                                 NO. 07-12-00038-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                NOVEMBER 13, 2012


                          JOSEPH ROSS MILLER, APPELLANT

                                           v.

                          THE STATE OF TEXAS, APPELLEE


      FROM THE COUNTY CRIMINAL COURT NO 10 OF TARRANT COUNTY;

          NO. 1227460; HONORABLE PHILLIP ANDREW SORRELLS, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                       OPINION

      Appellant, Joseph Ross Miller, appeals his conviction for the offense of driving

while intoxicated, 1 and subsequent sentence of confinement in the Tarrant County Jail

for 120 days and a fine of $700.00. The term of confinement was, however, suspended

with appellant being placed on community supervision for a period of 24 months.

Appellant appeals his conviction contending that the trial court erred in overruling his

motion to suppress the results of his blood tests, and the evidence was insufficient to

support the conviction.


      1
          See TEX. PENAL CODE ANN. § 49.04(a) (West 2012).
                             Factual & Procedural Background


       On September 11, 2010, at approximately 9:08 p.m., appellant was driving a blue

1996 BMW in Arlington, Texas. When appellant approached the intersection of Little

Road and Highway 287, the light turned red. Appellant attempted to continue through

the intersection and collided with a vehicle driven by Natasha Hawkins.         After the

collision, appellant’s car momentarily stalled. Upon starting the car, appellant fled the

scene. However, the front bumper of appellant’s car fell off as a result of the collision.

Attached to the bumper was the front license plate.


       Arlington police officer John Welch was dispatched to the scene of the accident.

Officer Welch found the front bumper with the license plate. Welch determined who the

car was registered to and where that person lived. Officer Bryan Martin of the Arlington

Police Department went to the location where the car driven by appellant was

registered. Upon arrival at that residence, Welch found a blue BMW with the front

bumper missing. Subsequently, Welch met appellant inside the residence. According

to Martin, appellant appeared to be very intoxicated. Martin described appellant as

highly emotional, to the point of becoming hysterical, while discussing the accident.

Eventually, appellant became confrontational with Martin, which resulted in Martin

deciding to arrest appellant.     Appellant was handcuffed and placed in the back of

Martin’s patrol vehicle. Appellant then passed out or lost consciousness, which led

Martin to decide to take appellant to the hospital instead of jail.


       After arriving at the hospital, appellant either woke up or regained consciousness

and became combative and acted somewhat erratic. While the emergency room staff



                                              2
was attempting to evaluate appellant, he was thrashing about on the examination table

and screaming. After appellant nearly kicked one of the emergency room personnel,

the medical staff decided to sedate him in order to be able to complete the examination

of appellant. Appellant was then sedated. After appellant lost consciousness, Martin

asked that a specimen of appellant’s blood be drawn to test for alcohol.        Prior to

requesting the blood sample, Martin had not read appellant the statutory warnings

regarding giving a breath or blood specimen. Appellant remained in the hospital that

night and was later charged with misdemeanor driving while intoxicated.


      Appellant’s trial counsel filed a motion to suppress the results of the blood test.

By this motion, appellant contended that the implied consent statute was not applicable

to him because he was not under arrest at the time of his blood draw.           Further,

appellant contended that, if he was under arrest at the time of the blood draw, the

results should be suppressed because the officer did not provide him with the written

and oral statutory warnings as required.


      The trial court conducted a hearing on appellant’s motion to suppress. Officer

Welch provided the only testimony at the hearing. At the conclusion of the hearing, the

trial court overruled appellant’s motion to suppress the results of the blood test. The

case then proceeded to trial on the merits.


      At the trial of the case, Natasha Hawkins testified that she was driving the other

car involved in the accident with appellant. According to her testimony, the accident

occurred around 9:00 p.m. and she reported the accident by a 911 call within five

minutes of the occurrence. The State then produced the testimony of Ben Jaffe, a



                                              3
friend of appellant, who was a passenger in appellant’s car at the time of the accident.

Jaffe testified that appellant was driving when the accident occurred. Additionally, Jaffe

stated that appellant said he panicked and fled the scene because he did not have his

driver’s license with him and could not afford to repair the other car. According to Jaffe,

appellant did not appear intoxicated at the time of the accident.           The State also

produced a business affidavit that showed that appellant’s auto insurance carrier had

paid for the damage to Natasha Hawkins’s car.


       Welch testified about receiving the report of the accident at 9:08 and arriving at

the scene at 9:16, where he then found the bumper from the BMW with the license plate

attached.   Martin then testified about going to the residence where the BMW was

registered and meeting appellant. The record reflects that Martin arrived at appellant’s

home at 9:30 and that appellant appeared to be intoxicated from the beginning of

Martin’s interaction with him. Martin testified about the events that led him to arrest

appellant and place him in the back of the patrol car, where appellant either passed out

or went to sleep.     Further, Martin explained about taking appellant to the hospital

instead of the jail and the events that led the hospital staff to sedate appellant.


       The lab report that contained the test of the blood specimen taken from appellant

was introduced into evidence along with certain stipulations. The lab report reflected

that appellant’s blood alcohol content was .25 grams of alcohol per 100 milliliters of

whole blood. Additionally, the stipulated evidence reflected that the blood draw was

taken at 12:01 a.m. on September 12, 2010. The State also offered the testimony of

Mark Fondren, the senior forensic chemist with the Tarrant County Medical Examiner’s

Office. Fondren testified about the number of drinks of alcohol, either beers, standard

                                              4
glasses of wine, or mixed drinks, appellant would have had to drink to have a blood

alcohol concentration of .25 at 12:01 on September 12, 2010. Fondren stated that a

male of appellant’s height and weight who encountered officers at 9:30 p.m. on the 11th

of September, would have had to drink 12 standard alcoholic beverages to have a blood

alcohol concentration of .25 at 12:01 a.m. on September 12, 2010. Fondren opined that

the blood alcohol concentration could have gone up or down slightly depending upon

the contents of appellant’s stomach.


       The State then rested and, after making a motion for directed verdict that the trial

court overruled, appellant rested without putting on any evidence. After arguments, the

jury convicted appellant of driving while intoxicated. The trial court heard the issue of

punishment and sentenced appellant to 120 days confinement in the Tarrant County Jail

and a fine of $700, with the term of confinement suspended for 24 months.


       Appellant appeals the judgment of the trial court by two issues. First, appellant

contends that the trial court erred in overruling his motion to suppress the results of the

blood test. Second, appellant contends that the evidence is insufficient to support the

judgment of the trial court. Disagreeing with appellant, we affirm.


                               Sufficiency of the Evidence


       Although raised as appellant’s second issue, we will first address the sufficiency

of the evidence to support appellant’s conviction. See Chaney v. State, 314 S.W.3d

561, 565 n.6 (Tex.App.—Amarillo 2010, pet. ref’d) (citing TEX. R. APP. P. 43.3).




                                            5
Standard of Review


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a fact finder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”              Id.

(Cochran, J., concurring).    When reviewing all of the evidence under the Jackson

standard of review, the ultimate question is whether the jury’s finding of guilt was a

rational finding.   See id. at 906, 907 n.26 (discussing Judge Cochran’s dissenting

opinion in Watson v. State, 204 S.W.3d 404, 448–50 (Tex.Crim.App. 2006), as outlining

the proper application of a single evidentiary standard of review). “[T]he reviewing court

is required to defer to the jury’s credibility and weight determinations because the jury is

the sole judge of the witnesses’ credibility and the weight to be given their testimony.”

Id. at 899.


       The sufficiency standard set forth in Jackson is measured against a

hypothetically correct jury charge.      See Malik v. State, 953 S.W.2d 234, 240

(Tex.Crim.App. 1997).     Such a charge is one that accurately sets forth the law, is

authorized by the indictment, does not unnecessarily increase the State’s burden of

                                             6
proof or unnecessarily restrict the State’s theories of liability, and adequately describes

the particular offense for which the defendant was tried. Id. The “‘law’ as ‘authorized by

the indictment’ must be the statutory elements of the offense” charged “as modified by

the charging instrument.” Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000).


Analysis


       In order to convict appellant of driving while intoxicated, as charged in the

information, the State was required to prove:


              1. Appellant,

              2. operated a motor vehicle,

              3. in a public place,

              4. while intoxicated.


See TEX. PENAL CODE ANN. § 49.04(a). Appellant’s contention is that the evidence is

insufficient as to elements two and four.        Appellant simply concludes, without any

analysis, that the evidence is insufficient to show appellant operated a motor vehicle or,

if he operated a motor vehicle, that he was intoxicated at that time. Appellant does not

cite the Court to any portions of the record or specifically explain why the testimony

presented fails a test of sufficiency.    Rule 38.1(i) of the Texas Rules of Appellate

Procedure requires that an appellant’s brief “contain a clear and concise argument for

the contentions made, with appropriate citations to authorities and to the record.” TEX.

R. APP. P. 38.1(i); Ruiz v. State, 293 S.W.3d 685, 691 (Tex.App.—San Antonio 2009,

pet. ref’d). Further, appellant’s only citation to authority to support his contention is to

cite this Court to Jackson v. Virginia. We conclude that this is insufficient citation to


                                             7
applicable legal authority.   See TEX. R. APP. P. 38.1(i).      The failure to discuss the

evidence that supports appellant’s complaints, present a clear and concise argument, or

properly cite applicable legal authority results in nothing being presented for review.

See Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000). Accordingly, appellant’s

issue is overruled.


                                    Motion to Suppress


       Appellant contends that the trial court’s denial of the motion to suppress the

results of the test of the blood draw was reversible error. Appellant’s contention is

centered on the failure of Officer Martin to advise appellant of his statutory warnings as

provided in the DIC-24 form. See TEX. TRANSP. CODE ANN. § 724.015 (West Supp.

2012). 2


Standard of Review


       To review the denial of a motion to suppress, we apply a bifurcated standard of

review. See Hubert v. State, 312 S.W.3d 554, 559 (Tex.Crim.App. 2010). We review

the trial court’s application of the law to the facts de novo. Id. However, we defer to the

trial court’s determination of credibility and historical fact. Id. Because the trial court is

in position to see the witnesses testify and to evaluate their credibility, we must view the

evidence in the light most favorable to the trial court’s ruling. See Wiede v. State, 214

S.W.3d 17, 24 (Tex.Crim.App. 2007).           When, as here, no findings of fact were

requested nor filed, 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 supported by the record.
       2
         Further reference to the Texas Transportation Code will be by reference to
“section ____” or “§ _____.”

                                              8
See State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). The trial court’s ruling

will be upheld if it is reasonably supported by the record and is correct under any theory

of law applicable to the case.          See Ramos v. State, 245 S.W.3d 410, 418

(Tex.Crim.App. 2008).


Applicable Law


       Chapter 724 of the Texas Transportation Code contains the statutes regarding

implied consent to the giving of a breath or blood specimen, and warnings required to

be given to a person prior to the taking of a specimen of breath or blood. See §§

724.011 (West 2011); 724.015. Section 724.011 provides that a person who is arrested

for operating a motor vehicle while intoxicated 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 to determine the alcohol concentration . . . .”      Section 724.015

provides, in part, as applicable to the case before the Court, that, prior to an officer

requesting a person to submit to giving a specimen of breath or blood, the officer is to

inform the person orally and in writing that,


       (1) if the person refuses to submit to the taking of the specimen, that
           refusal may be admissible in a subsequent prosecution;

       (2) if the person refuses to submit to the taking of the specimen, the
           person’s license to operate a motor vehicle will be automatically
           suspended, whether or not the person is subsequently prosecuted as a
           result of the arrest, for not less than 180 days;
Finally, section 724.014 provides that a person who is dead, unconscious, or otherwise

incapable of refusal is considered not to have withdrawn the consent provided by

section 724.011. § 724.014 (West 2011).



                                                9
Analysis


       With the forgoing understanding of the standard of review and the applicable

statutes, we will now turn to appellant’s issue. Appellant contends that, because Officer

Martin failed to read the statutory warnings prescribed in section 724.015 prior to

obtaining a specimen of appellant’s blood for testing, the analysis of the blood testing is

not admissible in appellant’s trial for driving while intoxicated.


       The record provides the following information.          Martin arrested appellant at

appellant’s home and placed appellant in the back of his patrol car. After being placed

in the back of Martin’s patrol car, appellant passed out and was unconscious. Martin

then decided to take appellant to the hospital instead of jail.       Upon arriving at the

hospital, appellant regained consciousness. However, upon regaining consciousness,

appellant became very erratic and disoriented.           Martin testified that, because of

appellant’s conduct, he did not have the opportunity to read the DIC-24 to appellant.3

Martin further testified that appellant’s conduct became an issue of safety for the

emergency room personnel. Eventually, according to Martin, a decision was made by

medical personnel to sedate appellant so that they could complete their examination of

him. It was after appellant was sedated that Martin requested a sample of appellant’s

blood for testing purposes.


       The gist of appellant’s argument is that, since the statutory warnings were not

given, the trial court should have excluded the results of the test much like a court would

exclude a statement given without the benefit of the statutory warnings contained in

       3
        The DIC-24 is the Texas Department of Public Safety form that contains the
warnings listed in section 724.015. They are also known as the statutory warnings.

                                              10
article 38.22 of the Texas Code of Criminal Procedure or the warnings mandated by

Miranda v. Arizona. 4 To support this proposition, appellant cites the Court to a number

of cases; however, the cases do not support the broad use of section 724.015 as an

exclusionary rule.


       First, appellant cites the Court to Tex. Dep’t of Pub. Safety v. Latimer, 939

S.W.2d 240, 245 (Tex.App.—Austin 1997, no pet.) (per curiam), for the proposition that

a specimen of breath or blood taken without the person first being given the warnings

required by section 724.015 is unlawful and inadmissible. However, this is not the

holding of the Latimer case. Latimer was an appeal from an administrative suspension

of Latimer’s driver’s license, after he had been arrested for suspicion of driving while

intoxicated.   Id. at 242.   The issue of the admissibility of the test results from the

specimen was not discussed because it was not germane to the questions presented to

the Austin Court of Appeals and, thus, the case does not support appellant’s position.

Likewise, in State v. Laird, a case that appellant contends supports his theory, the issue

was who was authorized to take a specimen of blood.             38 S.W.3d 707, 713-14

(Tex.App.—Austin 2000, pet. ref’d). There, the court held that a blood sample drawn by

a medical person not listed in section 724.017 as authorized to draw blood was not

admissible in the defendant’s driving while intoxicated trial. Id. at 715. According to the

Austin court, the plain language of the statute required the holding that the blood test

evidence was not admissible. Id. at 714. The plain language of section 724.015 does

not compel this same holding as that language goes only to the use of the refusal in a

subsequent trial or suspension of driver’s license procedure. See § 724.015(1), (2).

       4
           See Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966).

                                            11
The other cases cited by appellant deal with the use of refusal in a license suspension

setting. Arnold v. State, 971 S.W.2d 588, 591 (Tex.App.—Dallas 1998, no pet.); Tex.

Dep’t of Pub. Safety v. Watson, 945 S.W.2d 262, 264 (Tex.App.—Houston [1st Dist.]

1997, no pet.).    Watson simply does not stand for the proposition that appellant

indicates. The exact quote that appellant would have us accept simply says that, “a

specimen can be taken only if the person agrees to the request of a peace officer for

one.” Id. at 266. However, Watson addresses the requirement of the officer to read the

statutory warnings contained in section 724.015 before obtaining a specimen. That is

not, however, the dispositive issue in this case.


       The record is absolutely clear on one matter; the officer did not read the statutory

warnings. What is not clear is whether he was required to or did appellant’s situation

fall into the exception enumerated in section 724.014. This was the subject of the

testimony of Martin. It was up to the trial court to determine what the operative facts

were for purposes of his ruling, and we defer to the trial court’s ruling on these matters.

See Hubert, 312 S.W.3d at 559. However, the law is also clear that a person who has

been arrested for driving while intoxicated is deemed to have consented to the taking of

a breath or blood specimen. § 724.011. To overcome this consent, the burden was

initially on appellant to present some evidence that his deemed consent was

involuntary. See State v. Amaya, 221 S.W.3d 797, 802 (Tex.App.—Fort Worth 2007,

pet. ref’d).   The only testimony heard by the trial court was that appellant was

unconscious at the time the specimen was actually drawn. Appellant’s behavior led the

medical personnel to decide to sedate him for his and their protection. Martin did not

attempt to give appellant his DIC-24 warnings during the period of appellant’s erratic


                                            12
behavior.    Based upon this testimony, the trial court denied appellant’s motion to

suppress the results of the blood test. Since the trial court did not make any findings of

fact or conclusions of law or otherwise state the basis for its ruling, we view the record

in the light most favorable to the trial court’s ruling and assume findings in support of its

ruling if support for those implied findings is found in the record. See Ross, 32 S.W.3d

at 855.


       In our case, the trial court could have found that appellant was unconscious or

otherwise incapacitated pursuant to section 724.014.         See § 724.014.     The record

contains testimony to support such a finding. Based upon this finding, appellant is

considered not to have withdrawn his consent provided by section 724.011. See id.

These findings, which are supported in the record, along with appellant bearing the

initial burden of presenting some evidence that his deemed consent was involuntary,

lead us to the conclusion that the trial court did not commit error in denying appellant’s

motion to suppress. See Amaya, 221 S.W.3d at 802. Therefore, appellant’s issue is

overruled.


                                        Conclusion


       Having overruled appellant’s issues, the judgment of the trial court is affirmed.




                                                         Mackey K. Hancock
                                                              Justice

Publish.




                                             13
