                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00406-CR


JAMES LEON HUDDLESTON                                               APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


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     FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                   I. Introduction

      Appellant James Leon Huddleston appeals following his guilty plea to

driving while intoxicated and challenges the trial court’s denial of his motion to

suppress evidence. He contends in two points that the trial court abused its

discretion by denying the motion to suppress because his detention was not



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       See Tex. R. App. P. 47.4.
based on reasonable suspicion and because the manner in which the police

conducted a blood draw was unreasonable. We affirm.

                     II. Factual and Procedural Background

        At 2:45 a.m. on July 5, 2008, the police received a concerned-citizen call

about a white Ford Ranger that had been parked beside the road, with its lights

on, for more than an hour. When Officer C.A. Bain arrived at the scene, he

observed the white Ford Ranger on the shoulder. Officer Bain testified that he

believed this was a dangerous situation because it was unusual for a vehicle to

be parked in that location at that time of night and because there had been

several vehicle burglaries in the area. Officer Bain approached the vehicle and

noticed that the vehicle’s engine was running, that its lights were on, and that the

driver’s side window was partially rolled down. He also discovered Huddleston

asleep in the driver’s seat with two beer cans within reach.           Officer Bain

examined the surrounding area to determine the presence of any weapons and

turned the vehicle off in case Huddleston startled when waking. After waking

Huddleston, Officer Bain smelled alcohol on Huddleston’s breath and observed

that Huddleston had bloodshot, watery eyes. Huddleston explained his location

by stating that he had been called into work and was waiting for the gates to

open.

        Officer Bain asked Huddleston if he had been drinking, and Huddleston

said that he drank two 24-ounce beers around 6:00 p.m. the previous day.

Officer Bain testified that Huddleston appeared disoriented and confused about a


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beeping sound from his vehicle. Officer Bain then requested that Huddleston

step out of the vehicle, and Huddleston stumbled when exiting. Officer Bain

requested that Huddleston perform several field sobriety tests (FST), and

Huddleston illustrated multiple signs of intoxication before he refused to continue

the test: three clues on the HGN and five clues on the ―walk and turn‖ and the

―one-leg stand.‖ Prior to the FSTs, Huddleston informed Officer Bain of a prior

back injury.

      Upon completion of the FSTs, Officer Bain detained Huddleston and

subsequently spoke to his mother over the phone about possible medical

conditions.    Huddleston’s mother confirmed the back injury but informed the

officer that Huddleston had no current medical conditions that would affect an

FST. Officer Bain arrested Huddleston for driving while intoxicated.

      Officer Bain transported Huddleston to the jail for a blood draw in the ―intox

room.‖ Officer Bain read Huddleston the required DIC-24 warning and requested

a breath sample, and Huddleston refused the request.            Officer Bain then

prepared a search warrant affidavit in order to obtain a blood sample as evidence

of the crime of driving while intoxicated. He presented the affidavit to a local

magistrate, and Officer Bain took Huddleston to the intox room‖ after the

magistrate signed the search warrant.

      Officer Ben Singleton drew Huddleston’s blood. Officer Singleton testified

that the ―clean room‖ at the Fort Worth Police Department was used solely for

blood draws during that weekend, that it contained a phlebotomy chair, and that it


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was consistently cleaned with a bleach and water solution before and after each

draw.    He testified that he was qualified to perform venipunctures within the

scope of his employment because he had completed a blood-draw training

program, and he testified that he conducted Huddleston’s blood draw according

to his training.   There is no evidence in the record establishing that Officer

Singleton acquired a medical history from Huddleston.

                             III. 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).

We give almost total deference to a trial court’s ruling on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

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

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

                           IV. Reasonable Suspicion

        Huddleston contends in his first point that the trial court abused its

discretion by denying his motion to suppress because there was no reasonable

suspicion to detain him. The State responds that Officer Bain’s initial contact

with Huddleston was a valid consensual encounter and that Huddleston’s

continued detention was supported by reasonable suspicion.


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A. Applicable Law

      1. Consensual Encounter

      The Texas Court of Criminal Appeals has recognized three categories of

interactions between police officers and citizens:      encounters, investigative

detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App.

2002). Unlike investigative detentions and arrests, which are seizures for Fourth

Amendment purposes, an encounter is a consensual interaction that the citizen is

free to terminate at any time. See Gurrola v. State, 877 S.W.2d 300, 302–03

(Tex. Crim. App. 1994). The dispositive question is whether the totality of the

circumstances shows that the police conduct at issue would have caused a

reasonable person to believe that he was free to decline the officer’s requests or

otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 439–40,

111 S. Ct. 2382, 2389 (1991); State v. Velasquez, 994 S.W.2d 676, 679 (Tex.

Crim. App. 1999).    If a reasonable person would feel free to terminate the

encounter, the police-citizen contact is merely a consensual encounter and does

not implicate the Fourth Amendment. See United States v. Drayton, 536 U.S.

194, 201, 122 S. Ct. 2105, 2110 (2002); Florida v. Royer, 460 U.S. 491, 497–98,

103 S. Ct. 1319, 1324 (1983); Velasquez, 994 S.W.2d at 679.

      Circumstances that may indicate that a police-citizen interaction is a

seizure, rather than a consensual encounter, include the threatening presence of

several officers, the display of a weapon by an officer, some physical touching of

the person of the citizen, or use of language or tone of voice indicating that


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compliance with the officer’s requests might be compelled.        United States v.

Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980). Absent some

such evidence, however, otherwise inoffensive conduct between a citizen and a

police officer cannot, as a matter of law, amount to a seizure of that person. Id.

      2. Reasonable Suspicion

      ―No bright-line rule governs when a consensual encounter becomes a

seizure.‖ State v. Woodard, No. PD-0828-10, 2011 WL 1261320, at *4 (Tex.

Crim. App. Apr. 6, 2011). ―Generally, however, when an officer through force or

a showing of authority restrains a citizen’s liberty, the encounter is no longer

consensual.‖ Id. ―This is the point at which an encounter becomes a detention

or arrest, both of which are seizures under the Fourth Amendment.‖ Id. ―Thus,

Fourth Amendment scrutiny becomes necessary.‖ Id.

      A temporary investigative detention is permissible provided the officer has

a reasonable suspicion that the individual has engaged in criminal activity. See

Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968).            Reasonable

suspicion exists when an officer has specific articulable facts that, when

combined with rational inferences from those facts, would lead him reasonably to

conclude that a particular person is, has been, or soon will be engaged in

criminal activity. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

B. Discussion

      In State v. Priddy, this court reversed a trial court’s grant of a motion to

suppress and held that the police officer’s initial encounter with Priddy was a


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consensual police-citizen encounter that transitioned into an investigative

detention supported by reasonable suspicion. See 321 S.W.3d 82, 87–88 (Tex.

App.—Fort Worth 2010, pet. ref’d). There, the officer received a dispatch that

Priddy had just left a hospital and appeared to be intoxicated. Id. at 84. The

dispatch also provided the officer with Priddy’s name, the make of her vehicle,

and the direction of her travel. Id. The officer located Priddy’s vehicle fifteen

minutes later in a business area of town, legally parked but still running with its

lights on. Id. The officer parked behind Priddy’s vehicle, turned his spotlight on,

and ran the vehicle’s license plate. Id. When the officer approached Priddy’s

vehicle, he saw Priddy inside, eating a hamburger. Id. When Priddy rolled down

the window at the officer’s request, the officer smelled the odor of alcoholic

beverages and observed that Priddy had glazed and bloodshot eyes. Id. We

concluded that the officer’s initial interaction was not illegal because the officer

had not engaged in a show of authority that would lead a reasonable person to

believe she was not free to terminate the encounter. Id. at 87–88. We further

concluded that once Priddy rolled down her window and the officer noticed her

glazed and bloodshot eyes and smelled the odor of alcoholic beverages, ―the

voluntary encounter became an investigative detention based upon reasonable

suspicion that [Priddy] had been driving while intoxicated.‖ Id. at 88.

      Similar to Priddy, Officer Bain was justified in approaching Huddleston’s

vehicle and inspecting the situation. A citizen reported at 2:45 a.m. on July 5,

2008, that a white Ford Ranger had been parked on the side of the road with its


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lights on for more than an hour. Officer Bain was dispatched to the reported

location and observed the described vehicle. Officer Bain did not know whether

someone in the vehicle was in distress, but the circumstances warranted further

investigation.   We conclude, as we did in Priddy, that Officer Bain’s initial

interaction with Huddleston was a consensual police-citizen encounter that did

not implicate the Fourth Amendment. 2 See id. at 87–88.

      Officer Bain could not temporarily detain Huddleston beyond the initial

encounter, however, without reasonable suspicion.      See Woodard, 2011 WL

1261320, at *4. In the early morning hours following the July Fourth holiday,

Officer Bain arrived at the scene to see a vehicle parked on the side of a busy

roadway, with its lights on, its engine running, and Huddleston sleeping inside

with two beer cans within reach. Immediately after waking Huddleston, Officer

Bain noticed Huddleston’s disorientation, his bloodshot and watery eyes, the

odor of alcohol on his breath, and his instability when he exited the vehicle.

Based on a totality of the circumstances, Officer Bain had sufficient articulable

facts supporting a reasonable suspicion that Huddleston had been engaged in

criminal activity. See Priddy, 321 S.W.3d at 87–88; see also Ford, 158 S.W.3d at



      2
       Huddleston does not point to any evidence that Officer Bain made a show
of authority that would lead a reasonable person to believe he was not free to
discontinue the encounter. Indeed, Huddleston does not acknowledge the
possibility of a consensual encounter in his brief, despite the trial court’s
conclusion of law that Officer Bain’s initial contact with him was a consensual
police-citizen encounter.


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492. He was therefore justified in temporarily detaining Huddleston to conduct

further investigation.

      We hold that Officer Bain’s initial approach and contact with Huddleston

did not violate the Fourth Amendment because it was a consensual police-citizen

encounter and that the initial encounter escalated into an investigative detention

supported by reasonable suspicion.           See Priddy, 321 S.W.3d at 87–88.

Accordingly, we overrule Huddleston’s first point.

                                 V. Blood Draw

      In his second point, Huddleston asserts that the trial court abused its

discretion by denying his motion to suppress because the manner in which his

blood draw was conducted was unreasonable. Specifically, Huddleston urges

that this case is governed by our prior opinion in State v. Johnston, in which we

held that the manner in which the blood draw was taken was unreasonable

because, among other things, there was no inquiry into Johnston’s medical or

general health condition.   See 305 S.W.3d 746, 760 (Tex. App.—Fort Worth

2009), rev’d, 336 S.W.3d 649 (Tex. Crim. App. 2011).

      Huddleston argues that the present appeal is identical to Johnston in all

material respects and that because the police officers made no inquiry of his

medical history, the blood draw was not medically acceptable. Indeed, Appellant

argues that the ―only difference‖ between this case and Johnston ―is that the trial

court erroneously overruled the motion in this cause and the trial court correctly

granted the motion to suppress in Johnston.‖ Johnston, however, was recently


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reversed by the court of criminal appeals. See State v. Johnston, 336 S.W.3d

649 (Tex. Crim. App. 2011).

      In relevant part, the court of criminal appeals held:

             Here, the court of appeals was incorrect to conclude that the
      officers’ failure to inquire into Johnston’s medical history and follow
      up on her condition subjected Johnston to an unjustified risk of
      medical harm, thereby supporting a ruling that the draw was
      unreasonable. The [United States] Supreme Court has taken into
      account the existence of specific medical conditions that may create
      an unjustified risk, trauma, or pain in ruling that blood-draw tests,
      when used on the general population, are reasonable. So there is a
      presumption that venipuncture blood-draw tests are reasonable
      under the Fourth Amendment, despite recognized medical
      anomalies and exceptions that may render the administration of
      such a test unreasonable. Thus, the failure to make an inquiry into
      an individual’s medical history before drawing blood and to conduct
      a follow up examination does not render blood draws per se
      unreasonable, as the court of appeals intimated.

             Implicit within Schmerber is that each suspect bears the
      burden of showing that a venipuncture blood draw is not a
      reasonable means to obtain a blood alcohol level assessment as to
      him or her, individually. And in the absence of any record evidence
      showing that a venipuncture blood draw would not be reasonable in
      a particular case due to a verifiable medical condition, we will
      presume that the choice to administer such a test is reasonable. A
      DWI suspect, naturally familiar with his or her own medical history, is
      in the best position to identify and disclose any peculiar medical
      condition that could result in risk, trauma, or more than de minimus
      pain if a blood draw were to be performed.

Id. at 659–60 (discussing Schmerber v. California, 384 U.S. 757, 771, 86

S. Ct. 1826, 1836 (1966)).

      Huddleston does not point to any evidence that a venipuncture blood draw

was not a reasonable means to obtain a blood alcohol level assessment as to

him individually.   He instead relies exclusively on our previous holding in


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Johnston. Because we are bound by the court of criminal appeals’s contrary

holding in Johnston, we overrule Huddleston’s second point.

                               VI. Conclusion

      Having overruled each of Huddleston’s two points, we affirm the trial

court’s judgment.



                                                 ANNE GARDNER
                                                 JUSTICE

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 4, 2011




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