State v. Nancy N. Neesley

Opinion issued June 8, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00558-CR

THE STATE OF TEXAS, Appellant

V.

NANCY N. NEESLEY, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 1002222

OPINION

The State charged appellee, Nancy N. Neesley, with intoxication manslaughter.

Appellee filed a motion to suppress contending that a second specimen of appellee’s

blood was taken in violation of her statutory and constitutional guarantees under the

Fourth and Fourteenth Amendments to the U.S. Constitution, article 1 section 9 of the

Texas constitution, chapters 14 and 15 of the Texas Code of Criminal Procedure, and

chapter 724 of the Texas Transportation Code. The trial court granted appellee’s

motion to suppress the second blood specimen under chapter 724 of the Transportation

Code, and the State appeals.

The State presents four issues for review: (1) probable cause and exigent

circumstances authorized the second drawing of appellee’s blood without a warrant

and without additional statutory compliance; (2) the implied consent statute is not

applicable because appellee’s blood was drawn primarily for treatment purposes; (3)

section 724.012(b) of the Transportation Code (implied consent statute) allows for the

taking of multiple specimens to obtain a “usable” specimen; and (4) the second

drawing of blood was a continuation of the initial blood sample, precluding the need

for additional authorization for the second blood sample. We conclude (1) the State

waived its first two issues for review; (2) section 724.012(b) allows for the taking of

a single specimen; and (3) the continuation-search theory is not applicable. We affirm.

Background

On July 26, 2004, appellee was involved in a head-on vehicle collision with

Cynthia Perez. Detective Anders, an accident investigator with the Harris County

Sheriff’s Department, spoke with a witness who claimed that appellee swerved into

Perez’s lane. The witness stated he was traveling northbound in front of Perez’s

vehicle when appellee’s southbound vehicle veered into his and Perez’s lane, causing

him to swerve to the right to avoid a collision. The witness saw appellee’s vehicle

continue south in the northbound lane and collide with Perez’s vehicle. Detective

Anders then spoke briefly with appellee to ascertain her identity. Although appellee

had an oxygen mask over her face, Detective Anders detected a “moderate” odor of

alcohol. Thinking that alcohol may have factored into the accident, Detective Anders

sought to verify the witness’s claims that appellee veered into oncoming traffic.

Detective Anders verified this information when he determined that the point of impact

occurred one foot inside Perez’s lane. He then decided that appellee’s blood needed

to be analyzed to determine whether appellee was intoxicated.

While appellee was transported to the hospital, rescue workers were still trying

to free Perez from her vehicle. The collision had trapped Perez behind her steering

wheel, and rescue workers had to use the jaws of life to remove Perez. When the

workers cut Perez free and relieved the pressure from her lower extremities, she went

into cardiac arrest and died at the scene.

Deputies Marines and Hernandez were assigned to handle appellee’s blood

sampling. Because both deputies noticed an odor of alcohol while speaking with

appellee, Deputy Hernandez performed a horizontal gaze nystagmus test. Hernandez

found all six clues of impairment

and shared those observations with Deputy Marines.

Deputy Marines then read appellee the statutory warnings form regarding breath and

blood sampling, but appellee refused to provide a sample. Deputy Marines next filled

out a mandatory blood draw form.

Around 8:30 p.m., a registered nurse took blood samples from appellee’s left

arm for treatment purposes and for Deputies Marines and Hernandez. Because an

intravenous line with a saline solution had been attached to appellee’s left wrist and the

blood was taken a few inches “downstream,” the first blood samples were

contaminated or diluted with saline solution. Approximately 50 minutes later, at 9:25

p.m., Deputy Marines had a second blood sample taken from the right arm, but he did

not request appellant’s permission to take the second sample, did not have consent, and

did not have a warrant. Appellee filed a motion to suppress this second blood sample,

and the trial court granted that motion.

Waiver Regarding the State’s first issue, appellee contends the State waived the

argument by failing to raise it with the trial court below. Appellee cites Hailey v. State ,

87 S.W.3d 118, 122 (Tex. Crim. App. 2002) for the proposition that an appellate court

may not reverse a trial court on a theory not presented to the trial court. The State

contends that, under Rule 103(a)(2) of the Texas Rules of Evidence, when a trial court

excludes evidence, the losing party must merely make the substance of the evidence

known to the trial court in order to appeal error; thus, the State argues that it has not

waived the argument.

The Court of Criminal Appeals addressed a situation similar to ours in State v.

Mercado , 972 S.W.2d 75 (Tex. Crim. App. 1998). In Mercado , the trial court granted

Mercado’s motion to suppress cocaine found in his car after a search of a closed bag.

Id. at 76 . On appeal, the State argued for the first time that the search was a valid

search incident to arrest. Id . The court held that “ordinary notions of procedural

default should apply equally to the defendant and the State.” Id . at 78. Thus, where

the “State is a party appealing, the basic principle of appellate jurisprudence that points

not argued at trial are deemed to be waived applies equally to the State and the

defense.” Id . Here, the State attempts to limit the holding of Mercado to situations

that involve the Fourth Amendment. The State argues that, because appellee contends

the second blood sample was impermissible regardless of the application of the Fourth

Amendment, Mercado is inapplicable. We disagree that Mercado should be so limited.

In Martinez v. State , 91 S.W.3d 331, 336 (Tex. Crim. App. 2002), the Court of

Criminal Appeals recognized an expansive reading of Mercado and did not limit its

application to Fourth Amendment cases:

As this Court stated in State v. Mercado , under [Texas Rule of Appellate

Procedure 33.1], the issue is not whether the appealing party is the State

or the defendant or whether the trial court’s ruling is legally “correct” in

every sense, but whether the complaining party on appeal brought to the

trial court’s attention the very complaint that party is now making on

appeal. This “raise it or waive it” forfeiture rule applies equally to goose

and gander, State and defendant.

(footnotes omitted). Because the State did not present its first issue at the trial court,

we conclude it waived that argument on appeal. Id .

In its second issue, the State contends the second blood sample was admissible

because it was taken for treatment purposes. Appellee responds again that the State

waived this argument for failing to present this to the trial court. Texas Rule of

Appellate Procedure 33.1 requires complaining parties to set forth the grounds for their

complaint with “sufficient specificity to make the trial court aware of the complaint.”

Tex . R. App . P. 33.1(a)(1)(A). The State argues it preserved error by pointing to the

italicized language below in its closing statement at the suppression hearing:

The State’s argument is that the second blood draw is reliable and

admissible because it’s taken from the other arm, the saline does not

effect [sic] it. How do we know that? We know it from the hospital

because [Defense Counsel] admitted Defense Exhibit C that says the

hospital sent it back, there’s too much saline in your first draw, retake it .

We know from the medical records that are in the Court’s file they never

came back and Nurse Pope testified they never came back to the lab on

the second draw and said there was a problem with it. They used it.

In its brief, the State admits that “while the argument was not as well developed as it

was on appeal, the trial court was informed that the blood was not merely requested by

the peace officers.” However, the trial court’s mere awareness of this fact does not

suffice under Rule 33.1. This language, in context, fails to show that the State relied

on this as an argument to support the introduction of the second blood sample. The

language does not meet Rule 33.1’s sufficient specificity requirement; thus, we

conclude the State waived this argument. Id .; Martinez , 91 S.W.3d at 336 . We

overrule the State’s second issue.

Implied Consent Statute

In its third issue, the State contends the implied consent statute (chapter 724 of

the Transportation Code) allows for the taking of multiple specimens to obtain a

“usable” specimen. The pertinent parts of section 724.012 provide as follows:

(a) one or more specimens of a person’s breath or blood may be taken if

the person is arrested and at the request of a peace officer having

reasonable grounds to believe the person:

(1) while intoxicated was operating a motor vehicle in a public

place, or a watercraft; or

(2) was in violation of Section 106.041, Alcoholic Beverage Code.

(b) A peace officer shall require the taking of a specimen of the person’s

breath or blood if:

(1) the officer arrests the person for an offense under Chapter 49,

Penal Code, involving the operation of a motor vehicle or a

watercraft;

(2) the person was the operator of a motor vehicle or a watercraft

involved in an accident that the officer reasonably believes

occurred as a result of the offense;

(3) at the time of the arrest the officer reasonably believes that as

a direct result of the accident:

(A) any individual has died or will die; or

(B) an individual other than the person has suffered serious

bodily injury; and

(4) the person refuses the officer’s request to submit to the taking

of a specimen voluntarily.

Tex . Transp . Code Ann. § 724.012 (a)–(b) (Vernon Supp. 2005) (emphasis added).

Because this is a refusal of consent case, subsection (b) applies. Id . Once the State

established the four elements of subsection (b) for the first blood sample, the State

contends that it could take the second blood sample without again complying with the

requirements because subsection (b) allows for the drawing of multiple specimens.

Appellee counters that the plain language of subsection (b) allows for the drawing of

“a specimen,” not multiple specimens.

Whether subsection (b) allows for the drawing of multiple specimens is an issue

of first impression.

We begin our analysis by observing that the Transportation Code

has its own rule guiding construction of its provisions. Allen v. State , 11 S.W.3d 474,

476 (Tex. App.—Houston [1st Dist.] 2000), aff’d , 48 S.W.3d 775 (Tex. Crim. App.

2001). Section 1.002 provides that “[c]hapter 311, Government Code (Code

Construction Act), applies to the construction of each provision in this code except as

otherwise expressly provided by this code.” Tex . Transp . Code Ann . § 1.002

(Vernon 1999). This poses a potential conflict with the leading case on statutory

construction from the Court of Criminal Appeals. See Boykin v. State , 818 S.W.2d

782, 786 (Tex. Crim. App. 1991) (establishing the “plain language” approach that

limits consideration to the text of the statute unless it is ambiguous or leads to absurd

results). The Code Construction Act allows consideration of extra-textual factors

without requiring ambiguity in the text of the statute. See Tex . Gov’t Code Ann .

§ 311.023 (Vernon 2005). We can easily avoid the conflict by resorting to Lanford v.

Fourteenth Court of Appeals , 847 S.W.2d 581, 587 (Tex. Crim. App. 1993), in which

the Court of Criminal Appeals eviscerated its Boykin rule by finding ambiguity when

the parties took polar opposite interpretations of the text. See L.B. Foster Co. v. State ,

106 S.W.3d 194, 203 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d); Allen , 11

S.W.3d at 476 . Because the parties take polar opposite positions here, we are free to

apply the Code Construction Act in resolving the issue.

Section 311.023 of the Code Construction Act provides for construction aids

that may be considered: (1) the object sought to be attained, (2) circumstances under

which the statute was enacted, (3) legislative history, (4) common law or former

statutory provisions, including laws on the same or similar subjects, (5) consequences

of a particular construction, (6) administrative construction of the statute, and (7) title

(caption), preamble, and emergency provision. Tex. Gov’t Code Ann . § 311.023

(Vernon 2005).

When looking to the first four factors, we see that subsection (b) of 724.012

traces its roots to Senate Bill 1 of the 68th Legislature. Act effective January 1, 1984,

68th Leg., R.S., ch. 303, 1983 Tex. Gen. Laws 1568 , 1584 (amended 1993, 1995,

1997, 2003).

This original version required the taking of “a specimen” as well, but

limited such a taking to when a person had died or would die as a result of the accident.

Id . The stated purpose of the original bill was to “save lives and decrease the number

of casualties caused by drunken drivers” by stiffening the penalties for DWI

convictions. House Comm . on Criminal Jurisprudence , Bill Analysis , Tex. S.B.

1, 68th Leg., R.S. (1983). In 2003, the Legislature carried over the “a specimen”

language, but expanded subsection (b) to require that “a specimen” also be taken if a

person has suffered serious bodily injury. Act effective September 1, 2003, 78th Leg.,

R.S., ch. 422, 2003 Tex. Gen. Laws 1669 . The State relies heavily on this bill analysis

which provides the following purpose and backdrop against which this bill was

amended:

More Texans are killed in alcohol-related crashes than in any other state.

[sic] Texas has the nation’s worst problem with drunk driving in terms of

total deaths and injuries, with 50% of traffic fatalities involving

alcohol. . . . House Bill 292 requires officers to take blood and breath

specimens at the scene of a traffic accident where someone has been

seriously injured. This requirement will raise the average blood alcohol

content (BAC) testing so that Texas can draw down federal funds.

***

House Bill 292 amends Section 724.012 of the Transportation Code by

expanding the instances where a blood alcohol content analysis is

required. In addition to fatal traffic accidents, House Bill 292 requires a

blood alcohol specimen be taken if an individual other than the person

who caused the accident has suffered serious bodily injury.

House Comm . on Law Enforcement , Bill Analysis , Tex. H.B. 292, 78th Leg.,

R.S. (2003) (emphasis added). Although we agree the circumstances surrounding the

enacting and amending of section 724.012(b), along with the stated purposes, weigh

in favor of interpreting “a specimen” to encompass more than one, we find little

additional help for the State’s position. The State argues that the 2003 amendment

focused on raising the amount of testing to increase the receipt of federal funds. Id .

However, the Legislature sought to increase testing by providing an additional factual

scenario for when an officer was required to take a breath or blood specimen; neither

the amendment nor the bill analysis suggest that the Legislature intended to address the

issue at hand.

The State next points to the Legislature’s use of “specimens” and “specimen”

in the 2003 bill analysis, as suggesting that no limit was intended on the number of

specimens taken. Id . The State also relies on section 311.012(b) of the Code

Construction Act which provides that “[t]he singular includes the plural and the plural

includes the singular.” Tex . Gov’t Code Ann . § 311.012(b) (Vernon 2005). The

State’s argument and position, however, disregard the plain language set forth in

section 724.012. Specifically, the State’s position dismisses the Legislature’s use of

the phrase “one or more specimens” in subsection (a) of section 724.012. Tex .

Transp . Code Ann. § 724.012(a) (Vernon Supp. 2005) (stating that “ one or more

specimens of a person’s breath or blood may be taken . . .”) (emphasis added). The

State’s argument begs the question of why the Legislature would make a distinction

between subsections (a) and (b) by using “one or more specimens” in (a) and “a

specimen” twice in (b). If the Legislature intended “a specimen” to encompass the

plural form, they could have used “a specimen” throughout chapter 724 and relied on

section 311.012(a) of the Code Construction Act to avoid the singular/plural debate.

See Tex. Gov’t Code Ann . § 311.012(a) (Vernon 2005) (providing that the singular

includes the plural and the plural includes the singular). Because the Legislature chose

to make a distinction between subsections (a) and (b), accepting the State’s argument

would render the use of “one or more” in subsection (a) superfluous. Id . § 311.023(5)

(stating that a court may consider the consequences of a particular construction).

We are constrained from simply dismissing this language as suggested by the

State’s position. Badgett v. State , 42 S.W.3d 136, 139 (Tex. Crim. App. 2001). That

result would violate the cardinal rule of statutory construction that each word, phrase,

clause, and sentence should be given effect so that no part is to be construed as void

or redundant. Id . It would run contrary to the presumptions that an “entire statute is

intended to be effective” and that every word in a statute has been used for a purpose.

Tex. Gov’t Code Ann . § 311.021(2) (Vernon 2005); Whitelaw v. State , 29 S.W.3d

129, 131 (Tex. Crim. App. 2000). Further, we must presume that if the Legislature did

not use words in a statute, it excluded those words for a reason. Timmons v. State , 952

S.W.2d 891, 892 (Tex. App.—Dallas 1997, no pet.). Thus, we must give effect to the

Legislature’s act of not using “one or more specimens” in subsection (b), as it did in

subsection (a).

A reasonable explanation for the distinction rests in the application of each

subsection. Because subsection (a) applies in deemed consent situations, it is

reasonable to assume that allowing for more than one specimen would not be overly

intrusive to the consenting individual. See Tex. Transp. Code Ann . § 724.012(a)

(Vernon Supp. 2005). Subsection (b), though, applies when the person refuses to

provide a specimen, and allowing for more than one specimen here would be overly

intrusive to the non-consenting individual. See id. § 724.012(b); see also Skinner v.

Ry. Labor Executive’s Ass’n , 489 U.S. 602, 616 , 109 S. Ct. 1402, 1413 (1989)

(recognizing that taking bodily fluids implicates one’s privacy interests); see

Schmerber v. California , 384 U.S. 757, 767 , 86 S. Ct. 1826, 1834 (1966) (recognizing

that drawing one’s blood constitutes a “search” under the Fourth Amendment). This

interpretation of limiting the number of specimens based on consent and non-consent

is a reasonable construction that gives effect to every word in the statute. See Tex .

Gov’t Code Ann . § 311.021(2), (3) (Vernon 2005) (stating that it is presumed that the

entire statute is intended to be effective and that a just and reasonable result is

intended). It also abides by the cardinal rule of construction that every word or phrase

should be given effect so that no part is rendered void or redundant. Badgett , 42

S.W.3d at 139 . Absent a clearer indication by the Legislature regarding the number

of specimens that can be taken in non-consensual cases, we decline the request to

expand the plain language of subsection (b) and dismiss the language of subsection (a)

as superfluous.

We conclude that “a specimen” in subsection (b) means one specimen. Thus,

because the second specimen was obtained in violation of section 724.012(b) of the

Texas Transportation Code, the trial court properly granted appellant’s motion to

suppress. We overrule appellant’s third issue.

Continuation

In its fourth issue, the State contends the second drawing of blood was a

continuation of the initial blood sample, precluding the need for additional

authorization for the second blood sample. Appellee claims the State waived this

argument as well by failing to raise it at the trial court. We disagree with appellee.

The State explicitly argued that the second blood sample was not a separate search

from the first blood sample, but merely a continuation of the first search. Thus, the

State made its argument with sufficient specificity to make the trial court aware under

Rule 33.1. See Tex . R. App . P. 33.1(a)(1)(A).

The State relies on a number of cases for its argument that the second blood

sample was merely a continuation of the first blood sample. United States v.

Squillacote , 221 F.3d 542 , 557–58 (4th Cir. 2000); United States v. Gerber , 994 F.2d

1556 , 1558–59 (11th Cir. 1993); United States v. Kaplan , 895 F.2d 618, 623 (9th Cir.

1990); United States v. Carter , 854 F.2d 1102, 1107 (8th Cir. 1988); United States v.

Bowling , 351 F.2d 236 , 240–41 (6th Cir. 1965); Morrison v. State , 508 S.W.2d 827,

829 (Tex. Crim. App. 1974); Brown v. State , 475 S.W.2d 938, 950 (Tex. Crim. App.

1972) overruled on other grounds by Bradford v. State , 608 S.W.2d 918 (Tex. Crim.

App. 1980). In each of these cases, the initial searches were pursuant to either valid

search warrants or valid consents, and each subsequent search was upheld as valid

based on the grounds that allowed the first search. Squillacote , 221 F.3d at 557–58

(upholding subsequent searches based on valid warrant from initial search); Gerber ,

994 F.2d at 1558–59 (same); Kaplan , 895 F.2d at 623 (same); Carter , 854 F.2d at 1107

(same); Bowling , 351 F.2d at 240–41 (same); Morrison , 508 S.W.2d at 829 (same);

Brown , 475 S.W.2d at 950 (same). The overriding theme in these “continuing search”

cases is that each subsequent search is upheld on the same grounds that lawfully

permitted the initial search. Thus, if the initial search was based on consent, the court

found that that consent carried over to the second search, and if the initial search was

based on a warrant, the court found that that warrant carried over to the second search.

Squillacote , 221 F.3d at 557–58; Gerber , 994 F.2d at 1558–59; Kaplan , 895 F.2d at

623 ; Carter , 854 F.2d at 1107 ; Bowling , 351 F.2d at 240–41; Morrison , 508 S.W.2d

at 829 ; Brown , 475 S.W.2d at 950 . The present case does not fit within these confines.

The State justifies the first blood sample based on section 724.012(b) of the

Transportation Code and seeks to validate the second blood sample on exigent

circumstances. If we were to apply the “continuation search” theory espoused in the

cases above, we would have to find that the second blood sample was valid based on

the same grounds that validated the first blood sample—section 724.012(b). Because

the State relies on exigent circumstances to justify the second search, a ground

different from the initial blood sample, we conclude that the “continuation search”

theory is not applicable here. We overrule the State’s fourth issue.

Conclusion We conclude that the State waived its first two issues for review for failing to

raise them with the trial court. Additionally, because we interpret section 724.012(b)

of the Transportation Code to allow for the taking of one specimen, we conclude that

the trial court properly granted appellant’s motion to suppress. Finally, the

continuation search theory is not applicable to the present case. Accordingly, we

affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Taft and Nuchia.

Publish. Tex. R. App. P. 47.2( b ).