FEAGIAI SIOLO v. THE STATE OF TEXAS--Appeal from 36th District Court of San Patricio County

NUMBER 13-01-665-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

FEAGIAI SIOLO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 36th District Court

of San Patricio County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Dorsey

A jury found appellant, Feagiai Siolo, guilty of one count of intoxication manslaughter and three counts of intoxication assault. The trial court sentenced him to twenty years in prison for intoxication manslaughter and ten years in prison for each count of intoxication assault. The issue is whether the trial court erred in refusing to suppress the warrantless search which resulted in the drawing of appellant=s blood without his consent. We affirm.

I. Background

About 3:30 p.m. Charles Scott was driving his suburban on IH-37 when appellant=s car, a green Daewoo, struck the suburban, causing it to roll over several times. One person in the suburban died at the scene, and three other people in the suburban received serious bodily injuries. Trooper Almaraz arrived on the scene at 3:38 p.m. His investigation showed that appellant was the Deewoo=s driver and that he had blood-shot eyes, slurred speech, a strong odor of alcohol coming from him, and unsteady balance. Appellant failed the Horizontal Gaze Nystagmus test and poorly recited the alphabet. Appellant admitted to Almaraz that he had drank one beer prior to the collision. Based on these factors Almaraz believed that appellant had operated the Daewoo while intoxicated and that, based on the evidence at the scene and the damage to the vehicles, appellant=s intoxication caused the collision. Almaraz turned appellant over to Trooper Eubanks, instructing him to obtain a blood sample from appellant. Eubanks arrested appellant for DWI and took him to Columbia Northwest Hospital. Eubanks stated that he gave the statutory warnings DIC-24 and DIC-25 to appellant. When told that the blood withdrawal was mandatory, appellant replied, AOkay.@ A registered nurse drew appellant=s blood. The test run on the blood sample showed a blood-alcohol concentration of 0.14.

II. Standard of Review

We review the trial court=s decision on a motion to suppress evidence for abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990); Owens v. State, 875 S.W.2d 447, 450 (Tex. App.BCorpus Christi 1994, no pet.). The evidence at a suppression hearing is viewed in the light most favorable to the trial court=s ruling. Owens, 875 S.W.2d at 450. The trial court acts as the fact finder and is the sole judge of the credibility of witnesses and the weight to be given their testimony. Clark v. State, 548 S.W.2d 888, 889 (Tex. Crim. App. 1977); Owens, 875 S.W.2d at 450. We give a trial court wide discretion to admit or exclude evidence as it sees fit. Theus v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992); Enriquez v. State, 56 S.W.3d 596, 600 (Tex. App.BCorpus Christi 2001, pet. ref=d). As long as the trial court=s evidentiary ruling was at least within the zone of reasonable disagreement an appellate court may not disturb it. Enriquez, 56 S.W.3d at 600.

III. Blood-Test Results

In his sole issue, appellant complains that the trial court erred in refusing to suppress the warrantless search which resulted in the drawing of his blood without his consent, in violation of article 38.23(a)[1] of the Texas Code of Criminal Procedure and the Fourth and Fourteenth Amendments to the United States Constitution. Appellant claims that the trooper told him that he had no choice in the matter of having his blood drawn and that the blood draw was mandatory. Accordingly he argues that the trial court should have suppressed the blood-test results. We disagree.

Chapter 724 of the Texas Transportation Code governs the taking of blood samples. Section 724.012, in relevant part, provides:

(a) One or more specimens of a person's breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:

(1) while intoxicated was operating a motor vehicle in a public place. . . .

(b) A peace officer shall require the taking of a specimen of the person's breath or blood if:

(1) the officer arrests the person for an offense under Chapter 49 [Intoxication and Alcoholic Beverage Offenses], Penal Code, involving the operation of a motor vehicle. . . .

(2) the person was the operator of a motor vehicle . . . involved in an accident that the officer reasonably believes occurred as a result of the offense;

(3) at the time of the arrest the officer reasonably believes that a person has died or will die as a direct result of the accident; and

(4) the person refuses the officer's request to submit to the taking of a specimen voluntarily.

(c) The peace officer shall designate the type of specimen to be taken.

Tex. Transp. Code Ann. ' 724.012 (Vernon 1999 & Supp. 2002).

The section following 724.012 provides that a specimen may not be taken if a person refuses to submit, "[e]xcept as provided by Section 724.012(b)." Tex. Transp. Code Ann. ' 724.013 (Vernon 1999). Section 724.014 authorizes the taking of a specimen from a person who is dead, unconscious, or otherwise incapable of refusal. These provisions read together make it clear that in certain circumstances a peace officer may compel the extraction of a blood specimen without consent from a driver whom he arrests for being intoxicated. Broadnax v. State, 995 S.W.2d 900, 903 (Tex. App.BAustin 1999, no pet.).[2] See Enriquez, 56 S.W.3d at 602-03.

The Austin Court of Appeals has held that a trial court did not err in admitting blood-test results taken under section 724.012 of the Texas Transportation Code when the driver did not consent. In Porter v. State, 969 S.W.2d 60 (Tex. App.B Austin 1998, pet. ref'd), the court said:

Blood draws are mandatory from persons who are under arrest for any offense arising out of acts committed while operating a motor vehicle in a public place and whose intoxicated driving has led to the death or is expected to result in death to an individual, and such results are admissible into evidence in a subsequent trial for that offense.

Id. at 65.

In Mitchell v. State, 821 S.W.2d 420 (Tex. App.BAustin 1991, pet. ref'd), a case similar to ours, the court determined that a blood sample was lawfully obtained under the predecessor of the implied-consent statute. In Mitchell the accused lost control of his car and rolled it several times, resulting in massive injuries to his three-year-old son. The investigating officer saw the accused behind the steering wheel and detected a strong odor of alcohol about him. Based upon his observations of the child's condition and information from the medical attendants the officer concluded that the child was near death. He asked that a blood sample be taken from the accused upon his arrival at the hospital. A fellow officer went to the hospital and obtained the blood sample. The officer approached the accused and asked if he was the driver. The accused turned his eyes away and closed them. The officer read him a document indicating that the officer was there to obtain a blood specimen and that the accused was under arrest for an offense involving driving while intoxicated. The accused did not respond. The officer took this as a refusal and concluded that the accused would not voluntarily agree to give the blood sample. Based on the information the officer at the hospital had received from the investigating officer at the scene, the Mitchell court held that the second officer had probable cause to arrest the accused for driving while intoxicated, could reasonably believe that an accident had occurred as a result of this offense, and could reasonably believe that a person injured in the accident was likely to die. The court also held that from the accused=s conduct at the hospital, the officer correctly understood that the accused did not voluntarily consent to giving a blood sample. Id. at 424 25. The court further stated that

[s]trictly speaking, ' 3(i)(4) [now ' 724.012(b)(4)] adds nothing to the statute. If a person voluntarily consents to an officer's request for a blood or breath sample, the officer need not resort to his authority under ' 3(i) [' 724.012(b)]. On the other hand, if the conditions specified in ' 3(i) [' 724.012(b)] (1), (2), and (3) are satisfied, the absence of consent is irrelevant. In this cause, the State relied on ' 3(i) [' 724.012(b)] because appellant objected that the blood sample had been taken involuntarily.

Mitchell, 821 S.W.2d at 425 n.4.

Here, the evidence showed that the predicate for taking an involuntary blood specimen was proven. Appellant's consent became irrelevant. The investigating officer, Almaraz: (1) had probable cause to arrest appellant for DWI; (2) reasonably believed that the collision had occurred as a result of the DWI offense; and (3) reasonably believed that a person had died as a result of the collision. Almaraz sent appellant to the hospital in the custody of Officer Eubanks to obtain a blood specimen. Appellant appeared to understand what he was told by Eubanks. Appellant did not object and cooperated with the law enforcement officers and the hospital personnel in that process. All of the evidence showed that appellant voluntarily consented after receiving an accurate statement that the officers had a factual basis and legal authority to obtain a blood specimen without his consent and intended to do so. The warning under section 724.015 of the Texas Transportation Code is not applicable, because it is based upon the subject's right to refuse to consent. Under sections 724.012(b) and 724.013 and the facts of this case, appellant had no right to refuse to consent. We hold that the trial court did not abuse its discretion in refusing to suppress the blood-test results. We overrule the issue.

We AFFIRM the trial court=s judgment.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 19th day of September, 2002.

[1]Article 38.23(a) provides:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

[2]The constitutionality of compelling production of physical evidence of intoxication is well settled. See Schmerber v. California, 384 U.S. 757 (1966) (compelling non testimonial evidence does not contravene Fifth Amendment); Thomas v. State, 723 S.W.2d 696, 704 05 (Tex. Crim. App. 1986) (State could either compel physical evidence of intoxication or permit evidence of refusal without violating state constitutional protection against self incrimination); Rodriguez v. State, 631 S.W.2d 515, 517 (Tex. Crim. App. 1982) (there is no State constitutional barrier to subjecting an accused, without his consent, to a chemical test for intoxication, if taken under conditions that comport with due process); Olson v. State, 484 S.W.2d 756, 772 (Tex. Crim. App. 1969) (compelling a blood test does not require an accused to give evidence against himself within the meaning of article I, section 10 of the Texas Constitution). A search and seizure of a blood sample is protected by the Fourth Amendment, but it is only those searches and seizures which are not justified in the circumstances or which are made in an improper manner that are prohibited. Where the officers have probable cause, exigent circumstances, and a reasonable method of extraction, the search and seizure is not unreasonable and does not violate the Fourth Amendment. Schmerber, 384 U.S. at 767 768. The court of criminal appeals has held that the taking of a blood sample is a search and seizure within the meaning of article I, section 9 of the Texas Constitution, and that the State was required to comply with the applicable statutory protections for searches and seizures. Escamilla v. State, 556 S.W.2d 796, 798 (Tex. Crim. App. 1977). The court of criminal appeals has followed Schmerber by requiring probable cause, exigent circumstances, and a reasonable method of extraction to be shown before a warrantless search and seizure of a blood sample will be held to be reasonable. State v. Comeaux, 818 S.W.2d 46, 53 (Tex. Crim. App. 1991).