             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00463-CR
          No. 02-18-00464-CR
     ___________________________

      MICHAEL BORYS, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 211th District Court
            Denton County, Texas
Trial Court Nos. F16-2248-211, F16-2250-211


  Before Gabriel, Bassel, and Womack, JJ.
  Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Appellant Michael Borys appeals from his two convictions of intoxication

assault and from his consecutive six- and ten-year sentences. In two points on appeal,

he argues that (1) the State’s use of his blood-alcohol test results was an unreasonable

search and seizure and (2) the trial court erred by failing to instruct the jury to

disregard the blood-alcohol evidence if the jury found that the sample had been

unconstitutionally or illegally obtained. Because Borys did not preserve his first point

and because his requested jury instruction was not legally applicable to the

prosecution, we affirm the trial court’s judgments.

                                I. BACKGROUND

      On the night of May 2, 2016, Carol Crane woke her six-year-old daughter Jane1

and buckled her into the back seat of her car to pick up Carol’s husband at work.

Jane quickly went back to sleep. Carol’s normal route involved driving south on a

divided highway. Borys, who was travelling north in a southbound lane, hit Carol’s

car head-on. Shortly before, two drivers on the same highway had seen Borys

travelling in the wrong direction and driving on his tire rim, causing sparks under the

car and gouges in the pavement. One honked and waved at Borys to get his attention

for about two miles to no avail. The other called police. As a result of the ensuing

crash involving Borys’s car, Carol and Borys were severely injured, requiring

      1
        We use aliases to refer to the minor and her mother. See Tex. R. App. P. 9.8 &
cmt., 9.10; Tex. App. (Fort Worth) Loc. R. 7.


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emergency and protracted treatment at a hospital. Jane was left a quadriplegic who is

dependent on a ventilator to breathe.

      As part of Borys’s treatment and because he was unconscious, the healthcare

providers at the hospital’s emergency department automatically drew his blood “to get

an initial set of labs” and a toxicology report. The blood test revealed that Borys had

a blood-alcohol concentration of 0.243—three times the legal limit. See Tex. Penal

Code Ann. § 49.01(2)(B). Borys was charged with the intoxication assaults of Carol

and Jane, which were third-degree felonies. See id. § 49.07. A jury found Borys guilty

of both charges and assessed his punishment at six and ten years’ confinement, which

the trial court ordered to run consecutively. See id. § 3.03(b)(1). On appeal, Borys

challenges the warrantless seizure and testing of his blood and the failure of the trial

court to charge the jury regarding the import of the illegal seizure.

                                  II. DISCUSSION

                                   A. BLOOD DRAW

      Borys first asserts that the State’s acquisition by subpoena and later use at trial

of the toxicology report performed by hospital personnel on the drawn blood sample

went beyond the scope of the medical reasons for the draw and constituted an

unreasonable search and seizure because the sample was taken and tested without a

warrant or consent. At trial, Borys argued that the report was inadmissible, relying on

Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), and asserted that because the

hospital did not follow protocol in drawing his blood—possibly using an alcohol swab

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before drawing his blood—scientific techniques were incorrectly applied.2 In other

words, he objected to the lack of reliability of the test results and sought their

exclusion. See id. at 573. The trial court concluded that “a scientific technique [under

Kelly] is not whether or not you use a Betadine swab or an alcohol swab” and

overruled the objection.

      On appeal, Borys does not raise a Kelly argument in asserting that the trial court

abused its discretion by admitting the blood-test results. His only appellate complaint

is that the blood draw and test violated his Fourth Amendment rights. This argument

was not raised in the trial court and, thus, is not preserved for our review.3 See Tex. R.

App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1)(B); Darland v. State, 582 S.W.2d 452, 455

(Tex. Crim. App. [Panel Op.] 1979). We overrule point one.



      2
        Borys had earlier objected to the test result on other bases, but after the State
offered proof in support of its admission, Borys’s only objection was to the failure to
follow scientific techniques under Kelly. Indeed, the trial court never ruled on the
earlier objections, which Borys did not reurge after the State’s proffer.
      3
        Even if preserved, the blood draw and test, both of which were performed by
the hospital and not at the State’s request, did not violate Borys’s Fourth Amendment
rights. See State v. Huse, 491 S.W.3d 833, 840–43 (Tex. Crim. App. 2016) (citing State v.
Hardy, 963 S.W.2d 516, 527 (Tex. Crim. App. 1997)); cf. Mitchell v. Wisconsin, 139 S. Ct.
2525, 2530, 2537–38 (2019) (plurality op.) (holding officer generally need not procure
a warrant for blood draw of unconscious DWI suspect under exigent-circumstances
exception); State v. Martinez, 570 S.W.3d 278, 290 (Tex. Crim. App. 2019) (holding
“State’s exercise of control over and testing of a blood sample[] constitutes a search”);
State v. Rodriguez, 521 S.W.3d 1, 14–15, 22 (Tex. Crim. App. 2017) (holding with
private-party search and alleged privacy violation, exception to warrant requirement
can excuse the lack of a warrant).


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                                B. JURY INSTRUCTION

       In his second point, Borys asserts that the trial court erred by refusing his

request and failing to instruct the jury that if it reasonably believed the test results had

been obtained in violation of the law, it must disregard them.4 See Tex. Code Crim.

Proc. Ann. art. 38.23(a). Borys based his request on his argument that a fact issue on

the legality of the blood draw was raised because there was no evidence how the

blood was drawn or who performed the blood draw and because the sample had not

been taken pursuant to hospital protocols. His proposed instruction tracked statutory

language regarding required protocols for blood specimens taken “at the request or

order of a peace officer.” Tex. Transp. Code Ann. § 724.017(a), (c). The trial court

denied the requested instruction.

       A peace officer did not request Borys’s blood specimen or the toxicology test;

rather, healthcare providers at the hospital drew and tested Borys’s blood as part of

his emergency medical treatment. Accordingly, the blood draw and test were not

governed by section 724.017, and Borys’s requested instruction was not law applicable

to his case. See Tex. Code Crim. Proc. Ann. art. 36.14. As such, the trial court did not

err by failing to charge the jury on inapplicable law. See Leon-Gomez v. State, No. 06-

18-00144-CR, 2019 WL 1142678, at *2–3 (Tex. App.—Texarkana Mar. 13, 2019, no

pet.) (mem. op., not designated for publication); Hernandez v. State, No. 13-16-00651-


       Borys did not file a pretrial motion to suppress the blood evidence.
       4




                                             5
CR, 2018 WL 2440529, at *2–3 (Tex. App.—Corpus Christi–Edinburg May 31, 2018,

pet. ref’d) (mem. op., not designated for publication). We overrule point two.

                               III. CONCLUSION

      Having overruled Borys’s two appellate points, we affirm the trial court’s

judgments. See Tex. R. App. P. 43.2(a).


                                                     /s/ Lee Gabriel

                                                     Lee Gabriel
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: August 26, 2019




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