                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-17-00025-CR


                          JOHN DAVID FRY, JR., APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                       On Appeal from the County Criminal Court No. 1
                                   Tarrant County, Texas
                Trial Court No. 1423763, Honorable David E. Cook, Presiding

                                      July 26, 2018

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


      Appellant John David Fry, Jr. appeals1 from his conviction for driving while

intoxicated2 and the resulting sentence. Through one issue, he contends the trial court

erred by admitting blood-draw evidence. We will affirm.




      1  Originally appealed to the Second Court of Appeals in Fort Worth, this case was
transferred to this Court by the Texas Supreme Court pursuant to its docket equalization
efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2017).
      2   TEX. PENAL CODE ANN. § 49.04(b) (West 2018).
                                        Background


       An information charged appellant with operating a motor vehicle in a public place

while intoxicated and included an enhancement paragraph setting forth his previous

conviction for driving while intoxicated.


       At his jury trial following his not-guilty plea, the State presented evidence through

the testimony of Officer Martinez and a forensic scientist. Martinez testified that he

responded to a call regarding a driver asleep at the wheel at a local fast-food restaurant.

When Martinez and his training officer arrived, he saw a car in the drive-thru. He told the

jury the white car matched the description dispatch provided him. He approached the car

and saw “somebody that appeared to be asleep and slumped over.” The officers knocked

on the window and rocked the car to awaken appellant. He did “eventually” wake up but

“appeared confused.”


       Appellant told Martinez he had been at a nearby bar, had “two shots and a beer,”

and fell asleep when he reached the restaurant. Martinez conducted standardized field

sobriety tests and observed indications of intoxication in each test. He arrested appellant

for driving while intoxicated and requested appellant to provide a sample of his blood.

Appellant refused so Martinez obtained a search warrant authorizing a blood draw.

Martinez testified he took appellant to the Medical Center of Arlington, a hospital where

officers normally take suspects for blood draws.




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      Once at the hospital, Martinez testified, he informed staff members that he had a

warrant for appellant’s draw. A hospital employee, Zach Cloyd,3 was assigned to perform

the blood draw. Cloyd used a police blood draw kit. Martinez confirmed Cloyd used a

swab labeled as a Betadyne swab to disinfect the area of the draw. Martinez described

the collection of the blood and its placement in the evidence bag. That kit was admitted

into evidence. The blood test indicated appellant’s blood alcohol concentration was .10

at the time the sample was taken.


      After the jury found him guilty of driving while intoxicated, the court sentenced

appellant to 180 days of imprisonment with an $800 fine. The court suspended the

sentence and placed appellant on community supervision for a period of twenty months.

Appellant subsequently filed this appeal.


                                        Analysis


      Appellant focuses his appellate contention on whether the State proved that the

person who took his blood at the hospital was a “qualified technician” under Chapter 724

of the Transportation Code. Appellant argues the State failed to meet its burden and the

trial court for that reason erred in admitting the results of the draw. The State responds

that Chapter 724 is inapplicable here because Martinez obtained a search warrant

authorizing the blood draw. We must agree with the State.


      We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Pace v. State, No. 07-15-00095-CR, 2017 Tex. App. LEXIS 2317,



      3The record indicates Cloyd was ill the day of trial and unable to testify. Trial
proceeded after the court denied appellant’s motion for a continuance.

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at *4 (Tex. App.—Amarillo Mar. 16, 2017, no pet.) (mem. op., not designated for

publication) (citing Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007)). A trial

court abuses its discretion when its decision is so clearly wrong as to lie outside that zone

within which reasonable persons might disagree. Id. (citing McDonald v. State, 179

S.W.3d 571, 576 (Tex. Crim. App. 2005)). We will uphold the trial court’s evidentiary

ruling if the ruling is reasonably supported by the record and correct on any applicable

theory of law. Id. (citing Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005)).


       Chapter 724 of the Texas Transportation Code contains our State’s implied

consent statutes.    TEX. TRANSP. CODE ANN. §§ 724.001-724.064 (West 2017).             This

chapter governs the State’s ability to obtain a breath or blood sample from a person

suspected of committing the offense of driving while intoxicated when there is no warrant.

State v. Johnston, 336 S.W.3d 649, 660-61 (Tex. Crim. App. 2011). Under Section

724.017(a), only a physician, qualified technician, registered professional nurse, licensed

vocational nurse or licensed or certified emergency medical technician-intermediate or

emergency medical technician-paramedic may take a blood specimen at the request or

order of a peace officer under this chapter. TEX. TRANSP. CODE ANN. § 724.017(a) (West

2017). The “blood specimen must be taken in a sanitary place.” Id.


       Chapter 724 “does not provide greater protection than the Fourth Amendment and

offers only one method of conducting a blood draw that would be deemed reasonable

under the Fourth Amendment.” Johnston, 336 S.W.3d at 661 (citation omitted). Failure

to comply with Chapter 724 “does not dictate what is reasonable under the Fourth

Amendment; another method of obtaining a blood specimen may be reasonable.” Id.



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Accordingly, Chapter 724 is “not controlling authority when it comes to determining the

reasonableness of how a blood draw was performed under the Fourth Amendment.” Id.


       The court in Johnston pointed to the opinion in Beeman v. State, noting that the

Court of Criminal Appeals held Chapter 724 “is inapplicable when there is a warrant to

draw blood; therefore, compliance with Chapter 724 is not necessary to satisfy the Fourth

Amendment. Whether a blood draw is conducted pursuant to a warrant or not, the

assessment of reasonableness is purely a matter of Fourth Amendment law.” Id. (citing

Beeman v. State, 86 S.W.3d 613, 616-17 (Tex. Crim. App. 2002)). It is appropriate to

invoke traditional Fourth Amendment principles to determine whether a blood draw was

performed in a reasonable manner. Id. (citation omitted). Therefore, the “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.” Id. (citation omitted). See also State v. Gray, No. 03-17-00174-CR, 2017 Tex.

App. LEXIS 5702, at *6 (Tex. App.—Austin June 22, 2017, no pet.) (mem. op., not

designated for publication) (citation omitted) (noting same).


       The test for reasonableness of a blood draw stems from the United States

Supreme Court’s opinion in Schmerber v. California, 384 U.S. 757, 768 (1966). The

inquiries ask: (1) whether police were justified in requiring the suspect to submit to a

blood test; and (2) whether police employed reasonable means and procedures in taking

the blood. Id. The second inquiry contains two parts. Id. First, the test itself must be

reasonable. Id. Second, the police must have performed the test in a reasonable manner.

Id. Courts must balance the following factors in determining the reasonableness of a

bodily intrusion: (1) the extent to which the procedure may threaten the safety or the

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health of the individual; (2) the extent of the intrusion on the individual’s dignitary interests

in personal privacy and bodily integrity; and (3) the community’s interest in fairly and

accurately determining guilt or innocence. Siddiq v. State, 502 S.W.3d 387, 398 (Tex.

App.—Fort Worth 2016, no pet.) (citations omitted).


       Martinez obtained a search warrant for appellant’s blood specimen, and appellant

does not challenge the warrant’s validity. The officer thus was justified in requiring

appellant to submit to the blood test. Johnston, 336 S.W.3d at 658.


       We find also the blood test itself was reasonable because there is a presumption

that venipuncture blood draw tests are reasonable under the Fourth Amendment and

appellant has shown nothing that would indicate otherwise here. Id. at 659-60. The

record shows the police employed reasonable means and procedures for taking

appellant’s blood. Martinez took appellant to a local hospital where an employee of the

hospital performed the blood draw following the protocols for such draws. Appellant

makes no argument that the employee used improper technique, materials or procedures

in which to do so. Id. Appellant also makes no argument that the blood draw threatened

his safety or health, caused him trauma or pain, endangered his life or health or created

a level of intrusiveness greater than a typical blood draw. Siddiq, 502 S.W.3d at 403. We

note also the observation in Schmerber that extraction of blood samples is

“commonplace” and is a “highly effective means of determining the degree to which a

person is under the influence of alcohol.” 384 U.S. at 771.


       The trial court reasonably could have determined that appellant’s blood draw was

justified, and that blood was drawn in accordance with acceptable medical practices.



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Therefore, the draw was reasonable. Johnston, 336 S.W.3d at 664. Accordingly, the trial

court did not err in admitting into evidence the results of appellant’s blood test.


       We resolve appellant’s issue against him.


                                        Conclusion


       Having overruled appellant’s issue, we affirm the judgment of the trial court.




                                                         James T. Campbell
                                                           Justice


Do not publish.




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