                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-11-00474-CR


Stephen Paul Walters                       §    From County Criminal Court No. 9

                                           §    of Tarrant County (1214539)

v.                                         §    March 21, 2013

                                           §    Opinion by Justice Meier

The State of Texas                         §    (nfp)

                                    JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s order. It is ordered that the order of the trial

court is affirmed.


                                      SECOND DISTRICT COURT OF APPEALS



                                      By_________________________________
                                        Justice Bill Meier
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00474-CR


STEPHEN PAUL WALTERS                                             APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

      FROM COUNTY CRIMINAL COURT NO. 9 OF TARRANT COUNTY

                                   ----------

                       MEMORANDUM OPINION1

                                   ----------

                               I. INTRODUCTION

     The State charged Appellant Stephen Paul Walters by information with the

misdemeanor offense of driving while intoxicated.2 Prior to entering a plea of

guilty, Walters moved to suppress the results of a blood draw taken at the

Mansfield city jail by a licensed vocational nurse (LVN) on the night he was
     1
      See Tex. R. App. P. 47.4.
     2
      See Tex. Penal Code Ann. § 49.04 (West Supp. 2012).


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arrested. The trial court denied Walters’s motion to suppress, accepted his plea

of guilty, and assessed punishment at 120 days’ confinement in jail and a fine of

$850.     The trial court suspended Walter’s sentence and placed him on

community supervision for eighteen months. In one point, Walters argues that

the trial court erred by denying his motion to suppress. We will affirm.

                                 II. BACKGROUND

        City of Mansfield Police Officer Justin Graves responded to a dispatch on

July 30, 2010, regarding a vehicle failing to maintain a single lane.      Graves

stopped Walters, and after determining he was intoxicated, placed him under

arrest and took him to the City of Mansfield jail for booking.       Graves asked

Walters if he would consent to a blood draw. Walters refused. Graves then

completed a search warrant affidavit to conduct a blood draw, and a magistrate

signed the warrant. The warrant dictated that Walters’s blood was to be drawn

by “a physician, registered nurse, or qualified technician skilled in the taking of

blood from the human body.” After Graves received the warrant, he collected a

blood kit and escorted Walters to the jail’s medical facility, where he presented

Walters and a copy of the warrant to Sharena Thompson, an LVN employed by

the City of Mansfield. Graves then observed Thompson draw Walters’s blood.

                                III. DISCUSSION

        In his sole point, Walters argues that because Thompson was “not

qualified by her professional title as an LVN, nor was an LVN authorized by the

warrant issued by the magistrate, the trial court erred in determining that the


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seizure [of his blood] was reasonable under the 4th and 14th Amendments to the

United States Constitution, Article I, Section 9 of the Texas Constitution and

Article 38.23 Texas Code of Criminal Procedure.” U.S. Const. amends. IV, XIV;

Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).3

Walters thus argues that the trial court erred by overruling his motion to suppress

his blood results. We disagree.

      A.     Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

      3
       We are only addressing Walters’s Fourth Amendment claims. When an
appellant offers no reason for construing the state constitution as conferring
greater protection in an area of law than the federal constitution, an appellate
court will not address a state constitutional argument; this specifically applies
when an appellant fails to point out any meaningful distinctions between the
corresponding clauses in the federal and state constitutions. See Heitman v.
State, 815 S.W.2d 681, 690 n.23 (Tex. Crim. App. 1991) (discussing a reviewing
court’s duty to analyze “multifarious” arguments that cite both state and federal
constitutions but fail to provide sufficient distinction between state and federal
constitutional grounds). Even though Walters asserts rights under both state and
federal grounds, he has not provided any argument or authority to support any
assertion that his claims be analyzed under both and construed differently.


                                         4
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the record is silent on the reasons for the trial

court’s ruling, or when there are no explicit fact findings and neither party timely

requested findings and conclusions from the trial court, we imply the necessary

fact findings that would support the trial court’s ruling if the evidence, viewed in

the light most favorable to the trial court’s ruling, supports those findings. State

v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214

S.W.3d at 25. We then review the trial court’s legal ruling de novo unless the


                                           5
implied fact findings supported by the record are also dispositive of the legal

ruling. Kelly, 204 S.W.3d at 819.

      B.     Law Regarding the Reasonableness of Blood Draws

      A blood draw constitutes a search and seizure under the Fourth

Amendment. Schmerber v. California, 384 U.S. 757, 758–59, 86 S. Ct. 1826,

1829 (1966).    The “Fourth Amendment’s proper function is to constrain, not

against all intrusions as such, but against intrusions which are not justified in the

circumstances, or which are made in an improper manner.” Id. at 768, 86 S. Ct.

at 1834. The Supreme Court has set out a two-step test for determining the

reasonableness of a blood draw. Id. A blood draw is reasonable under relevant

Fourth Amendment standards if:

  (1) the police had justification in requiring the suspect to submit to a blood
      test, and

  (2) the police employed reasonable means and reasonable procedures in
      taking the suspect’s blood.

See State v. Johnston, 336 S.W.3d 649, 658 (Tex. Crim. App. 2011), cert.

denied, 132 S. Ct. 212 (2011). Walters does not challenge whether police had

justification for the stop, detention, arrest, or search warrant.          Walters’s

arguments fall within the second Schmerber step.

      This second step in the reasonableness analysis also has two distinct

parts. First, in determining whether the police employed reasonable means to

test a defendant’s blood, a reviewing court must determine whether the police

chose a reasonable test. Second, in determining whether police employed a


                                         6
reasonable procedure, a reviewing court must determine whether the police

performed the test in a reasonable manner. Schmerber, 384 U.S. at 771, 86

S. Ct. at 1836.   Walters does not challenge the first part of this step in the

reasonableness analysis either.    Walters’s challenge is to the second part—

whether the blood draw in this case was performed in a reasonable manner.

      Police officers act reasonably when drawing blood if they act in

accordance with accepted medical practices, including the equipment and

technique that they employ. Johnston, 336 S.W.3d at 663. To this end, the

Supreme Court has explained that tolerating searches that were conducted by

unqualified personnel or outside a medical environment may “invite an unjustified

element of personal risk of infection and pain.” Schmerber, 384 U.S. at 771–72,

86 S. Ct. at 1836. Searches justified by a valid warrant have a presumption of

legality unless the opponent produces evidence rebutting the presumption of

proper police conduct. Amador, 221 S.W.3d at 672. “[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.

      Walters first argues that the police did not perform the blood draw in a

reasonable manner because they used an LVN to perform the draw when the

warrant specifically listed that a “physician, registered nurse, or qualified

technician” was to perform the draw—an LVN is not specifically listed. Walters

argues that the magistrate in this case purposely excluded an LVN from those


                                       7
persons who could perform the draw in this case. To buttress this argument,

Walters points to section 724.017(a) of the Texas Transportation Code–-Texas’s

implied consent statute which governs the State’s ability to obtain a blood sample

from a DWI suspect when there is no warrant.            Tex. Transp. Code Ann.

§ 724.017(a) (West 2011).       Under Section 724.017(a), “[o]nly 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.”     Id.   Walters argues that section 724.017(a)

demonstrates that LVNs are a “separate category of authorized person[s]” who

can perform blood draws. And Walters concludes that because this “separate

category of authorized person[s]” was not listed in the warrant, the use of an LVN

was unreasonable per se.

      But in blood-draw cases when the State has obtained a warrant, it is not

fatal that the State might draw blood “in a manner other than that directed by the

magistrate.” See Coleman v. State, 833 S.W.2d 286, 290 (Tex. App.—Houston

[14th Dist.] 1992, pet. ref’d) (holding that blood sample taken from defendant by

phlebotomist was admissible even though search warrant specified that sample

be taken by a “medical doctor”). Instead, a reviewing court looks to the totality of

the circumstances surrounding the blood draw to determine whether it was

performed in a reasonable manner. Green v. State, 799 S.W.2d 756, 757–58

(Tex. Crim. App. 1990). “To do otherwise would defeat the purpose behind the

warrant requirement, and provide protection for those to whom the issue on


                                         8
appeal is not one based upon the substantive issue of probable cause but of

technical default by the State.” Id. And contrary to Walters’s position, section

724.017(a) supports that the State performed the blood draw in this case in a

reasonable manner. As the court of criminal appeals has stated, “compliance

with Section 724.017 [provides] one way to establish reasonableness under the

Fourth Amendment.” Johnston, 336 S.W.3d at 661.

      Walters next challenges the reasonableness of the blood draw by making

the argument that Thompson was not properly supervised nor qualified to

perform a blood draw. Citing the Nursing Practices Act and the Administrative

Code, Walters argues that because venipuncture is not listed “within the scope of

the LVN practice” and because Thompson testified that her supervising physician

never watched her perform a blood draw, Thompson “simply did not demonstrate

qualifications to draw . . . blood.”4 See 22 Tex. Admin. Code § 217.11(2) (2007)

(Tex. Bd. of Nursing, Standard of Nursing Practice); see also Tex. Occ. Code

Ann. §§ 301.002(5), 301.353 (West 2012).

      The State counters that it has reviewed the statutes Walters cites and it “is

unable to locate any language in the [statutes he cites] that prohibits [LVNs] from

conducting blood draws.” Like the State, we have read the statutes and codes

Walters cites and are also unable to locate language to support his position. We

      4
       Walters argument is difficult to follow because in one part of his briefing
he states that LVNs are a “separate category of authorized person[s]” statutorily
authorized to draw blood, and yet in the majority of his briefing he contends that
Thompson, an LVN, is not qualified to draw blood.


                                        9
have, however, found support in warrantless blood-draw cases that a physician is

not required to be present when an LVN performs a blood draw. See Turner v.

State, 734 S.W.2d 186, 187–88 (Tex. App.—Dallas 1987, pet. ref’d) (holding that

a physician need not be present when an LVN draws blood in accordance with

the direction or supervision of that physician). In short, we find nothing in this

portion of Walters’s argument to support his contention that Thompson lacked

supervision or the qualifications to perform a blood draw.

      Walters   also   makes    additional     arguments     attacking   Thompson’s

qualifications, but given that the standard to determine whether the blood draw in

this case was performed in a “reasonable manner” is whether the blood was

drawn in accordance with accepted medical practices, we conclude that the State

acted reasonably when utilizing Thompson to draw Walters’s blood. Johnston,

336 S.W.3d at 662–63.

      At the suppression hearing, Thompson testified about her training and

background in the medical field. She is an LVN. Prior to becoming an LVN,

Thompson worked as a certified nurse’s aide for five years and then worked as a

medical aide for another four years.         In order to be licensed as an LVN,

Thompson attended college for one year and obtained ninety credit hours. After

graduation, Thompson earned her vocational nursing certificate.           After that,

Thompson took and passed the State boards which allowed her to get her

license and then become employed as an LVN.                  As discussed above,

Thompson’s status as an LVN alone provides “one way to establish


                                        10
reasonableness under the Fourth Amendment.” See id. at 661; Aviles v. State,

385 S.W.3d 110, 116 (Tex. App.—San Antonio 2012, no pet.) (holding that no

Fourth Amendment violation occurred when a warrantless seizure of defendant’s

blood was conducted according to the prescriptions of the Transportation Code);

see also Tex. Transp. Code Ann. §§ 724.012, 724.017.

      In addition to being an LVN, the record also reflects that Thompson is well-

trained in conducting blood draws. She participated in clinical hours while in

college, where she practiced blood draws “every day of the week” for an entire

week. While there, Thompson received eight hours of teaching dedicated to

blood draws. After demonstrating proficiency in the laboratory setting, Thompson

participated in clinicals in a hospital setting where she was allowed to perform a

clinical blood draw under the supervision of her instructor. When she began

working at the Mansfield jail, Thompson received an additional three days of

blood-draw training under the supervision of a twenty-year LVN who had

performed thousands of blood draws.         Since her employment at the jail,

Thompson has performed approximately twenty-five blood draws over a one-

year-and-five-month period and conducts her work under the direction of a

medical doctor. And she testified extensively to the medical protocols that she

follows when performing blood draws. Furthermore, Officer Graves was present

when Thompson drew Walters’s blood, and he testified that he observed

Thompson perform the blood draw in accordance with the Mansfield Police

Department’s protocol for drawing blood.


                                       11
         Based on the totality of the circumstances, the trial court could have

concluded in its discretion that Thompson drew Walters’s blood in accordance

with accepted medical practices. See Johnston, 336 S.W.3d at 662–63 (holding

“Johnston’s blood was drawn in accordance with acceptable medical practices

and was therefore reasonable.”). 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

err by overruling Walters’s objection on this ground. See Pacheco v. State, 347

S.W.3d 849, 854 (Tex. App.—Fort Worth 2011, no pet.) (holding that trial court

did not err by overruling defendant’s motion to suppress results of blood draw

when “medical technologist” who drew defendant’s blood testified that she

followed both the hospital’s policy for drawing blood and the directives of her

certification on how to draw blood). We overrule Walters’s sole point.

                                   IV. CONCLUSION

         Having overruled Walters’s sole point on appeal, we affirm the trial court’s

order.



                                                     BILL MEIER
                                                     JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 21, 2013


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