Opinion issued November 7, 2013.




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-12-00075-CR
                           ———————————
                          SHANE OWENS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                On Appeal from the County Court at Law No. 2
                            Brazos County, Texas
                 Trial Court Case No. 08-04651-CRM-CCL2


                                  OPINION

      A jury convicted Shane Owens of driving while intoxicated. The trial court

assessed punishment at thirty days’ confinement and imposed a $1,500 fine. On

appeal, Owens contends that the trial court erred in denying his motion to suppress

his blood test results. He asserts that (1) under the Fourth Amendment, he had a
reasonable expectation of privacy in his blood test results; and (2) the hospital staff

obtained his blood illegally. Finding no error, we affirm.

                                    Background

      In August 2008, a police officer observed Shane Owens drive over a raised

center median. The officer stopped Owens’ car and noticed an odor of alcohol

coming from inside the car.        The officer arrested Owens for driving while

intoxicated. While in the officer’s patrol car, Owens complained of shortness of

breath. The officer called an ambulance, and paramedics transported Owens to a

local hospital.   The officer remained with Owens throughout his visit to the

hospital. Upon Owens’ release, the officer took Owens to jail.

      During the hospital visit, Owens was belligerent and uncooperative with

hospital staff. Owens complained that he was experiencing an asthma attack, and

the emergency room doctor found Owens’ blood pressure and heart rate to be

elevated. She ordered an x-ray and blood tests. Owens refused to consent to any

blood tests. In light of Owens’ complaint and symptoms, the emergency room

doctor ordered the hospital staff to draw Owens’ blood without his consent to rule

out any life-threatening conditions. Owens stopped resisting the blood draw after

the doctor told him that she would take his blood with or without his consent.

Although the police officer was present, he did not suggest the blood draw or exert

any influence over the hospital staff. The doctor testified at the hearing to suppress


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Owens’ medical records that she “felt that it was appropriate to establish that he

was in fact intoxicated and able to attribute his tachycardia to his alcohol as

opposed to some other life-threatening medical condition.” She further testified

that she took the blood because she was “obligated to do what’s in his best interest,

medically.” After hearing the physician’s testimony, the trial court found that the

emergency room doctor ordered the blood draw for medical reasons alone and not

for law enforcement purposes.

      The State procured a records subpoena to obtain the results of Owens’ blood

tests. Owens moved to suppress the records. After a hearing, the trial court denied

the motion. The State proffered, and the trial court admitted, the results of Owens’

blood tests at trial. According to those results, Owens had a blood alcohol level of

.193 at the time of the blood draw, above the legal limit of .080. See TEX. PENAL

CODE ANN. § 49.01(2)(B) (West 2011).

                                      Discussion

      Owens contends that the trial court erred in denying his motion to suppress

his blood test results. He asserts that (1) the Fourth Amendment of the U.S.

Constitution protects his reasonable expectation of privacy in his blood test results;

and (2) the hospital staff obtained his blood illegally.




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      Standard of Review

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

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

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

evidence and testimony. Weide 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

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)).

      Preservation of error

      The State first responds that Owens waived this evidentiary issue by not

objecting to it at trial or in the jury charge conference. However, when a trial court

denies a pretrial motion to suppress evidence, a defendant need not subsequently

object to admission of that evidence at trial to preserve error. Garza v. State, 126


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S.W.3d 79, 84 (Tex. Crim. App. 2004). We hold that Owens has not waived this

issue.

         Fourth Amendment

         In State v. Hardy, the Texas Court of Criminal Appeals held that the State’s

subpoena of the results of blood tests conducted by private medical personnel

solely for medical purposes did not violate the Fourth Amendment. State v. Hardy,

963 S.W.2d 516, 527 (Tex. Crim. App. 1997). The facts in this case are similar to

those in Hardy. Here, the trial court found that (1) the police officer did not

suggest the blood draw or exert any influence over the hospital staff; and (2) the

blood draw was taken solely for medical purposes.            Because private actors

conducted the blood draw and blood tests, the hospital staff’s blood draw and test

of it does not violate the Fourth Amendment. See Hardy, 963 S.W.2d at 526.

Although the State’s later subpoena of the blood tests is a state action, the request

for records does not violate Owens’ reasonable expectation of privacy. Id. at 527.

We hold that the Fourth Amendment does not bar the admission of Owens’ blood

test results.

         Article 38.23(a)

         Owens next contends that the hospital staff obtained his blood illegally by

committing an assault, and thus, the results of his blood tests are inadmissible

under Article 38.23(a) of the Texas Code of Criminal Procedure. Article 38.23(a)


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states 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). Article 38.23(a) applies to

both state actors and private actors. Miles v. State, 241 S.W.3d 28, 36 (Tex. Crim.

App. 2007); State v. Johnson, 939 S.W.2d 586, 587–88 (Tex. Crim. App. 1996).

      Owens asserts that the hospital staff’s blood draw without his consent

amounts to an assault under § 22.01(a) of the Texas Penal Code. He cites Hailey v.

State, in which the Waco Court of Appeals held that a hospital staff’s blood draw

from a DWI suspect without the suspect’s consent amounted to an assault. 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). In Hailey, the appellate court held that no

evidence indicated that the defendant ever requested or consented to evaluation or

treatment of any physical or mental condition. Hailey, 50 S.W.3d at 639. But the

appellate court noted that “[i]t is axiomatic that if there was consent to or a request

for treatment, any complaint by [the defendant] that blood was taken illegally

would be negated.” Id. at 639 n.6. The appellate court also held that there was no

evidence that the defendant was in a condition which might justify emergency

action by hospital staff. Id. at 639.

      The facts here are distinguishable from the facts in Hailey. Shortly after his

arrest, Owens reported to the police officer he was having an asthma attack.


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Owens appeared to have trouble breathing, so the police officer called an

ambulance. While at the hospital, Owens continued to complain of an asthma

attack. The doctor ordered the blood draw to rule out life threatening conditions,

such as a heart attack. Unlike the defendant in Hailey, Owens presented to medical

personnel in a condition that justified emergency action and medical treatment by

hospital staff. Because Owens presented for medical treatment, and he complained

of shortness of breath and an asthma attack, the trial court reasonably could have

concluded that the hospital staff did not assault Owens by drawing his blood in

connection with emergent medical diagnosis and treatment. See Hailey, 50 S.W.3d

at 639 n.6; see also State v. Kelly, 204 S.W.3d 808, 820–21 (Tex. Crim. App.

2006) (holding that hospital staff did not assault defendant and thus defendant’s

blood test results were admissible); Spebar v. State, 121 S.W. 3d 61, 64 (Tex.

App.—San Antonio 2003, no pet.); Ramos v. State, 124 S.W. 3d 326, 336 (Tex.

App.—Fort Worth 2003, pet. ref’d). We hold that Article 38.23(a) of the Code of

Criminal Procedure does not bar the admissibility of Owens’ blood test results.




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                                    Conclusion

       We hold that neither the Fourth Amendment nor Article 38.23(a) bars the

admissibility of Owens’ blood test results. We therefore affirm the judgment of

the trial court.




                                            Jane Bland
                                            Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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




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