue Three: Finding of Voluntary Consent
In his final issue, appellant questions the accuracy of the trial court's ultimate finding that he consented to the blood draw. The evidence did not support it, in his mind. We overrule the issue.
Again, "[i]t is well established that, when the issue is raised in a motion to suppress, the State must prove voluntary consent by clear and convincing evidence." Fienen , 390 S.W.3d at 335 (citing State v. Weaver , 349 S.W.3d 521, 526 (Tex. Crim. App. 2011) ). Critical to a consent analysis is that the fact-finder must consider the totality of the circumstances in order to determine whether consent was given voluntarily. Id. at 333 ; see Meekins v. State , 340 S.W.3d 454, 459 (Tex. Crim. App. 2011). A driver's consent to a blood or breath test must be free and voluntary, and it must not be the result of physical or psychological pressures brought to bear by law enforcement. Fienen , 390 S.W.3d at 333 (citing Meekins , 340 S.W.3d at 458–59 ). "The ultimate question is whether the person's will has been overborne and his capacity for self-determination critically impaired, such that his consent to search must have been involuntary." Ruiz , 581 S.W.3d at 786 (quoting Meekins , 340 S.W.3d at 459 ).
Here, the record demonstrates that (1) appellant was coherent and aware upon arrival of police and emergency medical personnel; (2) appellant appeared oriented and was able to direct the officer to the location of his ID and wallet; (3) appellant was able to recount his whereabouts, his route, and the goings-on prior to the accident; (4) appellant stated that he understood in response to Miller's questions regarding consent; (5) appellant provided responders with his account of the physics of the accident and his explanation of what he thinks caused the accident; (6) EMT Perez reported that appellant was alert and oriented during transport to the hospital, specifically that "[h]e was alert to verbal stimuli"; (7) appellant was able to respond appropriately to the directions of medical personnel at the hospital; (8) Miller testified that appellant's eyes appeared to be following along with the statutory warning as Miller read it aloud to appellant; (9) appellant gave ambiguous responses to the officer's questions which prompted Miller to repeat his requests for consent; (10) appellant appeared to understand that he was in the hospital and had been placed under arrest, and (11) appellant ultimately said "yes" followed by "do your job."
Though appellant presented as "distraught and in severe pain," a responding EMT (Perez) noted that he was "conscious, alert, orientated times four with GCS 15." "GCS" refers to the Glasgow Coma Score and is evaluated on a scale of 0 to 15 and describes the movement of the body in relation to neurological function as evidenced by three specific physical responses. Perez testified that appellant's GCS decreased from 15 to 13 following their arrival, corresponding, perhaps, to her administration of Fentanyl to ease his pain. Even after she noted the decrease in his GCS, Perez observed that appellant remained "able to respond to verbal stimuli."
From the record before us, it appears that appellant was sufficiently aware and coherent such that his affirmative response to Miller was voluntary; nothing suggests that "his capacity for self-determination [was so] critically impaired ... that his consent to search must have been involuntary." See id. ; compare Willemsen v. State , No. 14-17-00781-CR, 2019 WL 3956177, 2019 Tex. App. LEXIS 7509 (Tex. App.—Houston [14th Dist.] Aug. 22, 2019, no pet.) (mem. op., not designated for publication) (concluding the evidence supported the trial court's denial of motion to suppress when faced with conflicting evidence of the physical condition of a similarly situated appellant who gave consent for a blood draw from a hospital bed after having sustained injuries and who could recall much of the interaction with the officer but could not recall having given her consent), with State v. Martinez , 570 S.W.3d 278, 288 (Tex. Crim. App. 2019) (concluding that record demonstrated a "distinct lack of voluntariness" when similarly situated patient when there was no evidence suggesting that appellant gave consent and the record evidence only showed that appellant was incoherent and notably uncooperative throughout his abbreviated stay and was "in an altered mental state and made a number of nonsensical statements"). That appellant may not recall all the events of the evening after the fact does not conclusively undermine the voluntariness of his consent at the time. See Willemsen , 2019 WL 3956177, at *6, 2019 Tex. App. LEXIS 7509, at *14–16 ; see also Ruben v. State , 645 S.W.2d 794, 797 (Tex. Crim. App. 1983) ("Her mere failure to remember signing the form does not even contradict the recital in it that she consented freely and voluntarily.").
Nor does the fact that Miller repeated his requests for appellant's consent when confronted with appellant's ambiguous statements and gestures at the time undermine the voluntariness of appellant's consent. See Meekins , 340 S.W.3d at 464 ("Furthermore, repeatedly asking for consent does not result in coercion, particularly when the person refuses to answer or is otherwise evasive in his response."). Miller's repeated questions did not overwhelm appellant's will. See Ruiz , 581 S.W.3d at 786. Rather, the record may be reasonably interpreted as indicating Miller repeated his questions simply to attain an unequivocal answer, even going so far as to remind appellant that Miller needed a clear "yes or no" answer, which clearly permitted appellant the option to refuse consent.
As noted in Meekins , the context of the communications is relevant. Id. at 461 (stating that it "is only by examining the context of a communication that one can fairly deduce the intended meaning of words because the same words may convey radically different meanings depending on context, the speaker, and the listener"). And, despite the requirement that proof of consent be "clear and convincing," such may be met by evidence describable as rather ambiguous and less than clear, according to our Court of Criminal Appeals. See id. at 461–62 (observing that 1) "Officer Williams's question is hardly a model of clarity, and appellant's answer is fraught with ambiguity" and 2) "the audio recording is not of the highest quality"). This is because "the trial judge's task is to determine precisely what was said and then what was conveyed by the totality of the circumstances." Id. at 462. Moreover, we must view the evidence in a light most favorable to that decision. Id. at 461–62 (noting that the reviewing court failed to heed the obligation to view the evidence in a manner supporting the decision). The ambiguity and lack of clarity appellant attributes to the circumstances at bar is no greater than that in Meekins. And, more importantly, one of the several ways it could be construed is indicative of appellant consenting to the blood draw. So, following the road blazed by Meekins and upon viewing the totality of the circumstances in the light most favorable to the trial court's ruling, we conclude that it did not abuse its discretion in deciding that appellant voluntarily consented to providing a blood sample. See Fienen , 390 S.W.3d at 335. We overrule appellant's third and final issue.
Having overruled appellant's issues on appeal, we affirm the trial court's judgment.