                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00355-CR


ERNEST HENRY PACHECO                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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         FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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                                   OPINION
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                                I. INTRODUCTION

      Appellant Ernest Henry Pacheco appeals the trial court’s denial of his

motion to suppress evidence. After the motion was denied, Pacheco pleaded

guilty to driving while intoxicated, enhanced by two prior convictions for driving

while intoxicated and enhanced by the use of a deadly weapon. See Tex. Penal

Code Ann. §§ 49.04, 49.09 (West 2011). The trial court sentenced Pacheco to

thirty-five years’ confinement. In his sole point, Pacheco argues that the trial
court erred by denying his motion to suppress because the procedure that police

employed to draw his blood was unreasonable. We will affirm.

                                II. BACKGROUND FACTS

      Around 1:50 a.m. on November 12, 2008, the Parker County Sheriff’s

Office notified Officer Clark of the Hudson Oaks Police Department that a person

had called 911 complaining about a possible intoxicated driver traveling

westbound on Interstate 20, nearing Hudson Oaks.           The caller described a

green, Chevrolet pickup driving between thirty and ninety miles per hour,

weaving, and driving on the shoulder. When the caller reported that the truck

was approaching the nearest exit to Officer Clark, Officer Clark spotted a vehicle

matching the description and followed it.      He observed the driver, Pacheco,

weaving, driving slowly, and swerving to avoid collisions with other cars. Officer

Clark activated his overhead lights and eventually his siren, and Pacheco pulled

over to the side of the road.

      Officer Clark testified that when he approached the truck, he smelled a

strong odor of alcohol emanating from Pacheco and his vehicle. He also testified

that Pacheco had bloodshot and glassy eyes, slow reactions, poor and unsteady

balance, and slurred speech. Pacheco admitted to Officer Clark that he had

been drinking. Officer Clark administered the horizontal gaze nystagmus test

and testified that the test yielded six clues of intoxication. Officer Clark arrested

Pacheco for driving while intoxicated, took him to the Hudson Oaks Police

Department, and read him his Miranda rights. The dispatcher notified Officer


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Clark that Pacheco had been convicted of driving while intoxicated on two prior

occasions. Pacheco declined to give a breath specimen.

      Officer Clark sought and obtained a search warrant for Pacheco’s blood,

and he transported him to Weatherford Regional Hospital.          Christy Smith, a

medical technologist certified by the American Society for Clinical Pathology,

drew a sample of Pacheco’s blood for testing. Smith testified that she has more

than thirty years of experience as a medical technologist and that she has taken

thousands of blood samples in that capacity. Smith wrote a reminder on a sticky

note after drawing Pacheco’s blood that said, ―Pacheco, Ernest. 11/12/08.

Hispanic male, short,‖ and ―looked like Val,‖ one of Smith’s coworkers. Smith

testified that she drew blood only from Pacheco that day and that she followed

the same procedure drawing his blood as she followed when drawing samples

from all patients.   According to Smith, the procedure follows Weatherford

Regional Hospital’s policies and protocols, and it does not require the

technologist to ask for a patient’s medical history before drawing blood.

      At a pretrial hearing, Pacheco moved to suppress all evidence against him.

The relevant challenges were Smith’s qualifications, the safety of the

environment in which Smith drew Pacheco’s blood, and the insufficiency of the

paperwork documenting the blood draw.          After hearing testimony from the

arresting officer and the medical technologist, the trial court denied Pacheco’s

motion, reasoning that Smith was qualified and that she had drawn Pacheco’s

blood according to hospital procedure.


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                             III. MOTION TO SUPPRESS

      In arguing that the police’s search and seizure of his blood was

unreasonable, Pacheco relies on this court’s decision in State v. Johnston, 305

S.W.3d 746 (Tex. App.—Fort Worth 2009) rev’d, 336 S.W.3d 649 (Tex. Crim.

App. 2011). There, we affirmed the trial court’s decision to grant Johnston’s

motion to suppress. Id. at 759–60. Pacheco argues that ―[i]n order for this Court

to affirm the trial court’s judgment herein it would have to overrule itself.‖ But

after the parties filed their briefs in this appeal, the Texas Court of Criminal

Appeals reversed our decision in Johnston. See Johnston, 336 S.W.3d at 664.

Therefore, we will apply the test for determining the reasonableness of a blood

draw under the Fourth Amendment as the court of criminal appeals explained in

Johnston. Id. at 658–59.

      A.    Standard of Review

      When reviewing a trial judge’s ruling on a motion to suppress, we view all

of the evidence in the light most favorable to the trial judge’s ruling. Id. at 657;

State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); Gutierrez v.

State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). We afford almost total

deference to a trial judge’s determination of historical facts that the record

supports. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). This

same highly deferential standard applies regardless of whether the trial judge has

granted or denied a motion to suppress evidence. Garcia-Cantu, 253 S.W.3d at

241. Thus, the party that prevailed in the trial court is afforded the strongest


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legitimate view of the evidence and all reasonable inferences that may be drawn

from that evidence. Id. We also afford almost total deference to a trial judge’s

ruling on mixed questions of law and fact when resolution of those questions

depends upon evaluations of credibility and demeanor. Guzman, 955 S.W.2d at

89.   But the question of whether police executed the search warrant using

reasonable means and procedure is subject to de novo review because the

application of legal principles to a specific set of facts is a question of law. See

Garcia-Cantu, 253 S.W.3d at 241.

      B.     Fourth Amendment Reasonableness of Drawing Blood

      A blood draw constitutes a search and seizure under the Fourth

Amendment. Schmerber v. California, 384 U.S. 757, 758–59, 86 S. Ct. 1826,

1829 (1966).    The ―Fourth Amendment’s proper function is to constrain, not

against all intrusions as such, but against intrusions which are not justified in the

circumstances, or which are made in an improper manner.‖ Id. at 768, 86 S. Ct.

at 1834. The Supreme Court has set out a two-step test for determining the

reasonableness of a blood draw. Id. A blood draw is reasonable under relevant

Fourth Amendment standards if:

      (1)   the police had justification in requiring the suspect to submit to
            a blood test, and

      (2)   the police employed reasonable means and reasonable
            procedures in taking the suspect’s blood.

See Johnston, 336 S.W.3d at 658. Pacheco does not challenge whether police

had justification for the stop, detention, arrest, or search warrant. Therefore, we


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only address the second step and determine whether the police employed

reasonable means and reasonable procedure in taking Pacheco’s blood.

      Pacheco challenges ―the method and procedure used‖ in executing the

search warrant.   The State argues that ―the record supports the trial court’s

factual findings that the manner in which the search warrant for [the blood]

sample was executed was reasonable under the Fourth Amendment.‖

      The second step in the reasonableness analysis has two distinct parts.

First, in determining whether the police employed reasonable means to test

Pacheco’s blood, we must determine whether Clark chose a reasonable test.

Second, in determining whether police employed a reasonable procedure, we

must determine whether Clark and Smith performed the test in a reasonable

manner. Schmerber, 384 U.S. at 771, 86 S. Ct. at 1836.

            1.    Reasonableness of the Chosen Test

      Pacheco argues that Clark and Smith failed to obtain Pacheco’s ―general

medical history‖ and that ―no follow up was done.‖ Pacheco contends that this

failure subjected him to ―an unreasonable risk of medical harm that made the

blood draw unreasonable under the 4th Amendment of the United States

Constitution.‖ The State argues that the ―highly trained, educated, experienced,

and certified medical technologist who drew [Pacheco’s] blood in a hospital

testified that she does not conduct either procedure as part of her normal blood

draw routine, but she did follow hospital policy and procedure . . . . Therefore,

neither was medically necessary in this case.‖


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      For the general population, the Supreme Court has determined that a

blood test is a reasonable means in which to analyze an individual’s blood

alcohol level. Id.; see also Breithaupt v. Abram, 352 U.S. 432, 435–36, 77 S. Ct.

408, 410 (1957) (explaining that those entering the military, marrying, or going to

college must take blood tests and millions voluntarily donate blood so the ―blood

test procedure has become routine in our everyday life‖); Johnston, 336 S.W.3d

at 659. Courts may deem blood testing to be unreasonable over another method

of testing when ―the few who on grounds of fear, concern for health, or religious

scruple might prefer some other means of testing.‖ Schmerber, 384 U.S. at 771,

86 S. Ct. at 1836. But failing to inquire into an individual’s medical history before

drawing blood and failing to conduct a follow-up examination do ―not render

blood draws per se unreasonable.‖ Johnston, 336 S.W.3d at 659. Therefore, the

suspect has the burden to show that the type of test employed was ―not a

reasonable means to obtain a blood alcohol level assessment as to him or her

individually.‖ Id. at 660. The record must contain evidence showing that the

police chose a test that was not reasonable due to a ―verifiable medical

condition,‖ or we will presume that the choice to administer the test is

reasonable. Id.

      Here, the record contains no evidence that Pacheco suffers from a medical

condition that would have made another means of testing preferable. See id.

And Pacheco is not one of ―the few who on grounds of fear, concern for health,

or religious scruple might prefer some other means of testing,‖ as Pacheco had


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already refused to give a breath specimen. See Schmerber, 384 U.S. at 771, 86

S. Ct. at 1836. Because Smith’s failure to ask Pacheco about his medical history

and conduct a follow-up examination did not render the draw unreasonable, we

conclude that the police chose a reasonable means to obtain a blood alcohol

assessment as to Pacheco, individually.

             2.    Reasonableness of the Manner of Performance

      Pacheco argues that Clark and Smith did not perform the procedure in a

reasonable manner because the paperwork documenting the blood draw was

incomplete. He contends that the ―lack of identifiers places a patient at risk‖; that

medical procedures concerning the identity of the patient are ―critical to

preventing, diagnosing[,] and treating a person and can prevent unreasonable

risks of medical harm‖; and that it ―creates unreasonable risks of medical harm.‖

The State argues that Pacheco failed to demonstrate how some clerical errors in

the accompanying paperwork rendered the blood draw constitutionally

unreasonable.

      Police officers act reasonably when drawing blood if they act in

accordance with accepted medical practices, including the equipment and

technique that they employ. Johnston, 336 S.W.3d at 663. The Supreme Court

has explained that tolerating searches that were conducted by unqualified

personnel or outside a medical environment may ―invite an unjustified element of

personal risk of infection and pain.‖ Schmerber, 384 U.S. at 772, 86 S. Ct. at

1836. Searches justified by a valid warrant have a presumption of legality unless


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the opponent produces evidence rebutting the presumption of proper police

conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). ―[T]he

reasonableness of the manner in which a DWI suspect’s blood is drawn should

be assayed on an objective, case-by-case basis in light of the totality of the

circumstances surrounding the draw.‖ Johnston, 336 S.W.3d at 661.

      Pacheco’s argument that identifiers can prevent unreasonable risks of

harm is misplaced because the standard is whether the blood was drawn in

accordance with accepted medical practices, and Smith testified that she

followed both the hospital’s policy for drawing blood and the directives of her

certification on how to draw blood. Pacheco argues that the lack of ―identifiers‖

put him at ―risk of medical harm,‖ but he fails to explain how he was at risk.

Without more, Pacheco has failed to satisfy his burden to rebut the presumption

of reasonableness. The record contains evidence supporting the trial court’s

conclusion that ―the manner in which [Pacheco’s] blood was drawn was

reasonable.‖

      Under the totality of the circumstances, we hold that the equipment and

technique Smith employed to draw Pacheco’s blood followed medically accepted

practices and was therefore reasonable. See Johnston, 336 S.W.3d at 662–63

(holding ―Johnston’s blood was drawn in accordance with acceptable medical

practices and was therefore reasonable.‖).       The circumstances here did not

―invite an unjustified element of personal risk of infection or pain.‖       See

Schmerber, 384 U.S. at 771, 86 S. Ct. at 1836.


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                                   IV. CONCLUSION

      Because the police were justified in requiring Pacheco to submit to a blood

test and because Smith and Clark employed reasonable means and reasonable

procedures in drawing Pacheco’s blood, we conclude that the record shows no

violation of Pacheco’s right under the Fourth and Fourteenth Amendments to be

free from unreasonable searches and seizures. Thus, we overrule Pacheco’s

sole point and affirm the trial court’s order denying his motion to suppress.




                                                    BILL MEIER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER, J.; and DIXON W. HOLMAN (Senior
Justice, Retired, Sitting by Assignment).

PUBLISH

DELIVERED: July 28, 2011




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