                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00166-CR

THE STATE OF TEXAS,
                                                          Appellant
v.

LARRY DANIEL JEWELL,
                                                          Appellee



                      From the County Court at Law No. 2
                              Ellis County, Texas
                          Trial Court No. 1010722CR


                       MEMORANDUM OPINION


      Larry Jewell was involved in a one-car motor vehicle accident in Ellis County.

He was taken by helicopter ambulance to Parkland Hospital in Dallas County, where he

received medical treatment. About ten days later, a DPS trooper obtained a “grand jury

subpoena” (duces tecum) from the County and District Attorney for Ellis County for

Jewell’s medical records from Parkland, and pursuant to the subpoena duces tecum,

obtained all of Jewell’s medical records from Parkland.
        Six months later, Jewell was charged by information with the offense of driving

while intoxicated. The State filed in the case all of Jewell’s Parkland medical records

(totaling 117 pages), which included his blood-alcohol test results, with a business-

records affidavit. Jewell filed a detailed motion to suppress the blood-alcohol test

results in his medical records, arguing that he had a reasonable expectation of privacy

in his medical records, including the blood-alcohol test results, and that the State

obtained his medical records illegally because the grand jury subpoena was invalid. See

TEX. CODE CRIM. PROC. ANN. art. 20.11 (West 2005) (providing that grand jury subpoena

for out-of-county witness must be made upon written application to district court).

        The trial court initially ruled orally that the medical records that the State had

filed were inadmissible. The State then caused the issuance of a subpoena duces tecum

by the County Clerk of Ellis County on February 15, 2011 for Jewell’s medical records

from Parkland, and the State obtained and filed the records again (this time totaling 183

pages) with a business-records affidavit. Jewel filed an objection to the State’s second

medical-records filing and a second motion to suppress that reiterated the grounds in

his first motion and that also complained that the State had not sought the trial court’s

permission to obtain the records.

        The trial court issued detailed findings of fact and conclusions of law that also

contained a discussion of the applicable law. It ruled that Jewell had standing to

complain of the State’s obtaining his medical records because HIPAA, which was

enacted after State v. Hardy, 963 S.W.2d 516 (Tex. Crim. App. 1998), gives individuals a

reasonable expectation of privacy in their medical records, including blood-alcohol test

State v. Jewell                                                                     Page 2
results, and because the State sought and obtained more than just Jewell’s blood-alcohol

test results. The trial court also ruled that the grand jury subpoena was defective and

was a “sham.” It granted Jewell’s motion to suppress, ordering that none of Jewell’s

medical records from Parkland were admissible and that no person’s testimony could

be based on the Parkland records. The State appeals, asserting two issues.

                                   Standard of Review

        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.). 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      on

(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.

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.




State v. Jewell                                                                         Page 3
        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 v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007); 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.

                       Findings of Fact and Conclusions of Law

        Among the trial court’s dozens of findings and conclusions are:

       On October 28, 2009, a trooper obtained a “grand jury subpoena” from the
        District Attorney of Ellis County to further an investigation of Jewell’s motor
        vehicle accident. The “grand jury subpoena” was for any and all medical records
        of Jewell. No actual grand jury was aware of the issuance of the subpoena, and
        no actual grand jury was in session or involved in the issuance of the “grand jury
        subpoena.”

       No information related to the motor vehicle accident or to Jewell was ever
        presented to an actual grand jury, before or after the issuance of the subpoena.
        The “grand jury subpoena” was not related to any actual grand jury activity of
        an actual grand jury. The subpoena was not returnable to nor returned to any
        actual grand jury. The subpoena did not require the witness to appear before
        any actual grand jury or at any specific time or place, and the witness did not
        appear before the grand jury or present the evidence to the grand jury.

       The “grand jury subpoena” was for an out-of-county witness. There was no
        application to any district court for the out-of-county subpoena by the foreman
        or attorney representing the State. The subpoena encouraged the delivery of the
        evidence directly to the investigating officer, and the evidence appears to have
        been given directly to the investigating officer. Article 24.01 of the Code of
        Criminal Procedure does not provide for the witness to surrender documents to
        an officer instead of making an appearance before a court or a grand jury.


State v. Jewell                                                                     Page 4
       The evidence was never presented to an actual grand jury, and the evidence
        obtained by the “grand jury subpoena” was not kept secret; to the contrary, it
        was filed publicly as a public record by the District Attorney. The criminal
        charge was filed after obtaining the medical records and in reliance on the
        medical records. The State obtained the medical records based on the alleged
        “grand jury subpoena.”

       The “grand jury subpoena” issued by the District Attorney was defective because
        it did not meet the legislative requirements, and it was a sham because no actual
        grand jury was involved in any way with the subpoena.

       The use of a “grand jury subpoena” in this case does not comply with state law.
        The State illegally obtained the health care information (Jewell’s medical
        records), which were obtained in violation of the Fourth, Fourteenth and/or
        Ninth Amendments; in violation of HIPAA; and in violation of the Texas
        Constitution.

       “In this Court’s view, the use of the grand jury subpoena is unlawful unless it is
        used as part of a legitimate grand jury’s exercise of legislative authority. The
        prosecutor and investigator stepped outside the scope of their authority in
        abusing the power of the grand jury subpoena for their own purpose
        independent of the grand jury and the grand jury process.”

                                          Standing

        In its first issue, the State asserts that the trial court erred in holding that Jewell

had standing to complain of the use of the grand jury subpoena to obtain his blood-test

results.    In Hardy, the Court of Criminal Appeals held that there is no Fourth

Amendment reasonable expectation of privacy protecting blood-alcohol results from

tests taken by hospital personnel solely for medical purposes after a traffic accident. 963

S.W.2d at 527.

        Because there is no Fourth Amendment reasonable expectation of privacy

protecting such blood-alcohol test results, a defendant lacks standing to contest the

legality of law enforcement’s acquisition of those blood-alcohol test results.            E.g.,


State v. Jewell                                                                          Page 5
Murray v. State, 245 S.W.3d 37, 41-42 (Tex. App.—Austin 2008, pet. ref’d). Our sister

courts have followed Hardy, even after enactment of HIPAA regulations on medical-

records privacy, holding that HIPAA did not preempt the narrow holding in Hardy on

blood-alcohol test results. See, e.g., Kennemur v. State, 280 S.W.3d 305, 311-12 (Tex.

App.—Amarillo 2008, pet. ref’d); Kirsch v. State, 276 S.W.3d 579, 586-87 (Tex. App.—

Houston [1st Dist.] 2008, aff’d on other grounds, 306 S.W.3d 738 (Tex. Crim. App. 2010);

Murray, 245 S.W.3d at 39-42. Some of our sister courts have noted that they were

constrained to follow Hardy absent contrary guidance from the Court of Criminal

Appeals. Kennemur, 280 S.W.3d at 312 (“we are constrained to follow existing law

under Hardy absent any guidance or instructions to the contrary from the Court of

Criminal Appeals”); Murray, 245 S.W.3d at 42 (“Because we have concluded that Hardy

remains binding on this Court, absent contrary guidance or instruction from the court

of criminal appeals, we are compelled to follow the existing case law on this precise

issue.”); Ramos v. State, 124 S.W.3d 326, 337 (Tex. App.—Fort Worth 2003, pet. ref’d)

(“absent any guidance or instructions from the court of criminal appeals, we are

compelled to follow existing case law”); Tapp v. State, 108 S.W.3d 459, 463 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d) (“absent any guidance or instructions to the

contrary from the Court of Criminal Appeals, we are compelled to follow existing case

law“).

         We are under the same constraint of Hardy and thus must reverse the trial court’s

suppression ruling as to the admissibility of the blood-test results and any testimony



State v. Jewell                                                                     Page 6
about them. Jewell lacked standing to complain of the use of the grand jury subpoena

to obtain his blood-test results. We sustain in part issue one as to the blood-test results.

           In Hardy, the Court of Criminal Appeals specifically limited its holding to blood-

test results. Id. at 524 n.8 (“We limit the scope of our Fourth Amendment holding to the

blood test results.”). Based on HIPAA,1 which was enacted after Hardy, we hold that

Jewell has a reasonable expectation of privacy in his medical records (other than his

blood-test results) and thus has standing to contest how the State obtained them.2

HIPAA does have numerous exceptions for law enforcement’s obtaining medical

records,3 including the use of a grand jury subpoena,4 but as the trial court’s findings

and conclusions ably demonstrate, the grand jury subpoena used to obtain Jewell’s

medical records did not even substantially comply with article 20.11, the provision

applicable for an out-of-county witness. See Boyle v. State, 820 S.W.2d 122, 125, 127-30

(Tex. Crim. App. 1989) (holding that issuance of grand jury material witness attachment

under articles 20.11 and 24.15 was illegal and stating, “We do hold that the procedure

utilized in placing the appellant under arrest pursuant to a grand jury material witness

attachment was a pretext, subterfuge, and deceptive artifice intentionally employed to

1
  The Health Insurance Portability and Accountability Act, commonly known as HIPAA, led to the
promulgation of federal regulations to protect the privacy of individual medical records. Kennemur, 280
S.W.3d at 311 n.4 (citing 45 C.F.R. pts. 160 & 164); Kirsch, 276 S.W.3d at 586. Under HIPAA regulations, a
person’s medical information cannot be disclosed by a covered entity without consent unless expressly
permitted by HIPAA. Kennemur, 280 S.W.3d at 311 n.5 (citing 45 C.F.R. § 164.502).

2 In its brief, other than pointing to HIPAA’s law-enforcement exceptions, the State does not explain or
argue that Jewell had no reasonable expectation of privacy in his medical records other than in his blood-
test results.

3
    45 C.F.R. § 164.512(f).
4
    45 C.F.R. § 164.512(f)(1)(ii)(B).

State v. Jewell                                                                                    Page 7
circumvent the principles and tenets of the Fourth and Fourteenth Amendments to the

United States Constitution and Art. I, Sec. 9 of the Texas Constitution.”), overruled on

other grounds by Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990) (plurality op.); see

also Guardiola v. State, 20 S.W.3d 216, 225 (Tex. App.—Houston [14th Dist.] 2000, pet.

ref’d); Thurman v. State, 861 S.W.2d 96, 101 (Tex. App.—Houston [1st Dist.] 1993, no

pet.) (Cohen, J., concurring).

        Article 20.11 provides:

               Sec. 1. The foreman or the attorney representing the State may,
        upon written application to the district court stating the name and
        residence of the witness and that his testimony is believed to be material,
        cause a subpoena or an attachment to be issued to any county in the State
        for such witness, returnable to the grand jury then in session, or to the
        next grand jury for the county from whence the same issued, as such
        foreman or attorney may desire. The subpoena may require the witness to
        appear and produce records and documents. An attachment shall
        command the sheriff or any constable of the county where the witness
        resides to serve the witness, and have him before the grand jury at the
        time and place specified in the writ.

               Sec. 2. A subpoena or attachment issued pursuant to this article
        shall be served and returned in the manner prescribed in Chapter 24 of
        this code.

             A witness subpoenaed pursuant             to   this   article   shall   be
        compensated as provided in this code.

TEX. CODE CRIM. PROC. ANN. art. 20.11.

        The State’s brief makes no argument that the grand jury subpoena was valid; it

only makes the assertion that there is “no controlling authority that holds that any of

the procedures used by the State in this case violate the code of criminal procedure or

are unconstitutional.” Boyle and the plain language of article 20.11 contradict the State’s


State v. Jewell                                                                           Page 8
assertion. See Guardiola, 20 S.W.3d at 225 (“The assistant district attorney in this case

similarly abused the grand jury subpoena power by issuing the subpoena at the sole

request of the investigators. … The Texas Legislature has not chosen to vest police

officers with subpoena power, and it would circumvent that legislative judgment to

allow the police to make use of the grand jury process in order to do indirectly what

they cannot do directly.”).

          The trial court did not err in concluding that Jewell’s medical records (other than

his blood-test results) that were obtained by the invalid grand jury subpoena should be

suppressed.        See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2005).               We thus

overrule in part issue one.

                                           Other Legal Means

          As noted previously, after the trial court’s initial suppression ruling, the State

obtained all of Jewell’s medical records from Parkland a second time with the issuance

of a subpoena duces tecum by the County Clerk.5 In issue two, the State contends that,

even if the trial court correctly ruled that the evidence acquired with the grand jury

subpoena should be suppressed, the trial court erred in ruling that the State could not

legally obtain Jewell’s Parkland medical records for use at trial.6

          Jewell asserts that the State appears to be invoking the inevitable-discovery

doctrine, which is not an exception to article 38.23’s exclusionary rule. See Pitonyak v.

State, 253 S.W.3d 834, 849 (Tex. App.—Austin 2008, pet. ref’d) (citing State v. Daugherty,

5
    Jewell makes no argument that this process was illegal.

6 Because we have already ruled that the trial court erred in suppressing the blood-test results, this
discussion concerns only the State’s acquiring the remainder of Jewell’s medical records.

State v. Jewell                                                                                Page 9
931 S.W.2d 268, 273 (Tex. Crim. App. 1996)). We disagree. Rather, the State appears to

be asserting that there is an attenuation of taint, which is part of the “fruit of the

poisonous tree” doctrine.

                Under the “fruit of the poisonous tree” doctrine, all evidence
        derived from the exploitation of an illegal detention, search, or seizure
        must be suppressed, unless the State shows that there was a break in the
        chain of events sufficient to refute the inference that the evidence was a
        product of the Fourth Amendment violation. Wolf v. State, 137 S.W.3d 797,
        805 (Tex. App.—Waco 2004, no pet.) (citing United States v. Portillo-Aguirre,
        311 F.3d 647, 650 (5th Cir. 2002)). Evidence can become so attenuated
        from the illegal detention to dissipate the taint of the prior illegality. See
        St. George v. State, 197 S.W.3d 806, 824 (Tex. App.—Fort Worth 2006, pet.
        granted) (en banc) (“both the federal and state exclusionary rules allow
        the admission of otherwise tainted evidence if the connection between the
        initial illegality and the discovery of the challenged evidence has become
        so attenuated as to dissipate the taint of the prior illegality”) (citing Wong
        Sun, 371 U.S. at 487, 83 S.Ct. at 417; and Johnson v. State, 871 S.W.2d 744,
        750 (Tex. Crim. App. 1994)).

Bell v. State, 233 S.W.3d 583, 587-88 (Tex. App.—Waco 2007, pet. dism’d, untimely filed).

        We held above that Jewell lacked standing to contest the State’s acquisition of his

blood-test results with the invalid grand jury subpoena.          We therefore hold that,

because the blood-test results are not technically tainted by illegality, the State could

legally acquire the remainder of Jewell’s medical records with a valid subpoena duces

tecum. Issue two is sustained.

                                        Conclusion

        We affirm in part the trial court’s May 3, 2011 order suppressing Jewell’s

Parkland medical records obtained by the grand jury subpoena, but we reverse the

order as to Jewell’s blood-test results and as to Jewell’s Parkland medical records




State v. Jewell                                                                          Page 10
acquired with the County Clerk’s subpoena duces tecum dated February 15, 2011. We

remand this case to the trial court for further proceedings consistent with this opinion.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray concurs in the judgment with a note)*
       (Justice Scoggins concurring with opinion, joined by Chief Justice Gray)
Affirmed in part and reversed in part and remanded
Opinion delivered and filed January 31, 2013
Do not publish
[CR25]

       *(Chief Justice Gray concurs in the judgment to the extent that it reverses the trial
court’s judgment suppressing the 183 pages of medical records obtained by a subpoena
duces tecum. A separate opinion will not issue. However, he notes that because there
is no suggestion that anything in the 117 pages obtained by the grand jury subpoena
was not also included in the 183 pages, we need not address the first issue and he does
not join that discussion.)




State v. Jewell                                                                      Page 11
