                              NUMBER 13-16-00596-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

RICHARD HYLAND,                                                         Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                    On appeal from the 319th District Court
                          of Nueces County, Texas.



                           OPINION ON REMAND
 Before Chief Justice Contreras and Justices Longoria and Hinojosa
                    Opinion by Justice Longoria

       Subsequent to publishing our memorandum opinion, the State filed a motion

requesting that we publish the opinion. We grant the State’s motion. Accordingly, this

Court’s memorandum opinion issued on October 31, 2019, is hereby withdrawn and the

following is substituted therefor.
          This case was remanded to us by the Texas Court of Criminal Appeals. Hyland v.

State, 574 S.W.3d 904, 916 (Tex. Crim. App. 2019). The Court concluded that the police

officer’s affidavit as excised by the trial court established probable cause, reversed our

previous judgment, and remanded the cause to us to address appellant Richard Hyland’s

remaining points of error. Id. at 916. The Court did not disturb our conclusion that the

evidence was sufficient to support the operation and causation elements of an intoxication

manslaughter offense. See Hyland v. State, No. 13-16-00596-CR, 2018 WL 1633487, at

*12–13 (Tex. App.—Corpus Christi–Edinburg Apr. 5, 2018) (mem. op., not designated for

publication). Accordingly, on remand, we now must determine (1) whether the evidence

was sufficient to support a deadly weapon finding and (2) whether “the trial court should

have suppressed the results of the third, warrantless search” of Hyland’s blood. We

affirm.

                                I.     DEADLY WEAPON FINDING

          By his first issue, Hyland contends that the evidence was insufficient to support the

finding that he used or exhibited a deadly weapon—namely, a motorcycle—during the

commission of the offense of intoxication manslaughter.

A.        Standard of Review and Applicable Law

          The test for determining whether the evidence is sufficient to support a criminal

conviction is whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt after viewing the evidence in a light most favorable

to the prosecution. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).

          “Deadly weapon” is defined as: (A) a firearm or anything manifestly designed,

made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything



                                                2
that in the manner of its use or intended use is capable of causing death or serious bodily

injury. TEX. PENAL CODE ANN. § 1.07(a)(17). A motorcycle is not “manifestly designed,

made, or adapted for the purpose of inflicting death or serious bodily injury[.]” TEX. PENAL

CODE ANN. § 1.07(a)(17)(A). But it may, “in the manner of its use or intended use [be]

capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B); Nguyen v. State,

506 S.W.3d 69, 76 (Tex. App.—Texarkana 2016, pet. ref’d) (a motor vehicle may be a

deadly weapon where “the vehicle was intentionally, recklessly or negligently used as a

weapon by the accused”). In any felony offense in which it is “shown” that the defendant

“used or exhibited [a] deadly weapon” during the commission of the offense or in

immediate flight therefrom, the trial court “shall” enter a deadly weapon finding in the

judgment. TEX. CODE CRIM. PROC. ANN. art. 42A,054(c). Such a deadly weapon finding

impacts a convicted felon’s eligibility for community supervision, parole, and mandatory

supervision.    See id.; TEX. GOV’T CODE ANN. §§ 508.145(d)(1), 508.149(a)(1),

508.151(a)(2); Moore v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017).

       To justify a deadly weapon finding under § 1.07(a)(17)(B), the State needs to

establish only that “the manner” in which the motorcycle was either used or intended to

be used was “capable” of causing death or serious bodily injury. See Tucker v. State,

274 S.W.3d 688, 691 (Tex. Crim. App. 2008). When assessing a defendant’s manner of

driving, we examine whether a defendant’s driving was reckless or dangerous. Couthren

v. State, 571 S.W.3d 786, 790 (Tex. Crim. App. 2019). To support a deadly weapon

finding, there must be evidence that the manner of driving was capable of causing death

or serious bodily injury apart from the fact of a collision and the defendant's intoxication.

Id.



                                             3
B.      Witness Testimony

        On the evening of May 30, 2014, Jaime Doherty1 was killed in a motorcycle

accident in Corpus Christi, Texas. Three witnesses testified that they observed different

portions of the events leading to the accident: Juan Ledesma, Phyllis Ledesma, and

Roger Villarreal.

        Juan Ledesma testified that around 10:50 p.m., he was driving eastbound with his

wife Phyllis when a motorcyclist emerged from the parking lot of the Frontier Saloon.

According to Juan, the motorcyclist went “shooting across the road” and cut him off. Juan

jammed his brakes to avoid hitting the motorcycle, and the driver of the motorcycle

swerved into the westbound lane to avoid the Ledesmas’ vehicle. The motorcyclist then

veered back into the eastbound lane. Juan saw that the driver of the motorcycle was

male, and his passenger was a woman with long blonde hair flowing from under her

helmet. Ahead was an intersection where cars were stopped at a red light, and the

motorcyclist was forced to hit the brakes and swerve to one side of a vehicle to avoid a

collision. Juan testified that the motorcyclist then “popped the clutch on the motorcycle,”

jolting the bike forward, and his female passenger nearly fell off the back. Both Juan and

Phyllis Ledesma testified that the motorcyclist was driving erratically, weaving in and out

of traffic and varying his speed; at some points, it looked to Phyllis as though the

motorcycle was going to lean and “tump[] over.”

        According to Juan, the motorcyclist then made a U-turn and began heading

westbound. Juan took a U-turn as well. He saw the motorcyclist accelerate to a great

speed. Juan could not keep pace, and he soon lost sight of the motorcycle.


        The decedent’s first name is variously spelled in the record as “Jaimie” and “Jaime,” and her last
        1

name also appears as “Dougherty.”

                                                    4
       Juan continued down the road until, roughly five minutes later, he came upon the

scene of an accident: at a curve in the road, he saw two people on the ground, as well

as the same motorcycle he had observed earlier. Juan recognized one person as the

man driving the motorcycle, who was gasping for air. The other was a blonde woman

with a lifeless expression. Neither one was wearing a helmet. Juan administered CPR

to the woman until paramedics arrived. Juan later identified the two people as Hyland

and his wife Doherty, who was also identified at trial by her mother.

       Similar to Juan’s testimony, Roger Villarreal attested that he was driving with his

wife when he observed a motorcycle traveling at great speed, weaving in and out of traffic.

He took note of the motorcycle’s driver, whom he described as a larger male, as well as

a smaller-bodied passenger, whom he believed to be a woman. Villarreal testified that

he briefly lost sight of the motorcycle, but he soon came upon the scene of the accident,

where he saw a man and a woman with the same stature as those riding the motorcycle

“seconds” earlier. He joined Juan Ledesma in trying to revive Doherty.

C.     Analysis

       Hyland argues that the evidence failed to establish that the manner in which he

operated the motorcycle was reckless or dangerous. He contends that the record fails to

establish “who was driving the motorcycle, how fast the driver was driving, the cause of

the accident, the condition of the roadway, what manner the driver was driving seconds

before the collision, whether the driver applied brakes before the collision, or whether the

motor was still engaged when the accident occurred.” In our previous legal sufficiency

analysis, which the Court of Criminal Appeals did not disturb, we discussed the

eyewitness testimony and determined that the evidence was sufficient to support the



                                             5
finding that Hyland was operating the motorcycle. See Hyland, 2018 WL 1633487, at

*12. Additionally, we found that the testimony supported a conclusion that Hyland was

driving recklessly:

       This inference is also supported by testimony concerning Hyland’s reckless
       driving, beginning with Juan Ledesma’s observation of a motorcycle
       shooting out of the parking lot of the Frontier Saloon, swerving to avoid two
       near-misses, and accelerating so rapidly that Doherty nearly fell off. After
       Juan lost sight of Hyland, Villarreal observed similar driving, and he met the
       Ledesmas at the scene of the accident seconds later.

Id. The evidence established that Hyland was intoxicated with a blood alcohol content of

0.175, more than two times the legal limit of 0.08. That evidence, in addition to the

testimony regarding Hyland’s reckless driving leading up to the accident, and the resulting

death to Doherty as a result of the accident, was sufficient to support a finding that Hyland

was operating the motorcycle in a manner in which the motorcycle was “capable” of

causing death or serious bodily injury. See Couthren, 571 S.W.3d at 790. Hyland’s first

issue is overruled.

                              II.     WARRANTLESS SEARCH

       By his fourth issue, Hyland argues that the trial court “should have suppressed the

results of the third, warrantless search of Mr. Hyland’s blood.” Specifically, Hyland argues

that the State was required to get a second search warrant to re-test Hyland’s blood. The

State responds that the blood draw was done pursuant to a valid warrant executed by the

Corpus Christi Police Department and the blood was lawfully in the possession of the

State to test it.

       Relying on State v. Martinez, 534 S.W.3d 97 (Tex. App.—Corpus Christi–Edinburg

2017), aff'd, 570 S.W.3d 278 (Tex. Crim. App. 2019), Hyland argues that the re-testing of

his blood constituted a warrantless search of his blood, and therefore should have been

                                             6
inadmissible. In Martinez, after a car accident, Martinez was transported by ambulance

to a hospital where his blood was drawn by hospital staff “for medical purposes.” Id. at

99. Martinez informed the hospital he did not want any tests performed on his blood,

refused to provide a urine sample, and left the hospital. Id. Subsequently, a trooper with

the Texas Department of Public Safety who was investigating the accident served a grand

jury subpoena on the hospital and obtained four vials of Martinez’s blood and his medical

records. Id. Two of the vials were sent to the crime laboratory for testing. Id. A motion

to suppress was granted wherein the trial court concluded that the search of the blood

and subsequent tests were performed without the necessary search warrant. Id. On

appeal, we held that the subsequent acquisition of Martinez’s blood sample and later

testing by law enforcement constituted a search by the State implicating Fourth

Amendment protections. Id. at 102. Accordingly, because the testing of the blood was

done without a warrant, we affirmed the trial court’s suppression of the blood test results.

Id.

       Here, however, we are presented with a different fact pattern. Hyland’s blood was

not drawn by hospital staff for “medical purposes,” but rather was drawn pursuant to a

valid warrant being executed by law enforcement. The warrant instructed the officer to

“search for, seize and maintain as evidence the property described in said Affidavit, to-

wit: human blood from the body of [Richard Hyland].” The blood evidence obtained via

the warrant was then maintained as evidence by law enforcement and the State, where

testing of said evidence commenced. Therefore, unlike in Martinez, the search here was

not warrantless. See id.




                                             7
       Hyland also relies on Hardy v. State, 963 S.W.2d 516 (Tex. Crim. App. 1997) and

State v. Huse, 491 S.W.3d 833 (Tex. Crim. App. 2016) to support his argument, but again,

the facts of those cases are distinguishable. In Hardy, the issue involved blood that was

not only drawn by the hospital for medical purposes, but also tested by the hospital for

blood alcohol content. Hardy, 963 S.W.2d at 518. The State did not obtain the blood in

order to test it; instead, the State sought the hospital’s test results. Id. at 523–24. There,

the Court of Criminal Appeals held that the State’s acquisition of the test results did not

violate a legitimate expectation of privacy. Id. at 527. Similarly, in Huse the State

acquired the medical records of Huse showing the results of his blood alcohol test that

were performed by the hospital. 491 S.W.3d at 836–37. Again, the issue there was not

as we have here, with a valid search warrant executed by law enforcement to obtain the

blood of Hyland.

       We disagree with Hyland that Martinez, Hardy, or Huse are controlling. Unlike

those cases, here, the State had a valid search warrant and was not seeking Hyland’s

medical records. Hyland does not direct this Court to any authority or support, nor do we

find any, that states that the State cannot re-analyze evidence lawfully in its possession

pursuant to a valid search warrant. Accordingly, we overrule Hyland’s fourth issue.

                                    III.    CONCLUSION

       The judgment of the trial court is affirmed.

                                                                 NORA L. LONGORIA
                                                                 Justice
Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of November, 2019.



                                              8
