Opinion issued November 13, 2018




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                            NO. 01-17-00598-CR and
                            NO. 01-17-00599-CR
                         ———————————
                 TIKA ANDERSON ENGLISH, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee


                 On Appeal from the 178th District Court
                          Harris County, Texas
                Trial Court Case Nos. 1477504 and 1477505


                       MEMORANDUM OPINION

     After colliding head-on with another vehicle and seriously injuring its

occupants, Tika Anderson English was indicted on two charges of intoxication

assault. See TEX. PENAL CODE § 49.07. A jury found English guilty as charged.
After finding true the enhancement paragraphs alleging that English had two prior

felony convictions, the trial court sentenced her to 45 years’ confinement on each

count, with the sentences to run concurrently.

      On appeal, English contends that the trial court erred in denying her motion

to suppress her blood-test results, and that insufficient evidence supports the jury’s

finding that she was intoxicated when the collision occurred. We hold that the trial

court did not abuse its discretion in denying the motion to suppress and sufficient

evidence supports the intoxication finding; we therefore affirm.

                                    BACKGROUND

      The accident

      During the rush hour one afternoon in April 2015, a major car accident

occurred on Veteran’s Memorial Drive in Northwest Harris County. Veteran’s

Memorial is a two-way, four-lane road. It has a double yellow line between the

northbound and southbound lanes, but no median. Gillian Taylor was driving her

Jeep SUV in the inside northbound lane, toward the West Road intersection. The

traffic was heavy. Taylor and her friend, Mieshia Veal, were on their way to pick

up their children from day care. Veal was not feeling well; she had reclined the front

passenger seat and fallen asleep.

      As Taylor neared the West Road intersection, she saw a Mercedes sedan,

moving erratically as it approached from the southbound side of the intersection.


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Taylor watched as the driver swerved and moved across the double yellow line and

into Taylor’s lane. The driver moved back into the original southbound lane, but

then picked up speed and again swerved into Taylor’s lane.

      Clarescia Luckey was heading northbound on Veteran’s Memorial in front of

Taylor’s SUV. She, too, noticed the Mercedes sedan weaving in and out of traffic.

Suspecting that the driver might be on drugs, Luckey watched as the driver of the

sedan crossed the double-yellow line, swerved nearly halfway into the oncoming

traffic, returned to the southbound lane, and then suddenly swerved back into the

northbound lane, gaining speed as it approached going the wrong way. Luckey

maneuvered to the right to avoid a collision and landed in a ditch past the road’s

shoulder. The sedan collided head-on with Taylor’s SUV. Two other vehicles also

were involved in the crash.

      Luckey emerged from her car unharmed. As Luckey climbed out of the ditch,

she heard strange screams coming from the Mercedes sedan. She walked toward the

sedan, believing that the person inside was injured. By the time Luckey reached the

car, the driver, English, had opened the driver’s-side door and stepped outside. All

of the sudden, English stopped screaming. Then, a short time later, she began

screaming again. English continued screaming at intervals until she went back

inside her car.




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      Luckey thought English looked “fidgety,” and she found English’s behavior

very strange. She heard English complain out loud about the damage to her car and

noticed that English did not seem concerned about whether anyone else involved in

the accident was injured. English’s behavior confirmed Luckey’s initial impression

that the sedan’s driver was high on drugs.

      Concluding that English did not need her help, Luckey headed toward the

other vehicles involved in the accident. Taylor’s SUV took the brunt of the impact;

the force of the crash compressed the floor and the undercarriage and pushed them

into the front compartment, particularly on the passenger side. Veal’s legs were

crushed and ultimately had to be amputated; her pelvis and right hip were broken;

and her liver, bladder, and intestines were lacerated. Taylor suffered back injuries

and required stitches for a head contusion. She also has experienced hearing loss

since the collision.

      Officers from the Harris County Sheriff’s Office and emergency medical

support arrived at the scene. At 6:12 p.m., a member of an ambulance crew gave

English 100 micrograms of fentanyl to treat her pain, then transported her to

Northwest Medical Center. The ambulance records describe English as being

oriented, having appropriate speech, and giving appropriate motor responses to

commands. The ambulance arrived at the hospital at about 6:30, and English was

admitted a few minutes later.


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      Evidence pertaining to English’s motion to suppress

      Hospital records report that E. Martinez, an emergency-room nurse, had

completed English’s physical examination by 6:39 p.m. Martinez’s notes indicate

that English appeared alert and “oriented to person, place, time, and situation.”

      Deputy R. Wagner, who led the accident investigation, sent Deputy D. Wilkie

to meet with English at the hospital and report to him on her condition. Wilkie found

English in a treatment room at 7:20 p.m. When Wilkie arrived, two hospital staff

were attending to English: Martinez and K. Smith, a paramedic.

      English was awake and moaning in apparent pain. Hospital records show that

Martinez gave English one milligram of hydromorphone, an opioid pain reliever, at

7:20 p.m., approximately the same time that Wilkie entered the room.

      English knew her name and gave coherent responses to Wilkie’s questions

about the crash. She had not lost consciousness as a result of the accident. Wilkie

noted that her speech and coordination seemed normal, and she did not appear to

have acute distress, anxiety, or any neurological deficit. English informed Wilkie

that she had taken medication prescribed to treat her anxiety and bipolar disorder,

but denied having had anything alcoholic to drink that day.

      When English finished answering Wilkie’s questions, Wilkie stepped out of

the room and called Wagner. After Wilkie reported on English’s condition, Wagner

asked Wilkie to find out whether English would be willing to provide a blood


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sample. Wilkie completed the call and returned to English’s room. He asked

English if she would voluntarily provide a blood sample; she replied that she would.

According to Wilkie, English’s consent appeared to be intelligent, knowing, and

voluntary.

      While Wilkie spoke with English, Martinez was preparing her for a medical

procedure on her dislocated right ankle. Martinez had English sign a consent form

for the anesthesia and the medical procedure at 7:30 p.m. At 7:42, Martinez

administered 1 milligram of propofol to sedate English for the procedure. Martinez

explained that it usually takes about five minutes for a patient to come under the

influence of a medication like hydromorphone, but if the patient has other

medication in her system, such as a stimulant, it may take longer. She observed that

“it depends” on a person’s reaction whether they are coherent after receiving

sedation.

      Neither Smith nor Martinez recalled treating English, but they testified as to

how they would respond if a police officer asked for a patient’s blood sample. In

the 14 years that Smith has worked as a paramedic, he has never seen a medical or

police procedure performed without the patient’s consent.          If he had ever

encountered that situation, though, he would have told the attending nurse about the

lack of consent and reported the incident to the charge nurse.




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      As an emergency-room nurse, Martinez has performed law-enforcement

blood draws on many occasions. Martinez testified that she would draw blood only

with the patient’s consent or pursuant to a warrant. She explained that she had to

“hear it from the patients themselves” before she would perform a blood draw

without a warrant; assurances of consent from law enforcement were not enough.

Martinez further stated that said she would not verify a patient’s consent after she

had given medication to a patient.

      Before the blood draw, Wilkie recounted, Martinez consulted with the charge

nurse about the hospital’s procedures for performing a blood draw when the patient

is under sedation. When Martinez returned, Wilkie gave her two gray-topped vials

containing anticoagulant powder. English was unconscious from the sedation at

approximately 8:00 p.m. when Martinez started the blood draw. When Martinez

completed the draw, Wilkie asked her which medications English had received at

the hospital.   Martinez responded that English had received 1 milligram of

hydromorphone and 100 milligrams of propofol.

      Wilkie labeled the vials containing English’s blood, marked them “1st” and

“2nd,” and rotated them to thoroughly mix the anticoagulant with the blood.

Because Wilkie was ending his shift, he gave the vials to Deputy Dunn, who was

beginning his shift. Dunn marked the vials with the offense number, placed them in




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a manila envelope and delivered them to the Harris County Medical Examiner’s

Office for safekeeping.

      English moved to suppress the evidence relating to the blood draw. The trial

court held a suppression hearing during the trial, outside the presence of the jury.

After hearing testimony from Wilkie, Martinez, and Smith, and the parties’

arguments, the trial court denied the motion.

      Analysis of English’s blood specimen

      Two toxicologists employed by the Harris County Institute of Forensic

Sciences (IFS) testified about the blood samples retrieved from English. The first,

Linda Nickell, explained that the testing method used on blood samples identified

the presence of drugs within a certain range, with the threshold amount being the

lowest detectible amount and the “ceiling limit of quantitation” being the highest

amount that the testing can measure. The report on English’s blood specimen

indicated that no fentanyl was detected and the specimen was not tested for the

presence of hydromorphone or propofol. Nickell testified that English’s blood

specimen tested positive for two controlled substances: amphetamine and

methamphetamine.

      The amphetamine, a metabolite of methamphetamine, was at a concentration

of 0.19 plus or minus 0.03 milligrams per liter. The methamphetamine detected was




                                         8
at a concentration “greater than 1.0 milligram per liter.” In other words, the

concentration of methamphetamine “exceeded the limit of quantitation.”

      Nickell testified that she has completed thousands of blood-specimen analyses

during her employment with IFS. She observed that it was uncommon to encounter

a sample containing a concentration of methamphetamine as high as that detected in

English’s blood and that when she did, the sample usually came from a person who

had died.

       Like Nickell, Theresa Gray, the chief toxicologist at IFS, opined that the

concentration of methamphetamine found in English’s blood was high relative to

what IFS typically found in specimens collected in driving cases and at autopsies.

Gray explained that that methamphetamine is a central nervous system stimulant

which, in very low concentration dosages of 60 milligrams or less, could be used to

treat narcolepsy and ADHD. Gray distinguished those uses from recreational use,

which she defined as the use of methamphetamine in amounts greater than 100

milligrams.

      Gray described the physiological and behavioral effects of recreational

methamphetamine use. She explained that the ingestion of a recreational amount of

methamphetamine causes the user to experience a “rush phase” lasting for about 15

minutes to an hour. In the rush phase, the user experiences an increase in heart rate

and muscle movement, as well as rapid thoughts, extreme euphoria, and high self-


                                         9
confidence. These reactions frequently manifest in risk-taking behavior. As the

metabolic process breaks down the methamphetamine, she continued, the user enters

the “crash phase.” During the crash phase, Gray explained, feelings of paranoia,

irritability, fatigue, and depression set in, which typically trigger the user to engage

in drug-seeking behavior. As the methamphetamine metabolizes into amphetamine

during the crash phase, the user also may experience another rush-crash cycle caused

by the amphetamine working in concert with the methamphetamine remaining in the

user’s system.

      Gray drew on literature describing the driving behavior of people who had

methamphetamine in their systems when they were arrested. She explained that

those drivers were found to have engaged in weaving, speeding, and other risky

behaviors. Recreational users of methamphetamine, she observed, frequently will

move rapidly, have trouble staying still, and have difficulty focusing and following

instructions. A recreational dose of methamphetamine would impair the user’s

ability to drive in both the rush phase and the crash phase.

      Gray also addressed the possible interactions between methamphetamine and

the medications that English had taken the day of the accident. She noted that

English’s anti-anxiety medication, when combined with methamphetamine, would

have blunted her depression experience during the crash phase. Gray further opined




                                          10
that hydromorphone or propofol could have altered some of the symptoms that

usually appear during methamphetamine use.

                                    DISCUSSION

      English challenges the trial court’s denial of her motion to suppress and the

sufficiency of the evidence that she was intoxicated when the accident occurred.

I.    Denial of Motion to Suppress

      English contends that the trial court erred in denying her motion to suppress

evidence relating to the blood samples—the State’s only evidence of her

intoxication—because she did not give valid consent to the blood draw.

      A.     Standard of review and applicable law

      We review a trial court’s ruling on a motion to suppress for an abuse of

discretion. See Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim. App. 2016);

Rodriguez v. State, 469 S.W.3d 626, 630 (Tex. App.—Houston [1st Dist.] 2015, pet.

ref’d). We apply a bifurcated standard to make this determination. Brodnex, 485

S.W.3d at 436; Rodriguez, 469 S.W.3d at 630. In reviewing the evidence, we

recognize the trial court as the sole trier of fact and judge of the weight and

credibility of the evidence, and thus defer to its findings of historical fact as well as

any necessary implied findings if the record supports them. Turrubiate v. State, 399

S.W.3d 147, 150 (Tex. Crim. App. 2013); Crain v. State, 315 S.W.3d 43, 48 (Tex.

Crim. App. 2010); see Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.


                                           11
2007). We review de novo the trial court’s application of law to those facts. See

Crain, 315 S.W.3d at 48. We will sustain the trial court’s ruling if it is reasonably

supported by the record and correct under any applicable theory of law. Brodnex,

485 S.W.3d at 436–37.

      A search attendant to a criminal investigation requires a search warrant or

comes within a recognized exception to the warrant requirement, and, in either case,

must be reasonable under the totality of the circumstances. State v. Villarreal, 475

S.W.3d 784, 796 (Tex. Crim. App. 2014); see also Katz v. United States, 389 U.S.

347, 357, 88 S. Ct. 507, 574 (1967) (explaining that warrantless search is per se

unreasonable unless it falls within a recognized exception to warrant requirement).

Voluntary consent to search is among the recognized exceptions to the warrant

requirement.     See Villarreal, 475 S.W.3d at 799–808 (discussing consent,

automobile, search incident to arrest, and special-needs exceptions); McGee v. State,

105 S.W.3d 609, 615 (Tex. Crim. App. 2003). A driver’s consent to a blood test

must be free and voluntary, and it must not be the result of physical or psychological

pressures brought to bear by law enforcement. Fienen v State, 390 S.W.3d 328, 333

(Tex. Crim. App. 2012) (citing Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim.

App. 2011)); see Hutchins v. State, 475 S.W.3d 496, 498 (Tex. App.—Houston [1st

Dist.] 2015, pet. ref’d).




                                         12
      “[T]o be valid for Fourth Amendment purposes, consent must be freely and

voluntarily given based on the totality of the circumstances and must not have been

revoked or withdrawn at the time of the search.” Villarreal, 475 S.W.3d at 800

(citing Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 2047–48

(1973), and Florida v. Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801, 1804 (1991)).

      A person who is intoxicated may be capable of voluntary consent. Whether

intoxication rendered the defendant incapable of making an independent, informed

decision is a fact question. See Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim.

App. 1996); Paolilla v. State, 342 S.W.3d 783, 792 (Tex. App.—Houston [14th

Dist.] 2011, pet. ref’d). Under Texas law, the State bears the burden to prove the

voluntariness of an alleged consent by clear and convincing evidence. State v.

Ibarra, 953 S.W.2d 242, 245 (Tex. 1997); Hutchins, 475 S.W.3d at 498; see TEX.

CONST. art. I, § 9. “Because issues of consent are necessarily fact intensive, a trial

court’s finding of voluntariness must be accepted on appeal unless it is clearly

erroneous.” Meekins, 340 S.W.3d at 460; Hutchins, 475 S.W.3d at 498; see Donjuan

v. State, 461 S.W.3d 611, 617 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

      B.     Analysis

      English recognizes that much of the evidence as to her ability to have

consented to the blood draw is disputed. In contending that the trial court erred in

denying her motion, however, English points to five pieces of evidence that, she


                                         13
contends, are undisputed, namely that (1) she was given fentanyl by an ambulance

crew member at 6:12 p.m.; (2) Wilkie entered her hospital room at 7:20 p.m.; (3) she

was given hydromorphone at 7:20 p.m. and propofol at 7:42 p.m.; (4) Wilkie

testified that English consented to the draw after she had been given those

medications; and (5) Martinez testified that she had given hydromorphone to patients

in the past and they cannot consent after it is administered.

      The evidence shows that English received 100 micrograms of fentanyl in the

ambulance, but no evidence shows whether that dose would have affected English

more than an hour after receiving it, when she spoke with Wilkie. As to the evidence

concerning whether English received both the hydromorphone and the propofol or

just the hydromorphone before giving consent, we note that her position here differs

from the one she took in the trial court: in arguing her motion, English admitted that

“there’s a question as to whether the propofol had already been given” before she

consented to the blood draw.

      The record contains disputed evidence concerning the order of events and thus

supports the position that English took in the trial court. When Wilkie arrived at

English’s room, he described English as having normal speech, no acute distress,

and no apparent anxiety. Wilkie testified that he did not ask for the names the

medications that English received until after Martinez had completed the blood

draw. Wilkie also testified that he did not know the time he arrived or how long he


                                          14
had been at the hospital before Wagner told him to ask for a blood sample. This

testimony undermines any inference that English had been given both

hydromorphone and propofol before she gave consent. And, given the brevity of

Wilkie’s conversations with English and Wagner, the trial court reasonably could

have inferred that Wilkie asked for and received English’s consent within the 22

minutes between Wilkie’s initial arrival and the time English received the propofol.

      Similarly, Martinez’s statement that a patient who has received

hydromorphone cannot give valid consent is tempered by her later testimony.

Martinez explained that it may take five minutes or more for a patient to come under

the influence of a medicine like hydromorphone and that whether a person is

coherent after receiving sedation depends on the person’s reaction to the sedative.

According to her practice, Martinez recounted, she verifies a patient’s consent for a

law-enforcement blood draw before proceeding, and she would not seek consent

from a patient under the influence of hydromorphone.

      Martinez proceeded with English’s blood draw and, in the hospital record,

Martinez noted that English was coherent, alert, and appropriately oriented as late

as 7:39 p.m. This evidence conflicts with any inference that English was incapable

of giving valid consent.

      English relies on Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408 (1978), to

support her position that her consent was invalid, but the facts of that case render it


                                          15
inapposite. The Supreme Court held that Mincey’s consent to search was not “the

product of his free and rational choice” where he consented while he was under

arrest, barely conscious, in great pain, and alone in the hospital emergency room

with the police detective, who subjected him to continuous questioning. Id. at 401,

98 S. Ct. at 2418. Further, Mincey had asked the officer to stop numerous times

throughout the interrogation, but the officer continued to question him. Id. at 399–

400, 98 S. Ct. at 2417–18.

      In contrast here, English was not under arrest. Although she was in pain, she

did not seem to be in acute distress. She appeared alert and oriented, and her

responses to questions were coherent. A paramedic and nurse were attending to

English when Wilkie asked English for her consent to the blood draw. Both hospital

personnel testified that they would not have cooperated with the blood draw and

would have reported the situation to the charge nurse had it appeared that Wilkie

coerced English, if English seemed reluctant to cooperate, or if English was under

the influence of medication that would have rendered her unable to consent. This

record lacks the elements supporting the finding of coercion in Mincey.

      English’s situation is more like that in Gelabert v. State, 712 S.W.2d 813 (Tex.

App.—Houston [1st Dist.] 1986, pet. ref’d). The defendant in that case complained

that her consent to a search was invalid because it was secured when she was in the

hospital and under medication. Id. at 816. This Court observed that, in addition to


                                         16
the defendant’s own testimony, the record contained testimony from the investigator

that the defendant was alert and knew what she was doing when she signed the

consent. Id. This Court held that the trial court acted within its discretion in rejecting

the defendant’s testimony and overruling her motion to suppress. Id.

      Considering the disputes in the record and deferring to the evidence

supporting the trial court’s findings, the totality of the circumstances reasonably

supports the trial court’s findings that English was alert and coherent while she spoke

with Wilkie and that English’s consent to the blood draw was voluntarily given. We

therefore hold that the trial court acted within its discretion in denying her motion to

suppress.

II.   Sufficiency of the Intoxication Evidence

      English next contends that the evidence is insufficient to support a finding that

when the collision occurred, she was intoxicated by an amount of methamphetamine

sufficient to cause her to lose her mental or physical faculties.

      A.     Standard of review and applicable law

      We apply a legal-sufficiency standard of review in determining whether the

evidence supports each challenged element of a criminal offense. See Jackson v.

Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Temple v. State,

390 S.W.3d 341, 360 (Tex. Crim. App. 2013). Under this standard, we view the

evidence in the light most favorable to the verdict and determine whether a rational


                                           17
factfinder could have found the essential elements of the crime beyond a reasonable

doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (relying on

Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89). We defer to the jury’s resolution

of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.

2010).

      The Penal Code defines “intoxicated” as “not having the normal use of mental

or physical faculties by reason of the introduction of alcohol, a controlled substance,

a drug, a dangerous drug, a combination of two or more of those substances, or any

other substance into the body.” TEX. PENAL CODE § 49.01(2)(A). The State may

prove intoxication through circumstantial evidence and without proof of the type of

intoxicant. See Gray v. State, 152 S.W.3d 125, 132 (Tex. Crim. App. 2004);

Paschall v. State, 285 S.W.3d 166, 177 (Tex. App.—Fort Worth 2009, pet. ref’d).

“Each fact need not point directly and independently to the guilt of the appellant, as

long as the cumulative force of all the incriminating circumstances is sufficient to

support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

      B.     Analysis

      English    contends    that   the   evidence    showing     the   presence    of

methamphetamine in her blood is insufficient to prove that she was intoxicated

because the lab calculations measured the concentration of methamphetamine in her




                                          18
blood, while the expert testimony adduced by the State concerned the effect of

certain dosages of methamphetamine.

      This argument is unavailing. The statute does not require the State to prove

that the defendant ingested a specific amount of the controlled substance. See Ashby

v. State, 527 S.W.3d 356, 364 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d)

(holding that expert testimony was admissible even without attempt to quantify

amount of controlled substance in defendant’s bloodstream or when it was ingested,

given proof that substance was present in blood sample, coupled with video evidence

of arrest and testimony of arresting officer, that supported finding of logical

connection between defendant’s condition and presence of unquantified amount of

substance in blood sample).

      Despite the different measures, both Nickell and Gray testified that English’s

blood sample showed an unusually high concentration of methamphetamine—a

level they were more likely to find in a blood sample collected during an autopsy.

Gray also described the typical driving impairments and other behavior found in a

recreational methamphetamine user, descriptions that correspond to Luckey’s and

Taylor’s testimony concerning English’s erratic driving immediately before the

crash, as well as Luckey’s description of English’s behavior following the accident.

See Gray, 152 S.W.3d at 132; Ashby, 527 S.W.3d at 364. We hold that sufficient

evidence supports the jury’s finding that English did not have the normal use of her


                                        19
mental or physical faculties when the accident occurred by reason of the introduction

of methamphetamine into her body.

                                 CONCLUSION

      We affirm the judgments of the trial court.




                                                Jane Bland
                                                Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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