Opinion
NO. 14-15-00466-CR
10-13-2016
KEVIN EDWARD STONE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court Harris County, Texas
Trial Court Cause No. 1402898
MEMORANDUM OPINION
Kevin Edward Stone appeals his intoxication manslaughter conviction. See Tex. Penal Code Ann. § 49.08(a) (Vernon 2011). Appellant contends the trial court erred by (1) denying his motion to suppress the results of a warrantless blood draw; (2) failing to instruct the jury to disregard or grant a mistrial after a comment by the prosecutor regarding the potential maximum sentence for a lesser-included offense; and (3) permitting the victim's father to opine regarding the appropriate sentence for appellant. We affirm.
BACKGROUND
Appellant was traveling 67 miles per hour in a 30-mile-per-hour zone at 1:30 a.m. on September 27, 2013. He ran a red light and struck another vehicle, killing the other driver.
A responding officer observed that appellant had red, glassy eyes, slurred speech, and emitted an odor of alcohol. Appellant told the officer that he had consumed three or four beers earlier at a friend's house. The officer performed the horizontal gaze nystagmus test — a field sobriety test — and observed all six "clues" indicating appellant was impaired.
Appellant was taken to the hospital to be treated for injuries. A second officer arrived at the hospital at about 2:10 a.m. The second officer also observed that appellant had slurred, slow speech; glassy, watery eyes; and a distinct odor of alcohol on his breath. Appellant told the second officer that he had "some beers and mixed drinks" before the accident. The second officer also performed the horizontal gaze nystagmus test, and also observed all six "clues."
Appellant's blood was drawn three times at the hospital. First, blood was drawn by the hospital at 2:44 a.m. in the course of treating appellant. A second, warrantless blood draw was performed at the officer's direction at 3:41 a.m. pursuant to the Transportation Code's mandatory blood draw provision. Finally, appellant's blood was drawn at 6:39 a.m. pursuant to a valid warrant.
The second officer secured appellant's residual blood taken during the hospital's blood draw pursuant to a Grand Jury subpoena.
Texas Transportation Code section 724.012(b) provides that a "peace officer shall require the taking of a specimen of the person's breath or blood," even when the person refuses consent, if the officer arrests the person for an offense under Chapter 49 of the Penal Code involving the operation of a motor vehicle, the person was the operator of a motor vehicle involved in an accident, and the officer reasonably believes that another individual has died or will die as a direct result of the accident. See Tex. Transp. Code Ann. § 724.012(b)(1)(A) (Vernon 2011).
Appellant was charged with intoxication manslaughter. The results from all three blood draws were presented to the jury during trial. The blood from the initial hospital blood draw tested at a 0.184 blood alcohol concentration. The blood from the warrantless second draw tested at a 0.169 blood alcohol concentration. The blood from the third draw tested at a 0.110 blood alcohol concentration.
As applicable in this case, a person commits the offense of intoxication manslaughter if the person operates a motor vehicle in a public place while intoxicated, and by reason of that intoxication causes the death of another by accident or mistake. See Tex. Penal Code Ann. § 49.08(a). The Penal Code defines "intoxicated" as "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or . . . having an alcohol concentration of 0.08 or more." Tex. Penal Code Ann. § 49.01(2) (Vernon 2011).
Appellant's blood also tested positive for delta-9-tetrahydrocannabinol — frequently referred to as "THC" — the active ingredient in marijuana.
The jury found appellant guilty and assessed punishment at 38 years' imprisonment. Appellant timely appealed.
ANALYSIS
I. Warrantless Blood Draw
In his first issue, appellant contends that the trial court erred by denying his motion to suppress the results from the second blood draw performed pursuant to the mandatory blood draw statute. Appellant contends the results were inadmissible because his blood was taken without his consent, without a warrant, and in the absence of circumstances giving rise to any exception allowing a warrantless blood draw.
A. Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review, affording almost total deference to a trial court's determination of historical facts but reviewing the trial court's application of the law to the facts de novo. Cole v. State, 490 S.W.3d 918, 922 (Tex. Crim. App. 2016); Vasquez v. State, 324 S.W.3d 912, 918 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd). When findings of fact are not made, we view the evidence in the light most favorable to the trial court's ruling and assume the trial court made implicit findings of fact supporting the ruling. Cole, 490 S.W.3d at 922. We will uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id.; State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App. 2002).
B. Discussion
State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2014), held that "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.
It is undisputed that appellant refused consent and that no warrant was obtained for the second blood draw. The State contends that no warrant was necessary because exigent circumstances existed to justify the warrantless draw. See Cole, 490 S.W.3d at 922-23 (recognizing exigency based on imminent destruction of evidence as an exception to the warrant requirement); Weems v. State, 493 S.W.3d 574, 580 (Tex. Crim. App. 2016) (factors to consider when determining whether exigent circumstances permit a warrantless blood draw include dissipation of blood alcohol, the procedures in place for obtaining a warrant, the availability of a magistrate judge, and "the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence") (citing Missouri v. McNeely, 133 S. Ct. 1552, 1568 (2013)).
We need not determine whether exigent circumstances existed justifying the warrantless blood draw. Assuming without deciding that no exigent circumstances existed, any error in admitting the results of the second draw was harmless.
When determining whether appellant was harmed by the erroneous admission of evidence obtained in violation of the Fourth Amendment, we conduct a constitutional harm analysis. Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). We must reverse unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a); Cisneros v. State, 290 S.W.3d 457, 463 (Tex. App.—Houston [14th Dist.] 2009, pet. dism'd). Error does not contribute to the conviction if the verdict "would have been the same absent the error." See Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007) (citing Neder v. United States, 527 U.S. 1, 15-18 (1999)).
In addition to the challenged second blood draw, the jury also was presented with the results of two other blood draws taken before and after the challenged draw. The hospital initially drew appellant's blood for testing at 2:44 a.m., a little over an hour after the accident. The blood from the hospital's draw tested at a 0.184 blood alcohol concentration. Appellant's blood also was drawn pursuant to a warrant at 6:39 a.m. — approximately five hours after the accident and three hours after the challenged blood draw. The results from that blood draw indicated a 0.110 blood alcohol concentration — still above the statutory legal limit of 0.08.
Appellant moved to suppress the results from all three blood draws, which the trial court denied. Appellant does not challenge the trial court's rulings on the admissibility of the first or third blood draws on appeal. Appellant briefly argues that the first draw was not a forensic blood draw and did not have a proper chain of custody, but only contends that such issues make the results from that draw questionable; accordingly, appellant contends that the warrantless second blood draw would have been "much more persuasive to a jury" and therefore more likely to contribute to appellant's punishment. However, testimony regarding the first blood draw did not suggest that there was any reason to doubt the results of the draw. The nurse who performed the first draw testified that she followed proper procedures and that the blood vials were labeled with appellant's medical record number so they could be properly tracked.
The hospital's records indicated that the blood from the 2:44 a.m. draw showed a .222 blood alcohol concentration, but subsequent retesting by the Harris County Institute of Forensic Sciences indicated a .184 blood alcohol concentration. The co-director for the Toxicology Laboratory at the Harris County Institute of Forensic Sciences explained the discrepancy to the jury as being the result of the hospital testing only blood plasma — not whole blood. See Navarro v. State, 469 S.W.3d 687, 697-98 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (blood alcohol concentration levels in the Texas Penal Code are determined from testing of whole blood, not plasma). The co-director explained that plasma testing typically results in blood alcohol concentration levels approximately 20 percent higher than whole blood testing levels because red blood cells account for approximately 20 percent of blood volume in whole blood. The co-director testified that, once the plasma blood alcohol concentration results were reduced by 20 percent, the hospital's results were within the expected margin of error and were consistent with the forensic lab's results. --------
Two officers testified that appellant was intoxicated based on their assessments of him shortly after the accident.
The first officer interacted with appellant at the accident scene and observed that appellant had red, glassy eyes, slurred speech, and emitted an odor of alcohol. Appellant told the first officer that he had consumed three or four beers earlier at a friend's house.
The second officer interacted with appellant at the hospital approximately 40 minutes after the accident. Like the first officer, the second officer observed that appellant had slurred, slow speech; glassy, watery eyes; and a distinct odor of alcohol on his breath. Appellant told the second officer that he had "some beers and mixed drinks" before the accident.
Both officers independently performed the horizontal gaze nystagmus test and both observed all six "clues." Both officers testified that they had formed the opinion that appellant was intoxicated and that he had lost the normal use of his mental and physical faculties.
Excluding the results of the warrantless blood draw, the remaining evidence that appellant was intoxicated at the time of the accident is substantial. Based on the specific facts of this case where the results from two other, unchallenged blood draws each showed that appellant's blood-alcohol level was significantly above the legal limit even hours after the accident, and where two police officers testified based on their observations of appellant and their field sobriety testing of appellant that he was intoxicated, we conclude beyond a reasonable doubt that the admission of the warrantless blood draw results did not contribute to appellant's conviction and that the verdict would have been the same absent the admission of the second blood draw. See, e.g., Clay, 240 S.W.3d at 905 (concluding after constitutional error review that "[t]he State's case establishing appellant's guilt . . . was straightforward and strong," and left the court "firmly convinced that in the absence of the erroneously admitted testimony, a reasonable jury would not have found the State's case significantly less persuasive"). Accordingly, we overrule appellant's first issue.
II. Remaining Issues
In his second issue, appellant contends the trial court erred by failing to give an instruction to disregard or granting a mistrial as the result of the prosecutor's comment during closing argument regarding the punishment range for a lesser-included offense. In his third issue, appellant contends the trial court erred by allowing the victim's father to opine regarding the appropriate punishment sentence for appellant.
Regarding the second issue, appellant's trial counsel did not request a mistrial or an instruction to the jury to disregard after the trial court sustained an objection to the improper comment. See Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007) ("To preserve error in prosecutorial argument, a defendant must pursue to an adverse ruling his objections to jury argument."); McGinn v. State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998) (to preserve error on appeal if a trial court sustains an objection concerning an improper jury argument, the complaining party must additionally request an instruction to disregard if such an instruction could cure the prejudice, or request a mistrial if such prejudice was incurable).
Regarding the third issue, appellant's trial counsel did not object to the allegedly improper question or request an instruction that the jury disregard the father's response. See Tex. R. App. P. 33.1(a) (to preserve a complaint for appellate review, the party must have made a timely request, objection, or motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint); Henson v. State, 407 S.W.3d 764, 767 (Tex. Crim. App. 2013).
A reviewing court should not address the merits of an issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010) (per curiam) (op. on reh'g). Appellant has conceded in his appellate brief and in oral argument before this court that his second and third issues were not preserved for our review. We agree and conclude that the remaining issues were not preserved. Appellant's second and third issues are overruled.
CONCLUSION
Having overruled appellant's issues, we affirm the trial court's judgment.
/s/ William J. Boyce
Justice Panel consists of Chief Justice Frost and Justices Boyce and Christopher.
Do Not Publish — Tex. R. App. P. 47.2(b).