                                  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


                           DISSENTING OPINION


      This may be the most important decision we make this year.              It is almost

certainly the most important decision in a criminal case this year. Although it does not

affect my opinion, the Court’s holding could have significant adverse economic

consequences on the efficient prosecution of any charge for driving-while-intoxicated in

which the State is relying on blood-alcohol-content evidence.

      The Court errs, as did the trial court, in placing the burden of proof on the State

to prove that the blood draw was taken in compliance with the relevant statute. It is

solely this error, the placement of the burden of proof, that has resulted in the erroneous
suppression of the blood evidence. I respectfully dissent to the Court’s opinion and

judgment.

                                     BACKGROUND

       Robinson was arrested for driving under the influence, better known as driving

while intoxicated – DWI. He filed a motion to suppress the blood-alcohol-content

evidence by pretrial motion and hearing. He raised a number of grounds upon which

the blood evidence should be suppressed, including that it was without a warrant, was

drawn without his consent, and that it was not taken in accordance with Texas

Transportation Code section 724.017 and should, therefore, be suppressed under Texas

Code of Criminal Procedure article 38.23.

                                     THE HEARING

       The hearing was held before the county judge who would not be expected to be

fully in tune with the niceties of a shifting of the burden of proof, burden of production

or going forward with evidence, or, ultimately, the burden of persuasion. The trial

court, understandably, looked to and expected the movant to go first at the hearing. It

was his motion.

       At this point, at the very beginning of the hearing on the motion to suppress,

there was some discussion of who should go first and which party had what burdens.

       No one, including me, disputes that Robinson had the burden of proving a

warrantless seizure of evidence. No one, including me, contends the blood sample was

taken pursuant to a warrant and the State stipulated to that fact and proceeded to prove

that the defendant consented to the blood draw. And it was then that the hearing

State v. Robinson                                                                   Page 2
became a legal jigsaw puzzle, because the legal issues involved, and specifically who

had the burden of proof on various issues, allegations, and defenses, became confused.

       The State called the arresting officer. He recounted, as best he could recall, the

events of the night of the arrest. His testimony on direct appears to primarily have been

to establish that Robinson consented to the blood draw, thus proving a valid seizure in

the absence of a warrant. But his testimony also spilled over into another issue --

whether the blood draw was performed in compliance with Texas Transportation Code

section 724.017.    On cross-examination, Robinson explored a number of what may

initially appear to be inconsistencies between the officer’s usual procedures, his

recollection of the specific event, his report of the event, and the in-car video/audio of

the events of that night. In the course of cross-examination, the officer was interrogated

about who took the blood draw and the manner of having taken it. The officer, noting it

had been a very long time since the events of that night and he had worked for two

other departments since then, testified he could not recall many of the specific facts; for

example, if the blood was taken from the left or right arm, and whether the tube was

swirled five times after the blood draw.

       Additionally, the officer was asked many of the questions relevant to retrograde

extrapolation of blood alcohol content to determine what the blood alcohol content

would have been at the time of arrest. It was evident that Robinson’s trial counsel was

well versed on the issues and obtained some responses that may make it difficult for the

State to effectively use the blood alcohol concentration level at trial.




State v. Robinson                                                                    Page 3
       But as the State’s attorney argued to the trial court, this hearing was about

suppression of the evidence, not the weight it may ultimately have when admitted.

       After the officer was through testifying, the hearing devolved into a convoluted

discussion about what issues were proper for this hearing, whether the hearing needed

to be continued until the testimony of another witness could be obtained, or whether

there was a need to call the other witness in light of the relevant issues. During this

discussion, the trial court made the following statement:

              THE COURT: We are here on a Motion to Suppress, and the –
       there are numerous issues that have been addressed. Probably the most
       compelling to me at this point, though, is that the State must prove who
       took the blood and whether it was a qualified person under the statute to
       take the blood, and that to me is the most compelling issue that we would
       be looking at at this point. These others are things certainly that could be
       argued if in fact it got to that point. 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.

       Not surprisingly, the hearing concluded shortly thereafter with no clarification of

the burden of proof. It is clear that the trial court placed the burden of proof to show

that the blood draw was performed in compliance with the statute, Texas

Transportation Code section 724.017, on the State, failing to prove such the trial court

was going to suppress the blood evidence. Specifically, the trial court was focused on

the fact that the State had not proved to the court’s satisfaction that the person who

drew the blood was qualified as required by the statute, Texas Transportation Code

section 724.017.




State v. Robinson                                                                     Page 4
       The State proceeded to argue that its proof on the identity of the person was

adequate. The trial court, however, was not persuaded. After a very brief discussion,

the hearing concluded, as follows, interrupted only by the noise of a passing truck:

              THE COURT: Well, based on the testimony, I am going to suppress
       the blood test. However, I do not grant any of the other.

               MR. MOORE: Your Honor, I’m sorry, the truck, I didn’t hear the
       last thing you said?

              THE COURT: I am not going to grant the other parts of the Motion
       to Suppress as to the – saying that it was an illegal arrest and that
       therefore all of the fruits would be excluded.

               MR. MOORE: Yes, ma’am.

               THE COURT: I’m not going to grant that.

             MR. MOORE: Yes, ma’am, I understand. I’ll prepare an order for
       the Court.

                                           ORDER

       The trial court’s order is as follows:

             On May 14, 2008, came on to be considered Paul David Robinson’s
       Motion to Suppress Blood Test, and said motion is hereby
                          (Granted) (Denied)

                      FINDINGS OF FACT AND CONCLUSIONS OF LAW

       Upon proper request, the trial court signed findings and conclusions as follows:

              In response to the request of the State of Texas, by and through the
       Assistant County Attorney in the above styled and numbered cause, the
       Court makes and files the following as original Findings of Fact and
       Conclusions of Law:

       Findings of Fact




State v. Robinson                                                                      Page 5
           1. That Paul David Robinson is the Movant in a Motion to Suppress
              and that he appeared in person and by attorney, David Moore, and
              announced ready for hearing and that the State of Texas is the
              Respondent and appeared in person by the Assistant County
              Attorney, Matt Boyle, and announced ready for hearing.

           2. That hearing was had on the Motion to Suppress Blood Test on the
              14th day of May, 2008.

           3. That the Court heard evidence in this cause and did not find
              grounds for suppression based on the warrantless arrest or on the
              voluntariness of defendant’s consent in the taking of the blood
              specimen..[sic]

           4. The Court did find 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.

           5. Any finding of fact that is a conclusion of law shall be deemed a
              conclusion of law.

           Conclusions of Law

              IT IS THEREFORE concluded based on the evidence presented that
           the Motion to Suppress is granted.

           DATED the 2nd day of July, 2008.

                                        ANALYSIS

       The blood evidence was suppressed because the trial court erroneously believed

the State had the burden to prove “the blood was taken by a person listed in the statute

as qualified under the law to withdraw the specimen.”            Unfortunately, the two

potentially relevant findings, 3 and 4, are both stated in the negative; in essence, what

the trial court did not find was proved by the evidence.         As such, there are no

affirmative findings of what she found, but with the full record of the hearing before us,

the findings can be understood and given meaning.

State v. Robinson                                                                     Page 6
       Looking to the record of the hearing, the only reference to the person who drew

the blood was that it was a nurse (live testimony by the officer), and that it was an

emergency room technician (oral testimony about what was in his report, but the report

was not introduced into evidence). I will readily concede, as I must under this record

and the proper standard of review for review of a suppression hearing ruling, that there

is no evidence that the person actually met the qualifications required by the

Transportation Code.

       Thus, the legal issue for this appeal is solely who had the burden of proof

regarding compliance with the Transportation Code, section 724.017(a), requirements

under the State’s statutory exclusionary rule. TEX. CODE CRIM. PROC. ANN. art. 38.23(a)

(Vernon 2005). I believe case authority by which we are bound places that burden

squarely on the person seeking exclusion of the evidence – Robinson.

       With all due respect, I believe footnote 2 in the Court’s opinion reflects that the

Court has misunderstood what the State was acknowledging and the consequences of

the State’s stipulation. It is not at all uncommon for a prosecutor to stipulate that a

search or seizure was without a warrant.          The prosecutor thus stipulates to a

warrantless seizure and proceeds to prove a constitutionally acceptable exception to the

Constitutional warrant requirement. Unless the prosecutor can then prove an exception

to the warrant requirement, the evidence must be suppressed.

       In this proceeding, when the State proved Robinson consented to the blood

draw, the State had met the burden of going forward with the evidence that it had

assumed by making the stipulation. If there was some other reason to suppress the

State v. Robinson                                                                   Page 7
blood draw, in essence, a statutory ground like article 38.23 and Transportation Code

section 724.017, I do not believe that the burden to prove compliance was assumed by

the State’s stipulation. That would be a burden to prove compliance with a statute and

such compliance is presumed.

       Further, I am not sure that a prosecutor can cause such a profound change in the

law by such a stipulation as to actually alter the placement of the burden of proof. I

have found no authority for such a shift nor has the Court cited any. It is important to

note that what the prosecutor was stipulating to was a factual issue; a warrantless

seizure. The Court has presumed the prosecutor can stipulate to a change in the

placement of the burden of proof.       I do not think a prosecutor can make such a

stipulation.

       The following is the Court of Criminal Appeals’s conclusion regarding the

burden to prove the violation of a statute, the result of which would require the

exclusion of the evidence obtained in violation of the statute. See Pham v. State, 175

S.W.3d 767 (Tex. Crim. App. 2005). While the evidence was obtained allegedly in

violation of a provision of the Family Code rather than the Transportation Code, its

holding nevertheless applies to all efforts to suppress evidence under article 38.23 of the

Texas Code of Criminal Procedure.

       The Court of Criminal Appeals in Pham concluded:

              Thus, the court of appeals correctly held that the burden is on the
       defendant, as the moving party in a motion to suppress evidence obtained
       in violation of the law under Art. 38.23, to produce evidence
       demonstrating the causal connection which this court required in Gonzales
       II. The burden then shifts to the State to either disprove the evidence the

State v. Robinson                                                                    Page 8
       defendant has produced, or bring an attenuation-of-taint argument to
       demonstrate that the causal chain asserted by the defendant was in fact
       broken.

Id. at 774.

       In its discussion leading up to this conclusion, the Court of Criminal Appeals

discusses the holdings of several key prior decisions.

               We also uphold the court of appeals’ distribution of the burdens of
       proof in both of these cases. We have long held that “the burden of
       persuasion is properly and permanently placed upon the shoulders of the
       moving party. When a criminal defendant claims the right to protection
       under an exclusionary rule of evidence, it is his task to prove his case.”
       Mattei v. State, 455 S.W.2d 761, 766 (Tex. Crim. App. 1970) (quoting Rogers
       v. United States, 330 F.2d 535 (5th Cir. 1964), cert. denied, 379 U. S. 916, 85 S.
       Ct. 265, 13 L.Ed.2d 186 (1964)). In Russell v. State, we again cited this
       holding. Recognizing that this analysis was used for federal claims of
       illegal search and seizure under the Fourth Amendment, and because
       Texas statutory law is silent as to how the burden of proof is distributed
       on a motion to suppress, this Court adopted some of the rules followed by
       federal courts in distributing burdens of proof. Russell v. State, 717 S.W.2d
       7, 9 (Tex. Crim. App. 1986).

              Appellant argues that the burden should be on the State to show
       the causal connection, and analogizes this situation to the admissibility of
       confessions when issues of voluntariness are raised. Although the burden
       is on the State to prove that a defendant’s confession was voluntary once
       the issue has been raised, that situation may be distinguished from the
       statutory violation of the Texas Family Code we have here. All a
       defendant must do on a claim of involuntary confession is to demonstrate
       there is a cognizable violation, and the confession is immediately
       presumed inadmissible unless the State can prove by a preponderance of
       the evidence that it was made voluntarily. United States v. Reynolds, 367
       F.3d 294 (5th Cir. 2004). There is no requirement that a defendant
       establish any causal connection between the illegal conduct and the
       ensuing confession; the defendant simply must raise the voluntariness
       issue. In this case, it is not enough for the defendant to merely establish a
       violation. Under Texas case law, it is required that a causal connection be
       established, and we hold that the defendant, as the moving party wishing
       to exclude the evidence, is responsible for the burden of proving this
       connection.

State v. Robinson                                                                           Page 9
              Thus, the court of appeals correctly held that the burden is on the
       defendant, as the moving party in a motion to suppress evidence obtained
       in violation of the law under Art. 38.23, to produce evidence
       demonstrating the causal connection which this court required in Gonzales
       II. The burden then shifts to the State to either disprove the evidence the
       defendant has produced, or bring an attenuation-of-taint argument to
       demonstrate that the causal chain asserted by the defendant was in fact
       broken.

Id. at 773-74.

       And the Court of Criminal Appeals has recently cited several of these same cases

in a case involving the alleged violation of the Health and Safety Code in connection

with a motion to suppress evidence from a blood draw. See State v. Kelley, 204 S.W.3d

808, 819-820 (Tex. Crim. App. 2006).     The opinion in Kelley contains an extensive

discussion of the burdens of proof at trial and the standard of review on appeal. In

Kelley, the Court of Criminal Appeals reminds the appellate courts that it is the party

with the burden of proof who assumes the risk of nonpersuasion.           Id. at 819 (see

discussion in connection with and the content of footnote 22).         The problem for

Robinson on this record is that he never produced any evidence of a statutory violation,

much less enough for the burden of production to shift to the State to disprove

Robinson’s evidence.

       This assignment of the burden of proof has important practical implications. If

all a defendant has to do is to move to suppress evidence and then the State must go

forward to prove the evidence was lawfully obtained, we can expect to see an even

greater number of these motions and related appeals. A defendant can essentially file a

motion in every case and the State will have to defend the manner in which the

State v. Robinson                                                                    Page 10
evidence was obtained. Thus, the presumption of proper police conduct is destroyed.

The defendant need not investigate the basis of the motion, and because the defendant

may learn that the basis of the motion is groundless if he does investigate it, an effective

and ethical attorney would decline to conduct any investigation of the facts before the

motion was filed. The benefit to his client may be that the State cannot meet this new

burden (including the extensive cost) placed on it in every case and, thus, decide to not

use the evidence. Or it may be that the State cannot present the evidence to show that

the evidence was lawfully obtained for some other reason, such as the witness has

moved to another state and the cost of returning the witness for the hearing is excessive,

or that the witness simply fails to appear for the hearing. The result under the State’s

new burden, imposed by the Court’s holding, would be that the evidence is suppressed

even though it is lawfully obtained.

                                       CONCLUSION

        The only reason the trial court ordered the evidence suppressed in this case is

that the State had failed to prove the qualifications of the person who made the blood

draw.     Thus, the trial court placed the burden of proof and, thus, the risk of

nonpersuasion, on the State. This was an erroneous placement of the burden of proof.

It is because Robinson failed to prove that the blood was taken in violation of the

Transportation Code that the burden of proof was not met and, therefore, Robinson’s

motion to suppress should have been denied. Because the Court erroneously affirms




State v. Robinson                                                                    Page 11
the trial court’s order based solely on the improper placement of the burden of proof, I

respectfully, but strongly, dissent.1



                                                  TOM GRAY

Dissenting opinion delivered and filed June 16, 2010




1
  Any Other Basis? Given that the trial court findings are stated in the negative, they essentially constitute
no findings at all. In light of the record and the trial court’s comments, the basis of her holding and the
meaning of the findings are clear. Thus, as in State v. Kelley, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006), I
cannot ignore the record. If we do not venture off into some other basis for upholding the trial court’s
judgment, based on presumptions not supported by the record, there is no alternative other than to
reverse the trial court’s order.

State v. Robinson                                                                                    Page 12
