                                                                                       ACCEPTED
                                                                                  07-15-00009-CR
                                                                     SEVENTH COURT OF APPEALS
                                                                               AMARILLO, TEXAS
                                                                             7/9/2015 11:17:11 AM
                                                                                 Vivian Long, Clerk



                             No. 07-15-00009-CR

                                                          FILED IN
                                IN THE             7th COURT OF APPEALS
                      COURT OF APPEALS FOR THE       AMARILLO, TEXAS
                                                   7/9/2015 11:17:11 AM
                 SEVENTH SUPREME JUDICIAL DISTRICT      VIVIAN LONG
                     SITTING AT AMARILLO, TEXAS            CLERK

         _________________________________________________
                        TONY HARRELL-MACNEIL,
                                            APPELLANT
                                    V.
                        THE STATE OF TEXAS
           ___________________________________________
      AN APPEAL OF A CONVICTION FOR DRIVING WHILE INTOXICATED
                      CAUSE NO. 20134973CR1
              FROM THE COUNTY COURT AT LAW NO. 1 OF
                     MCLENNAN COUNTY, TEXAS
          ____________________________________________

                            STATE'S BRIEF
            ____________________________________________

ABELINO "ABEL" REYNA                     STERLING HARMON
Criminal District Attorney               Appellate Division Chief
McLennan County, Texas                   State Bar No. 09019700

                                          219 North 6th Street, Suite 200
                                          Waco, Texas 76701
                                          [Tel.] (254) 757-5084
                                          [Fax] (254) 757-5021
                                          [Email]
                                   sterling.harmon@co.mclennan.tx.us



                                     i
                     Identity of Parties and Counsel

Appellant                                Tony Harrell-MacNeil

Appellant’s Trial and
Appellate Attorney                       Mr. Walter M. Reaves, Jr.
                                         100 North Sixth Street, Suite 802
                                         Waco, Texas 76701

State’s Trial Attorneys                  Mr. David Shaw
                                         Assistant Criminal District
                                         Attorney
                                         219 North 6th Street, Suite 200
                                         Waco, Texas 76701

State’s Attorney on Appeal               Abelino ‘Abel’ Reyna
                                         Criminal District Attorney
                                         Sterling Harmon
                                         Appellate Division Chief
                                         219 North 6th Street, Suite 200
                                         Waco, Texas 76701




                                    ii
                                             Table of Contents


Identity of Parties and Counsel ……………………………………………………..                                                                ii

Table of Contents .................................................................................................. iii

TABLE OF AUTHORITIES .................................................................................. iv

Issue Presented ....................................................................................................... v

Statement of Facts ...................................................................................................1

Summary of Argument ……………………………………………………… 2

Argument ………………………………………………………………….…                                                                                   2

Reasonableness of a Blood Draw…………………………………………….. 2

Abuse of Discretion …………………………………………………………                                                                            3

Analysis ……………………………………………………………………….. 4
Prayer ………………………………………………………………………… 7
Certificate of Compliance …………………………………………………                                                                         8

Certificate of Service ...............................................................................................8




                                                           iii
                      TABLE OF AUTHORITIES

Federal Opinions
Schmerber v. California, 384 U.S. 758, 86 S.Ct. 1826 (1966) ……………… 2, 6

State Opinions
Bailey v. State, 2014 WL 3893069
   (Tex. App. – Austin, August 8, 2014) ………………………………. 2, 4, 5
Carmouche v. State, 10 S.W. 3d 323 (Tex. Crim. App. 2000) ………………. 3
DeMoss v. State, 12 S.W. 3d 553
   (Tex. App. – San Antonio 1999, pet. ref’d) ………………………………. 5
Garner v. State, 2012 WL 6674488
   (Tex. App. – Waco, December 20, 2012) ……………………………… 5, 6
Guzman v. State, 955 S.W. 2d 85 (Tex. Crim. App. 1997) …………………. 3
Haynes v. State, 457 S.W. 2d 739 (Tex. Crim. App. 1971) …………………. 5
Martinez v. State, 348 S.W. 3d 919 (Tex. Crim. App. 2011) ……………….. 3
State v. Dixon, 206 S.W. 3d 587 (Tex. Crim. App. 2008) …………………… 3
State v. Johnson, 336 S.W. 3d 649 (Tex. Crim. App. 2011) ……………… 3, 6
State v. Kelly, 204 S.W. 3d 808 (Tex. Crim. App. 2006) ……………………. 3
State v. Robinson, 334 S.W. 3d 776 (Tex. Crim. App. 2011) ……………….. 3
Valtierra v. State, 310 S.W. 3d 442 (Tex. Crim. App. 2010) ………………… 3
Rules
Tex. R. App. P. 9.4(e) ………………………………………………………….. 8
Tex. R. App. P. 9.4(i) …………………………………………………………… 8
Tex. R. App. P. 9.4(i)(1) ………………………………………………………… 8




                                   iv
                              Issue Presented
    Did the trial court err in denying Appellant’s motion to suppress due

to the executing officer’s failure to comply with a term of the search
warrant?




                                      v
                              Statement of Facts
      Appellant was charged by information with the offense of Driving

While Intoxicated. (CR I – 5). Appellant filed a Motion to Suppress,
challenging the admission of blood test results. (CR I – 11, et seq.). The
basis alleged for suppression was that the executing officer failed to
comply with the warrant provision requiring that Appellant’s blood be
drawn at a hospital. (CR I – 11, et seq.).
    The trial court conducted a hearing on the Motion to Suppress. (RR I).

Appellant entered into evidence the Search Warrant with appended Order
for Assistance in Execution of Search Warrant (RR I, Defendant’s Exhibit 1);
and the Affidavit of Person Who Withdrew Blood (RR I, Defendant’s
Exhibit 2). The parties stipulated to the facts surrounding the issuance and
execution of the search warrant. (RR I – 9). Those facts, as articulated by
Appellant’s counsel, were that the investigating officer obtained a search
warrant for Appellant’s blood; that the warrant directed the officer to
transport Appellant to a hospital for the blood draw; and that the blood
draw was instead performed at the county jail. (RR I – 5).
    Appellant argued that the blood test result should be suppressed
because the officer did not comply with the provision requiring that the
blood be drawn at a hospital. (RR I – 5-6). The State took the position that
the hospital requirement was “boilerplate” language from a preprinted
form which should not outweigh considerations of reasonableness, as
required by the Fourth Amendment. (RR I – 6).

                                       1
     The trial court denied the Motion to Suppress by written order. (CR I
– 16). In its order, the trial noted that the Affidavit of Person Who

Withdrew Blood indicated that the blood specimen was taken “by a
Licensed Vocational Nurse … using reliable procedures as recognized by
the scientific community in the state of Texas and in a sanitary place.” (CR
I – 16). The court further cited its reliance on Bailey v. State, 2014 WL
3893069 (Tex. App. – Austin, August 8, 2014). Appellant subsequently
entered his guilty plea, preserving his right to appeal the suppression. (CR

I – 22-24).
                           Summary of Argument
        The trial court did not abuse its discretion in denying Appellant’s
motion to suppress, as the executing officer’s failure to comply with a term
of the search warrant did not prejudice the Appellant.
                                  Argument
Reasonableness of a Blood Draw
      The United States Supreme Court addressed warrantless blood
draws in the case of Schmerber v. California, 384 U.S. 758, 86 S.Ct. 1826
(1966). In finding that a blood draw constituted a search, the Supreme
Court determined that the means and procedures employed in taking a
subject’s blood must respect relevant Fourth Amendment standards for
reasonableness. Schmerber at 768. In analyzing blood draw searches in
light of the Schmerber requirements, the Texas Court of Criminal Appeals
has determined that blood drawn in accordance with acceptable medical

                                       2
practices is reasonable. State v. Johnson, 336 S.W. 3d 649, 664 (Tex. Crim.
App. 2011). In the case at bar, Appellant introduced the Affidavit of Person

Who Withdrew Blood, showing that Appellant’s blood was taken “by a
Licensed Vocational Nurse … using reliable procedures as recognized by
the scientific community in the state of Texas and in a sanitary place.”
There is no evidence in the record contrary to the proposition that the
manner of taking Appellant’s blood was unreasonable.
Abuse of Discretion

      The standard of review applicable to a trial court’s ruling on a motion
to suppress is abuse of discretion. Martinez v. State, 348 S.W. 3d 919, 922
(Tex. Crim. App. 2011); State v. Dixon, 206 S.W. 3d 587, 590 (Tex. Crim.
App. 2008). As such, the trial court’s ruling will be overturned only if it
falls outside the zone of reasonable disagreement. The reviewing court
applies a bifurcated standard, giving almost total deference to the trial
court’s findings of historical fact; and reviewing de novo the trial court’s
application of the law of search and seizure. Carmouche v. State, 10 S.W. 3d
323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W. 2d 85, 89 (Tex.
Crim. App. 1997). The reviewing court views the evidence in the light
most favorable to the ruling. State v. Robinson, 334 S.W. 3d 776, 778 (Tex.
Crim. App. 2011); State v. Kelly, 204 S.W. 3d 808, 819 (Tex. Crim. App. 2006).
The trial court’s ruling will be upheld if it is reasonably supported by the
record and correct on any applicable theory of law. Valtierra v. State, 310
S.W. 3d 442, 448 (Tex. Crim. App. 2010); Dixon at 590.

                                       3
Analysis
    The historical facts of the case are undisputed. The search warrant

commanded any peace officer to search for, seize and maintain as evidence
human blood from the body of the Appellant. The warrant further directed
that Appellant be transported to a hospital in McLennan County, where the
search was to be conducted. No claim has been asserted that the warrant
was in any way invalid.
    It is further undisputed that the blood draw was done at the

McLennan County Jail by a licensed vocational nurse, using reliable
procedures recognized by the scientific community in the State of Texas
and in a sanitary place.
    In the case at bar, Appellant argues that the executing officer’s “blatant
disregard” of explicit directions contained in a search warrant cannot be
reasonable, and the evidence obtained through the warrant must be
suppressed. In considering this assertion, and disregarding it, the trial was
guided by an unpublished opinion of the Austin Court of Appeals, Bailey v.
State, 2014 WL 3893069 (Tex. App. – Austin, August 8, 2014). In Bailey, the
appellant complained that the blood search warrant was executed at a
hospital rather than the county jail, as directed in the warrant. Bailey at 1.
    The Austin court noted that appellant cited to no authority holding
that blood obtained pursuant to a valid search warrant may be drawn only
at the location specified in the warrant. Bailey at 2. The court found that



                                       4
transporting the appellant to a hospital to draw blood did not violate any
federal or state constitutional or statutory law. Id.

    The Austin Court of Appeals noted the well-established rule that,
while the scope of a search warrant is limited by its terms, the search may
be as extensive as is reasonably required to locate the items described in the
warrant. Id. In support of this proposition, the court cited to Haynes v.
State, 457 S.W. 2d 739, 741-742 (Tex. Crim. App. 1971) and DeMoss v. State,
12 S.W. 3d 553, 558 (Tex. App. – San Antonio 1999, pet. ref’d). Bailey, fn. 10.

    While the appellant in Bailey argued that the search was unreasonable
because the officer exceeded the warrant requirement by transporting him
to the hospital, Appellant in the case at bar takes the contrary position that
the blood draw was unreasonable because the officer neglected to avail
himself of the full range of acts authorized to accomplish the purpose of the
warrant. To adopt this position would be to insist on an illogical, hyper-
technical interpretation of warrants which, in fact, is not reasonable.
    The Waco Court of Appeals has rejected a hyper-technical analysis of
search warrants. In the unpublished opinion of Garner v. State, 2012 WL
6674488 (Tex. App. – Waco, December 20, 2012), that court reviewed the
denial of a motion to quash predicated on a claim that the serving officers
failed to provide the appellant a copy of the written inventory. The
appellant claimed that the officers “clearly chose to disregard the law” and
because of this, he was unaware of the nature of the search warrant, the



                                       5
allegations in the affidavit, the directives of the warrant and the evidence
taken when the warrant was executed. Garner at 2.

    The Court noted that Garner had been given a copy of the search
warrant and inventory by his attorney before trial, and there was nothing
in the record to show that he was surprised, harmed or prejudiced by the
failure of the officers to provide him with a copy of the search warrant and
inventory at the scene. Id. Finding that the purpose of serving the
inventory had been accomplished, the Court found that Garner had not

been prejudiced by the officers’ failure to comply with the applicable
provision of the Code of Criminal Procedure. Id. As such, the Court found
that the trial court had not abused discretion in denying the motion to
quash. Id.
    By analogy, Appellant in the case at bar has likewise failed to
demonstrate prejudice. The warrant directed that Appellant be taken to a
hospital for the blood draw. The purpose of this provision was clearly to
assure that the blood draw was done in a reasonable manner in accordance
with acceptable medical practices. Johnson at 664. The evidence adduced
at the suppression hearing showed that a qualified person performed the
blood draw using reliable procedures as recognized by the scientific
community in the state of Texas and in a sanitary place. The purpose of the
the provision having been fulfilled, Appellant suffered no prejudice.
    The reasonableness of the blood draw, as required by Schmerber and
Johnson, having been shown by the evidence, the trial court did not abuse

                                      6
its discretion in finding that Appellant was not prejudiced by taking his
blood at the county jail.

    Appellant’s point of error is without merit.
                                   Prayer
      For the foregoing reasons, the State of Texas prays that this
Honorable Court affirm the trial court’s denial of the motion to suppress,
and prays for such other and further relief as may be provided by law.


                                          Respectfully Submitted:
                                          ABELINO ‘ABEL’ REYNA
                                          Criminal District Attorney
                                          McLennan County, Texas

                                          /s/ Sterling Harmon_________
                                          STERLING HARMON
                                          Appellate Division Chief
                                          219 North 6th Street, Suite 200
                                          Waco, Texas 76701
                                          [Tel.] (254) 757-5084
                                          [Fax] (254) 757-5021
                                          [Email]
                                          sterling.harmon@
                                          co.mclennan.tx.us
                                          State Bar No. 09019700




                                      7
                           Certificate of Compliance
      This document complies with the typeface requirements of Tex. R.

App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document
also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if
applicable, because it contains 1,546 words, excluding any parts exempted
by Tex. R. App. P. 9.4(i)(1).


                                Certificate of Service
      I certify that I caused to be served a true and correct copy of this
State’s Brief by E-Filing Service on Appellant’s attorney of record.


DATE: 7/9/15____                              /S/ STERLING HARMON__________

                                              STERLING HARMON




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