A criminal trial can sometimes be a confusing process in which important issues can be left unattended when procedural arguments become convoluted. This was recently illustrated in a DWI case, Smith v. State, decided by the Texas Court of Criminal Appeals on June 8, 2016.
The defendant was stopped by a state trooper. He exhibited signs of intoxication. After being subjected to a field sobriety test, the officer placed defendant under arrest for suspicion of driving while intoxicated. An ensuing search of defendant’s vehicle discovered three open containers of alcoholic beverages. The officer ran a criminal background check on defendant and determined that he had two prior DWI convictions.
Defendant became uncooperative, according to the trooper.
Warrantless Blood Draw
Under Chapter 724 of the Health and Safety Code, the officer determined that defendant should be transported to a local hospital for a warrantless blood draw. Analysis of the defendant’s blood sample revealed a blood-alcohol concentration of .21 grams of alcohol per 100 millimeters of blood – well above the legal BAC of .08.
Defendant was indicted and elected to face a bench trial. The state called a forensic scientist to testify about how blood samples are analyzed, and how she analyzed defendant’s blood sample.
This is where the confusion began.
Defense Objection as to Vial Containing Blood
In response to questioning by the prosecutor, the forensic scientist testified about a vial containing defendant’s blood. Defense counsel objected, saying the expert’s testimony about the vial was not evidence. The State responded that it was “setting the predicate” to have the vial offered into evidence. Defense counsel gave ground, saying he would wait to further object when the vial was actually offered into evidence.
The State continued to question the expert about the vial before it attempted to offer it into evidence. Defense counsel then made a specific objection, arguing the vial could not be admitted because there was no “order” authorizing the blood draw. He told the court that an order was not needed from a judge, but was needed by the police officer before blood can be drawn from a DWI suspect.
State Responds, No Order Needed
The State responded that it did not think an order was required. The parties and the judge all became entangled in the meaning of the statute authorizing a blood draw. Defense counsel then made a more specific objection on “constitutional grounds” that an “order” was needed before a blood sample could be drawn.
Trial Court Asks Defense Counsel to Clarify
The trial judge was intrigued by the prospect of a “constitutional challenge.” He pointedly asked defense counsel if he was making a Fourth Amendment challenge to the blood draw statute, § 724.012, that a magistrate or judge had to sign an “order” before a draw could be obtained. He acknowledged that such an objection presented an “interesting issue.”
Defense counsel responded that he was indeed making a Fourth Amendment challenge to the “seizure” of defendant’s blood sample. Counsel premised his objection on the fact there was no evidence in the record showing that the police officer did not “have the time” to get a warrant/order from a magistrate or judge.
Noting that the officer followed the mandate of the statute, the judge said the only thing that needed to be resolved was whether Article 724.012 was constitutional. He then decided to “carry” the matter until later in the trial because it was such an “interesting issue.”
Additional Testimony Elicited Without Objection
The State continued its case, eliciting additional testimony from the forensic scientist about the blood sample without objection from defense counsel. The State then, for a second time, sought to admit the results of the blood sample analysis.
Defense counsel reiterated several of his objections, including the constitutional challenge that there had to be a warrant/order allowing a blood draw.
While the judge said he would allow the State to introduce its evidentiary exhibit, he would carry the “constitutional issue” for a later time in the proceedings. Defense counsel responded with the question of whether there would be time to “brief that issue.” The judge said there would be.
The State’s exhibit was admitted into evidence.
At the close of the State’s case, defense counsel moved for “instructed verdict.” He offered a number of reasons to support the request, one of which was that “the Defendant’s blood was illegally seized without Court order and/or written order in violation of due process, his Constitutional right of due process in particular.”
The judge denied the motion.
Closing arguments were presented.
Judge Noted Defense Had Raised Interesting Question
The judge found the defendant guilty, but noted that defense counsel had “raised an interesting question about the fact that the blood draw was taken without a warrant.”
The judge added, “I’m not sure if this has been litigated or not, but I’m – I’m not certain that the legislature can – can do this or not. I mean, the Fourth Amendment is still the law of the land and regardless of what the State legislatures or even Congress does, but you are going to have to do me some research [defense counsel], and show me.”
Defense counsel apologized for not having done research on these questions the previous night.
The judge was understanding, saying: “No, I mean, we’re not done with the trial, and I’ll consider it certainly.”
Defense counsel, then informed the court that the “Texas Court of Criminal Appeals looks like they kind of said it was okay, but they didn’t rule directly it looked like on the constitutional issues. That’s what my research indicated.”
Judge Asked for Briefing on the Issue, Sentences Defendant to 25 Years
The trial judge responded: “Well, you’re going to have to brief me on the issue if you want me to consider it. I need to know what the Courts have said and how far it’s gone up.”
Based on defendant’s two prior DWI convictions, the trial judge sentenced him to the minimum 25 years under the sentencing enhancement provisions of the DWI statutes.
On appeal, the defendant raised the issue that the trial court erred in admitting the evidence of the blood sample because the blood had been obtained without a warrant.
13th Court of Appeals Reverses Conviction
The Thirteenth Court of Appeals reversed defendant’s conviction, finding that the Fourth Amendment barred the admission of the blood sample evidence. The appeals also found that defense counsel had sufficiently objected to have the Fourth Amendment issue heard on appeal.
The State sought, and was granted, discretionary review by the Court of Criminal Appeals.
State Appeals, Argues Defense Failed to Preserve Error
The State argued that defense counsel failed to preserve the Fourth Amendment issue for review because he did not secure a final ruling on the issue until after the close of evidence.
Defense counsel responded that inasmuch as he faced a bench trial, “the time at which a motion is re-urged or a ruling is obtained is not as crucial, because the judge, as fact-finder, is aware of the substance of the motion regardless of when the defendant finally argues it.”
Texas Court of Criminal Appeals Agrees with State
The Court of Criminal Appeals decided the issue this way:
“To preserve error, a party must, among other things, obtain a ruling on the complaint or object to the trial judge’s refusal to rule. In the present case, the trial judge declined to rule on the Fourth Amendment issue at the time the evidence as admitted but ‘carried’ the issue through the trial. Although the trial judge admitted the evidence, that admission, unaccompanied by a ruling on appellant’s complaint, was not sufficient to preserve error.
“Both parties seem to agree that a ruling on appellant’s Fourth Amendment complaint was obtained after the close of evidence, but we disagree. The ruling that was made after the close of evidence was on appellant’s motion for instructed verdict. A ruling on a motion for instructed verdict is not the same as a ruling on the admission of evidence. A motion for instructed verdict is essentially a trial level challenge to the sufficiency of the evidence. Even evidence that is improperly admitted is considered in determining whether the evidence is sufficient to support a conviction, and in any event, there was other evidence to support appellant’s conviction aside from the blood-test results. Moreover, after finding appellant guilty, the trial judge reiterated that the Fourth Amendment issue had not been resolved. Appellant never asked for a ruling on the issue, nor did he object to the trial judge’s failure to rule. Because he failed to obtain a ruling on the Fourth Amendment complaint, he failed to preserve error with respect to that complaint.”
The Court of Criminal Appeals remanded defendant’s case back to the court of appeals with instructions that it consider the other issue he had presented on appeal.
It is our opinion that defense counsel may have become distracted in the evidentiary procedural wrangling over the admission of the blood sample tests. The trial judge went as far as saying during the trial he thought the Fourth Amendment issue about the blood draw was “interesting” and indicated he would like briefing on the issue.
Hindsight is always 20/20
Defense counsel should have taken the initiative before the conclusion of the State’s case and researched the Fourth Amendment and presented his findings and arguments to the court. Perhaps he was operating under the judge’s statement that he would “carry” the Fourth Amendment issue through the trial and lost track of the ball.
The issue also got lost in the weeds for the Judge. Without ever removing the Fourth Amendment issue from the carry posture, the judge found the defendant guilty. Before he actually sentenced the defendant, he instructed defense counsel that the trial was not over and would consider briefing on that issue. He then sentenced the defendant.
We agree with the Thirteenth Court of Appeals. Defense counsel continuously raised objections concerning the blood draw evidence and did what he could under the circumstances to secure a final ruling. The objections were less than perfect, but they certainly informed the court of the nature of his claim.
Once the trial judge adjudicated the defendant guilty and sentenced him, defense counsel should have filed a motion for new trial under Texas Rule of Appellant Procedure 21.3 so the Court could decide whether his verdict was “contrary to the law and the evidence.”
Court of Criminal Appeals Prevents New Trial on Technicality
The Court of Criminal Appeals, we believe, refused to hear defendant’s Fourth Amendment on an absurd technical ground. Far too often the Court of Criminal Appeals seems to search for grounds, and sometimes facts, to prevent criminal convictions from being reversed.
Courts are loathe to reverse a conviction on “technical” issues, so then should the Court of Criminal Appeals have been loathed to strip defendant of the new trial granted to him by the Thirteenth Court of Appeals on a technical issue.
This man was found guilty and sentenced to 25 years in prison. There should be no question about the legitimacy of his trial or the conviction that resulted, especially when the remedy is a fair trial where both sides can be prepared advocated their case effectively.