Opinion issued February 6, 2014.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                 NO. 01-12-01049-CR, NO. 01-12-01050-CR
                          ———————————
                  SHUNTA YVONNE BROWN, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 263rd District Court
                           Harris County, Texas
                 Trial Court Case No. 1206496, No. 1340301


                        MEMORANDUM OPINION

      Shunta Yvonne Brown plead guilty to possession of a controlled substance.

A trial court deferred adjudication of her guilt and placed her on three years’
community supervision.1 Less than two years later, Brown violated the terms of

her community supervision by fraudulently obtaining a controlled substance. 2 The

trial court found her guilty of both offenses and assessed punishment at two

concurrent, six-year terms of confinement. On appeal, Brown contends in two

issues that the trial court erred in denying her motion to suppress because the

seizure of her medical records without consent, warrant, or subpoena violated her

rights under the Fourth and Fourteenth Amendments to the United States

Constitution and article 1, section 9 of the Texas Constitution. We affirm.

                                    Background

      Before pleading guilty to fraudulently obtaining and possessing a controlled

substance, Brown moved to suppress two patient agreement forms collected by law

enforcement without a warrant or subpoena. She also sought to exclude any

statements made by the prescribing physicians who disclosed the patient agreement

forms to law enforcement.

      We have been provided only a clerk’s record for each cause number. There

is neither a reporter’s record nor any record of the evidence Brown sought to


1
      TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2009) (criminalizing
      possession of more than one gram but less than four grams of controlled
      substance).
2
      TEX. HEALTH & SAFETY CODE ANN. § 481.129(a-1) (West 2011) (criminalizing
      act of obtaining controlled substance or combination of controlled substances not
      medically necessary for person receiving prescription).
                                          2
suppress. For the purposes of this appeal, we are limited to the trial court’s findings

of fact.

       As a member of a Houston Police narcotics squad, Officer J. Kowal

investigated persons who fraudulently obtained prescription medications and

illegally sold them. In March 2012, an anonymous source told Officer Kowal that

Brown had violated the terms of her community supervision because she had

received multiple prescriptions for oxycodone from multiple doctors. Based on this

information, Officer Kowal requested Brown’s Texas Department of Public Safety

prescription profile.

       The prescription profile revealed that from March 2011 through February

2012, Brown received 159 controlled substance prescriptions from 29 different

medical practitioners. Thirty-two different pharmacies filled the prescriptions,

including 18 prescriptions for oxycodone. In total, Brown received 2,280

prescription oxycodone tablets. Officer Kowal contacted two doctors listed in

Brown’s prescription profile. The trial court made the following findings:

           1. On March 12, 2012 Officer Kowal met with Dr. Sunil Naik,
              and informed him that he suspected Ms. Brown of committing
              prescription drug fraud because of the prescription profile
              provided to him by DPS.

           2. Ms. Brown was a current [ ] patient of Dr. Sunil Naik and Dr.
              Naik was able to identify her by her driver’s license photo that
              his office staff made a copy of as part of her first [office] visit.



                                            3
3. Dr. Naik provided Officer Kowal with a copy of the patient
   agreement signed by Ms. Brown, which stated she would not
   ‘obtain mood altering drugs or prescriptions’ from any other
   doctor while also receiving prescriptions from Dr. Naik.

4. Officer Kowal was also informed by Dr. Naik that Ms. Brown
   did not inform him that she had visited other doctors and
   received prescriptions for controlled substances from any other
   doctors.

5. Dr. Naik saw Ms. Brown and issued her prescriptions for
   oxycodone on November 8, 2011, December 6, 2011, January
   6, 2012, February 3, 2012, and March 2, 2012.

6. Officer Kowal did not have a warrant, subpoena, or consent
   from Ms. Brown when he obtained the patient agreement
   signed by Ms. Brown contained in her medical records file from
   Dr. Naik.

7. No subpoena, warrant, or consent from Ms. Brown was
   obtained to allow the doctor to convey information contained in
   Ms. Brown’s medical file orally.

8. Officer Kowal visited the office of Dr. Hector Tobon, and
   spoke with Alicia Cerda, the office manager, and informed her
   of the details of his investigation of Ms. Brown.

9. Ms. Cerda was able to identify Ms. Brown with a copy of her
   photo ID provided by Ms. Brown at her first office visit.

10. Ms. Cerda provided a copy of the patient agreement signed by
   Ms. Brown to Officer Kowal.

11. The agreement states that Ms. Brown would not attempt to
   obtain any controlled substances from any other physician.

12. Ms. Brown never informed Dr. Tobon that she was seeing
   another physician or obtaining prescriptions for controlled
   substances from any other doctors.


                              4
         13. Dr. Tobon issued Ms. Brown prescriptions for oxycodone on
            December 30, 2011 and February 7, 2012.

         14. Officer Kowal did not have a warrant, subpoena, or consent
            from Ms. Brown when he obtained the patient agreement
            signed by Ms. Brown contained in her medical records file from
            Dr. Tobon.

         15. No subpoena, warrant, or consent from Ms. Brown was
            obtained to allow the doctor to convey information contained in
            Ms. Brown’s medical file orally.

         16. Officer Kowal only obtained the patient agreement from both
            doctors, not the entirety of the defendant’s medical records.

Brown moved to suppress all statements made by Dr. Naik, Dr. Tobon, and their

agents as well as any records Officer Kowal obtained in violation of the United

States and Texas constitutions. The trial court denied Brown’s motion, finding that

Officer Kowal, Dr. Tobon, Dr. Naik, and their agents did not violate Brown’s

rights under the Health Insurance Portability and Accountability Act (HIPAA) and

that Brown did not have a reasonable privacy expectation in the signed patient

agreement forms. The trial court also found that the Assistant District Attorney did

not violate Brown’s rights under the United States or Texas constitutions because

the District Attorney’s office subpoenaed all of Brown’s medical records one

month before Brown filed a motion to suppress.

      After the trial court denied her motion to suppress, Brown plead guilty to

possessing a controlled substance and fraudulently obtaining a controlled



                                         5
substance. The trial court sentenced Brown to two concurrent, six-year terms of

confinement.

      Brown timely appealed the trial court’s denial of her motion to suppress.

                               Motion to Suppress

      Brown contends that her medical record information was inadmissible.

Specifically, Brown contends that Officer Kowal violated her rights under the

United States and Texas constitutions when he, without a warrant, consent, or

subpoena, obtained her signed patient agreement forms from two of her prescribing

physicians. While Brown contends that she had a privacy expectation, she does not

allege that law enforcement “searched” or “seized” the patient agreement forms or

medical record information. We construe her claims as challenges to the

warrantless search and seizure of her medical records. See, e.g., Kirsch v. State,

276 S.W.3d 579 (Tex. App.—Houston [1st Dist.] 2008), aff’d, 306 S.W.3d 738

(Tex. Crim. App. 2010). Brown also does not complain that the officer’s actions

violated a specific section of HIPAA; she only contends that she had a “reasonable

expectation of privacy” in her medical records, including her patient agreement

forms, based partially on general allegations of HIPAA violations. The State

responds that Brown failed to demonstrate a subjective privacy expectation in the

patient agreement forms and, therefore, did not have standing to challenge any

defects in the search.


                                        6
A.    Standard of review

      When a defendant challenges a trial court’s denial of a motion to suppress,

we review the trial court’s ruling for an abuse of discretion. Turrubiate v. State,

399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We grant almost total deference to a

trial court’s determinations of historical facts. Id. We use the same deferential

standard for mixed questions of law and fact. Id. However, we review de novo all

other mixed questions of law and fact. Id. When, as in this case, the trial court

makes findings of fact and conclusions of law, we will uphold the trial court’s

ruling if it is “reasonably supported by the record and is correct on any theory of

law applicable to the case.” Id. (citing Valiterra v. State, 310 S.W.3d 442, 447–48

(Tex. Crim. App. 2010)).

B.    Search of medical records

      The United States and Texas constitutions protect against unreasonable

searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. 1, § 9. A

defendant has standing to challenge the admission of evidence obtained by an

unreasonable search or seizure if she demonstrates that she “had a legitimate

expectation of privacy . . . .” State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App.

2013); Rakas v. Illinois, 439 U.S. 128, 139, 143, 99 S. Ct. 421 (1978); Castleberry

v. State, Nos. 01-10-00158-CR, 01-10-00159-CR, 01-10-00248-CR, 01-10-00249-

CR, 2011 WL 1598841, at *2 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, pet.


                                         7
ref’d). To meet this burden, Brown had to prove that (1) by her conduct she had an

actual subjective privacy expectation and (2) society recognizes her subjective

expectation as objectively reasonable. Betts, 397 S.W.3d at 203. Because it is a

legal ruling, we review de novo a trial court’s decision regarding a defendant’s

standing to challenge an unreasonable search and seizure. Id. at 204; see also

Kothe v. State, 152 S.W.3d 54, 59 (Tex. Crim. App. 2004) (affirming defendant’s

standing to challenge search because he established reasonable privacy

expectation).

      We do not reach the issue of whether Brown had a subjective privacy

expectation because the record does not include any evidence of the released

patient agreement forms or the information contained in those forms. Without a

record, we must accept all of the trial court’s findings. We are unable to determine

whether the trial court’s findings were based on the content of the challenged

patient agreement forms, the lawfully subpoenaed medical records obtained by the

district attorney, or witness statements. We will not speculate.

       Absent the actual documents Brown sought to protect, we cannot determine

whether she had a legitimate, subjective privacy expectation in the information

disclosed in those patient agreements. U.S. v. Miller, 425 U.S. 435, 442, 96 S. Ct.

1619 (1976) (“We must examine the nature of the particular documents sought to




                                          8
be protected in order to determine whether there is a legitimate ‘expectation of

privacy’ concerning their contents.”) (citation omitted).

      We conclude that the trial court did not abuse its discretion in denying

Brown’s motion to suppress. We overrule both of Brown’s issues.

                                    Conclusion

      We affirm.



                                               _____________________________
                                               Harvey Brown
                                               Justice


Panel consists of Justices Keyes, Bland, and Brown.
Do Not Publish. TEX. R. APP. P. 47.2(b).




                                           9
