                                     IN THE
                             TENTH COURT OF APPEALS

                                    No. 10-08-00185-CR

THE STATE OF TEXAS,
                                                               Appellant
v.

PAUL DAVID ROBINSON,
                                                               Appellee



                                 From the County Court
                                 Freestone County, Texas
                                  Trial Court No. 21659


                                       OPINION


          Paul Robinson, charged with driving while intoxicated (second offense), filed a

motion to suppress blood-test evidence, which the trial court granted.            The State

appeals, asserting in one issue that the trial court erred in granting the motion. We will

affirm.

                                         Jurisdiction

          We first address Robinson’s assertion that we lack jurisdiction because the State’s

notice of appeal was untimely. The trial court orally granted the motion to suppress at
the conclusion of a May 14, 2008 hearing. The trial judge then signed an order that

states:

          On May 14 [italics in handwriting], 2008, came on to be considered Paul
          David Robinson’s Motion to Suppress Blood Test,” and said motion is
          hereby

                                      (Granted)      (Denied)

The order is signed in handwriting by the trial judge, but there is no signing date. The

clerk’s file stamp shows that the order was filed on May 27, 2008, at 4:30 p.m.

          The State’s first notice of appeal was filed on May 22. It is signed by an assistant

county attorney, and it lacks the prosecuting attorney’s certification “to the trial court

that the appeal is not taken for the purpose of delay and that the evidence, confession or

admission is of substantial importance in the case.” TEX. CODE CRIM. PROC. ANN. art.

44.01(a)(5) (Vernon Supp. 2009); see also id. art. 44.01(i) (excluding “assistant prosecuting

attorney “as a “prosecuting attorney”).

          A second order much like the first is also in the record, but it reads:

          On May 14 27th [italics in handwriting], 2008, came on to be considered
          Paul David Robinson’s Motion to Suppress Blood Test,” and said motion
          is hereby

                                      (Granted)      (Denied)

And instead of a handwritten signature by the trial judge, it has an obviously stamped

signature of the judge. Moreover, the clerk’s file stamp is different, being located on a

different part of the order and signed by a different clerk, yet it also reflects a filing date

and time of May 27 at 4:30 p.m.

          Thereafter, a second notice of appeal was filed on May 30. It is signed by the

State v. Robinson                                                                        Page 2
county attorney and has the certification required by article 44.01(a)(5).

         Robinson argues that the order was signed on May 14 and that the May 30 notice

of appeal is untimely because it was not filed within fifteen days. However, in 2007

article 44.01 was amended to increase the time period for a State’s notice of appeal from

fifteen to twenty days. See TEX. CODE CRIM. PROC. ANN. art. 44.01(d); Act of September

1, 2007, 80th Leg., R.S., ch. 1038, §§ 2, 4, 2007 Tex. Gen. Laws 3592. Because a proper

notice of appeal was filed within twenty days of May 14, we have jurisdiction.

                                      Suppression

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

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.

2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In reviewing the trial

court’s decision, we do not engage in our own factual review. Romero v. State, 800

S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—

Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the

credibility of the witnesses and the weight to be given their testimony. Wiede v. State,

214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.

App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006).    Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts was

not      based      on   an   evaluation    of    credibility    and     demeanor;      and

(2) application-of-law-to-fact questions that turn on an evaluation of credibility and

demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.

State v. Robinson                                                                     Page 3
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But

when application-of-law-to-fact questions do not turn on the credibility and demeanor

of the witnesses, we review the trial court’s rulings on those questions de novo.

Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005);

Johnson, 68 S.W.3d at 652-53.

          When reviewing the trial court’s ruling on a motion to suppress, we must view

the evidence in the light most favorable to the trial court’s ruling. Wiede, 214 S.W.3d at

24; State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). When the trial court

makes explicit fact findings, we determine whether the evidence, when viewed in the

light most favorable to the trial court’s ruling, supports those fact findings. Kelly, 204

S.W.3d at 818-19. We then review the trial court’s legal ruling de novo unless its explicit

fact findings that are supported by the record are also dispositive of the legal ruling. Id.

at 819.

          The trial “judge may believe or disbelieve all or any part of a witness’s

testimony, even if that testimony is not controverted. This is so because it is the trial

court that observes first hand the demeanor and appearance of a witness, as opposed to

an appellate court which can only read an impersonal record.” Ross, 32 S.W.3d at 855

(footnoted citations omitted).

          One of the grounds in the motion to suppress is that the person who withdrew

Robinson’s blood specimen was not a qualified technician under the law.1 See TEX.


1      Other suppression grounds in the motion are that the warrantless arrest lacked probable cause
and that Robinson did not consent to the blood draw. The trial court issued a finding that “the Court
heard evidence in this cause and did not find grounds for suppression based on the warrantless arrest or

State v. Robinson                                                                                Page 4
TRANSP. CODE ANN. § 724.017(a) (Vernon Supp. 2009) (“Only a physician, qualified

technician, chemist, registered professional nurse, or licensed vocational nurse may take

a blood specimen at the request or order of a peace officer under this chapter.”). The

trial court issued a finding “that the evidence did not prove the blood was taken by a

person listed in the statute as qualified under the law to withdraw the specimen.”

       Robinson had the initial burden to produce evidence that the statute was

violated and that the evidence should be excluded, and upon meeting that initial

burden, the burden of proof shifted to the State. See Kelly v. State, 204 S.W.3d 808, 819

n.22 (Tex. Crim. App. 2006); Wilson v. State, 277 S.W.3d 446, 448 (Tex. App.—San

Antonio 2008) (“It is ‘settled law that the burden of proof is initially on the defendant to

raise the [article 38.23] exclusionary issue by producing evidence of a statutory

violation, and that this burden then shifts to the State to prove compliance.’”), aff’d, No.

PD-0307-09, 2010 WL 715253 (Tex. Crim. App. Mar. 3, 2010) (quoting Pham v. State, 175

S.W.3d 767, 772 (Tex. Crim. App. 2005)); see also TEX. CODE CRIM. PROC. ANN. art. 38.23

(Vernon 2005) (“[n]o evidence obtained by an officer ... in violation of ... [the] laws of the

State of Texas ... shall be admitted in evidence against the accused on the trial of any

criminal case”). The party with the burden of proof assumes the risk of nonpersuasion.

Kelly, 204 S.W.3d at 819.

       The following colloquy occurred at the beginning of the suppression hearing:

              THE COURT: … And we are here on a Motion to Suppress the
       blood test. … Since it’s your motion, will you - -


on the voluntariness of defendant’s consent in the taking of the blood specimen.” Robinson has not
appealed those findings, and they are thus not before us.

State v. Robinson                                                                          Page 5
                [DEFENSE]: Yes, ma’am.

                THE COURT: - - proceed.

                [DEFENSE]: I’ll call Deputy Burcher [sic].

               [STATE]: Well, Judge, the proper way to proceed on this, since it’s
        - - and we’ll stipulate that it’s without a warrant, and then it’s our burden
        to prove that - - I mean, we - - we see what the motion is so I think it’s - - I
        think we should actually go first, but - -

                [DEFENSE]: And I have no objection to that, Your Honor. The
        facts are going to come out one way or the other.

              THE COURT: All right. All right. I just thought that since it was
        your motion, that - -

                [DEFENSE]: Yes, ma’am. If they stipulate it was a warrantless
        arrest - -

                [STATE]: We’ll stipulate there was no warrant.

              [DEFENSE]: Then as long as they stipulate to that, then I think the
        burden shifts.

              THE COURT: All right. They’re stipulating to that then. All right.
        Then the State will go first.

                [STATE]: Okay. We’ll call Deputy Burcher [sic] too.2

        The only witness at the suppression hearing was former Freestone County

Deputy Josh Vercher, who testified he was patrolling on Highway 84 around 1:10 a.m.

when a vehicle headed toward him swerved into his lane, causing him to have to take



2       The above procedural colloquy has resulted in the amplified and concerned dissent that the
burden of proof will hereafter be misplaced in this arena of Texas jurisprudence. The State ultimately
chose to go forward and the evidence was fully developed. Significantly, the State accepted the burden
of proof in the trial court, and in this appeal, the State does not argue that the burden of proof was
misplaced.
        Because the dissent has been designated for publication, this opinion is also published for clarity
and context.

State v. Robinson                                                                                   Page 6
evasive action. Vercher turned around and stopped the vehicle, which was being

driven by Robinson. After conducting field sobriety tests, Vercher arrested Robinson

for DWI and took him to the Freestone County Jail.

       Vercher said that Robinson agreed to a blood sample, so he took him to East

Texas Medical Center in Fairfield where Robinson’s blood was drawn: “We handcuffed

him back up, drove him to the hospital, and took a specimen of his blood and then

brought him back to the jail and booked him back in.” Vercher then mailed the sample

to the DPS in Austin, and the report showed blood alcohol of .14 percent.

       The State passed the witness, and on cross-examination, a videotape of the stop

was shown, and it contradicted some of Vercher’s testimony. For example, the officer

initially said he did not leave Robinson at the jail for two to three hours before the blood

draw to respond to a home intrusion where he made several arrests, but the videotape

showed otherwise. Vercher also initially said that during the stop Robinson consented

to a breath test, but he acknowledged that Robinson refused a breath test on the

videotape.     Vercher agreed that his initial testimony, his written report, and the

videotape all conflict.

       As for the person who drew Robinson’s blood, Vercher said he did not know

who the person was or remember what the person looked like. It was his first time to

take a suspect to a hospital to have blood drawn. He did not write down the person’s

name, and he does not remember which arm the blood was drawn from, who prepared

the site for the draw, or how the site was prepared.

       At this point, we believe that Robinson met his initial burden to produce

State v. Robinson                                                                     Page 7
evidence to support the trial court’s finding that the person who withdrew Robinson’s

blood specimen was not a qualified technician under the law. The burden of proof then

formally shifted to the State to show that section 724.017(a) was complied with.

       On re-direct examination, Vercher said that a “nurse” in the emergency room

took Robinson’s blood sample. But on re-cross-examination, Vercher then admitted

that his report states that an “emergency room technician” signed and sealed

Robinson’s blood specimen. In response to whether that emergency room technician

was the same person as the “nurse” who took the blood or was just someone who

witnessed it, Vercher said nonresponsively, “The same guy that took the blood has to

sign off and seal it and put it back in the vile [sic].” Vercher did not recall whether the

person did anything with the tube of blood, such as swirling it five times.

       The State argues that the trial court erred in granting the motion to suppress

because the testimony of the nurse who withdrew Robinson’s blood was not required.

The State cites cases holding that the person who drew the blood need not testify and

that the person’s missing testimony goes to the weight of the evidence, but not to its

admissibility. See, e.g., Yeary v. State, 734 S.W.2d 766, 769 (Tex. App—Fort Worth 1987,

no pet.); Beck v. State, 651 S.W.2d 827, 829 (Tex. App.—Houston [1st Dist.] 1983, no pet.).

Robinson replies that the trial court granted the motion to suppress not because the

nurse did not testify, but because Vercher’s testimony was not sufficiently credible for

the trial court to have believed his testimony that a nurse drew Robinson’s blood.

Given Vercher’s testimony on cross-examination and the trial judge’s comments at the

conclusion of the hearing, Robinson’s position is much more persuasive.

State v. Robinson                                                                    Page 8
       During closing argument on the motion to suppress, the following exchange

occurred between the trial judge and the assistant county attorney:

             THE COURT: But the State to me has not proved, has not met the
       burden to prove who took the blood and that they were a qualified person
       under the statute.

               [STATE]: Judge if - - if - - under the statute I think it lists - -

               THE COURT: It does.

               [STATE]: - - the medical personnel. You don’t have to name the
       name.

             THE COURT: It doesn’t, but I haven’t - - the State has not met the
       burden that it was one of these persons that took it.

       …

              THE COURT: Well, based on the testimony, I am going to suppress
       the blood test.

       Based on the trial judge’s statements and the record as a whole, we disagree with

the State that the motion to suppress was granted only because the alleged nurse did

not testify. It instead appears that the trial court did not believe the State met its burden

of proof because Vercher’s testimony about who drew the blood was inconsistent, not

credible, or both. Because we must almost totally defer to the trial court’s evaluation of

Vercher’s credibility and demeanor, and the State assumed the risk of nonpersuasion,

we cannot say that the trial court erred or abused its discretion in granting the motion

to suppress. We overrule the State’s issue and affirm the trial court’s order.



                                                     REX D. DAVIS
                                                     Justice

State v. Robinson                                                                      Page 9
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed June 16, 2010
Publish
[CR25]




State v. Robinson                           Page 10
