AFFIRM; and Opinion Filed November 7, 2013.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-12-01116-CR

                      CYNTHIA LORRAINE WHITAKER, Appellant
                                      V.
                          THE STATE OF TEXAS, Appellee

                      On Appeal from the County Court at Law No. 2
                                  Collin County, Texas
                          Trial Court Cause No. 002-80229-2012

                                          OPINION
                          Before Justices Bridges, Fillmore, and Lewis
                                  Opinion by Justice Fillmore

       On October 23, 2011, Cynthia Lorraine Whitaker was involved in a motor vehicle

accident and was arrested for driving while intoxicated (DWI).        One of the other persons

involved in the accident was taken to the hospital. Because of the circumstances associated with

the accident and Whitaker’s refusing consent to the taking of a specimen of breath and/or blood

to determine her alcohol concentration, the police, without obtaining a warrant, required the

involuntary taking of a specimen of Whitaker’s blood.

       Whitaker waived her right to a jury, and trial was conducted to the court. During trial,

Whitaker moved to suppress the results of the blood alcohol analysis performed on the sample of

her blood taken after her arrest. The trial court denied Whitaker’s motion to suppress, found her

guilty of DWI, and assessed punishment of four days in jail and a $1,000 fine. In one issue,
Whitaker asserts the trial court erred by denying the motion to suppress. We affirm the trial

court’s judgment.

                                          Background

       At approximately 12:30 a.m. on October 23, 2011, Lauren Richards stopped her car in a

line of vehicles at a traffic light on the service road adjacent to Highway 121. The traffic light

was red, and there were two vehicles stopped at the light in front of Richards. When the light

turned green, the front car began to move. However, before the driver of the pickup truck in

front of Richards took his foot off the brake, Richards’s car was struck from behind and pushed

into the truck in front of her. The doors to Richards’s car would not open, and Whitaker, the

driver of the car that hit Richards’s car, came to talk to Richards three times. According to

Richards, Whitaker seemed to stumble a little bit and leaned on the car when she walked.

       Jonathan Miles, a certified paramedic and firefighter, saw three vehicles with their hazard

lights flashing stopped on the service road adjacent to Highway 121. Miles decided to stop and

render aid, if necessary. Miles talked first to Whitaker, who was leaning against the last car.

The car had heavy front-end damage, but no rear damage. Whitaker told Miles that she was fine.

Miles noticed a very faint odor of alcohol emanating from Whitaker and that Whitaker was

balancing herself against the car.

       Richards told Miles that she was “shook up,” but fine. Miles then checked on the driver

of the pickup truck. There were dents in the back of the pickup truck. Ernesto Flores was still in

the driver’s seat of the truck and spoke only Spanish. Miles knows a few terms from his medical

training that allow him to speak briefly with Spanish-speaking patients. In Spanish, he asked

Flores if he had any pain. Flores responded “yes,” and pointed to the back of his neck and to

both his upper and lower back. Miles did not observe that Richards or Flores had any life




                                               –2–
threatening or serious injuries. Miles called 911 and relayed that there were injured parties and

he needed “fire/EMS.”

       Police officer Jerry Profeta was one of the officers who responded to the call concerning

a major vehicle accident. Within the department, “major vehicle accident” means a traffic

collision that includes injury. Profeta was told there were three cars involved in the accident, the

man in the truck was complaining about back, neck, leg, and head injury, and the driver of the

middle car said she was hurt, but did not need medical assistance.

       When Profeta arrived at the accident, he saw three cars. The car in the back had heavy

front-end damage, the middle car had heavy rear-end damage as well as front-end damage, and

the truck in the front had rear-end damage. Miles approached Profeta as he got out of his patrol

car. According to Profeta, Miles said that he had talked to the occupants of the cars and he did

not see any serious injuries.    Miles told Profeta that Flores spoke only Spanish and was

complaining of injury. Miles also told Profeta that he thought Whitaker was intoxicated.

       Profeta spoke with Richards and Whitaker and determined that Whitaker’s car had rear-

ended Richards’s car and pushed the car into the pickup truck. Profeta noticed that Whitaker

was unsteady on her feet and had a strong odor of alcohol on her breath, bloodshot eyes, and

slow and slurred speech. In response to Profeta’s questions, Whitaker admitted she was coming

from a bar and had been drinking. Because he had seen a number of indications that Whitaker

was intoxicated, Profeta asked her several times to perform standardized field sobriety tests.

Whitaker refused to do so, and Profeta arrested Whitaker for DWI.

       While Profeta was talking to Whitaker, a medic told him that Flores was going to be

transported to the hospital for injuries sustained in the accident. Although Flores was not

transported prior to Whitaker’s arrest, Profeta believed Flores was injured in the accident based

on the information he received from dispatch while he was on his way to the accident, a medic

                                                –3–
telling him that Flores was complaining of some sort of injury, a medic telling him they were

transporting Flores to the hospital, and because “the medics that arrived on the scene had put him

on a stretcher, loaded him in the back of the ambulance, and they were transporting him to the

hospital.” Profeta admitted he did not speak to Flores and that he did not write in his report that

Miles said Flores was complaining of pain. Profeta also admitted it was possible Flores was

taken to the hospital as a precautionary measure because he could not communicate with the

emergency personnel trying to evaluate him.

           Profeta took Whitaker to the Frisco police department and read her the statutory warnings

regarding providing a breath or blood sample. Whitaker refused to provide a sample and refused

to sign the form containing the warnings. 1 Profeta then took Whitaker to the hospital where a

sample of her blood was taken. 2 Although Flores was still at the hospital, Profeta did not speak

to the nurses about Flores’s condition.

           At trial, Whitaker moved to suppress the results of the alcohol analysis performed on her

blood on the ground the blood sample was taken without her consent, a warrant, or any legal

authority. Whitaker argued there was no evidence Flores was injured in the accident. Whitaker

asserted Profeta did not speak to Flores and did not observe anything that would lead him to

believe Flores was injured. Whitaker also contended that Profeta did not include in his report

that Miles said he could speak Spanish; rather, the report indicates Miles told Profeta that no one

had serious injuries. Whitaker argued Profeta’s testimony that he believed Flores was injured

was conclusory because there was no evidence Profeta knew what type of injuries Flores



     1
       Form DIC–24, contained in the record, is the written component of the statutory warning required in cases where a peace officer requests a
voluntary blood or breath specimen from a person. See TEX. TRANSP. CODE ANN. § 724.015 (West Supp. 2013); Linton v. State, 275 S.W.3d
493, 495 n.3 (Tex. Crim. App. 2009).
     2
       Form THP–51, also contained in the record, is the statutory authorization form that allows a peace officer to require that a hospital
perform a mandatory blood drawing. See TEX. TRANSP. CODE ANN. § 724.012(b) (West 2011); State v. Neesley, 239 S.W.3d 780, 782 n.2 (Tex.
Crim. App. 2007).



                                                                     –4–
suffered and Profeta did not ask Flores, the emergency personnel, or the nurses at the hospital

about Flores’s condition.

       The trial court denied the motion to suppress and admitted the results of the analysis of

the blood sample, which showed a blood alcohol content of 0.2. The trial court found Whitaker

guilty of DWI and assessed punishment at four days in jail and a fine of $1,000.

                                       Motion to Suppress

       In one issue, Whitaker asserts the trial court erred by admitting the results of the blood

alcohol analysis because, at the time of Whitaker’s arrest, (1) Profeta did not have sufficient

information to form a reasonable belief that the driver of the pickup truck suffered bodily injury,

and (2) Flores had not been transported to a hospital or medical facility for treatment.

                                        Standard of Review

       We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We

review the trial court’s factual findings for an abuse of discretion, but review the trial court’s

application of the law to the facts de novo. Id. We give almost total deference to the trial court’s

determination of historical facts, particularly when the trial court’s fact findings are based on an

evaluation of credibility and demeanor. Id.; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.

App. 2010). We give the same deference to the trial court’s conclusions with respect to mixed

questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367,

372 (Tex. Crim. App. 2012) (citing Guzman v. State, 955 S.W.2d 85, 87–89 (Tex. Crim. App.

1997)). We review mixed questions of law and fact that do not depend on credibility and

demeanor as well as purely legal questions de novo. State v. Woodward, 341 S.W.3d 404, 410

(Tex. Crim. App. 2011); Guzman, 955 S.W.2d at 89.




                                                –5–
          As a general rule, we view the evidence in the light most favorable to the trial court’s

ruling and afford the prevailing party the strongest legitimate view of the evidence and all

reasonable inferences that may be drawn from that evidence. State v. Duran, 396 S.W.3d 563,

571 (Tex. Crim. App. 2013). We will uphold the trial court’s ruling if it is reasonably supported

by the record and is correct on any theory of law applicable to the case. Turrubiate, 399 S.W.3d

at 150.

                                                Analysis

          Chapter 724 of the transportation code provides that a person who operates a motor

vehicle in a public place while intoxicated is considered to have consented to submit to the

taking of a breath or blood specimen for analysis to determine the alcohol concentration or the

presence of a controlled substance, drug, dangerous drug, or other substance in the person’s

body. TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011); see also Beeman v. State, 86 S.W.3d

613, 616 (Tex. Crim. App. 2002) (recognizing that implied consent law “gives officers an

additional weapon in their investigative arsenal, enabling them to draw blood in certain limited

circumstances even without a search warrant). If a person arrested for a specified offense refuses

the officer’s request to submit to the taking of a specimen, section 724.012(b) requires the

involuntary taking of a blood specimen under certain circumstances. In relevant part, the statute

provides:

          (b) A peace officer shall require the taking of a specimen of the person’s breath
          or blood under any of the following circumstances if the officer arrests the person
          for an offense under Chapter 49, Penal Code, involving the operation of a motor
          vehicle or a watercraft and the person refuses the officer’s request to submit to the
          taking of a specimen voluntarily:

                 (1) The person was the operator of a motor vehicle or a watercraft
                     involved in an accident that the officer reasonably believes occurred as
                     a result of the offense and, at the time of the arrest, the officer
                     reasonably believes that as a direct result of the accident:

                     (A) any individual has died or will die;
                                                  –6–
                            (B) an individual other than the person has suffered serious bodily
                                injury; or

                            (C) an individual other than the person has suffered bodily injury and
                                been transported to a hospital or other medical facility for medical
                                treatment.

TEX. TRANSP. CODE ANN. § 724.012(b) (West 2011). Whitaker argued to the trial court that the

seizure of her blood without a warrant violated the requirements of section 742.012(b) of the

transportation code because Profeta did not have a reasonable belief that Flores suffered bodily

injury. On appeal, Whitaker contends the State did not establish the applicability of section

724.012(b)(1)(C) because it did not prove that, at the time of Whitaker’s arrest, Profeta had a

reasonable belief that Flores had suffered bodily injury and been transported to a hospital or

other medical facility for medical treatment. 3

           We first note Whitaker did not argue in the trial court that the results of the testing on the

sample of her blood should be suppressed because Flores had not been transported to the hospital

at the time of Whitaker’s arrest. Accordingly, Whitaker has failed to preserve this argument for

our review. See TEX. R. APP. P. 33.1(a); Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App.

2005) (defendant waived arguments on appeal by failing to raise them in motion to suppress in

trial court); Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002) (court of appeals

may not reverse trial court’s ruling on motion to suppress based on legal theory not presented to

trial court).

     3
        In addition to addressing Whitaker’s arguments in her brief regarding whether the requirements of section 724.012 were met, the State
argues in its brief that the evidence resulting from the taking of the blood sample should not be suppressed under the United States Supreme
Court’s decision in Missouri v. McNeely, 133 S. Ct. 1552 (2013). In McNeely, the supreme court held that “in drunk-driving investigations, the
natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without
a warrant.” Id, at 1568. Rather, whether exigent circumstances exist must be determined on a case by case basis. Id. at 1559, 1561. Whitaker
had complained only about whether the statutory requirements of section 724.012 of the transportation code were met. She did not argue in the
trial court, and does not argue on appeal, that section 724.012 violates her rights under the Fourth Amendment to the United States Constitution.
Accordingly, we conclude this issue is not before us and do not address the impact, in any, of the supreme court’s opinion in McNeely on section
724.012 of the transportation code. See TEX. R. APP. P. 33.1(a); Wilson v. State, 311 S.W.3d 452, 463 (Tex. Crim. App. 2010) (claim concerning
violation of due process clause of federal constitution is entirely different claim, assessed under legally distinct standards, from one concerning
violation of state statute); Buchanan v. State, 207 S.W.3d 772, 777–78 (Tex. Crim. App. 2006) (defendant failed to preserve for review statutory
grounds for exclusion of evidence obtained from warrantless arrest when he relied solely on federal constitutional arguments).



                                                                       –7–
       As to Whitaker’s contention that, at the time of her arrest, Profeta did not have a

reasonable belief that Flores had suffered bodily injury in the accident, an officer’s reasonable

belief for purposes of section 724.012 of the transportation code must be based upon specific and

articulable facts. Badgett v. State, 42 S.W.3d 136, 139 (Tex. Crim. App. 2001) (addressing

officer’s reasonable belief that accident was caused by the offense). An articulable belief “can

result from any number of factors” including witness interviews and conclusions drawn from

experience in combination with observation of the accident scene. Id. “Bodily injury” for the

purposes of section 724.012(b)(1)(C) means “physical pain, illness, or any impairment of

physical condition.”    TEX. TRANSP. CODE ANN. § 724.012(d); TEX. PENAL CODE ANN.

§ 1.07(a)(8) (West Supp. 2013).

       Profeta did not speak to Flores at the scene of the accident. However, when Profeta was

dispatched to the accident, he was informed it was a “major vehicle accident.” Within the police

department, the phrase “major vehicle accident” is used to describe an accident involving

injuries. The call notes sent to Profeta by dispatch showed that Flores was complaining of

“head/neck/back and leg pain.” When Profeta arrived at the scene, Miles, an off-duty paramedic,

told Profeta that he did not see any serious injuries, but Flores was complaining of pain or injury.

While Profeta was speaking with Whitaker, a medic told Profeta that Flores would be transported

to the hospital.   Profeta testified he believed Flores suffered bodily injury based on the

information he received from dispatch while he was on his way to the accident, a medic telling

him that Flores was complaining of some sort of injury, and the medics putting Flores on a

stretcher and placing him in the ambulance in preparation for transportation to the hospital.

       We conclude Profeta testified to specific, articulable facts that supported his reasonable

belief at the time of Whitaker’s arrest that Flores suffered bodily injury in the accident.




                                                –8–
Accordingly, the trial court did not err by denying Whitaker’s motion to suppress the results of

the analysis of her blood sample. 4 We resolve Whitaker’s sole issue against her.

           We affirm the trial court’s judgment.




                                                                             /Robert M. Fillmore/
                                                                             ROBERT M. FILLMORE
                                                                             JUSTICE


Do Not Publish
TEX. R. APP. P. 47

121116F.U05




     4
        See Glaser v. State, No. 05-11-00119-CR, 2012 WL 1034923, at *2 (Tex. App.—Dallas Mar. 29, 2012, no pet.) (not designated for
publication) (deferring to trial court’s resolution of conflicting evidence regarding whether officer reasonably believed person had suffered bodily
injury and been transported to hospital or other medical facility for treatment).



                                                                       –9–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

CYNTHIA LORRAINE WHITAKER,                         On Appeal from the County Court at Law
Appellant                                          No. 2, Collin County, Texas,
                                                   Trial Court Cause No. 002-80229-2012.
No. 05-12-01116-CR        V.                       Opinion delivered by Justice Fillmore,
                                                   Justices Bridges and Lewis participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 7th day of November, 2013.




                                                   /Robert M. Fillmore/
                                                   ROBERT M. FILLMORE
                                                   JUSTICE




                                            –10–
