
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-01-00532-CR



Gilberto Alvarez, Jr., Appellant

v.


The State of Texas, Appellee






FROM THE COUNTY COURT AT LAW OF COMAL COUNTY

NO. 2000CR0211, HONORABLE BRENDA CHAPMAN, JUDGE PRESIDING






	Appellant Gilberto Alvarez, Jr. entered a nolo contendere plea and was convicted of
the misdemeanor offense of operating a motor vehicle in a public place while intoxicated.  See Tex.
Pen. Code Ann. § 49.04(a) (West Supp. 2002).  Accepting and following a plea bargain agreement,
the trial court assessed appellant's punishment at confinement in the county jail for ninety days,
probated for one year, and a fine of $800.  In his sole point of error, appellant asserts that the trial
court erred in denying his motion to suppress blood test evidence because the blood test results were
unlawfully obtained in violation of his Fourth Amendment rights.  We will affirm the judgment.
	At the hearing on the motion to suppress, no testimony, exhibits, documentary
evidence, stipulations, or other evidence was offered or admitted.  The hearing record shows only
a colloquy between counsel and the trial court discussing law applicable to facts assumed but not in
evidence. (1)  From the record, we cannot identify the fruits of the alleged unlawful search and seizure;
because we are unable to identify the fruits of the alleged search and seizure, we are unable to
determine from the record that the alleged fruits were somehow used by the State.  See Gonzales v.
State, 977 S.W.2d 189, 189-91 (Tex. App.--Austin 1998, pet. ref'd).  The record in this case is more
deficient than the record in Gonzales.  We are not authorized to speculate on what evidence the
record might have shown.  "[I]f it is not clear from the testimony and exhibits what 'the fruits' are,
then the appellate court need not address the merits of the claim.  Likewise, if the fruits have not
'somehow been used' by the State, then the appellate court need not address the merits of the claim." 
Gonzales v. State, 966 S.W.2d 521, 524 (Tex. Crim. App. 1998); see McGlynn v. State, 704 S.W.2d
18, 20-21 (Tex. Crim. App. 1982).  On the record before us, it has not been shown that the trial court
abused its discretion in denying appellant's motion to suppress.
	Even if we could consider the facts not proved but those assumed during the
suppression hearing and on appeal, appellant's point of error is without merit.  The facts assumed
were that appellant was involved in an automobile collision and taken to a hospital for the treatment
of his injuries.  At the hospital, two separate blood samples were drawn from appellant.  The first
sample was drawn without the appellant's consent at the request of a New Braunfels police officer. 
That blood sample was analyzed by the Texas Department of Safety Crime Laboratory.  The trial
court suppressed evidence of the result of that test.
	However, a second sample of appellant's blood was drawn at the hospital.  Appellant
says in his brief that "[t]his sample was drawn for routine medical purposes and with the consent of
Appellant.  During the course of treating Appellant, the hospital tested that sample for alcohol
content.  This test showed an alcohol content of approximately 0.26, over the legal limit of 0.08." 
The trial court denied appellant's motion to suppress the test result of the blood sample drawn for
medical purposes.  Appellant argues that the result of the test made for medical purposes should have
been suppressed also because the State obtained the result of this test "without first securing either
appellant's consent or a valid search warrant."
	Appellant's counsel, in argument on the motion to suppress and in his brief on appeal,
recognizes that the facts in this case are quite similar to those in State v. Hardy, 963 S.W.2d 516
(Tex. Crim. App. 1997).  In Hardy, the Court of Criminal Appeals held:

	We express no opinion concerning whether society recognizes a reasonable
expectation of privacy in medical records in general, or whether there are particular
situations in which such an expectation might exist.  We note only that, given the
authorities discussed, whatever interests society may have in safeguarding the privacy
of medical records, they are not sufficiently strong to require protection of blood-alcohol test results from tests taken by hospital personnel solely for medical purposes
after a traffic accident.


Id. at 527.
	However, appellant argues that a late Supreme Court "ruling directly contradicts prior
Texas case law concerning a person's expectation of privacy in medical records."  He cites Ferguson
v. City of Charleston, 532 U.S. 67 (2001).  The facts in Ferguson are distinguishable from Hardy
and from this case.  The issue in Ferguson was framed by Justice Stevens in the opinion written for
the majority:

	In this case, we must decide whether a state hospital's performance of a diagnostic
test to obtain evidence of a patient's criminal conduct for law enforcement purposes
is an unreasonable search if the patient has not consented to the procedure.  More
narrowly, the question is whether the interest in using the threat of criminal sanctions
to deter pregnant women from using cocaine can justify a departure from the general
rule that an official nonconsensual search is unconstitutional if not authorized by a
valid warrant.


Id. at 69.
	In Ferguson, staff members of a state medical training hospital, concerned about the
increasing use of cocaine by women receiving prenatal care, developed a written policy for obtaining
evidence to prosecute the women who bore children that tested positive for drugs at birth.  Hospital
representatives, police, and local officials devised the procedures to be followed.  These procedures
provided a plan to identify and test pregnant patients suspected of drug use without their knowledge
or consent.  The plan (1) required that a chain of custody be followed when obtaining and testing
patients' urine samples, (2) contained police procedures and criteria for arresting patients who tested
positive, and (3) encouraged prosecution for drug offenses and child neglect.  Id. at 70-73.
	The Supreme Court held that a state hospital's performance of diagnostic tests to
obtain evidence of a patient's criminal conduct for law enforcement purposes was an unreasonable
search if the patient had not consented to the procedure.  Id. at 84-85.  The interest in using the threat
of criminal sanctions to deter pregnant women from using cocaine could not justify a departure from
the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid
warrant.  Id.
	The facts in Ferguson are quite different from the unproven but assumed facts in this
case.  Under the record before us, we need not reach the merits of appellant's claim.  However, even
if the assumed facts were properly in evidence for our consideration, Hardy would be controlling. 
Appellant's point of error is overruled.
	The judgment is affirmed.


  
 Carl E. F. Dally, Justice
Before Chief Justice Aboussie, Justices Yeakel and Dally*
Affirmed
Filed:   March 28, 2002
Do Not Publish

*	Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.  See
Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1.   Counsel asked the trial court to take judicial notice of a subpoena, issued at the State's
request, requiring the custodian of the hospital records to produce the record of appellant's blood test
result.  Counsel also asked the court to take judicial notice of the State's notice to appellant's counsel
of the filing of the hospital records, authenticated by the affidavit of the custodian of the records and
the State's intention to offer these documents in evidence.  These documents are in the clerk's
record, but were not offered or admitted in evidence.  "Judicial notice" is "[a] court's acceptance,
for purposes of convenience and without requiring a party's proof, of a well-known and indisputable
fact" such as "water freezes at 32 degrees Fahrenheit."  Blacks Law Dictionary 851 (7th ed. 1999). 
"The theory of judicial notice is that a fact well known by all reasonably intelligent people in the
community or its existence is so easily determinable with certainty from sources considered reliable,
it would not be good sense to require formal proof."  Holloway v. State, 666 S.W.2d 104, 108 (Tex.
Crim. App. 1984).  "Of course a trial court may take judicial notice of its own orders, records, and
judgments."  Wilson v. State, 677 S.W.2d 518, 523 (Tex. Crim. App. 1984).  However, the facts
necessary to support a motion to suppress evidence are not facts that a trial court can judicially
notice.  The record must contain evidence to support a claim made in a motion to suppress.  See
Gonzales v. State, 977 S.W.2d 189, 189-91 (Tex. App.--Austin 1998, pet. ref'd).
