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

           No. 02-19-00307-CR
      ___________________________

CHAD CHRISTOPHER JACOBSON, Appellant

                      V.

          THE STATE OF TEXAS


 On Appeal from County Criminal Court No. 4
           Denton County, Texas
     Trial Court No. CR-2017-05611-D


 Before Sudderth, C.J.; Gabriel and Bassel, JJ.
          Opinion by Justice Bassel
                                     OPINION

                                   I. Introduction

      A jury convicted Appellant Chad Christopher Jacobson of driving while

intoxicated.   See Tex. Penal Code Ann. § 49.04.          The trial court assessed his

punishment at ninety days’ confinement in the Denton County Jail and a $500 fine.

The trial court suspended the sentence and placed Appellant on community

supervision for a period of sixteen months.

      In a single issue, Appellant claims that although the State obtained a warrant to

draw his blood based on probable cause that he was driving while intoxicated, a

second warrant should have been obtained that authorized a test to determine the

blood’s alcohol concentration. Without that second warrant, he argues, the test

results should have been suppressed. We reject Appellant’s contention.

      Appellant’s contention is premised on his reading of recent precedent from the

court of criminal appeals as holding that a blood draw and a subsequent test of the

drawn blood are separate searches, each requiring their own warrant. Appellant

overreads this precedent. In the precedent, the defendant had an expectation of

privacy in a blood sample that had been drawn for medical purposes, i.e., without a

warrant. Here, Appellant’s blood was drawn pursuant to a warrant based on probable

cause to believe that he was guilty of the offense of driving while intoxicated; at that

point, he had no reasonable expectation of privacy that required a second warrant to

test the sample to determine its blood–alcohol content.

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                             II. Factual Background

      The facts relevant to this appeal are uncontested; thus, we will forgo a detailed

recitation of the background of the offense.        Appellant committed traffic-law

infractions and was stopped by police. He evidenced signs of intoxication. The

arresting officers obtained a warrant authorizing a blood draw and transported

Appellant to a hospital where his blood was drawn. Testing of the blood revealed

that Appellant had a blood–alcohol concentration of 0.124.

      At trial, Appellant objected on various grounds to the introduction of the

blood kit containing the blood sample taken and of the blood-test results. Specific to

his issue on appeal, Appellant objected that “the search warrant only allow[ed] the

officer to obtain the specimen. The subsequent search, the analysis, was not by

consent, and it was not by legal authority via a search warrant.” The trial court

overruled the objection.

                             III. Standard of Review

      When reviewing an objection that seeks to suppress evidence, we give almost

complete deference to the trial court’s determination of historical facts. State v.

Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). This aspect of the standard

does not impact our review because the facts are undisputed.          Our task is to

determine “whether [our] particular [undisputed] historical facts give rise to a

reasonable expectation of privacy.” Id. We make that determination by applying a

de novo standard of review. Id.

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                                      IV. Analysis

       In his sole issue, Appellant argues that the trial court abused its discretion by

denying his motion to suppress because the State failed to obtain a search warrant

authorizing the testing and analysis of the blood sample taken from Appellant.

       A.     Appellant relies on the court of criminal appeals’ opinion in
              State v. Martinez to argue that the State had to obtain a second
              warrant authorizing the testing of his blood to determine its
              blood–alcohol concentration.

       Appellant’s argument—that his Fourth Amendment right against unreasonable

searches and seizures1 was violated—turns on his reading of the court of criminal

appeals’ opinion in Martinez.      Appellant argues for an interpretation of the rule

announced in Martinez that fails to confront the critical differences between the facts

surrounding the blood draw in Martinez and those of his own blood draw. As we will

explain in detail, Appellant’s blindly pounding on the square peg of Martinez cannot

drive it into the round hole of his facts.

       In Martinez, the defendant was charged with intoxication manslaughter. Id. at

281. He had been transported to a hospital after an auto accident. Id. at 282. After

his blood was drawn for medical purposes, he fled the hospital. Id. Law enforcement

obtained a grand jury subpoena and took possession of the blood sample. Id. Law

enforcement then submitted the sample for testing without having obtained a warrant


       Under the Fourth Amendment, “[t]he right of the people to be secure in their
       1

persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated.” U.S. Const. amend. IV.

                                             4
to permit that testing. Id. The trial court found that the test results were inadmissible.

Id. at 283. The court of criminal appeals agreed. Id. at 281.

       Martinez concluded that the State should have obtained a warrant before testing

the sample. Id. The court of criminal appeals looked to its prior precedent and that

of the United States Supreme Court to conclude that the defendant had an

expectation of privacy in the sample. Id. at 283–91. First, the court noted that it had

previously held that a person’s expectation of privacy had three different stages in the

process of drawing and testing blood: “(1) the physical intrusion into his body to

draw blood, (2) the exercise of control over and the testing of the blood sample, and

(3) obtaining the results of the test.” Id. at 284 (quoting State v. Hardy, 963 S.W.2d

516, 526 (Tex. Crim. App. 1997)). After analyzing various authorities, the court

reached the conclusion that under the facts before it, the defendant had an

expectation of privacy in the second stage of the process that required the State to

obtain a warrant when it sought to test blood extracted for medical reasons. Id. at

291.

       The court summarized its reasoning in a paragraph that demonstrated that it

was dealing with a situation in which the blood was drawn for medical purposes—

unlike the situation in this appeal in which the blood was drawn pursuant to a warrant:

       Based on the foregoing, we believe the [State v.] Comeaux[, 818 S.W.2d 46
       (Tex. Crim. App. 1991) (plurality op.)] plurality reached the correct result
       twenty-eight years ago when it considered the question we are faced with
       today. There are private facts contained in a sample of a person’s blood
       beyond simple confirmation of a suspicion that a person is intoxicated.

                                            5
      These private facts are those that a person does not voluntarily share
      with the world by the mere drawing of blood and may be subject to
      Fourth Amendment protection. We hold that there is an expectation
      of privacy in blood that is drawn for medical purposes. The
      expectation is not as great as an individual has in the sanctity of his own
      body against the initial draw of blood. Missouri v. McNeely, 569 U.S. 141,
      148, 133 S. Ct. 1552, 185 L.Ed.2d 696 (2013) (compelled physical
      intrusion beneath the skin and into the veins to obtain a sample of blood
      for use as evidence in a criminal investigation “implicates an individual’s
      ‘most personal and deep-rooted expectations of privacy[]’”[] (quoting
      Winston v. Lee, 470 U.S. 753, 760, 105 S. Ct. 1611, 84 L.Ed.2d 662
      (1985))[)]; Hardy, 963 S.W.2d at 526. But it is greater than an individual
      has in the results of tests that have already been performed on the blood.
      Individuals in the latter case have, as we held in Hardy and Huse, no
      expectation of privacy. Hardy, 963 S.W.2d at 527; [State v.] Huse, 491
      S.W.3d [833,] 842 [(Tex. Crim. App. 2016)].

Id. (emphasis added).

      Appellant extracts what he describes as a “bright-line rule” from Martinez that

mandates that blood testing—no matter how the sample was obtained—must be

authorized by a separate warrant:

      The recently decided Martinez opinion is significant because it establishes
      a bright-line rule. Regardless of how the government obtains a blood
      sample—whether it is pursuant to a warrant or from a third-party that
      took the sample solely for medical purposes, any subsequent analysis of
      that sample by the government is a “search” under the Fourth
      Amendment that must be justified by a search warrant or a valid warrant
      exception.

But Appellant makes no effort to explain why a defendant would have an expectation

of privacy in a sample drawn for the specific purpose of obtaining evidence in a DWI

prosecution. Indeed, as we discuss below, our sister courts hold that Martinez does

not mandate a second warrant to test a sample initially obtained by means of a


                                          6
warrant. And, as we also discuss below, the holdings of our sister courts are not

unique; they reach the same result as that reached by appellate courts across the

country—that is, that there is no reasonable expectation of privacy in a blood sample

drawn pursuant to a search warrant in a DWI case that prompts the need for a second

warrant in order for law enforcement to determine the drawn blood’s alcohol

concentration.

      B.     Our sister courts have held that a second warrant is not required to
             test a blood sample obtained by a warrant.

      Within the past several months, the Dallas Court of Appeals, the Corpus

Christi–Edinburg Court of Appeals, and the San Antonio Court of Appeals have held

that Martinez does not mandate a second warrant to test a sample obtained initially by

means of a warrant and thus does not create the bright-line rule that Appellant sees in

Martinez. See State v. Staton, No. 05-19-00661-CR, 2020 WL 1503125, at *2–3 (Tex.

App.—Dallas Mar. 30, 2020, no pet. h.); Hyland v. State, 595 S.W.3d 256, 257 (Tex.

App.—Corpus Christi–Edinburg 2019, no pet.) (op. on remand); Crider v. State, No.

04-18-00856-CR, 2019 WL 4178633, at *2 (Tex. App.—San Antonio Sept. 4, 2019,

pet. granted) (mem. op., not designated for publication). The opinions begin, as we

have, by detailing that the blood draw in Martinez was not made pursuant to a warrant.

The opinions then point to the fact that because the blood draw in each of their cases

occurred pursuant to a warrant, Martinez has no application to their facts. See Staton,




                                          7
2020 WL 1503125, at *2–3; Hyland, 595 S.W.3d at 257; Crider, 2019 WL 4178633, at

*2.

      Crider noted Martinez’s holding—that the drawing and the testing of blood are

two separate searches—but rejected that holding as a rationale to require a second

warrant to test a sample drawn originally pursuant to a warrant based on probable

cause to believe that a defendant was driving while intoxicated. 2019 WL 4178633, at

*2. There was simply no expectation of privacy left in the sample drawn pursuant to

the warrant that prompted the need for a second warrant because

      [j]ust as a person who has given a blood sample for private testing
      reasonably can assume that sample will not be turned over to the State
      for another purpose, we reasonably can assume that where the police
      seek and obtain a blood draw warrant in search of evidence of
      intoxication, the blood drawn pursuant to that warrant will be tested and
      analyzed for that purpose.
Id.

      Looking to its own opinion in Martinez,2 which was affirmed by the court of

criminal appeals, and to the precedents cited by the court of criminal appeals in its

opinion in Martinez, the Corpus Christi–Edinburg court in Hyland relied on the

disparate facts of those cases in contrast to its facts and rejected the need for a second

warrant. 595 S.W.3d at 257. Hyland disposed of its appellant’s claim concisely:

“Hyland does not direct this Court to any authority or support, nor do we find any,



      2
         State v. Martinez, 534 S.W.3d 97 (Tex. App.—Corpus Christi–Edinburg 2017),
aff’d, 570 S.W.3d 278 (Tex. Crim. App. 2019).

                                            8
that states that the State cannot re-analyze evidence lawfully in its possession pursuant

to a valid search warrant.” Id.

      Staton relied on both Crider and Hyland. 2020 WL 1503125, at *2–3. Staton

agreed with Crider that Martinez could not be read to require specific authorization for

testing when collection of the sample was done pursuant to a warrant based on

probable cause. Id. at *2. Looking to the principles of common sense that Crider

relied on, the Dallas court noted that “common sense dictates that blood drawn for a

specific purpose will be analyzed for that purpose and no other.” Id. at *2 (quoting

Crider, 2019 WL 4178633, at *2).         The Dallas court held that Martinez had no

application because it dealt with a different question—whether “an individual has an

expectation of privacy in blood previously drawn for purposes other than police

testing .” Id. at *3 (emphasis added).

      C.     A litany of cases from other jurisdictions holds that a second
             warrant is not required under the circumstances presented here.

      We will not examine in detail each of the cases, but the following is a catalog of

opinions from other jurisdictions holding that a defendant does not have an

expectation of privacy in the testing of a blood sample taken pursuant to a warrant

when the testing involves only the determination of the sample’s blood–alcohol

concentration. See United States v. Snyder, 852 F.2d 471, 473–74 (9th Cir. 1988); State v.

Hauge, 79 P.3d 131, 144 (Haw. 2003); State v. Frescoln, 911 N.W.2d 450, 456 (Iowa Ct.

App. 2017); State v. Fawcett, 877 N.W.2d 555, 561 (Minn. Ct. App.), aff’d, 884 N.W.2d


                                            9
380 (Minn. 2016); State v. Swartz, 517 S.W.3d 40, 48–50 (Mo. Ct. App. 2017); People v.

King, 663 N.Y.S.2d 610, 614 (N.Y. App. Div. 1997); State v. Price, 270 P.3d 527, 529

(Utah 2012); State v. Martines, 355 P.3d 1111, 1116 (Wash. 2015); State v. Sanders, Nos.

93-2284-CR, 93-2286-CR, 1994 WL 481723, at *5 (Wis. Ct. App. Sept. 8, 1994) (not

designated for publication).

      We will not do our own summary of the cited cases because the Iowa Court of

Appeals did an admirable job of summarizing many of them:

      Furthermore, though the issue has not been decided in Iowa, we note
      that other courts have held that a defendant loses a privacy expectation
      in blood after its lawful removal from the body, and therefore, any
      testing of that blood does not violate the constitutional protections from
      unreasonable searches and seizures. See . . . Snyder, 852 F.2d [at] 473–74
      . . . (holding that “so long as blood is extracted incident to a valid arrest
      based on probable cause to believe that the suspect was driving under
      the influence of alcohol, the subsequent performance of a blood[–
      ]alcohol test has no independent significance for [F]ourth [A]mendment
      purposes, regardless of how promptly the test is conducted”); . . . Fawcett,
      877 N.W.2d [at] 561 . . . (“Once a blood sample has been lawfully
      removed from a person’s body, a person loses an expectation of privacy
      in the blood sample, and a subsequent chemical analysis of the blood
      sample is, therefore, not a distinct Fourth Amendment event.”); . . . King,
      . . . 663 N.Y.S.2d [at] 614 . . . (“It is also clear that once a person’s blood
      sample has been obtained lawfully, he can no longer assert either privacy
      claims or unreasonable search[-]and[-]seizure arguments with respect to
      the use of that sample. Privacy concerns are no longer relevant once the
      sample has already lawfully been removed from the body, and the
      scientific analysis of a sample does not involve any further search and
      seizure of a defendant’s person.”); see also Andrei Nedelcu, Blood and
      Privacy: Towards A “Testing-As-Search” Paradigm Under the Fourth Amendment,
      39 Seattle U. L. Rev. 195, 201 (Fall 2015) (“[N]ational search[-]and[-
      ]seizure jurisprudence is largely in agreement: No express judicial
      authorization is needed to analyze a suspect’s blood (or any other
      biological sample) once it has already been lawfully procured.”).


                                            10
Frescoln, 911 N.W.2d at 456.

      If flesh needs to be put on the bones of the rationales of the opinions cited by

Frescoln, it comes from a recent opinion of the Wisconsin Supreme Court. See State v.

Randall, 930 N.W.2d 223 (Wis. 2019). Randall dealt with the question of whether a

warrant was needed for testing when a defendant had consented to a blood draw and

then had withdrawn that consent before the sample was tested. Id. at 225. Randall

rejected the illogic of an argument that a party had “a privacy interest in the

instrumentalities and evidence of crime for which the police were authorized to

search.” Id. at 237. The court noted the impact that such a position would have on

searches incident to arrest where the State seized a bag of white powder or a pistol.

Id. To accept the argument that a second warrant was needed, the State could not test

the bag of powder or fingerprint the gun that law enforcement properly seized and

would create the quandary that “having discovered the very thing for which it was

authorized to search, the State could do nothing with it unless it thereafter obtained a

warrant for its examination and use.” Id. Randall rejected the claim that the Fourth

Amendment places law enforcement in such a quandary and the thought that a party

charged with driving while intoxicated has a reasonable expectation of privacy that

protects the defendant from a search for evidence of a crime in a blood sample that

was properly obtained by law enforcement:

      Upon her arrest, Ms. Randall’s reduced expectation of privacy meant
      that she could not keep the presence and concentration of alcohol in her
      blood [a] secret from the police. So the only relevant question is

                                          11
      whether the method by which the State obtained the non-private
      evidence satisfied the Fourth Amendment’s requirements. Ms. Randall’s
      consent to the blood draw satisfied those requirements, and that left the
      State free to test the blood sample for the non-private information.

Id. at 237–38. We agree with Randall that the Fourth Amendment does not require

the State to obtain a second warrant to test a blood sample that was seized based on

probable cause that a person was driving while intoxicated.

      D.     Martinez has no application to our facts.

      All of the foregoing is the preface to our explanation regarding why the bright-

line rule, which Appellant sees in Martinez as mandating a second warrant, does not

exist. Martinez does state that multiple searches occur in the sequence of drawing and

testing blood and that in the context of its facts, an expectation of privacy was

incident to the draw and the test. But what it does not address is when a prior step in

the process removes the expectation of privacy in a subsequent step. The expectation

of privacy in the blood sample was not removed before the testing in Martinez because

no legal authority was obtained to draw the blood. The appellant in Martinez retained

the expectation that blood drawn for a medical purpose would not be turned over to

law enforcement without law enforcement’s protecting his Fourth Amendment rights

and providing a justification for why that blood should be searched to obtain evidence

to prosecute him. That step has already occurred in this case. The State has provided

the justification and has been given the means of obtaining the blood to use as

evidence against Appellant. He never explains how under the circumstances here, he


                                          12
retained an expectation of privacy that his blood would not be tested so that it could

be used for exactly the purpose for which it was seized.3

      E.     We reject Appellant’s contention that the warrant authorizing the
             drawing of his blood was an improper general warrant.

      On a final note, we address one argument that we see as not covered by our

discussion to this point. Appellant argues that the warrant in this case violates the

rule against general search warrants. “The United States and Texas Constitutions [do]

‘prohibit general warrants which fail to particularly describe the property to be seized

and allow general, exploratory rummaging in a person’s belongings.’” In re Cook,

No. 14-19-00664-CR, 2020 WL 897120, at *5 (Tex. App.—Houston [14th Dist.]

Feb. 25, 2020, orig. proceeding) (quoting Walthall v. State, 594 S.W.2d 74, 78 (Tex.

Crim. App. [Panel Op.] 1980)). Appellant views the warrant in this case as violating

that rule because “[t]he search warrant signed by the magistrate in this case simply

call[ed] for a medical professional to withdraw samples of blood from Appellant’s

body and [to] deliver those samples to law enforcement.”

      The warrant in this case hardly sanctions a general rummaging through

Appellant’s property. As Appellant acknowledges, the warrant authorized the taking

of a sample of Appellant’s blood and the delivery of the sample to the officer who

had transported Appellant to the hospital. His argument that the warrant was too


      3
       Our holding does not address whether Appellant might have an expectation of
privacy that his blood would not be tested for a substance unrelated to the purpose
for which it was seized, and we express no opinion on that issue.

                                          13
general is merely a shade and phase of Appellant’s two-warrant argument that we have

rejected. See Crider, 2019 WL 4178633, at *2 (“Here, in contrast, police obtained

Crider’s blood sample pursuant to a valid search warrant. Although the warrant does

not expressly authorize testing and analysis of the blood sample, Martinez does not

require that it do so.”); see also Staton, 2020 WL 1503125, at *2 (“Although the warrant

does not expressly authorize testing and analysis of the blood sample, Martinez does

not require that it do so.”).

       F.     Disposition

       We have conducted a de novo review of the legal issue raised by Appellant and

conclude that it is without merit. Appellant, however, couches his issue on appeal as

a claim that the trial court abused its discretion; based on the above analysis, we also

hold that the trial court did not abuse its discretion by overruling Appellant’s

objections to the admission of the test results showing his blood–alcohol

concentration. Accordingly, we overrule Appellant’s sole issue.

                                   V. Conclusion

       Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                      /s/ Dabney Bassel

                                                      Dabney Bassel
                                                      Justice

Publish

Delivered: April 23, 2020


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