      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-16-00532-CR



                                 The State of Texas, Appellant

                                                 v.

                               Sarah Christine Padon, Appellee



    FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
                  NOS. CR2013-268, CR2013-269 & CR2013-270
              HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               The State of Texas appeals the district court’s order granting Sarah Christine Padon’s

motion to suppress evidence in the underlying felony prosecution for intoxication manslaughter and

two aggravated assaults with a deadly weapon. See Tex. Penal Code §§ 22.02(a)(2), 49.08. The

evidence resulted from a warrantless blood draw taken after Padon’s involvement in a fatal vehicle

collision. On appeal, the State contends that the district court abused its discretion by granting

Padon’s motion.1 We will affirm the district court’s order.



       1
          Initially, the trial court denied Padon’s motion to supress evidence in an order dated
December 16, 2013. Padon filed a motion for reconsideration of that ruling after the Court of
Criminal Appeals issued its opinion in State v. Villarreal, 475 S.W.3d 784, 815 (Tex. Crim. App.
2014) (holding that “a nonconsensual search of a DWI suspect’s blood conducted pursuant to the
mandatory-blood-draw and implied-consent provisions in the Transportation Code, when undertaken
in the absence of a warrant or any applicable exception to the warrant requirement, violates the
Fourth Amendment”).
                                          BACKGROUND

                The only witnesses at the hearing on Padon’s motion to suppress were two Texas

Department of Public Safety Troopers, Lawrence Escamilla and Rodney Zarate, who testified about

their roles in Padon’s DWI investigation.2 During the hearing Trooper Escamilla testified, among

other things, that he was “doing all the investigation by [him]self” and that he did not have probable

cause to believe that Padon committed the offense of intoxication manslaughter until “[a]bout 3½

to 4 hours after [his] arrival” at the scene.

                The trial court subsequently issued findings of fact and conclusions of law in narrative

form, addressing the evidence presented:


        At 9:34 p.m. on June 17, 2012 Trooper Larry Escamilla was dispatched to an
        accident that had occurred at approximately 9:24 p.m. at the 4000 block of FM 2673
        in Comal County. He was the first person to make the scene when he arrived at
        approximately 9:37 p.m.

        Escamilla heard screaming coming from a blue SUV. The blue SUV was later
        determined to be occupied by the Defendant, Sarah Padon. The Defendant told the
        [T]rooper she was coming from the Dam Red Barn, known by the Trooper to be a
        nearby bar, and he could smell alcohol coming from within the vehicle. The
        [T]rooper also noticed open containers of beer within the vehicle.

        When asked how the accident occurred the Defendant responded, “It was black and
        then all the sudden boom.”3 At this time Trooper Escamilla had to step away so that
        EMS could attend to her injuries. He then approached the white passenger vehicle
        and immediately recognized the driver was dead on impact. He observed a young
        boy pinned in the back seat and his mother, the front seat passenger, complaining of
        leg pain.

        2
        The court held its initial hearing on the motion to suppress November 25, 2013 and the
subsequent hearing was June 21, 2016. Only Trooper Escamilla testified at the subsequent hearing.
        3
         Trooper Escamilla testified that he heard Padon say, “It was just black and all I heard was
a big boom,” and “[a]ll of a sudden there was a big boom.”

                                                   2
       When paramedics were removing Sarah Padon from the blue SUV Escamilla noted
       that the rear brake lights turned off and no [other] lights [were illuminated] indicating
       that lights of the Padon vehicle may have been off.4

       The defendant and both passengers of the white car were flown to University
       Hospital in San Antonio by Airlife. At 9:59 [p.m.] Trooper Escamilla requested that
       San Antonio communications to send a local trooper to collect a blood sample from
       the Defendant pursuant to Texas Transportation Code Sec. 724.012(b)(l). The report
       requested by Escamilla indicated that there was suspected intoxication and that an
       intoxication manslaughter was the basis for the request of a mandatory blood draw.

       At no time did Trooper Escamilla seek a warrant, nor did he inquire as to the
       availability of a judge to issue one.

       Texas Transportation Code Sec. 724.012(b)(l) has been held to be unconstitutional
       under most circumstances by the Court of Criminal Appeals and absent exigent
       circumstances.

       The State attempted to support a finding of exigency in the present case by indicating
       that surveying the accident scene was necessary prior to Trooper Escamilla making
       a finding of probable cause that would be necessary to support any request for search
       warrant. The State argues that this temporal delay made the seeking of a search
       warrant impracticable under the circumstances.

       This Court disagrees. It is reasonable to conclude that a search warrant containing
       the facts that Trooper Escamilla had within minutes of viewing the scene (Defendant
       coming from a bar, smell of alcohol, loose beer cans in plain view, and lights being
       off of Defendant’s vehicle) would have been sufficient basis for seeking a search
       warrant.

       Attempts by [t]he State to push back the period of time necessary to develop probable
       cause are ad hoc, backward looking justifications to support a finding of exigency
       that did not exist at the time of the incident based on the facts that were present. The
       Trooper (Escamilla) obviously decided to rely on the statute authorizing a warrantless
       blood seizure.




       4
          Trooper Escamilla testified that the brake lights were illuminated because, according to
EMS, Padon’s foot was caught “in that area.” He stated that when she was removed from her
vehicle, the lights were off.

                                                  3
               These findings and conclusions do not address the testimony of the “local trooper”

referenced above, Trooper Zarate. Briefly summarized, Trooper Zarate testified that he was

dispatched to University Hospital to obtain a blood draw from a subject, identified in court as Padon,

for a vehicle crash resulting in a fatality. Trooper Zarate read Padon the DIC-24 statutory warning,

but he did not ask her whether she would consent to providing a sample of her blood because the

blood draw was “mandatory.” He stated that he was unaware whether there was a magistrate judge

on duty that night. A nurse drew Padon’s blood at 11:25 p.m.

               Ultimately, the court granted Padon’s motion to suppress evidence obtained as a result

of the warrantless blood draw. See Weems v. State, 493 S.W.3d 574, 580 (Tex. Crim. App. 2016)

(noting that with some exceptions, “where police officers can reasonably obtain a warrant before a

blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth

Amendment mandates that they do so” (quoting Missouri v. McNeely, 133 S. Ct. 1552, 1561

(2013))). The State then filed this appeal, contending that the trial court abused its discretion by

granting Padon’s motion to suppress and declining to find that exigent circumstances justified her

warrantless blood draw. See Cole v. State, 490 S.W.3d 918, 923 (Tex. Crim. App. 2016)

(concluding that whether law enforcement faced emergency that justified acting without warrant calls

for case-by-case determination based on totality of circumstances). The State contends that the court

should have found exigent circumstances “where the sole officer tasked with a two and a half hour

major accident investigation involving one death and three injured individuals—including the

defendant—could not stop his investigation to obtain a warrant that he knew would take an hour and

a half to draft and another 30 to 90 minutes to be signed by a judge[.]”



                                                  4
                We determined that the trial court’s initial findings did not allow us to properly assess

the suppression issue, and we remanded the cause to the trial court for the entry of essential findings

that were omitted. See State v. Padon, No. 03-16-00532-CR, 2017 Tex. App. LEXIS 1099, at *2–3

(Tex. App.—Austin Feb. 9, 2017) (mem. op. & order, not designated for publication) (per curiam).

The trial court then provided a supplemental record with its signed order adopting the proposed

additional findings of fact and conclusions of law filed by Padon. The lengthy, additional findings

included specific findings by the trial court that Trooper Escamilla was not credible:


        Escamilla’s claim he was the only person available to work on the investigation is not
        credible or supported by the record.

        Escamilla stated he did not have probable cause to believe that Padon committed the
        offense of intoxication manslaughter until three and one half hours after his arrival
        on the scene when he discovered alcohol in Padon’s SUV. The court finds
        Escamilla’s assessment of a delay in the existence [of probable cause] is not credible
        because it is not supported by the record or the law.

Some related conclusions of law included the following:

        Within minutes of arriving on the scene, Escamilla had sufficient information to
        establish probable cause that Padon had committed the offenses of intoxication
        manslaughter and intoxication assault.

        The record establishes that the on-call duty Trooper Zarate could have secured a
        warrant for Padon’s blood draw had he not simply acquiesced in Escamilla’s request
        for a warrantless blood draw under § 724.012(b)(1)(A).


We consider these additional findings and conclusions in our review of the State’s appellate issue.


                                            DISCUSSION

                We review a trial court’s ruling on a motion to suppress using an abuse-of-discretion

standard, giving almost complete deference to its determination of historical facts, especially if those

                                                   5
are based on an assessment of a witness’s credibility and demeanor, and reviewing de novo the

court’s application of the law to facts that do not turn on credibility and demeanor. State v. Cortez,

543 S.W.3d 198, 203–04 (Tex. Crim. App. 2018); Arguellez v. State, 409 S.W.3d 657, 662–63 (Tex.

Crim. App. 2013). When as here, the trial court makes express findings of fact, we view the

evidence in the light most favorable to its ruling and determine whether the evidence supports those

factual findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); see State v.

Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011). We then review the trial court’s legal

rulings de novo unless its findings are dispositive. Robinson, 334 S.W.3d at 778.

               We may sustain the trial court’s decision if we conclude that the decision is correct

under any applicable theory of law. Cortez, 543 S.W.3d at 203. A trial court’s ruling should be

reversed only if it is arbitrary, unreasonable, or “outside the zone of reasonable disagreement.” Id.

at 203. At a suppression hearing, the trial court is the sole trier of fact and judge of the witnesses’

credibility and the weight to be given their testimony. Weems, 493 S.W.3d at 577. Thus, the trial

court may believe or disbelieve all or part of a witness’s testimony provided at a suppression hearing.

Valtierra, 310 S.W.3d at 447; Meek v. State, 790 S.W.2d 618, 620 (Tex. Crim. App. 1990).

               Here, the trial court’s findings specifically state that the testimony from Trooper

Escamilla was “not credible.”5 See State v. Duran, 396 S.W.3d 563, 572 (Tex. Crim. App. 2013)

(concluding that trial judge was entitled to disbelieve officer’s testimony that he stopped defendant

after seeing traffic violation); State v. Nash, 55 S.W.3d 110, 114 (Tex. App.—Austin 2001, no pet.)




       5
        Before taking the motion to suppress under advisement, the court stated, “Counsel, your
Trooper was not a very good witness for you.”

                                                  6
(deferring to findings indicating that district court disbelieved officers’ testimony about reason for

traffic stop). Based on that credibility determination, the court rejected Trooper Escamilla’s

testimony that he did not have probable cause to believe that Padon committed the offense of

intoxication manslaughter until three-and-a-half or four hours after his arrival on the scene,

concluding instead that “[w]ithin minutes of arriving on the scene, Escamilla had sufficient

information to establish probable cause that Padon had committed the offenses of intoxication

manslaughter and intoxication assault.” Also based on that credibility determination, the court

rejected Trooper Escamilla’s testimony that he was the only person available to work on the

investigation—resulting in his inability to obtain a search warrant for Padon’s blood because he was

busy at the scene with his investigation—concluding instead that “the on-call duty Trooper Zarate

could have secured a warrant for Padon’s blood draw had he not simply acquiesced in [Trooper]

Escamilla’s request for a warrantless blood draw under § 724.012(b)(1)(A).”

               We may not presume error if there is a viable legal theory supporting the trial court’s

suppression ruling. Nash, 55 S.W.3d at 114. A viable legal theory supporting the trial court’s

suppression ruling is that it did not believe Trooper Escamilla’s testimony about when he had

probable cause to arrest Padon and the inability to secure a warrant for Padon’s blood draw. See id.

We must defer to the trial court’s ruling because it turned on an evaluation of the credibility of the

Trooper as a witness. See Cortez, 543 S.W.3d at 203–04; Arguellez, 409 S.W.3d at 662; Nash,

55 S.W.3d at 114; see also Duran, 396 S.W.3d at 573 (stating that issue of reasonable suspicion or

probable cause to stop defendant turned on factual finding of whether officer saw defendant’s traffic




                                                  7
violation before initiating his detention, and that such finding depended entirely on trial judge’s

assessment of officer’s credibility).

               We conclude that the order granting suppression of the evidence, considered with due

deference to the trial court’s adopted factual findings on Trooper Escamilla’s credibility, was not

outside the zone of reasonable disagreement and did not constitute an abuse of discretion. See

Cortez, 543 S.W.3d at 203; Arguellez, 409 S.W.3d at 662. Thus, we overrule the State’s issue.


                                         CONCLUSION

               We affirm the district court’s order.




                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Field and Bourland

Affirmed

Filed: December 20, 2018

Do Not Publish




                                                 8
