            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

      K ELLER, P.J., delivered the opinion of the Court in which W OMACK, K EASLER,
H ERVEY and C OCHRAN, JJ., joined. C OCHRAN, J., filed a concurring opinion in which
H ERVEY, J., joined. M EYERS, J., filed a dissenting opinion. P RICE, J., filed a dissenting
opinion. J OHNSON, 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
                                                                                     ROBINSON — 2

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 Amendment2 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,



        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.
                                                                                   ROBINSON — 3

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



       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).
                                                                                    ROBINSON — 4

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


       10
            Id.
       11
            Id.
       12
            Pham v. State, 175 S.W.3d 767, 772 (Tex. Crim. App. 2005).
       13
            Id.
                                                                            ROBINSON — 5

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
