                                                                                 PD-1479-15
                                                                COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                              Transmitted 12/16/2015 3:48:24 PM
                                                               Accepted 12/18/2015 12:51:39 PM
December 18, 2015                                                                ABEL ACOSTA
                              NO. PD-1479-15                                             CLERK

                              IN THE
                    COURT OF CRIMINAL APPEALS
                            OF TEXAS
______________________________________________________________________________
                         NO. 01-12-00970-CR
                     IN THE COURT OF APPEALS
                              FOR THE
                 FIRST JUDICIAL DISTRICT OF TEXAS
                          HOUSTON, TEXAS

THE STATE OF TEXAS                    §         APPELLEE
                                      §
V.                                    §
                                      §
HECTOR L. RODRIGUEZ                   §         APPELLANT


            APPEAL FROM COUNTY COURT AT LAW NO. 5
                     HARRIS COUNTY, TEXAS
                    TRIAL COURT NO. 1726063


      APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________

W. Troy McKinney                          J. Gary Trichter
Schneider & McKinney, P.C.                Trichter & Murphy, P.C.
Texas Bar No. 13725020                    Texas Bar No. 20216500
440 Louisiana, Suite 800                  420 Heights Blvd.
Houston, Texas 77002                      Houston, Texas 77007
(713) 951-9994                            (713) 524-1010
(713) 224-6008 (FAX)                      (713) 524-1080 (FAX)
E-mail: wtmhousto2@aol.com                E-mail: gary@texasdwilaw.com

                                          ATTORNEYS FOR APPELLANT

APPELLANT REQUESTS ORAL ARGUMENT
                          Identity of Parties and Counsel

      The following is a complete list of all parties to the trial court’s judgment,

and the names and addresses of all trial and appellate counsel:

Hector L. Rodriguez                    -        Appellant.

State of Texas                         -        Appellee.

W. Troy McKinney                       -        Appellant’s retained counsel at trial
Schneider & McKinney, P.C.                      and on appeal.
440 Louisiana, Suite 800
Houston, Texas 77002

J. Gary Trichter                        -       Appellant’s retained counsel at trial
Trichter & Murphy, P.C.                         and on appeal.
420 Heights Blvd.
Houston, Texas 77007

George Stuart Tallichet                -        Assistant District Attorneys at trial.
Lewis Ashton Thomas
1201 Franklin
Houston, Texas 77002

Melissa P. Hervey                      -        Assistant District Attorneys on
Stuart Tallichet                                appeal.
1201 Franklin
Houston, Texas 77002

Hon. Margaret Harris                   -        Trial Judge.




                                            i
                                               Table of Contents

Identities of Parties and Counsels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

List of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Grounds for Review – Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Arguments for Granting Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Grounds One Through Six. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

         Is there a Fourth Amendment expectation of privacy and standing to
         challenge either the acquisition of hospital blood test results or
         medical records generally and did the court of appeals err in failing to
         address the general medical records issue? Should Hardy be
         overruled?

Grounds Seven Through Ten. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

         Even if there is not Fourth Amendment standing or an expectation of
         privacy, does Hardy preclude exclusion sought under Article 38.23
         for a violation of state or federal law and, Hardy not withstanding,
         does a violation of state or federal law require suppression under
         Article 38.23, without regard to whether there is Fourth Amendment
         standing or an expectation of privacy. Is the court of appeals decision
         contrary to Wilson v. State and are the statutes relating to grand jury

                                                           ii
         subpoenas, the MPA, or the HIPAA regulations a basis for
         suppression under Article 38.23, as a violation of a state or federal
         law related to the acquisition of evidence?

Conclusion and Prayer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Appendix A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Appendix B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Appendix C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Appendix D. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28




                                                          iii
                                           List of Authorities

                                                   Cases

Dickerson v. State,
      965 S.W.2d 30
      (Tex. App.--Houston [1st Dist.] 1998,
      pet. dism’d, improvidently granted). . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Dickerson v. State,
      986 S.W.2d 618
      (Tex. Crim. App. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 19

Ferguson v. City of Charleston,
      532 U.S. 67 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 15

Hailey v. State,
      50 S.W.3d 636
      (Tex. App.—Waco 2001),
      rev'd on other grounds,
      87 S.W.3d 118
      (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Hardy v. State,
     963 S.W.2d 516
     (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Kennemur v. State,
     280 S.W.3d 305,
     (Tex. App.—Amarillo 2008, pet. ref'd),
     cert. denied , 556 U.S. 1191,
     129 S. Ct. 2005,
     173 L. Ed. 2d 1101 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                     iv
Kirsch v. State,
      276 S.W.3d 579
      (Tex. App.--Houston [1st Dist]. 2008),
      aff’d on other grounds,
      306 S.W.3d 738
      (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 22

Maldonado v. State,
     No. 05-09-00383-CR,
     2011 Tex. App. LEXIS 1984,
     2011 WL 924352
     (Tex. App.--Dallas, Mar. 18, 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . 10

Murray v. State,
     245 S.W.3d 37
     (Tex. App.--Austin 2007, pet. ref'd). . . . . . . . . . . . . . . . . . . . . . . 7, 8, 16, 22

Owens v. State,
    No. 01-12-00075-CR,
    2013 Tex. App. LEXIS 13767
    2013 WL 5947336
    (Tex. App–Houston [1st Dist.],
    Nov. 7, 2013, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Spebar v. State,
     121 S.W.3d 61
     (Tex. App.–San Antonio 2003, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

State v. Comeaux,
      818 S.W.2d 46
      (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim




                                                       v
State v. Jewell,
       No. 10-11-00166-CR,
       2013 Tex. App. LEXIS 930,
       2013 WL 387800
       (Tex. App.--Waco, Jan. 31, 2013, no pet.) . . . . . . . . . . . . . . . . . . . . . . . 8, 16

State v. Kelly,
       204 S.W.3d 808
       (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Village of Ridgefield Park v. New York Susquehanna
& Western Railway Corp.,
      163 N.J. 446,
      750 A.2d 1104, 1111 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Wilson v. State,
     311 S.W.3d 452
     (Tex. Crim. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim




                                                      vi
                                                       Statutes


42 U.S.C. § 1320d-6(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

45 C.F.R. §

        160.103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
        160.203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
        164.512(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
        164.512(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
        164.512(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
        164.512(f)(1)(ii)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. R. App. P.

        66.3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
        66.3(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
        66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
        66.3(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Tex. Code Crim. Pro Art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

TEX. OCC. CODE

        § 159.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
        § 159.002(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
        § 159.003(a)(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
        § 159.003(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
        §159.003(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex Rev.Civ. Stat, Art. 4495b §5.08 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                          vii
                                                 Other


Emergency Medical Services Act,
     Texas Health and Safety Code Chapter 773. . . . . . . . . . . . . . . . . . . . . . . 7, 18

Note, Developments in the Law:
      The Law of Media,
      120 HARV. L. REV. 990 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                  viii
To the Honorable Judges of the Court of Criminal Appeals:

      Hector L. Rodriguez, Appellant, through his attorneys, W. Troy McKinney and

J. Gary Trichter, submits this petition for discretionary review.

                      Statement Regarding Oral Argument

      Appellant requests oral arguments in this case on the basis that both the legal

and factual issues involve not only important issues of state and federal law, but also

because this case presents a compilation of complex issues arising from and following

this Court’s decision in Hardy v. State and subsequent state and federal laws

impacting its scope and continued viability. As evidenced by over 100 appellate

decisions on issues arising from Hardy, the bench and bar of this State need guidance

from this Court concerning the scope and applicability of Hardy. Oral arguments

would aid this Court in evaluating and deciding the important issues in this case.

                               Statement of the Case

      On September 25, 2010, Appellant was charged by information with driving

while intoxicated. CR3. Appellant filed a Motion to Suppress evidence and a hearing

was held on August 10, 2012. 2RR. On August 20, 2012, the court denied Appellant’s

motion to suppress. CR171. On September 17, 2012, pursuant to a plea bargain, the

court assessed punishment at 180 days confinement, probated for one year, and a

$750 fine. CR199. The trial court specifically gave Appellant permission to appeal.

                                          1
CR208. A motion for new trial was timely filed on October 12, 2012. CR238. It was

overruled by operation of law. On October 4, 2012, timely written notice of appeal

was filed. CR212.

                          Statement of Procedural History

      Appellant moved to suppress the introduction of his medical records and blood

alcohol test results. The trial court conducted an evidentiary hearing consisting of

live testimony, two witness affidavits, multiple physical exhibits, and several

stipulations. The factual evidence was undisputed. The trial court entered extensive

findings of fact and conclusions of law and denied the motion to suppress. 3RR-25.

Supp CR.1 Following denial of his motion to suppress, Appellant pled guilty and

appealed the denial of his motion to suppress.

      The Court of Appeals delivered its published opinion on June 25, 2015. A

copy of the opinion is attached as Appendix A. A motion for rehearing was filed on

August 10, 2015, and overruled on October 15, 2015. This petition is due not later

than December 17, 2015.




      1
          A copy of the findings is contained in Appendix C.

                                             2
                      Grounds for Review – Questions Presented

      1.     Is there a Fourth Amendment expectation of privacy in blood test results

when the blood is drawn and analyzed by a hospital for medical purposes?

      2.     Does a defendant in a criminal case have Fourth Amendment standing

to challenge the legality of the method of the acquisition of his blood test results

when the blood is drawn and analyzed by a hospital for medical purposes?

      3.     Is Hardy v. State still valid law in light of intervening legal events and

should it be overruled?

      4.     Is there a Fourth Amendment expectation of privacy in medical records

generally (other than blood test results)?

      5.     Does a defendant in a criminal case have Fourth Amendment standing

to challenge the legality of the method of the acquisition of his medical records

generally (other than blood test results)?

      6.     Did the Court of Appeals err in only addressing the Fourth Amendment

standing issue with respect to the blood test results and in failing to address the

expectation of privacy and standing issues with respect to medical records generally?

      7.     Does a defendant have standing to challenge the legality of the method

of the acquisition, and thus the admissibility, of his blood test results and medical

records under Tex. Code Crim. Pro Art. 38.23, when the blood is drawn and analyzed

                                             3
for medical purposes and when his medical records relate to his treatment, without

regard to whether there is Fourth Amendment standing?

      8.     Did the Court of Appeals err in holding that Hardy v. State governed

and controlled the determination of the Article 38.23 suppression issue when the

Court in Hardy expressly limited its holding to the Fourth Amendment issue

presented to it?

      9.     Is the Court of Appeals decision contrary to this Court’s decision in

Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010), which held (1) that

whether evidence is obtained in violation of the United States Constitution is an

entirely different inquiry – and does not control – whether evidence is subject to

suppression under Article 38.23; and (2) that suppression under 38.23 is warranted

when there is a violation of a penal or other law related to the acquisition of evidence

when that violation is the method used to acquire the evidence and the evidence is

acquired as a result of a violation of applicable state law?

      10.    Is a violation of the statutes relating to grand jury subpoenas, the

Medical Practices Act, or the regulations under HIPAA a basis for suppression

under Article 38.23, as a violation of a state or federal law penal law, a privacy law,

or a law related to the acquisition of evidence?




                                           4
                                      Statement of Facts

       The facts in this case are simple and undisputed. Appellant was arrested and

taken to the police station. He fell while being escorted into the jail and was taken

to the hospital where blood was drawn and analyzed for medical purposes.

       A civilian Houston Police Department (HPD) employee requested a grand jury

subpoena from the District Attorney’s Office (HCDAO) for Appellant’s medical

records and blood test results. Consistent with its practice and policy, a paralegal with

the HCDAO, affixed a stamped signature of a HCDAO lawyer to a document labeled

grand jury subpoena without consulting or obtaining approval from any attorney in

the HCDAO.

       The purported grand jury subpoena was served on the hospital. The hospital

provided the records to the paralegal, who forwarded them to the HPD civilian

employee, where they were retained. The purported grand jury subpoena issued from

a grand jury whose term had expired at the time the records were produced. The

records were never delivered to either any grand jury or the District Clerk.2

                                 Arguments for Granting Review

       In State v. Comeaux, 818 S.W.2d 46 (Tex. Crim. App. 1991), an officer,



       2
          A detailed statement of facts, referencing the trial court’s findings of fact, is attached
as Appendix B.

                                                 5
following a traffic accident, requested a hospital nurse who had drawn blood from

Comeaux on the request of a physician solely for medical purposes to give him a

portion of the blood draw. When the nurse declined, the officer ordered her to give

him a portion of the sample and gave her a mandatory blood draw form. The officer

seized the sample and had it tested by a state lab. The trial court suppressed the blood

test results and the court of appeals affirmed. A four-judge plurality of this Court

determined that Comeaux had a reasonable expectation of privacy for Fourth

Amendment purposes based on the then existing provisions of the Texas Medical

Practices Act (MPA).3 The concurring judge, who formed the majority for affirming

suppression, would have decided the case solely on the basis of a violation of the

MPA and would have suppressed the results under Article 38.23.4

       Six years later, this Court addressed a similar issue in Hardy v. State, 963

S.W.2d 516 (Tex. Crim. App. 1997) where the state obtained records of hospital

blood test results with a grand jury subpoena. The blood had been drawn and

analyzed and a report prepared solely for medical purposes. Hardy claimed that his


       3
                The Court noted in its opinion that the portions of the MPA at issue had been
repealed at the time of its decision in Comeaux, but had been in effect at the time of the seizure
of Comeaux’s blood. The terms of the MPA that existed at that time were similar to, but not the
same as, those that exist today. The MPA today appears to be broader that it was at the time of
Comeaux.
       4
              The plurality declined to review the Article 38.23 claim because it was not an
issue on which the State had sought discretionary review. Comeaux at n.6.

                                                 6
blood test results had been unlawfully obtained in violation both of Texas statutory

provisions5 and in violation of the Fourth Amendment. With respect to the Fourth

Amendment issue, the Court framed the question to be answered as, “whether the

government's acquisition of the written report infringed upon a societally-recognized

expectation of privacy.” Id., at 524.

       This Court, in a 5-4 decision, held:

We express no opinion concerning whether society recognizes a reasonable
expectation of privacy in medical records in general, or whether there are
particular situations in which such an expectation might exist. We note only
that, given the authorities discussed, whatever interests society may have in
safeguarding the privacy of medical records, they are not sufficiently strong to
require protection of blood-alcohol test results from tests taken by hospital
personnel solely for medical purposes after a traffic accident.

Id., at 527.

       Hardy answered only the very narrow Fourth Amendment expectation of

privacy question in blood test reports when blood is drawn for medical purposes

following a traffic accident. Murray v. State, 245 S.W.3d 37, 41 (Tex. App.--Austin

2007, pet. ref'd); Kirsch v. State, 276 S.W.3d 579 (Tex. App.--Houston [1st Dist].


       5
                In the trial court, Hardy alleged a violation of the MPA, Tex Rev.Civ. Stat, Art.
4495b §5.08 (repealed as to criminal law matters 12-18-85), and on discretionary review alleged
a violation of the Emergency Medical Services Act, Texas Health and Safety Code Chapter 773.
The Court held that the relevant portions of the MPA had been repealed when the Court adopted
the Texas Rules of Evidence and did not apply and that there was no violation of the Emergency
Services Practices Act. The Court never suggested that Hardy lacked standing to raise the claim
based on state statutes.

                                                7
2008), aff’d on other grounds, 306 S.W.3d 738 (Tex. Crim. App. 2010). Unlike

Comeaux, it did so without considering the provisions of the MPA that had been

relied on in Comeaux. It did not address, much less answer, any other legal question,

including (1) whether Article 38.23 requires exclusion of evidence obtained in

violation of state or federal statutes, (2) whether there was an expectation of privacy

in medical records generally. Murray, 245 S.W.3d at 41-42 (recognizing that Hardy

did not decide any issue with respect to medical records generally); see also State v.

Jewell, No. 10-11-00166-CR, 2013 Tex. App. LEXIS 930, 2013 WL 387800 (Tex.

App.--Waco, Jan. 31, 2013, no pet.) (finding an expectation of privacy in medical

records generally), or (3) whether a person could challenge the use of a grand jury

subpoena to obtain blood test result records on any legal basis, such as Article 38.23,

other than when raised as a Fourth Amendment claim.

      Though much has changed since Hardy was decided and though there have

been over 100 court of appeals decisions deciding issues related to Hardy, this Court

has not yet weighed in on any of the issues.

      Since Hardy was decided, the Health Insurance Portability and Accountability

Act (HIPAA) became effective. Federal regulations promulgated pursuant to HIPAA

regarding privacy and confidentiality of health information became effective on April

14, 2003. To the extent any state law is less stringent than HIPAA, it is preempted.

                                          8
45 C.F.R. § 160.203. While HIPAA expressly preempts any contrary state law, which

includes state judicial decisions, states are free to adopt more stringent standards than

those promulgated pursuant to HIPAA.6 See Village of Ridgefield Park v. New

York Susquehanna & Western Railway Corp., 163 N.J. 446, 455, 750 A.2d 1104,

1111 (1999).

       Under the HIPAA regulations, a "covered health care provider," rendering

medical services in a "covered transaction" is prohibited from disclosing "protected

health information" without the patient's consent, unless it is authorized by 45 C.F.R.

§ 164.512(f). "Health information" includes any information relating to the past,

present, or future mental or physical condition of an individual, including a person's

identity. 45 C.F.R. § 160.103.

       While HIPAA generally provides for privacy and confidentiality of protected

health care information, it does allow for disclosure if the "use or disclosure is

required by law and the use or disclosure complies with and is limited to the relevant

requirements of such law." 45 C.F.R. §164.512(a); see also Note, Developments in

the Law: The Law of Media, 120 HARV. L. REV. 990, 1060 (2007). A “covered entity


       6
                The MPA, infra, appears facially more stringent that HIPAA with respect to the
privacy of medical information and records: that is, the MPA provides privacy protections greater
than those provided by HIPAA both in the first instances – as to confidentiality and as a privilege
-- and in the substantially narrower scope of exceptions, especially with respect to disclosure in
relationship to criminal proceedings and prosecutions.

                                                9
may disclose protected health information for a law enforcement purpose to a law

enforcement official” when, as applicable to the instant case, it is “ [i]n compliance

with and as limited by the relevant requirements of . . . a grand jury subpoena.” 45

C.F.R. § 164.512(f)(1)(ii)(B). Maldonado v. State, No. 05-09-00383-CR, n. 2, 2011

Tex. App. LEXIS 1984, 2011 WL 924352 (Tex. App.--Dallas, Mar. 18, 2011, no pet.)

(recognizing that HIPAA requires that a disclosure of protected health information

may only be made “without the individual's consent to the extent the disclosure is

required by law and the disclosure is limited to the relevant requirements of the

applicable law” and that “the disclosure must meet the requirements of 164.512 (c),

(e), or (f). 45 C.F.R. 164.512(a)(2).”);7 see also Kennemur v. State, 280 S.W.3d 305,

311 n.5 (Tex. App.—Amarillo 2008, pet. ref'd), cert. denied , 556 U.S. 1191, 129 S.

Ct. 2005, 173 L. Ed. 2d 1101 (2009)(same).

       42 U.S.C. § 1320d-6(a) makes it a federal crime, and in some instances a

felony, for a person to knowingly obtain or disclose "individually identifiable health

information relating to an individual [or another person]."

       HIPAA is widely and uniformly recognized as establishing a nationwide

minimum level of privacy and confidentiality in health care information.


       7
               The court in Maldonado never reached the merits of the 38.23 issue because trial
counsel stated “no objection” when the records were offered at trial, thus waiving the pretrial
ruling denying his motion to suppress.

                                              10
      Since Hardy was decided, the portions of the Medical Practices Act (MPA)

that this Court repealed in 1985 when it adopted the Texas Rules of Evidence, Hardy,

at 519-523, have been reenacted by the Texas Legislature and, since 1999, have been

codified in the Texas Occupations Code. TEX. OCC. CODE § 159.001, et seq.

      TEX. OCC. CODE § 159.002 (b) provides that a “record of the identify,

diagnosis, evaluation, or treatment of a patient by a physician that is created or

maintained by a physician is confidential and privileged and may not be disclosed

except as provided by this chapter.” Section 159.003 (a)(10) provides an exception

to the privilege of confidentiality “in a criminal prosecution in which the patient is

a victim, witness, or defendant.” Despite the general exception to confidentiality in

criminal prosecutions in (a)(10), § 159.003 (b) expressly provides that § 159 does

“not authorize the release of confidential information to investigate or substantiate

criminal charges against a patient,” and § 159.003 (c) expressly provides that

“[r]ecords or communications are not discoverable under Subsection (a)(10) until the

court in which the prosecution is pending makes an in camera determination as to the

relevancy of the records or communications or any portion of the records or

communications. That determination does not constitute a determination as to the

admissibility of the information.”

      The MPA recognizes that notwithstanding and despite the lack of a privilege

                                         11
in the Rules of Evidence (and notwithstanding and despite this Court’s prior repeal

of a prior version of the statute) regarding the ultimate admissibility of confidential

medical information, there nonetheless exists a privilege and confidentiality in those

records with respect to discovery of them “to investigate or substantiate criminal

charges against a patient” and a limited privilege requiring a prior in camera

inspection in all other instances involving a criminal prosecution.

      Since Hardy was decided, the Supreme Court decided Ferguson v. City of

Charleston, 532 U.S. 67 (2001), in which the Court was asked to decide the

constitutionality of a program where there was a joint effort by law enforcement,

prosecutors, and a state hospital to turn over to law enforcement and prosecutors

urine drug test results conducted on pregnant women and those giving birth when

test results showed the presence of illegal drugs or those potentially harmful to the

fetus or newborn child.

      Relying on the amicus briefs of the American Medical Association and the

American Public Health Association, and in the context of unauthorized disclosure

of information to third parties, the Court held that "[t]he reasonable expectation of

privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that

the results of those tests will not be shared with nonmedical personnel without her

consent." 532 U.S. at 79. The Court predicated its foregoing statement with its

                                          12
observation that unauthorized disclosure of medical test information to third parties

was a greater privacy intrusion than when the results were used solely for other

purposes. The Court wrote.

       In the previous four [special needs] cases, there was no
       misunderstanding about the purpose of the test or the potential use of
       the test results, and there were protections against the dissemination of
       the results to third parties. The use of an adverse test result to
       disqualify one from eligibility for a particular benefit, such as a
       promotion or an opportunity to participate in an extracurricular activity,
       involves a less serious intrusion on privacy than the unauthorized
       dissemination of such results to third parties.

Id., at 79.

       It would have been impossible to make a comparison of the degrees of

intrusion of the expectation of privacy if there was not a general expectation of

privacy in medical test results and records. If there had been no general expectation

of privacy in all medical records, it would have been unnecessary to even consider

whether a disclosure might have been “unauthorized.”

       Importantly, the Court specifically rejected the idea that the purpose of the

program (the investigation and detection of crime) was sufficient to make the search

reasonable and it did not come even close to holding that the purpose of the program

(like the purpose of grand jury subpoenas) would mean that there was no expectation

of privacy. If the basis for the intrusion – as occurs when one says that those who


                                          13
have had blood taken at a hospital for medical purposes have no expectation of

privacy in the results because they might show evidence of a crime – was sufficient

to eliminate the expectation of privacy, nothing beyond such a conclusion would

have been necessary in Ferguson because the results of the urine drug tests in

Ferguson may be evidence of a crime just as hospital blood-alcohol test results may

be evidence of DWI.

      Since Hardy was decided, over 100 court of appeals decisions have been

issued with respect to these and a number of other Hardy related issues. Despite the

self-limiting holding in Hardy, every court of appeals decision, including the

decision in this case, has expanded Hardy’s scope beyond its stated holding.

      These issues continued to be litigated and appealed in a significant number of

cases because of the lack of guidance from this Court. The bench and bar of this

State need guidance from this Court, which will only occur by this Court granting

discretionary review.

                           Grounds One Through Six

      Is there a Fourth Amendment expectation of privacy and standing to
      challenge either the acquisition of hospital blood test results or medical
      records generally and did the court of appeals err in failing to address
      the general medical records issue? Should Hardy be overruled?

      Though Hardy resolved the important issue of federal law relating to standing


                                         14
and an expectation of privacy as of 1997, this Court has not spoken on this issue in

the intervening 19 years during which much of the legal landscape has changed with

respect to the basis for this Court’s holding in Hardy.

      Whether Hardy’s expectation of privacy and standing holdings remains viable

in light of intervening legal events is, pursuant to TEX. R. APP. P. 66.3(b), as it was

in 1997, an important issue question of state and federal law that has not been, but

should be, settled by this Court.

      Whether there is an expectation of privacy in medical records generally, and

whether the Court of Appeals in this case improperly expanded Hardy’s expectation

of privacy and standing holdings to include all medical records is, pursuant to TEX.

R. APP. P. 66.3(b), as it was in 1997, an important question of state and federal law

that has not been, but should be, settled by this Court.

      Whether the court of appeals decision is contrary to the Supreme Court’s

decision in Ferguson on an important question of federal constitutional law, review

is proper pursuant to TEX. R. APP. P. 66.3(c).

      Whether the Court of Appeals erred in only addressing the blood test issue and

in failing to address general medical records issue, despite the issue being raised in

the trial court, in Appellant’s brief, in the trial court’s findings, and in Appellant’s

motion for rehearing, warrants review pursuant to TEX. R. APP. P. 66.3(f), because

                                          15
the court of appeals has so far departed from the accepted and usual course of

judicial proceedings as to call for an exercise of this Court’s power of supervision.

      Importantly, while neither Hardy nor the Court of Appeals in this case

decided whether there was an expectation of privacy in medical records generally,

other courts of appeals have done so. See Murray v. State, 245 S.W.3d 37, 41-42

(Tex. App.--Austin 2007, pet. ref'd) (Hardy did not decide any issue with respect

to medical records generally); State v. Jewell, No. 10-11-00166-CR (Tex. App.--

Waco, Jan. 31, 2013, no pet.) (finding an expectation of privacy in medical records

generally).

      If the Court of Appeals opinion can be read to apply to medical records

generally, review is warranted pursuant to Tex. R. App. P. 66.3(a), because it

conflicts with the decisions of the Austin and Waco Court of Appeals’ decisions in

Murray and Jewell.

                              Grounds Seven Through Ten

      Even if there is not Fourth Amendment standing or an expectation of
      privacy, does Hardy preclude exclusion sought under Article 38.23 for
      a violation of state or federal law and, Hardy not withstanding, does
      a violation of state or federal law require suppression under Article
      38.23, without regard to whether there is Fourth Amendment standing
      or an expectation of privacy. Is the court of appeals decision contrary
      to Wilson v. State and are the statutes relating to grand jury
      subpoenas, the MPA, or the HIPAA regulations a basis for suppression
      under Article 38.23, as a violation of a state or federal law related to the

                                          16
           acquisition of evidence?

           Hardy was a narrow, limited holding. By its terms it decided only whether

there was an expectation of privacy in the results of a blood test conducted for

medical purposes: that is, only whether there was standing to raise a Fourth

Amendment claim.

           Though Hardy never addressed, much less decided, whether exclusion of the

results of a blood test conducted for medical purposes was independently

suppressible under Article 38.23 if the results were obtained in violation of state or

federal law, the court of appeals in this case, and every other court of appeals that

has decided the issue, relied solely on Hardy for concluding that the absence of an

expectation of privacy and the lack of Fourth Amendment standing also precluded

suppression under Article 38.23.

           The first case decided after Hardy was Dickerson v. State, 965 S.W.2d 30

(Tex. App.--Houston [1st Dist.] 1998, pet. dism’d, improvidently granted).8 After

rejecting the identical constitutional claim raised in Hardy, the court also rejected

claims of defects in the grand jury subpoena process. It held, “[i]n the absence of

       8
                Dickerson v. State, 986 S.W.2d 618 (Tex. Crim. App. 1999) (Johnson, J,
dissenting to the dismissal of the petition for discretionary review) (“While the records [obtained
with a “so called” grand jury subpoena] might have ultimately been discoverable, Deputy
Swango chose to take an improper shortcut; his actions were both improper and premature. For
the reasons stated in Judge Price's dissent to Hardy . . . . (Price, J., dissenting), I dissent to the
improvident grant.”)

                                                  17
any constitutional or statutory reasonable expectation of privacy, appellant has no

standing to complain of defects in the grand jury subpoena process. See Comeaux

v. State, 818 S.W.2d 46, 51 (Tex. Crim. App. 1991).”

      The court’s reliance on Comeaux for such a broad proposition was misplaced.

Comeaux did not involve a grand jury subpoena or blood test results. It involved

an unlawful command by a police officer to a nurse to turn over the actual blood

drawn. In Comeaux, the Court had no occasion to decide whether the statutes

regulating grand jury subpoenas created an expectation of privacy or constituted

violation of a law for purposes of exclusion under Article 38.23. Comeaux did

recite, as did Hardy, the well established proposition that there had to be an

expectation of privacy for a Fourth Amendment claim, which was the basis on which

the court affirmed exclusion of the evidence as unlawfully obtained, but that is as far

as it went.

      The major difference between Hardy and Comeaux is that in Comeaux the

MPA was still in effect and by the time of Hardy, the MPA had been repealed.

Thus, in Comeaux, the Court went no further than the MPA in finding a statutorily

based expectation of privacy and in Hardy, the court had to look more broadly

because the MPA no longer applied. Even though the court in Hardy looked more

broadly, it only considered the Emergency Services Practices Act. The court in

                                          18
Hardy did not consider whether a violation of any other statute would provide a

basis to exclude medical record evidence under Article 38.23 and certainly never

decided whether a violation of statutes regulating grand jury subpoenas would be a

basis for exclusion under Article 38.23. Had Dickerson limited its holding to “no

standing to complain of defects in the grand jury subpoena process for Fourth

Amendment purposes,” it may have been correct – at least at the time and pursuant

to Hardy.9 But, it did not do so, and the effect of the overly broad statement in

Dickerson has been that every other court of appeals to have decided the issue since

that time has also blindly followed Dickerson or its progeny.10

           The initial misstating or over broadening of the holdings in Comeaux and

Hardy has led to blind adoption of that standard even though neither case made any

such pronouncement other than as applicable to a Fourth Amendment claim.

           Texas appellate courts have, however, held that if the blood was drawn at the

hospital without consent, it would constitute an assault and suppression of the blood

test results under 38.23 would be proper.11 Not one of these cases suggested that

       9
                Dickerson does not suggest that a claim for exclusion under 38.23 based on
statutory violations was raised. Either no 38.23 claim was raised or the court did not analyze it
separately.
       10
                A complete list of these cases is contained in Appendix D.
       11
              Hailey v. State, 50 S.W.3d 636, 640 (Tex. App.—Waco 2001), rev'd on other
grounds, 87 S.W.3d 118 (Tex. Crim. App. 2002) (blood drawn by hospital without consent was

                                                19
there was no standing to seek suppression under Article 38.23 based on the evidence

being obtained by a criminal assault (even though the results were later obtained

with a grand jury subpoena) just because there was no standing to raise a Fourth

Amendment claim. The merits of these claims were addressed precisely because

whether there was a valid Fourth Amendment claim was legally irrelevant to whether

suppression was required under Article 38.23.

        Article 38.23 protects more interests than just those included in the

constitutional expectation of privacy analysis. Though “[t]he underlying purpose of

both the federal exclusionary rule and article 38.23 is the same: to protect a suspect’s

privacy, property, and liberty rights against overzealous law enforcement,” Wilson

v. State, 311 S.W.3d 452, 458-59 (Tex. Crim. App. 2010) , the scope and remedies

under Article 38.23 are much different than Fourth Amendment standing. A Fourth

Amendment violation requires suppression of evidence only if the federal

exclusionary rule requires it. However, even if the federal exclusionary rule does not


an assault and illegally obtained for purposes of 38.23; reversed on basis that there was no lack of
consent). Compare State v. Kelly, 204 S.W.3d 808, 820-21 (Tex. Crim. App. 2006) (hospital
staff did not assault defendant and thus defendant's blood test results were admissible); Owens
v. State, No. 01-12-00075-CR, 2013 Tex. App. LEXIS 13767; 2013 WL 5947336 (Tex.
App–Houston [1st Dist.], Nov. 7, 2013, no pet)(published)(no lack of consent and blood draw
justified to provide emergency care); Spebar v. State, 121 S.W.3d 61, 64 (Tex. App.—San
Antonio 2003, no pet.) (distinguishes Hailey because of factual deficiencies in the record and
factual differences that would not show an abuse of discretion by trial judge in implicitly finding
no assault); Ramos v. State, 124 S.W.3d at 336 (evidence supported trial court's implied finding
of consent for medical treatment).

                                                20
require suppression, such as for inevitable discovery, the same Fourth Amendment

violation would require suppression under Article 38.23.

      In Wilson, this Court held that Article 38.23 may be “invoked for statutory

violations [...]related to the purpose of the exclusionary rule or to the prevention of

the illegal procurement of evidence of crime.” Id., at 459. “The primary purpose of

article 38.23(a) is to deter unlawful actions which violate the rights of criminal

suspects in the acquisition of evidence for prosecution.” Id. It is not just privacy

rights or the expectation of privacy that are within the scope of Article 38.23. “[T]he

type of law violation that the Texas Legislature intended to prohibit when it enacted

article 38.23 [is] conduct by overzealous police officers who, despite their laudable

motives, break the penal laws directly related to gathering and using evidence in

their investigations.” Id, at 461. Whether evidence is obtained in violation of the

Constitution is an entirely different inquiry – and does not control – whether

evidence is subject to suppression under Article 38.23. Id., 463-464.

      HIPAA, the MPA and the grand jury statutes regulate the methods by which

evidence may be obtained and may have penal consequences. Under Wilson, they

are within the scope of laws for which a violation requires exclusion under 38.23.

Even though argued in Appellant’s brief and raised in the motion for rehearing, the

court of appeals declined to even acknowledge, much less follow, this Court’s

                                          21
decision in Wilson. The court of appeals erred in holding that Appellant could not

seek suppression under 38.23 based on violations of these statutes in the acquisition

of the evidence of his blood test results and his medical records in general.

      Because the court of appeals decision in this case conflicts with the important

question of state law decided by this Court in Wilson and Comeaux, review is

proper pursuant to TEX. R. APP. P. 66.3(c).

      Because the court of appeals has decided that this Court’s decision in Hardy

applied to standing to seek 38.23 suppression, review is proper pursuant to TEX. R.

APP. P. 66.3(b) because the court of appeals has decided an important question of

state law that has not been, but should be settled by this Court.

      Because the court of appeals decision in this case, that Hardy decided the

38.23 issue, conflicts with the Austin and Houston (First) court of appeals decisions

in Murray and Kirsch, review is proper pursuant to Tex. R. App. P. 66.3(a).

      .




                                         22
                                 Conclusion and Prayer

      Appellant prays that this Court grant discretionary review to decide the

important issues in this case and either vacate the court of appeals opinion and

remand this case for consideration of the issues not addressed by the Court of

Appeals, or, alternatively, decide all of the issues presented and reverse the judgment

of the Court of Appeals and remand this case to the trial court for a new trial.

                                                 Respectfully submitted,

                                                 /s/ W. Troy McKinney
                                                 W. Troy McKinney
                                                 Schneider & McKinney, P.C.
                                                 Texas Bar NO. 13725020
                                                 440 Louisiana, Suite 800
                                                 Houston, Texas 77002
                                                 (713) 951-9994
                                                 (713) 224-6008 (FAX)
                                                  Email: wtmhousto2@aol.com


                                                  /s/ J. Gary Trichter
                                                 J. Gary Trichter
                                                 Trichter & Murphy, P.C.
                                                 Texas Bar No. 20216500
                                                 420 Heights Blvd.
                                                 Houston, Texas 77002
                                                 (713) 524-1010
                                                 (713) 524-1080 (FAX)
                                                 E-mail: gary@texasdwilaw.com

                                                 Attorneys for Appellant


                                          23
                                   Certificate of Service

         This is to certify that a true and correct copy of the attached and foregoing

document has been served on the Harris County District Attorney’s Office at 1201

Franklin, Houston, Texas 77002, and on the State Prosecuting Attorney at P.O. Box

3046, Austin, Texas 78711, by electronic service on this 16th day of December,

2015.

                                                 /s/ W. Troy McKinney
                                                 W. Troy McKinney



                                Certificate of Compliance

        I certify that this document was prepared with Word Perfect X3, and that,

according to that program’s word-count function, the sections covered by TEX. R.

APP. P. 9.4(i)(1) contain 4499 words.



                                               /s/ W. Troy McKinney
                                                W. Troy McKinney




                                         24
Appendix A

 Opinion




   25
Opinion issued June 25, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00970-CR
                           ———————————
                    HECTOR L. RODRIGUEZ, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



          On Appeal from the County Criminal Court at Law No. 5
                           Harris County, Texas
                       Trial Court Case No. 1726063


                                 OPINION

      The State charged Hector L. Rodriguez by information with Class B

misdemeanor driving while intoxicated.      See TEX. PENAL CODE ANN. § 49.04

(West Supp. 2014). Before trial, Rodriguez moved to suppress evidence of his

blood-test results. After a hearing, the trial court denied the requested relief.
Pursuant to a plea bargain with the State, Rodriguez pleaded guilty to the charge.

The trial court accepted the plea and agreed to follow the State’s punishment

recommendation, sentencing Rodriguez to 180 days’ confinement and suspending

that sentence conditioned on successful completion of one year of community

supervision.

      The trial court certified Rodriguez’s right to appeal its ruling on his motion

to suppress. On appeal, Rodriguez contends that the trial court erred in denying

the motion because the State obtained his medical records and blood-test results in

violation of state and federal law and his rights under the Fourth Amendment of

the United States Constitution. We affirm.

                                     Background

      The parties do not dispute the facts material to Rodriguez’s motion to

suppress. Close to 2:00 A.M. in late September 2010, Officer J. Roberts and

Officer Pitts of the Houston Police Department were in the course of arresting two

individuals for driving while intoxicated (DWI) in downtown Houston when they

observed Rodriguez driving toward them, heading the wrong direction down a one-

way street. The officers instructed Rodriguez to pull over, and Rodriguez came to

a stop near Officer Pitts’s patrol car.

      After Officer Roberts secured the other two DWI suspects in the back of his

patrol car, he approached Rodriguez’s car. He noticed that Rodriguez had red,


                                          2
glassy eyes and slurred speech, and smelled strongly of alcohol, as did the interior

of his car. Rodriguez admitted that he had begun drinking beer at 3:00 P.M. the

previous afternoon and that he had just left a nightclub.

       Officer Roberts administered the horizontal gaze nystagmus (HGN) test on

Rodriguez and observed all six of the possible clues for intoxication. Rodriguez

refused to participate in any other field sobriety tests and was placed under arrest

for suspicion of DWI.       According to protocol, Officer Roberts handcuffed

Rodriguez’s hands together at the back and placed him in the backseat of Officer

Pitts’s patrol car.

       When they arrived at the police station, Officer Pitts attempted to escort

Rodriguez from the patrol car into the station by holding onto Rodriguez’s arm.

Rodriguez told Officer Pitts, “Don’t touch me. I can do this” and pulled away from

Officer Pitts’s grasp. Rodriguez then lost his balance and fell face forward onto

the concrete. He remained on the ground, bleeding heavily from his face, head,

and nose. Officer Pitts immediately called for an ambulance. Paramedics with the

Houston Fire Department arrived and transported Rodriguez to a nearby hospital.

       Officer Roberts followed the ambulance to the hospital emergency room,

where he read Rodriguez his statutory warnings and asked him for a blood

specimen. Rodriguez refused to provide one. Officer Roberts asked the attending

nurse whether he would be drawing Rodriguez’s blood for medical purposes. The



                                          3
nurse responded that he would. Roberts asked the nurse to use Betadine instead of

alcohol to disinfect the site of the blood draw, which the nurse did.

      Officer Roberts submitted his “DWI case report” to an HPD civilian

evidence technician, who in turn contacted a paralegal in the Harris County District

Attorney’s Office to have a grand jury subpoena issued for Rodriguez’s medical

records and blood-test results. The day after the incident, the District Attorney’s

Office issued a grand jury subpoena to the hospital’s custodian of records seeking

Rodriguez’s medical records.      The hospital’s records custodian responded by

providing a copy of them.          The records revealed that the blood-alcohol

concentration in the sample drawn from Rodriguez at 4:21 A.M. was .209.

      Officer Roberts included the blood-alcohol concentration data in his

probable cause affidavit and contacted the District Attorney’s Office intake

division about filing a DWI charge against Rodriguez. The District Attorney’s

Office filed an information charging Rodriguez with DWI on December 16, 2010.

No grand jury was in session when the subpoena issued and no grand jury

deliberated whether to bring charges against Rodriguez.

      The trial court made the findings of fact and conclusions of law supporting

the denial of Rodriguez’s motion to suppress, including:

   • Office Roberts had reasonable articulable suspicion to detain Rodriguez and
     had probable cause to arrest him for DWI;




                                          4
     • Rodriguez’s blood was drawn and tested solely for the purpose of medical
       treatment.

     • The Fourth Amendment of the United States Constitution does not provide a
       reasonable expectation of privacy in blood-alcohol test results acquired
       through tests performed by hospital personnel on samples or specimens of
       blood drawn solely for medical purposes after a traffic accident.

     • The same privacy concerns related to obtaining medical records in Hardy 1
       apply in this case, where medical personnel drew Rodriguez’s blood for the
       purpose of medical treatment following an accident in the course of a DWI
       investigation.

     • Rodriguez did not have a reasonable expectation of privacy in the results of
       the blood-alcohol test administered on the sample of Rodriguez’s blood that
       was drawn by hospital personnel for a legitimate medical purpose.

     • Because Rodriguez did not have a reasonable expectation of privacy in his
       medical records obtained by grand jury subpoena process following an
       accident, Rodriguez lacks standing under federal or state law to contest the
       process by which the records were acquired.

                                      Discussion

I.      Standard of review

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

standard. See Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). The

trial court is the sole trier of fact and judge of the weight and credibility of the

evidence and testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.

2007). Accordingly, we defer to the trial court’s determination of historical facts if


1
        State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997).



                                           5
the record supports them. Ford, 158 S.W.3d at 493. We review de novo the trial

court’s application of the law to those facts. Id. “[T]he prevailing party is entitled

to ‘the strongest legitimate view of the evidence and all reasonable inferences that

may be drawn from that evidence.’” State v. Castleberry, 332 S.W.3d 460, 465

(Tex. Crim. App. 2011) (quoting State v. Garcia-Cantu, 253 S.W.3d 236, 241

(Tex. Crim. App. 2008)). A trial court’s ruling will be sustained if it is “reasonably

supported by the record and correct on any theory of law applicable to the case.”

Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v.

State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)).

II.   Reasonable Expectation of Privacy

      Rodriguez claims that the denial of his motion to suppress violates his

privacy rights under the Fourth Amendment, the federal Health Insurance

Portability and Accountability Act of 1996 (HIPAA), and the Texas Medical

Practices Act. He also complains that the State failed to comply with the grand

jury procedures set forth in Chapter 20 of the Texas Code of Criminal Procedure.

These violations of state and federal law, Rodriguez contends, require suppression

pursuant to article 38.23(a) of the Code of Criminal Procedure, which declares that

“[n]o evidence obtained by an officer or other person in violation of [any state or

federal law] shall be admitted in evidence against the accused.” TEX. CODE CRIM.

PROC. ANN. art. 38.23(a) (West 2005).



                                          6
      The trial court concluded that Rodriguez lacked standing under any of the

state or federal laws he invokes because he had no reasonable expectation of

privacy in his blood-test results or medical records. Our primary consideration,

therefore, is whether the trial court correctly concluded that none of those laws

affords Rodriguez a reasonable expectation of privacy in his blood-test results,

which were performed for medical purposes and obtained by the State for

Rodriguez’s prosecution.

      A. State v. Hardy and the Fourth Amendment

      The trial court relied on the Court of Criminal Appeals’ decision in State v.

Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1997), to hold that Rodriguez lacked a

reasonable expectation of privacy in protecting his blood-test results from

disclosure to the District Attorney’s Office. In Hardy, the Court of Criminal

Appeals specifically held that the Fourth Amendment does not support a

reasonable expectation of privacy protecting blood-test results from tests taken by

hospital personnel solely for medical purposes after a traffic accident. Id. at 527.

      The Fourth Amendment protects an individual from the government’s search

or seizure of a place or thing and from the government’s physical intrusion into a

place or thing if the individual has a reasonable expectation of privacy in the place

searched or item seized. See U.S. CONST. amend. IV; United States v. Jones, ___

U.S. ___, 132 S. Ct. 945, 950–51 (2012); Rakas v. Illinois, 439 U.S. 128, 143, 99



                                          7
S. Ct. 421, 430 (1978). A legitimate expectation of privacy exists when the

individual seeking Fourth Amendment protection maintains a “subjective

expectation of privacy” in the area searched “that society recognizes as

reasonable.” Kyllo v. United States, 533 U.S. 27, 31–33, 121 S. Ct. 2038, 2041–42

(2001).

      A defendant has standing to challenge the admission of evidence obtained by

an unreasonable search or seizure if he proves that he “had a legitimate expectation

of privacy. . . .” State v. Betts, 397 S.W.3d 198, 203 (Tex. Crim. App. 2013);

Rakas, 439 U.S. at 143, 99 S. Ct. at 430; Castleberry v. State, 425 S.W.3d 332, 334

(Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). The trial court found that

Rodriguez had a subjective expectation of privacy in his medical records, but

Rodriguez had the further burden to prove that society recognizes his subjective

expectation as objectively reasonable. See Betts, 397 S.W.3d at 203. The trial

court concluded that Rodriguez did not meet this further burden.

      We agree with the trial court.      Rodriguez contends that circumstances

surrounding his blood draw differ materially from those in Hardy. Together with

changes in the legal landscape since Hardy, these differences, he contends, support

recognition of a privacy right in his blood-test results. He argues that “Hardy

answered only the very narrow Fourth Amendment expectation of privacy in

blood-test reports when blood is drawn for medical purposes following a traffic



                                         8
accident,” and not whether article 38.23 would require exclusion of evidence

obtained in violation of state or federal law, or whether a reasonable expectation of

privacy exists with respect to medical records generally. We examine both the

factual and legal distinctions in turn.

      Factually, Rodriguez distinguishes Hardy by pointing out that the blood test

in that case took place after a traffic accident, whereas his did not. Our court did

not find this to be a meaningful distinction in Fourth Amendment terms in Owens

v. State, 417 S.W.3d 115 (Tex. App.—Houston [1st Dist.] 2013, no pet.). In that

case, the defendant suffered an asthma attack shortly after his arrest. Id. at 116.

The officer called an ambulance. Id. At the emergency room, the defendant

presented with shortness of breath, and his blood pressure and heart rate were

elevated. Id. Over the defendant’s objection, the treating physician ordered a

blood draw to rule out the possibility of other life-threatening conditions, such as a

heart attack. Id. We held that the evidence supported a reasonable conclusion that

the hospital staff acted out of medical necessity in drawing his blood and, as a

result, article 38.23(a) did not bar the admission of his blood-test results that were

eventually obtained via a grand jury subpoena. Id. at 118.

      The undisputed evidence in this case demonstrates that hospital staff drew

and tested Rodriguez’s blood for medical purposes.           Officer Roberts listed

Rodriguez’s fall in the parking lot, which caused his injury, as one of the facts



                                          9
supporting his opinion that Rodriguez was intoxicated on September 25, 2010.

Rodriguez does not identify any policy reason to support his proposed exception

for the case in which a hospital patient was treated for injuries received in an

accidental fall as opposed to injuries received in a traffic accident, and we have

found none. See Owens, 417 S.W.3d at 116.

      Legally, according to Rodriguez, Ferguson v. City of Charleston, 532 U.S.

67, 121 S. Ct. 1281 (2001), recognizes a reasonable expectation of privacy for

“those who undergo diagnostic tests in hospitals that—absent other considerations

not present here (like a legal duty to disclose)—the results of their tests will not be

shared with non-medical third parties.” We do not read Ferguson so broadly.

There, the public hospital performed diagnostic tests at the State’s behest to obtain

evidence of a patient’s criminal conduct for law-enforcement purposes without

first obtaining the patient’s consent. See id. at 84–85, 121 S. Ct. at 1291–92. Here,

the blood draw and blood-alcohol content test results were performed for medical

treatment. This distinction renders Ferguson inapposite. See Murray v. State, 245

S.W.3d 37, 42 (Tex. App.—Austin 2007, pet. ref’d); see also State v. Villarreal,

No. PD-0306-14, 2014 WL 6734178, at *15 (Tex. Crim. App. 2014) (explaining

that drug-testing policy was invalidated in Ferguson because immediate objective

of searches was to generate evidence for law enforcement purposes); Garcia v.

State, 95 S.W.3d 522, 526–27 n.1 (Tex. App.—Houston [1st Dist.] 2002, no pet.)



                                          10
(following Hardy post-Ferguson and applying Hardy to appellant’s challenge

under Texas Constitution). Ferguson does not support Rodriguez’s contention that

the Fourth Amendment protects his expectation of privacy in the medical records

containing the blood-test results.

      B. Texas Medical Practices Act

      The Texas Medical Practice Act (MPA) protects “record[s] of the identity,

diagnosis, evaluation, or treatment of a patient by a physician that is created or

maintained by a physician is confidential and privileged and may not be disclosed

except as provided.” TEX. OCC. CODE ANN. § 159.002(b) (West 2012). When the

Court of Criminal Appeals adopted the Texas Rules of Evidence in 1985, it

repealed the confidentiality provision of the MPA’s precursor in Rule 509, which

abrogates the physician-patient privilege in criminal cases. See Hardy, 963 S.W.2d

at 519–23 (citing TEX. R. CRIM. EVID. 509 (“There is no physician-patient privilege

in criminal proceedings.”) (now TEX. R. EVID. 509(b))).

      The Legislature later re-enacted the MPA without reference to Rule of

Evidence 509.     Rodriguez contends that the MPA’s re-enactment means that,

despite Rule 509, he retains a limited privilege and confidentiality in his medical

records with respect to their discovery in criminal proceedings.

      We disagree. The MPA excepts from its general rule of physician-patient

confidentiality “any criminal prosecution where the patient is a victim, witness or



                                         11
defendant” and for response to “a court or a party to an action under a court order

or subpoena.”     TEX. OCC. CODE ANN. § 159.003(a)(10), (12) (West 2012).

Rodriguez points to section 159.003(b) of the Occupations Code, which provides:

“This section does not authorize the release of confidential information to

investigate or substantiate criminal charges against a patient.” Id. § 159.003(b).

Like the rest of the chapter, this provision is directed at the physician’s authority or

lack thereof to disclose a patient’s records; it does not limit the State’s access to

those records through subpoena.        See id. § 159.003(a)(10), (12), see also id.

§ 159.004(1) (West 2012) (excepting to privilege of confidentiality in allowing for

disclosure of medical records in situation other than court or administrative

proceeding to “a governmental agency, if the disclosure is required or authorized

by law”). Under the circumstances here, the MPA does not provide any basis for

protecting Rodriguez’s medical records or blood-test results from disclosure

pursuant to subpoena and, as a result, it does not provide Rodriguez with grounds

to assert a reasonable expectation of privacy.

      C. Grand jury statute

      Rodriguez further contends that the State procured his medical records in

violation of the Texas grand jury statute because the assistant district attorney

improperly delegated her authority to issue a subpoena. See TEX. CODE CRIM.

PROC. ANN. arts. 20.02–20.05, 20.13 (West 2015). The attorney stipulated that she



                                          12
routinely delegated the issuance of a subpoena to a member of her clerical staff,

who, acting under the attorney’s authority, signed the subpoena in the attorney’s

name with an ink stamp. Rodriguez also observes that the hospital provided the

records directly to the investigating officer and that the grand jury was not in

session when the district attorney’s office issued the subpoena. But Rodriguez has

not shown that he was personally aggrieved by any deviation from the regular

grand jury subpoena procedure, and the hospital did not challenge the subpoena; it

simply turned over the records.

      During oral argument, Hernandez relied on Boyle v. State, which involved a

challenge to the validity of law enforcement’s use of a grand jury material witness

attachment, to take Boyle, a truck driver, into custody. 820 S.W.2d 122 (Tex.

Crim. App. 1989), overruled on other grounds by Gordon v. State, 801 S.W.2d 899

(Tex. Crim. App. 1990). The police officers investigating the homicide honed in

on Boyle as a suspect, but admittedly “lacked sufficient probable cause to conduct

an investigatory search or to procure the issuance of an arrest warrant” for him. Id.

at 125, 129. The officers nonetheless acquired a grand jury material witness

attachment, signed by a district judge, to arrest Boyle and take him into custody.

Id. at 125–26. The officers read Boyle his Miranda warnings, interrogated him,

and asked for consent to search his truck, which he gave. Id. at 126. An arrest




                                         13
warrant charging Boyle with capital murder was issued a short time after the

officers completed the investigatory search of the truck. Id.

      Boyle moved to suppress the evidence procured during the interrogation and

search, contending that the officers used his arrest pursuant to the material witness

attachment to gain his permission to search the truck when they could not have

done so by following procedures consistent with his rights under the federal and

state constitutions. Id. at 127. The Court of Criminal Appeals examined the

district attorney’s affidavit supporting the attachment and concluded that it did not

comply with the Code of Criminal Procedure’s requirements for its issuance. 2 Id.

at 129. The Court held that “the procedure utilized in placing the appellant under

arrest . . . was a pretext, subterfuge, and deceptive artifice intentionally employed

to circumvent the principles and tenets of the Fourth and Fourteenth Amendments

to the United States Constitution and Art. I, Sec. 9 of the Texas Constitution,”

making his arrest illegal.     Id. at 129–30.      But for the trucking company’s

independent consent to search the truck Boyle was driving, which the State first

argued on rehearing, the admission of evidence seized during the truck’s search

would have amounted to harmful constitutional error. Id. at 136–37, 143.

2
      Defects in process included: the violation of a provision restricting issuance to
      county residents, which Boyle was not; the absence of a required sworn statement
      that the district attorney believed that the witness was about to move out of the
      county; an affidavit that set bond without statutory authorization; and no showing
      that the witness failed to obey a properly served subpoena before the attachment
      was issued. Boyle v. State, 820 S.W.2d 122, 128–29 (Tex. Crim. App. 1989).

                                          14
      The main distinction that renders Boyle inapposite is the admitted lack of

probable cause when the attachment issued in Boyle and the admitted existence of

probable cause when the subpoena issued in this case.            Rodriguez has not

suggested that the police could not have obtained the medical records other than by

violating the grand jury subpoena process.

      We consistently have held that, because a defendant does not have any

constitutional or statutory reasonable expectation of privacy in blood-test results

obtained for medical purposes while the defendant is under criminal investigation

for DWI, he does not have standing to complain of any defects in the grand jury

subpoena process. Kirsch v. State, 276 S.W.3d 579, 587 (Tex. App.—Houston [1st

Dist.] 2008), aff’d on other grounds, 306 S.W.3d 738, 749 (Tex. Crim. App. 2010);

Garcia v. State, 95 S.W.3d 522, 526–27 (Tex. App.—Houston [1st Dist.] 2002, no

pet); Dickerson v. State, 965 S.W.2d 30, 31 (Tex. App.—Houston [1st Dist.]

1993), pet. dism’d, improvidently granted, 986 S.W.2d 618 (Tex. Crim. App.

1999); accord Tapp v. State, 108 S.W.3d 459, 461 (Tex. App.—Houston [14th

Dist.] 2003, pet. ref’d). We thus reject his challenge to the admissibility of the

blood-test results based on any procedural irregularity in the grand jury process.

      D. HIPAA

      Finally, Rodriguez contends that his blood-test results should have been

suppressed because the grand jury subpoena did not comply with the statutory



                                         15
requirements for its issuance, and accordingly, the release in response to the

subpoena violated HIPAA.       In Kirsch, we agreed with other Texas courts of

appeals that HIPAA does not protect from disclosure a patient’s medical records

and blood-test results obtained through lawful process and under circumstances

that suggest the patient has committed the offense of DWI. 276 S.W.3d at 586–87

(citing Kennemur v. State, 280 S.W.3d 305, 312 (Tex. App.—Amarillo 2008, pet.

ref’d), and Murray v. State, 245 S.W.3d 37, 42 (Tex. App.—Austin 2007, pet.

ref’d)).

       Rodriguez relies on the following HIPAA regulation:

       (f)   Standard: Disclosures for law enforcement purposes. A covered
             entity may disclose protected health information for a law
             enforcement purpose to a law enforcement official if the
             conditions in paragraphs (f)(1) through (f)(6) of this section are
             met, as applicable.
             (1) Permitted disclosures: Pursuant to process and as
                    otherwise required by law. A covered entity may disclose
                    protected health information:
                    (i)   As required by law including laws that require the
                          reporting of certain types of wounds or other
                          physical injuries, except for laws subject to
                          paragraph (b)(1)(ii) or (c)(1)(i) of this section; or
                    (ii) In compliance with and as limited by the relevant
                          requirements of:
                          (A) A court order or court-ordered warrant, or a
                                 subpoena or summons issued by a judicial
                                 officer;
                          (B) A grand jury subpoena; or



                                         16
                           (C)   An administrative request, including an
                                 administrative subpoena or summons, a civil
                                 or an authorized investigative demand, or
                                 similar process authorized under law,
                                 provided that:
                                 (1) The information sought is relevant
                                       and material to a legitimate law
                                       enforcement inquiry;
                                 (2) The request is specific and limited in
                                       scope to the extent reasonably
                                       practicable in light of the purpose for
                                       which the information is sought; and
                                 (3) De-identified information could not
                                       reasonably be used.

45 C.F.R. § 164.512(f). Specifically, Rodriguez claims that the subpoena failed to

comply with the statutory requirements for its issuance and thus violates subsection

(f)(ii)(B).

         Any irregularity in the subpoena’s issuance in this case does not support

suppression of the blood-test results. When the Department of Health and Human

Services (DHHS) promulgated the HIPAA regulations, it declared: “We shape the

rule’s provisions with respect to law enforcement according to the limited scope of

our regulatory authority under HIPAA, which applies only to the covered entities

and not to law enforcement officials.” 65 Fed. Reg. 82462, 82679 (Dec. 28, 2000)

(agency’s response to public comments in connection with promulgation of final

rule).        HIPAA defines as “covered entities” health plans, health care

clearinghouses, and health care providers who transmit health information


                                         17
electronically. See 45 C.F.R. §§ 160.102(a), 164.104(a).        An individual who

believes his rights under HIPAA have been violated may file a complaint against a

covered entity with DHHS’s Office of Civil Rights. 45 C.F.R. § 160.306; see 42

U.S.C. §§ 1320d-5, 1320d-6 (providing for imposition of monetary fines on a

covered entity in the event of a violation). But, as DHHS recognized, “under the

HIPAA statutory authority, [DHHS] cannot impose sanctions on law enforcement

officials or require suppression of evidence.” 65 Fed. Reg. at 82679.

      The State did not violate HIPAA because it is not a covered entity under

HIPAA and accordingly, its conduct is not governed by HIPAA. See United States

v. Elliott, 676 F. Supp. 2d 431, 440 (D. Md. 2009). Moreover, even if the State

had violated HIPAA standards, we cannot read the exclusionary rule into a statute

when its remedial provision is silent on suppression. See, e.g., Sanchez-Llamas v.

Oregon, 548 U.S. 331, 346, 126 S. Ct. 2669, 2679 (2006) (suppression is not

proper remedy for violation of Article 36 of the Vienna Convention; reading rule

requiring suppression into Convention would supplement terms and enlarge U.S.

obligations, which would be “entirely inconsistent with the judicial function”);

Transam. Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19, 100 S. Ct. 242, 247

(1979) (declaring that “it is an elemental canon of statutory construction that where

a statute expressly provides a particular remedy or remedies, a court must be chary

of reading others into it”). “HIPAA was passed to ensure an individual’s right to



                                         18
privacy over medical records; it was not intended to be a means for evading

prosecution in criminal proceedings.” United States v. Zamora, 408 F. Supp. 2d

295, 298 (S.D. Tex. 2006); accord Elliott, 676 F. Supp. 2d at 437–38 (denying

motion to suppress on basis that government’s interest in obtaining medical records

with blood-test results and in addressing drunk-driving problem outweighed any

privacy interest violated through use of improper subpoena).

       We abide by Kirsch and hold that that HIPAA does not provide Rodriguez

with a reasonable expectation of privacy in his medical records and blood-test

results in connection with medical treatment for injuries sustained while in custody

under suspicion of intoxication. See 276 S.W.3d at 587. As a result, the trial court

did not err in denying Rodriguez’s motion to suppress on this ground.

III.   Article 38.23 Standing

       Article 38.23 provides that “[n]o evidence obtained by an officer or other

person in violation of any provisions of the Constitution or laws of the State of

Texas, or of the Constitution or laws of the United States of America, shall be

admitted in evidence against the accused on the trial of any criminal case.” TEX.

CODE CRIM. PROC. ANN. art. 38.23. Its purpose is “to protect a suspect’s privacy,

property, and liberty rights against overzealous law enforcement . . . [and] to deter

unlawful actions which violate the rights of criminal suspects in the acquisition of




                                         19
evidence for prosecution.” Wilson v. State, 311 S.W.3d 452, 458–59 (Tex. Crim.

App. 2010).

      We have held that none of the laws that Rodriguez relies on supports his

claim to a reasonable expectation of privacy in these circumstances, and he does

not identify any other personal right that the State violated in obtaining the records.

An accused does not have standing to complain about evidence that is illegally

obtained unless it was done so in violation of his rights. See Chavez v. State, 9

S.W.3d 817, 819 (Tex. Crim. App. 2000). Absent a substantive personal right,

Rodriguez is not entitled to exclusion of the evidence under article 38.23.

                                     Conclusion

      We hold that the trial court did not err in denying Rodriguez’s motion to

suppress. We therefore affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Justices Keyes, Bland, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




                                          20
   Appendix B

Statement of Facts




       26
                                          Appendix B

                                     Statement of Facts

       On September 25, 2010, Appellant was arrested for driving while intoxicated.

There was probable cause for the arrest. FOF-6-11.1 COL-1 There was no traffic

accident. After Appellant arrived at “Central Intox,” and while being escorted into

the station, Appellant pulled away from the officer, lost his balance, and fell forward

onto the parking lot, suffering injuries to his head and face that required medical

attention. FOF-13-14. An ambulance was called and Appellant was transported to

St. Joseph’s Hospital. FOF-15. Houston Police Department Officer Roberts followed

the ambulance to the hospital. Appellant remained in custody at the hospital. FOF-

17-18.     At the hospital, Roberts requested a specimen of Appellant’s blood.

Appellant refused. FOF-18.

       Appellant’s blood was drawn at the hospital by medical personnel (not as

agents of law enforcement) for medical purposes. FOF-19,23, COL-2. Because

Appellant was admitted for treatment, he was released from custody. FOF-24.

       Based on a conversation with Roberts, an assistant district attorney agreed to

accept charges on a “to be” basis following receipt of the blood alcohol test results


       1
          References in this statement of facts to FOF are to the court’s findings of fact and to
COL are to the court’s conclusions of law. This is the only document contained in the
supplemental clerks’ record.

                                                1
from the hospital. Roberts completed a “to-be” police report and placed it in the

designated place at HPD for later processing. FOF-25.

      MacKenzie Gaston-Winne (Winne), a civilian evidence technician at HPD,

received and processed the “to be” police report. In accordance with HPD policy,

Winne emailed Rhonda Watson, a paralegal at the Harris County DA’s office, and

requested a grand jury subpoena for Appellant’s medical records and blood test

results. When Winne received the paperwork (variously referred to as a grand jury

subpoena or alleged grand jury subpoena) dated September 28, 2010, from Watson,

she attached an HPD cover sheet and transmitted it to the hospital. No peace officer

was involved in this process. The documents obtained by Winne from Watson are

contained in state’s exhibit 2 and defense exhibit 1. FOF-26.

      The hospital responded to the records request by transmitting Appellant’s

medical records to Watson on November 9, 2010. On November 10, 2010, Watson

transmitted them to Winne. The records were never filed with either the District

Clerk or any grand jury. FOF-50, COL-16.

      A copy of the records were filed with the HPD accident division and the

original were placed in the original “officer’s packet” for his use. At no time were

the records sent to the Grand Jury Division of the District Attorney’s office, any

Grand Jury, or to the District Clerk. FOF-27. Following receipt of the records,

                                         2
Roberts prepared a probable cause affidavit that was presented to an assistant district

attorney and charges were filed. FOF-51.

      Catherine Evans was the Chief of the Vehicular Crimes Section of the DA’s

office. Watson worked under Evans. FOF-28. Watson had been issued a signature

stamp by Evans with Evans’ name on it for Watson’s use when officers were seeking

grand jury subpoenas. Watson was not an attorney or an assistant district attorney.

FOF-29.

      In a typical case, when a law enforcement officer wanted a grand jury subpoena

and contacted Watson, she would verify that the records were being sought in

connection with a pending investigation, would collect the necessary descriptive

information, prepare a document labeled “grand jury subpoena,” use the stamp

provided by Evans to affix Evans’ stamped signature to the document, and provide

the document to the requesting officer. FOF-31. In a typical case, Watson was

authorised to use the stamp to affix Evans’ signature to a document labeled “grand

jury subpoena” without obtaining express permission or consent from Evans or any

other assistant district attorney. Watson could, if she chose to, consult with an

assistant district attorney, but that decision was solely within her discretion. FOF-32.

      Watson issued more documents labeled “grand jury subpoena” using Evans’

stamp without obtaining express permission or consent from Evans or any assistant

                                           3
district attorney than she did where she was given express permission on a specific

case. FOF-9. Watson issued more documents labeled “grand jury subpoena” using

Evans’ stamp than Evans issued. FOF-34. More often than not, Evans was not aware

when Watson used her signature stamp to issue a document labeled “grand jury

subpoena.” FOF-35. Watson issued the vast majority of documents labeled “grand

jury subpoena” in misdemeanor DWI cases without the specific approval of Evans or

any other assistant district attorney. FOF-37.

      Watson was also given the discretion to choose which of the sitting grand juries

she would designate as seeking the records sought by the document labeled “grand

jury subpoena.” FOF-38.

      The District Attorneys’s Office provided no written instructions to officers who

obtained medical records with a grand jury subpoena or a document labeled “grand

jury subpoena” as to what was to be done with the records once they were obtained.

FOF-39. Such officers were not required to turn over the medical records they

received to either the District Clerk or to the grand jury designated on the document.

FOF-40. In typical cases, the records were kept at the law enforcement agency that

obtained the records and in some cases copies were turned over to the district

attorney’s office, where they would be maintained in the case file for which they had

been sought. FOF-41.

                                          4
      Officers who received records obtained with a grand jury subpoena or a

document labeled “grand jury subpoena” received no instructions on maintaining

privacy or secrecy of the medical records aside from the language contained within

the grand jury subpoena or document labeled “grand jury subpoena” and the

accompanying “HIPAA letter.” FOF-42. The District Attorneys Office had no policy

or procedure to protect and maintain the secrecy of the records obtained with a grand

jury subpoena or a document labeled “grand jury subpoena” from other assistant

district attorneys or other employees of the office not involved in the grand jury

process. FOF-43.

      Even though the District Attorney’s Office was aware of the HPD standard

procedure for handling documents obtained with a grand jury subpoena or a

document labeled “grand jury subpoena” and placing them in files that may have been

accessible to other police employees, the DA’s office did not issue any instructions

concerning grand jury secrecy. FOF-44.

      It was the policy of the DA’s office to exempt all law enforcement personnel

from grand jury secrecy provisions. FOF-46. It was the policy and practice of the

DA’s Office not to require any witness served with a grand jury subpoena or a

document labeled “grand jury subpoena” for medical records in misdemeanor DWI

cases to appear before any grand jury or court so long as the witness produced the

                                          5
requested medical records. FOF-47.

      Watson never dealt with any peace officer in relation to this case. FOF-49.

Upon receipt of the request from Winne, Watson placed Evans’ stamped signature

on the document labeled “grand jury subpoena” and caused it to be delivered to

Winne. Watson acted solely in her delegated capacity and never received express

approval in this case from any assistant district attorney to issue the document labeled

“grand jury subpoena.” FOF-49.

      No person related to this case ever testified before a grand jury in relation to

this case. FOF-52. There is no order from any court releasing the records obtained

from the hospital from grand jury secrecy. FOF-53.

      Appellant had a subjective expectation of privacy in his medical records and

the blood test results. FOF-54. There is no other process (such as a subpoena, grand

jury subpoena, summons, or attachment) related to obtaining records in this case other

than the documents admitted into evidence. FOF-55. The term of the 185th grand

jury was from August 3, 2010, through October 28, 2010. FOF-56.




                                           6
                 Appendix C

Court’s Findings of Fact and Conclusions of Law




                      27
Appendix D

  Cases




   28
                                   Appendix D

                List of Cases Following or Relying on Dickerson


Sullivan v. State, No. 03-98-00151-CR, 1999 Tex. App. LEXIS 3150, 1999 WL

249412 (Tex. App–Austin, Apr. 29, 1999, pet ref’d)(relying on Dickerson; 38.23

only mentioned as a remedy for the alleged fourth amendment violation).



Mazzucco v. State, No. 09-98-513-CR, 1999 Tex. App. LEXIS 6466; 1999 WL

650864 (Tex. App--Beaumont, Aug 25, 1999, no pet.)(relying on Dickerson and

Comeaux; article 38.23 not mentioned).



Garcia v. State, 95 S.W.3d 522, 526-27 (Tex. App.--Houston [1st Dist.] 2002, no

pet.)(relying on Dickerson; article 38.23 not mentioned).



Tapp v. State, 108 S.W.3d 459, 462 (Tex. App.--Houston [14th Dist.] 2003, pet.

ref’d) (relying on Dickerson and Garcia and without any discussion or additional

authority, expressly extending them to reject an Article 38.23 claim).




                                         1
Harmon v. State, No. 01-02-00035-CR, 2003 Tex. App. LEXIS 6172; 2003 WL

21665488 (Tex. App–Houston [1st Dist.], Jul. 17, 2003, no pet.)(relying on Dickerson

and Garcia; article 38.23 not mentioned).



Hicks v. State, No. 01-02-00165-CR, 2003 Tex. App. LEXIS 9280; 2003 WL

22456045 (Tex. App.--Houston [1st Dist], Oct. 30, 2003, no pet)(relying on

Dickerson and Garcia; article 38.23 not mentioned).



Ramos v. State, 124 S.W.3d 326, 339 (Tex. App.—Fort Worth 2003, pet.

ref'd)(relying on Dickerson, Garcia, and Tapp, and claiming that this was also a

holding of Hardy; article 38.23 not mentioned with respect to this issue).



Murray v. State, 245 S.W.3d 37, 42 (Tex. App.--Austin 2007, pet ref'd)(relied on

Ramos and Tapp and without any additional analysis applied them to find no

standing to raise an Article 38.23 claim).



Kennemur v. State, 280 S.W.3d at 312 (relying on Ramos and, without discussion

or analysis, broadened to include no standing to raise a claim that HIPAA was

violated; article 38.23 not mentioned).

                                             2
Mitchell v. State, No. 05-06-01479-CR, 2008 Tex. App. LEXIS 6085; 2008 WL

3318883 (Tex. App--Dallas, Aug 12, 2008, no pet.)(relying on Ramos, generally, and

Murray and Tapp in relation to no standing in relation to the HIPAA claim; 38.23

not mentioned).



Kirsch v. State, 276 S.W.3d 879 (Tex. App.–Houston [1st Dist.] 2008), aff’d on

other grounds, 306 S.W.3d 738 (Tex. Crim. App. 2010)(relying on Garcia, Tapp,

Ramos and Murphy; broadened to include no standing to raise a claim that HIPAA

was violated; article 38.23 not mentioned).



State v. Jewell, No. 10-11-00166-CR, 2013 Tex. App. LEXIS 930, 2013 WL 387800

(Tex. App.--Waco, Jan. 31, 2013, no pet.)(relying on Murray and citing article 38.23

to affirm suppression of all medical records other than blood test results).




                                          3
