








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1206-10


THE STATE OF TEXAS

v.


PAUL DAVID ROBINSON, Appellee




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS

FREESTONE COUNTY



 Keller, P.J., delivered the opinion of the Court in which Womack, Keasler,
Hervey and Cochran, JJ., joined.  Cochran, J., filed a concurring opinion in which
Hervey, J., joined.  Meyers, J., filed a dissenting opinion.  Price, J., filed a dissenting
opinion.  Johnson, J., concurred.
 

	The issue in this case is the allocation of the burden of proof in a motion to suppress under
Texas Code of Criminal Procedure Article 38.23.  We hold that the defendant has the initial burden,
which shifts to the State only when the defendant has produced evidence of a statutory violation. We
shall reverse the judgment of the court of appeals.Background Paul Robinson was arrested without a warrant for driving while intoxicated.  He was
transported to a hospital, where he consented to have his blood drawn.  Analysis showed his blood
alcohol concentration to be 0.14%.  Robinson filed a motion to suppress the results, claiming that
his blood was drawn without a warrant and without consent, and that it was not drawn by a qualified
person. (1)  Thus, he claimed, it should have been suppressed under both the Fourth Amendment (2) and
Article 38.23. (3) 
	The trial court held a hearing on the motion, beginning by telling appellee that since it was
his motion, he should proceed.  The State interrupted, agreeing to stipulate that the arrest was
without a warrant, and that because of the stipulation, the State should go first.  Appellee and the trial
court both agreed.  The State then called the only witness, Deputy Vercher. (4)  Vercher testified to the
circumstances of the arrest, but did not remember the name of, nor could he describe, the person who
drew appellee's blood, at times simply calling the person a nurse, at other times stating that he did
not know who drew the sample.  Based on Vercher's testimony, the trial court suppressed the blood
evidence, but not on Fourth Amendment grounds.  Instead, the trial court suppressed the blood
evidence based on the fact that "the State has not met the burden to prove that it was [a qualified
person] that took it."
	The 10th Court of Appeals affirmed the trial court's order.  Chief Justice Gray dissented,
arguing that the court erroneously placed the burden of proof on the State to prove statutory
compliance. (5)  The State now presents this Court with the following question: 	At a hearing on a motion to suppress blood evidence, once the defendant established
that he was arrested for driving while intoxicated without a warrant, does the burden
of proof shift to the State to prove that the blood draw was taken in accordance with
statutory requirements?

	The State argues that the trial court improperly shifted the burden of proof on the 38.23
suppression issue.  Because it stipulated only to the fact that appellee was arrested without a warrant,
the State argues that it assumed the burden of proof only as to the warrantless arrest.  Thus,
according to the State, because appellee brought the motion to suppress, he retained the burden of
proof to establish that the blood draw was not taken in accordance with the statutory requirements.Discussion
	When reviewing a trial court's ruling on a motion to suppress, we view the evidence in the
light most favorable to the ruling. (6)  If the trial court makes findings of fact, we determine whether
the evidence supports those findings. (7)  We then review the trial court's legal rulings de novo unless
the findings are dispositive. (8)
	A defendant who alleges a violation of the Fourth Amendment has the burden of producing
evidence that rebuts the presumption of proper police conduct. (9)  He may carry this burden by
establishing that the seizure occurred without a warrant. (10)  The burden then shifts to the State to
prove the reasonableness of the seizure. (11)
	Likewise, a defendant who moves for suppression under Article 38.23 due to the violation
of a statute has the burden of producing evidence of a statutory violation. (12)  Only when this burden
is met does the State bear a burden to prove compliance. (13)  This procedure is substantially similar
to that required when there is a motion to suppress under the Fourth Amendment, but it is a separate
inquiry based on separate grounds.
	In the case before us, the State stipulated to the warrantless arrest, thereby relieving appellee
from the burden of rebutting the presumption of proper police conduct in making that arrest.  Later,
Vercher's testimony showed probable cause for the arrest and also showed that appellee consented
to have his blood drawn.  The trial court entered a finding that there were no grounds for suppression
under the Fourth Amendment.  The trial court also entered a finding that the evidence did not prove
that the blood sample was drawn by a qualified person.  This finding is inapposite, however, because
even in the light most favorable to the ruling, appellee did not produce evidence of a statutory
violation.  Vercher's testimony that he did not remember who drew the blood sample is not evidence
of a statutory violation.  Even if the trial court disbelieved that part of Vercher's testimony stating
that a nurse drew the blood, there is still no evidence that the person who drew the blood was not
qualified.  Since appellee never produced evidence of a statutory violation, the State never had the
burden to prove that the blood sample was drawn by a qualified person.
	The record demonstrates that the trial court erroneously placed the burden of proving
statutory compliance on the State. 
	We reverse the judgments of the courts below and remand the case to the trial court for
further proceedings consistent with this opinion.

DELIVERED: March 16, 2011
PUBLISH
1.   Texas Trans. Code § 724.017 (a).  "Only 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."
2.   U.S. Const. amend. IV.
3.   Texas Code Crim. Proc. article 38.23.
4.   The Deputy's name is spelled either Vercher or Burcher in different locations in the
record.  We will use Vercher for convenience. 
5.   State v. Robinson, No. 10-08-00185-CR (Tex. App.--Waco June 16, 2010).
6.   State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006).
7.   Id.
8.   Id.
9.   Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009).
10.   Id.
11.   Id.
12.   Pham v. State, 175 S.W.3d 767, 772 (Tex. Crim. App. 2005).
13.   Id.

