Jake Lee Kelly v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 29, 2021
• Docket: 09-20-00087-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00087-CR __________________

JAKE LEE KELLY, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 18-07-08954-CR __________________________________________________________________

MEMORANDUM OPINION

Appellant Jake Lee Kelly appeals his conviction for felony driving while

intoxicated. See Tex. Penal Code Ann. §§ 49.04, 49.09(b)(2). In two issues, Kelly

contends that the trial court erred in denying his motion to suppress the forensic

analysis of his blood specimen because the search warrant pursuant to which the

State collected the specimen did not authorize the State to analyze his blood contents

1 and because the search warrant expired before the analysis was performed. We

affirm the trial court’s order denying Kelly’s motion to suppress.

PERTINENT BACKGROUND

On July 9, 2018, Trooper Nicolas Garcia executed an Affidavit for Search

Warrant and Magistration, in which he averred that he conducted a traffic stop after

observing Kelly’s vehicle “drive over the fog line to his right and then jerked the

wheel back to the left, and then continue to weave within his lane and over correct[.]”

Garcia also stated that he observed that Kelly’s middle brake light was out. Garcia

averred that Kelly violated the Transportation Code by failing to maintain a single

lane and by having defective equipment. Garcia explained that a bartender called the

Montgomery County Sheriff’s Office after Kelly left the establishment because she

did not feel comfortable with Kelly driving after she had to cut Kelly off “due to

concerns he was intoxicated.”

Upon encountering Kelly, Garcia observed that Kelly had a strong odor of

alcohol, slurred and confused speech, glassy and bloodshot eyes, and that Kelly was

sleepy, swaying, and hesitant. Garcia averred that Kelly admitted to drinking alcohol

but refused to perform field sobriety tests and submit to a blood test. Garcia

administered the horizontal gaze nystagmus (HGN) test and observed at least six

clues. Based on Garcia’s affidavit, a magistrate found there was probable cause to

issue a search warrant for a sample of Kelly’s blood.

2 The Search Warrant and Order of Assistance commanded any law

enforcement officer to transport Kelly to “a physician, registered nurse, qualified

technician, phlebotomist, or medical laboratory technician skilled in the taking of

blood from the human body,” and to have said person take samples of Kelly’s blood

and deliver said samples to the law enforcement officer. The search warrant issued

July 9, 2018, and stated that “[h]erein fail not, but have you then and there this

warrant within three days, exclusive of the day of its issuance, with your return

thereon, showing how you have executed the same.” Kelly’s blood sample was

obtained on July 9, 2018, and on July 17, 2018, the sample was delivered to the

Texas Department of Public Safety (DPS). On August 3, 2018, DPS’s Crime

Laboratory issued an Alcohol Content Laboratory Report indicating that an analysis

of Kelly’s blood was performed, which showed Kelly’s blood alcohol level to be

0.170 grams of alcohol per 100 milliliters of blood.

In October 2018, a grand jury indicted Kelly for driving while intoxicated

(DWI), a third-degree felony. See Tex. Penal Code Ann. §§ 49.04, 49.09(b)(2). In

March 2020, Kelly filed Defendant’s Motion to Suppress Blood Test Evidence

seeking to suppress the analysis of his blood because the blood analysis was made

without a warrant. Kelly argued that the analysis of his blood constituted a search

exceeding the authority granted by the warrant in violation of his rights against

unreasonable searches under the United States and Texas Constitutions. See U.S.

3 CONST. amend. IV; Tex. Const. art. I, § 9. Kelly also argued that even if the warrant

implicitly authorized the analysis of his blood, the analysis was not performed until

after the warrant’s statutory expiration date had passed. See Tex. Code Crim. Proc.

Ann. art. 18.07(a).

The trial court conducted a hearing on Kelly’s motion to suppress. Relying on

State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019), defense counsel argued

that the State’s blood alcohol analysis is a separate search discrete from the State’s

drawing of blood, and the subsequent search of the blood contents requires a warrant

or it violates the Fourth Amendment. According to defense counsel, the subsequent

analysis of Kelly’s blood was outside the scope of the warrant, and if the warrant did

allow the blood analysis, the warrant was stale because the analysis of Kelly’s blood

did not occur within three days of the issuance of the warrant. The State argued that

there is no subjective expectation of privacy for blood that is secured via a lawful

search warrant as it pertains to the immediate test for forensic alcohol analysis

thereafter. The State further argued that the Martinez case is distinguishable because

in Martinez, the blood was drawn by a hospital for medical purposes and was not

acquired via a lawful search warrant. According to the State, the warrant states that

it exists for all purposes affixed, and Garcia’s accompanying affidavit states that the

blood is to be acquired for forensic alcohol analysis, and the evidence shows that the

sample of Kelly’s blood was taken within three days.

4 The trial court denied Kelly’s motion to suppress and found that there was not

a privacy interest in the blood after it was drawn pursuant to the search warrant, the

staleness issue did not apply because the search warrant was complete once the blood

was seized from Kelly at the hospital, and that Martinez was distinguishable because

it involved a private medical blood draw and not a law enforcement probable cause

blood draw. After the trial court denied Kelly’s motion to suppress, Kelly pleaded

guilty to felony DWI, and the trial court assessed punishment at two years of

confinement.

ANALYSIS

In issue one, Kelly contends that the trial court erred in denying his motion to

suppress the results of the blood test analysis. Kelly argues that the blood test results

should have been excluded from evidence because the search warrant only

authorized the blood draw and not the forensic analysis of his blood. According to

Kelly, the admission of the blood test results into evidence violated his reasonable

expectation of privacy in the contents of his blood, and Kelly asserts that the testing

violated the particularity requirements of the Fourth Amendment.

Generally, we review a trial court’s ruling on a motion to suppress using a

bifurcated standard. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011).

We give almost total deference to a trial judge’s determination of historical facts and

mixed questions of law and fact that rely on credibility determinations if they are

5 supported by the record, but we review de novo questions of law and mixed questions

of law and fact that do not rely on credibility determinations. Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997). In ruling on a motion to suppress, the trial

court is the exclusive trier of fact and judge of the credibility of the witnesses.

Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). A trial court may

choose to believe or disbelieve any part of a witness’s testimony. State v. Ross, 32

S.W.3d 853, 855 (Tex. Crim. App. 2000). We must uphold the trial court’s ruling on

a motion to suppress if the “ruling was supported by the record and was correct under

any theory of law applicable to the case.” Armendariz v. State, 123 S.W.3d 401, 404

(Tex. Crim. App. 2003). If the trial court does not enter findings of fact, we must

view the evidence in the light most favorable to the trial court’s ruling and assume

the trial court made implicit findings of fact that support its ruling if those findings

are supported by the record. Harrison v. State, 205 S.W.3d 549, 552 (Tex. Crim.

App. 2006).

The Fourth Amendment protects individuals against unreasonable searches

and seizures. U.S. CONST. amend. IV; see also Tex. Const. art. I, § 9. A compulsory

administration of a blood test conducted for law enforcement purposes constitutes a

search and seizure under the Fourth Amendment. Schmerber v. California, 384 U.S.

757, 767-68 (1966); State v. Johnston, 336 S.W.3d 649, 657-58 (Tex. Crim. App.

2011). “[W]hen the State itself extracts blood from a DWI suspect, and when it is

6 the State that conducts the subsequent blood alcohol analysis, two discrete ‘searches’

have occurred for Fourth Amendment purposes.” State v. Huse, 491 S.W.3d 833,

840 (Tex. Crim. App. 2016) (citation omitted); see also Martinez, 570 S.W.3d at

290. However,

[a] neutral magistrate who has approved a search warrant for the extraction of a blood sample, based upon a showing of probable cause to believe that a suspect has committed the offense of driving while intoxicated, has necessarily also made a finding of probable cause that justifies chemical testing of that same blood.

Crider v. State, 607 S.W.3d 305, 307 (Tex. Crim. App. 2020). “[T]he Fourth

Amendment does not require the State to obtain a second warrant to test a blood

sample that was seized based on probable cause that a person was driving while

intoxicated.” Jacobson v. State, 603 S.W.3d 485, 491 (Tex. App.—Fort Worth 2020,

pet. ref’d); see also Ramirez v. State, 611 S.W.3d 645, 649-50 (Tex. App.—Houston

[14th Dist.] 2020, pet. ref’d).

Here, the State collected Kelly’s blood sample following his arrest based on

probable cause that he was driving under the influence of alcohol. The magistrate’s

determination that probable cause existed to justify the seizure of Kelly’s blood,

without expressly providing for the eventual forensic analysis of the specimen, was

sufficient to justify the chemical testing of the blood seized. See Crider, 607 S.W.3d

at 307. We conclude that the trial court did not err when it denied Kelly’s motion to

7 suppress the results of the blood test analysis because the search warrant failed to

expressly provide for the analysis of Kelly’s blood specimen. We overrule issue one.

In issue two, Kelly argues that even if the search warrant authorized the

analysis of his blood specimen, that authority expired before the analysis was

performed. According to Kelly, the trial court should have suppressed the results of

the blood test analysis because the analysis was not performed within the three-day

deadline provided for in the warrant. Kelly cites to the Code of Criminal Procedure

to support his argument. See Tex. Code Crim. Proc. Ann. arts. 18.06(a), 18.07(a).

The three-day requirement for the execution of a search warrant under chapter 18 of

the Code of Criminal Procedure sets the limit for the actual search and seizure of the

evidence by a peace officer and not the timing for any subsequent forensic analysis

that may be conducted on the seized evidence. See Schneider v. State, 623 S.W.3d

38, 43 (Tex. App.—Austin 2021, pet. ref’d); Ramirez, 611 S.W.3d at 651-52. Here,

the evidence shows that the search warrant and blood sample were both obtained

within the three-day requirement, and we conclude that the forensic analysis, which

occurred more than three days after the warrant was issued, did not render the results

of the blood test analysis inadmissible. See Schneider, 623 S.W.3d at 43-44;

Ramirez, 611 S.W.3d at 651-52. We overrule issue two. Having overruled both of

Kelly’s issues, we affirm the trial court’s order denying Kelly’s motion to suppress.

8 AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on August 10, 2021 Opinion Delivered September 29, 2021 Do Not Publish

Before Golemon, C.J., Kreger and Johnson, JJ.