      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00609-CR




                                 Roni Lewis Medearis, Appellant

                                                  v.

                                   The State of Texas, Appellee



   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
 NO. D-1-DC-08-904087, HONORABLE MELISSA YOUNG GOODWIN, JUDGE PRESIDING



                             MEMORANDUM                   OPINION


                 A jury found appellant Roni Lewis Medearis guilty of aggravated sexual assault and

burglary of a habitation. See Tex. Penal Code Ann. § 22.021 (West Supp. 2009), § 30.02 (West

2003). The district court assessed punishment at seventy years’ imprisonment for the sexual assault

and sixty years’ imprisonment for the burglary. In a single point of error, appellant contends that his

conviction should be reversed because a sample of his blood was unlawfully taken and used to make

a DNA profile for a criminal database. We overrule this contention and affirm the judgments

of conviction.

                 On August 14, 2005, a man entered the complainant’s residence without her

permission and sexually assaulted her. The complainant fought her attacker, butting him with her

head and cutting his lip. By the time the assault was over, the assailant’s blood was on the
complainant, her clothing, her bed, and the walls of the house. Samples of this blood were collected,

and a DNA profile of the attacker was obtained.

                   The complainant gave the police a detailed description of her attacker. Within a few

days of the attack, the police had a suspect who the complainant, with some reluctance, identified.

This suspect was later exonerated because his DNA did not match the assailant’s DNA. The

investigation then languished until November 14, 2006, when the police were notified that there had

been a “CODIS hit,” that is, the attacker’s DNA profile had been matched with a DNA profile

contained in the Combined DNA Index System maintained by the Federal Bureau of Investigation.

See Tex. Gov’t Code Ann. § 411.141(1) (West Supp. 2009). The CODIS profile belonged to

appellant. After the complainant identified appellant in a photo spread, a warrant was issued and

a sample of appellant’s saliva was collected using a buccal swab.1 The DNA extracted from

this sample of appellant’s saliva was shown to match the DNA extracted from the biological

material collected at the crime scene. Appellant does not question the sufficiency of the evidence

as to his guilt.

                   On the morning his trial was scheduled to begin, appellant filed a “motion to suppress

illegally seized DNA.” Among other things, the motion alleged that “[a]ll DNA evidence seized by

the state, if any,” was the product of an unlawful arrest, search, and seizure, and that “[i]f the search

and seizure were made under the authority of a search warrant,” the supporting affidavit did not state

probable cause. The motion did not clearly indicate whether appellant sought to suppress the DNA

profile submitted to CODIS, the DNA evidence extracted from the buccal swab, or both. At the


   1
       Both parties state that a warrant was issued, but the warrant does not appear in the record.

                                                     2
hearing on the motion, however, appellant’s counsel stated that the motion was filed “to suppress

the original DNA material that was seized by the State and placed within the CODIS databanks back

in early 2006 at some point in time.”

               Appellant testified at the hearing that in 2006 he was incarcerated in a state jail

following a conviction for forgery. Before he was released, a sample of his blood was taken to

perform an AIDS test. Appellant testified that he was not told that this blood would be used for any

other purpose. The prosecutor introduced copies of documents obtained from the state jail. These

documents reflect that the blood sample was taken from appellant on January 13, 2006, upon his

arrival at the state jail. The prosecutor told the court that she had been informed that the DNA

profile “was actually uploaded into CODIS” on October 14, 2006.

               Defense counsel argued to the court that “the basis for our motion [is] . . . that it was

purportedly for an AIDS test, the blood draw, or however they got the DNA, that was illegally seized

for purposes of CODIS; that it was a violation of his Constitutional rights to privacy as well as

HIPAA laws dealing with medical privacy.”2 Counsel disavowed any claim that government code

chapter 411 had been violated. “What we’re saying is that the—they can collect it whenever they

want to, but they can’t collect it—my argument is they can’t collect it surreptitiously, which is

exactly what they did, according to my client.”

               Appellant’s point of error asserts that his DNA “was seized in violation of his

constitutional right to privacy.” In his argument in support of this point, however, the only privacy


   2
     HIPAA is the Health Insurance Portability and Accountability Act of 1996, which sought to
guarantee the privacy of patient medical records. See Pub. L. No. 104-191, 110 Stat. 1936 (1996)
(codified as amended at 42 U.S.C.A. §§ 1320d to 1320d-9 (West 2003 & Supp. 2009)).

                                                  3
interest appellant asserts is that inherent in the Fourth Amendment’s prohibition of unreasonable

searches and seizures. Appellant makes no argument and cites no authority in support of any broader

privacy claim, nor does he cite or mention HIPAA.

               Appellant argues that his Fourth Amendment rights were violated because false and

misleading statements were used to obtain the blood sample from which the CODIS profile was

taken. The evidence does not support this claim. Appellant testified that he was told that the blood

was being taken for an AIDS test. This was not a false statement; appellant testified that he was later

told the result of that test. Appellant’s real complaint appears to be that he was not informed

that the blood sample would also be used to prepare a DNA profile for the CODIS databank.

Section 411.148 does not require such notice, and appellant cites no authority suggesting that such

notice is required. The court of criminal appeals has held that the mandatory, warrantless collection

and databank system established by chapter 411 of the government code does not violate the

Fourth Amendment rights of persons required to give samples for the system. Segundo v. State,

270 S.W.3d 79, 98 (Tex. Crim. App. 2008); see Tex. Gov’t Code Ann. § 411.148 (West Supp. 2009)

(mandatory sampling for DNA record).

               Even if there had been some impropriety in the taking of the blood sample used to

make the CODIS profile, appellant does not explain how this impropriety tainted the evidence at his

trial. After the “CODIS hit,” the complainant identified appellant in a photo spread. Then, a buccal

swab was used to obtain a sample of appellant’s saliva. Using the sample from the buccal swab, an

expert prepared a profile of appellant’s DNA and determined that it matched the assailant’s DNA

profile. Appellant may have first been linked to this offense by the CODIS profile, but the evidence



                                                  4
of his guilt was obtained by means sufficiently distinguishable to be purged of any taint. See State

v. Iduarte, 268 S.W.3d 544, 550-51 (Tex. Crim. App. 2008).

               The point of error is overruled, and the judgments of conviction are affirmed.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: June 23, 2010

Do Not Publish




                                                 5
