                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-10-00426-CR

DANNY PAUL MARTIN,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee



                          From the 18th District Court
                            Johnson County, Texas
                             Trial Court No. F43641


                         MEMORANDUM OPINION


       In two issues, appellant Danny Paul Martin challenges his conviction for felony

DWI.   Specifically, he argues that:   (1) the blood specimen taken was done in an

unreasonable manner in violation of the Fourth Amendment; and (2) his sixty-year

sentence was excessive and disproportionate. We will affirm.

       On the evening of February 25, 2009, Martin met his girlfriend, Shannon

Clanahan, at Chance’s, a bar in Johnson County. That night, Martin drank several beers

(Martin testified and admitted that he drank at Chance’s that night) before the bar
closed at midnight. Martin and Clanahan left the bar at midnight to go eat at the

Huddle House in Cleburne. After eating, Martin and Clanahan got into Martin’s work

truck and backed out of the parking space. While backing out, Martin collided with the

front end of a vehicle owned by Lorie Lewallen, a Huddle House employee. Martin

asked Lewallen not to call the police, handed her his business card, and promised that

his company’s insurance would cover the damages. Lewallen agreed to not call the

police, and Martin and Clanahan drove off.

        With pieces of Lewallen’s vehicle in his bumper, Martin left the Huddle House

parking lot. Shortly thereafter, DPS Trooper Jim Gilliam pulled behind Martin’s truck.

Trooper Gilliam noticed that one of Martin’s tail lights was broken and that there were

broken car parts in the truck’s bumper. Based on these observations, Trooper Gilliam

pulled Martin over. When speaking to Martin, Trooper Gilliam observed a strong odor

of alcohol emanating from the truck and noticed that Martin’s eyes were red and glassy.

Suspecting that Martin was intoxicated, Trooper Gilliam instructed Martin to get out

and walk to the back of the truck. In doing so, Martin was unsteady on his feet. Martin

admitted that he had recently hit Lewallen’s vehicle in the Huddle House parking lot

and that he had consumed several alcoholic beverages that night. Trooper Gilliam then

administered several field sobriety tests, all of which Martin performed poorly.

        Martin was arrested and taken to the intoxilyzer room at the Johnson County

Law Enforcement Center. There, Trooper Gilliam provided DIC-24 warnings to Martin

and requested blood and breath samples.        Martin refused both requests.       Trooper

Gilliam obtained a search warrant for Martin’s blood.          James Early, a licensed

Martin v. State                                                                      Page 2
vocational nurse working for the Johnson County Sheriff’s Department, took a blood

sample from Martin while he was still in the intoxilyzer room. The blood sample was

then delivered to the DPS lab in Waco for testing. The test revealed that Martin had a

blood-alcohol concentration level of 0.11, which exceeds the legal limit of 0.08.

        Martin was indicted for “Driving While Intoxicated-Third or More,” with the

indictment containing several enhancement paragraphs, including two felony DWI

convictions. Martin pleaded “not guilty” to the charged offense, but he stipulated to the

two felony DWI convictions. At the conclusion of trial, the jury found Martin guilty of

the charged offense, found the two felony enhancement paragraphs to be “true,” and

assessed punishment at sixty-years’ imprisonment.

        In his first issue, Martin contends that the blood draw was conducted in an

unreasonable manner as to violate the Fourth Amendment.1                          In particular, Martin

complains that the manner in which the blood draw was conducted was unreasonable

because the intoxilyzer room—where the blood sample was taken—was unsanitary.

        We review the admission of evidence under an abuse-of-discretion standard.

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court abuses its

discretion if its ruling is outside the zone of reasonable disagreement. Id.


        1 At trial, Martin objected to the admission of the results of the blood draw, arguing that “there is
no evidence that the blood specimen was taken in a sanitary place pursuant to [section] 724.017 of the
Transportation Code.” See TEX. TRANSP. CODE ANN. § 724.017(a) (West 2011) (“Only a physician, qualified
technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood
specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken
in a sanitary place.”). But see Johnston v. State, 336 S.W.3d 649, 661 (Tex. Crim. App. 2011) (stating that
Chapter 724 “is not controlling authority when it comes to determining the reasonableness of how a
blood draw was performed under the Fourth Amendment); Beeman v. State, 86 S.W.3d 613, 616 (Tex.
Crim. App. 2002) (holding that Chapter 724 is inapplicable when there is a warrant to draw blood and
that compliance with Chapter 724 is not necessary to satisfy the Fourth Amendment).

Martin v. State                                                                                       Page 3
        The United States Supreme Court, in Schmerber v. California, addressed the

constitutionality of compulsory blood draws conducted for law-enforcement purposes

under the Fourth Amendment. 384 U.S. 757, 758-59, 86 S.Ct. 1826, 1829-30, 16 L.Ed.2d

908 (1966). The Supreme Court held that a warrantless blood draw constituted a search

and seizure under the Fourth Amendment. Id. at 767, 86 S.Ct. at 1834. The Schmerber

Court then outlined a two-part test for determining the legality of a blood draw, which

included the following: (1) “whether the police were justified in requiring [Schmerber]

to submit to a blood test”; and (2) “whether the means and procedures employed in

taking [Schmerber’s] blood respected relevant Fourth Amendment standards of

reasonableness.” Id. at 768, 86 S.Ct. at 1834.

        According to Schmerber, the second part of the analysis contains two discrete

questions: (1) whether the test chosen was reasonable or, in other words, whether the

“means” employed were reasonable; and (2) whether “the test was performed in a

reasonable manner” or, in other words, whether the “procedures” employed were

reasonable. Id. at 771, 86 S.Ct. at 1836. With regard to the first part of the analysis, the

Schmerber Court noted that blood tests are “a highly effective means of determining the

degree to which a person is under the influence of alcohol” and “a commonplace in

these days of periodic physical examinations and experience teaches that the quantity of

blood extracted is minimal, and that for most people the procedure involves virtually

no risk, trauma, or pain.” Id.

        Ultimately, the Schmerber Court concluded that a blood draw performed by a

physician in a hospital according to acceptable medical practice was conducted in a

Martin v. State                                                                       Page 4
reasonable manner. Id. But, Schmerber also stated the following:

        We are thus not presented with the serious questions which would arise if
        a search involving use of a medical technique, even the most rudimentary
        sort, were made by other than medical personnel or in other than a
        medical environment—for example, if it were administered by police in
        the privacy of the stationhouse. To tolerate searches under these
        conditions might be to invite an unjustified element of personal risk or
        infection or pain.

Id. at 771-72, 86 S.Ct. at 1836.

        Last year, the Court of Criminal Appeals addressed a compulsory blood draw

conducted by a police officer, who was also a seasoned EMS provider, in the police

station’s blood-draw room. Johnston v. State, 336 S.W.3d 649, 651 (Tex. Crim. App.

2011). Johnston specifically noted that “[t]hough a medical environment may be ideal, it

does not mean that other settings are unreasonable under the Fourth Amendment,” and

“[a]ccording to our research, reasonableness depends on whether the environment is a

safe place in which to draw blood.” Id. at 662. In Johnston, the court concluded that a

room inside the Dalworthington Gardens police station was a safe place to draw blood

and that the statutory requirement that blood be drawn in a sanitary place was satisfied.

Id. In arriving at their conclusion, the Johnston court noted that the evidence included a

description of the room as “clean, but not sterile,” with furniture that “could be cleaned

with a commercial sanitizer before each use.” Id. at 652.

        Johnston also stated that police officers act reasonably when drawing blood if

they act in accordance with accepted medical practices, including the equipment and

technique that they employ. Id. at 663. Moreover, searches justified by a valid warrant

have a presumption of legality unless the opponent produces evidence rebutting the

Martin v. State                                                                     Page 5
presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim.

App. 2007). “[T]he reasonableness of the manner in which a DWI suspect’s blood is

drawn should be assayed on an objective, case-by-case basis in light of the totality of the

circumstances surrounding the draw.”         Johnston, 336 S.W.3d at 661.    Additionally,

“reasonableness [of the environment] depends upon whether the environment is a safe

place in which to draw blood.” Id. at 662.

        Martin challenges the second part of the analysis—the reasonableness of the

manner of the blood draw. Specifically, Martin’s argument hinges on Early’s testimony

that the room was “relatively” sanitary. He contends that this testimony demonstrates

that the room was not sanitary; thus, the manner of the blood draw was unreasonable.

We disagree.

        Early, a licensed vocational nurse since 1999, testified that he drew Martin’s

blood in the intoxilyzer room at the Johnson County Law Enforcement Center. The

State offered a “Specimen Routing Report” into evidence, which indicated that the

blood draw was conducted at 2:39 a.m. on February 25, 2009. In drawing the blood,

Early utilized a “sterile technique,” which he described as using gloves and a vacutainer

(an adapter attached to the needle used to draw blood). He also used an iodine-based

cleansing solution and a specialized arm board for the blood draw and he is confident

that he followed established medical procedures for a “good blood draw in this case.”

See id. at 663 (stating that police officers act reasonably when drawing blood if they act

in accordance with accepted medical practices, including the equipment and technique

that they employ).

Martin v. State                                                                      Page 6
        With regard to the room used for the blood draw, Early testified that the room

was “relatively” sanitary, though he noted that he would not “eat off the floor” of the

room. Early also acknowledged that he was not responsible for cleaning the room and

that he did not know when the last time the room was cleaned. Despite this testimony,

Early later clarified that he thought the room was “sanitary enough to draw blood in.”

See id. at 652, 662 (noting that room where defendant’s blood was drawn was “clean, but

not sterile” and “could be cleaned with a commercial sanitizer before each use” and that

reasonableness of environment “depends upon whether the environment is a safe place

in which to draw blood”). And, in overruling Martin’s objection, the trial court clearly

believed Early’s testimony that the intoxilyzer room was “sanitary” and a safe place to

draw blood. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (stating

that factfinder is entitled to judge credibility of witnesses and can choose to believe all,

some, or none of the testimony); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007) (“When the record supports conflicting inferences, we must presume that

the factfinder resolved the conflicts in favor of the prosecution and therefore defer to

that determination.”).

        Based on the totality of the circumstances, the trial court could have concluded in

its discretion that Martin’s blood was drawn in a safe environment. Thus, we cannot

say that the manner in which the blood draw was conducted was unreasonable.

Accordingly, we hold that the requirements of the Fourth Amendment were met and

that the trial court did not abuse its discretion in overruling Martin’s objection on this

ground. Martin’s first issue is overruled.

Martin v. State                                                                       Page 7
        In his second issue, Martin asserts that the punishment imposed is excessive and

disproportionate because no injuries resulted from the accident, his blood-alcohol level

was “only .03 over the legal limit in Texas,” and several mitigating factors were

presented during the punishment phase.

        Generally, a sentence within the statutory range of punishment for an offense is

not excessive, cruel, or unusual punishment. See Winchester v. State, 246 S.W.3d 386, 389

(Tex. App.—Amarillo 2008, pet. ref’d); Alvarez v. State, 63 S.W.3d 578, 580 (Tex. App.—

Fort Worth 2001, no pet.). A narrow exception to this rule is recognized where a

sentence is grossly disproportionate to the offense. See Moore v. State, 54 S.W.3d 529, 542

(Tex. App.—Fort Worth 2001, pet. ref’d); see also Harmelin v. Michigan, 501 U.S. 957,

1004-05, 111 S.Ct. 2680, 2707, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); Solem v.

Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 3010-11, 77 L.Ed.2d 637 (1983); McGruder v.

Puckett, 954 F.2d 313, 316 (5th Cir. 1992).

        In conducting a proportionality analysis, we first make a threshold comparison

of the gravity of the offense against the severity of the sentence. Moore, 54 S.W.3d at

542; see Solem, 463 U.S. at 290-91, 103 S.Ct. at 3010; McGruder, 954 F.2d at 316. If we

determine that the sentence is grossly disproportionate to the offense, we must then

compare the sentence received to sentences for similar crimes in this jurisdiction and

sentences for the same crime in other jurisdictions. Alvarez, 63 S.W.3d at 581; see Solem,

463 U.S. at 291-92, 103 S.Ct. at 3010; McGruder, 954 F.2d at 316.

        Martin was charged with “Driving While Intoxicated-Third or More.” See TEX.

PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2).        The indictment contained two felony-

Martin v. State                                                                      Page 8
enhancement paragraphs for two felony DWI’s, both of which the jury found to be true.

See id. As a result, the punishment range for this offense was twenty-five to ninety-nine

years. See id. § 12.42(d) (West Supp. 2012). The jury imposed a sixty-year sentence,

which falls well within the statutory punishment range. See id.

         The evidence showed that Martin has numerous DWI convictions over the past

twenty-two years. The State presented evidence of three prior misdemeanor DWI and

three prior felony DWI convictions—offenses that Trooper Gillman testified are “safety

concern[s].” Moreover, Martin has not shown how the sentence imposed in this case is

grossly disproportionate to sentences imposed on others in the same jurisdiction and

sentences imposed for the commission of the same crime in other jurisdictions. See

Alvarez, 63 S.W.3d at 581; see also Solem, 463 U.S. at 291-92, 103 S.Ct. at 3010; McGruder,

954 F.2d at 316. We cannot say that the punishment was grossly disproportionate to the

offense. Accordingly, Martin’s second issue is overruled.

         Having overruled both of Martin’s issues, we affirm the judgment of the trial

court.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs in the judgment with a note)*
Affirmed
Opinion delivered and filed August 9, 2012
Do not publish
[CRPM]

Martin v. State                                                                      Page 9
         *(Chief Justice Gray concurs in the Court’s judgment affirming the trial court’s
judgment of conviction. A separate opinion will not issue. He notes, however, that the
first issue on appeal does not comport with the objection made at trial and, accordingly,
he would not address the merits of the issue on appeal. There were two objections to
the blood evidence at trial, both of which were made twice. 14 CR 56-58; 92. The blood
evidence was objected to at trial on the basis that: 1) it was obtained as a result of an
illegal stop; and 2) it was obtained in violation of § 274 of the Texas Transportation
Code. On appeal the issue is that the manner of drawing the blood was unreasonable
and, therefore, a violation of the Fourth Amendment. The legality of the stop is not
questioned on appeal and the blood draw procedures in the Texas Transportation Code
are only applicable if the blood is drawn without a warrant. Martin’s blood was drawn
pursuant to a warrant. With these comments, Chief Justice Gray concurs in the
judgment only.).




Martin v. State                                                                   Page 10
