Reverse and Remand; Opinion Filed March 22, 2021
In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00298-CR
THE STATE OF TEXAS, Appellant V. JASON DEFON ARMSTRONG, Appellee
On Appeal from the County Criminal Court of Appeals No. 2 Dallas County, Texas Trial Court Cause No. M1761288
MEMORANDUM OPINION Before Justices Myers, Osborne, and Carlyle Opinion by Justice Myers This is a State’s appeal from an order granting the defendant’s motion to
suppress a driving while intoxicated (DWI) blood analysis. Appellee Jason Defon
Armstrong was charged via complaint and information with DWI. See TEX. PENAL
CODE ANN. § 49.04. The trial court suppressed the blood analysis and the State
appealed. We reverse and remand.
DISCUSSION
The State brings two issues arguing that, under the Fourth Amendment, the
blood analysis that revealed PCP in appellee’s (a DWI arrestee’s) warrant-drawn
blood specimen was not an illegal search under the Fourth Amendment, and that a blood warrant with a three-day execution deadline was timely executed when the
blood was seized eleven minutes after the warrant’s issuance.
The record shows appellee was arrested for DWI after being observed failing
to maintain a single lane and falling asleep at the wheel. After arresting appellee for
DWI and finding, as stated in the search warrant affidavit, an “empty PCP vial”
underneath the driver’s seat, a police officer requested a specimen of appellee’s
blood. Appellee refused and the officer applied for a search warrant to obtain a
blood specimen. The officer also requested authorization to forensically analyze the
blood for the presence of intoxicants.
A magistrate issued an evidentiary search warrant on October 7, 2017, at 1:13
a.m., and gave the officer three days to execute the warrant. At 1:24 a.m., eleven
minutes after the warrant issued, a qualified technician from Parkland Hospital drew
appellee’s blood. The following day, the specimen was sent to the Southwestern
Institute of Forensic Sciences (SWIFS) crime lab for analysis. A test conducted on
October 19, 2017, twelve days after the warrant’s issuance, indicated the presence
of methamphetamine, Phencyclidine (PCP), Oxycodone, and Zolpidem in appellee’s
blood specimen. The State charged appellee with DWI.
Appellee filed a motion in limine and a “Motion to Suppress Blood Alcohol
Analysis,” each requesting suppression of the results of the October 19th “blood
alcohol analysis.” Appellee argued that the blood analysis was a separate Fourth
Amendment search. He also argued this separate search required a warrant, and
–2– although the warrant in this case authorized the State to analyze the blood specimen,
the specimen was not analyzed within the three-day execution window for the
warrant. See TEX. CODE CRIM. PROC. art. 18.07(a)(3) (three-day period allowed for
execution of search warrant, exclusive of day of issuance and day of execution).
The trial court held a pretrial hearing on appellee’s motion to suppress. After
admitting the search warrant affidavit and quality control packet, and hearing
arguments from the parties, the court granted the motion to suppress. The court
observed that the warrant, by its own terms and by statute, needed to be executed
within three days. The blood analysis revealing the specimen’s PCP concentration
occurred more than three days after the warrant issued; thus, the court suppressed it.
Alternatively, the trial court also referred to “questions that weren’t really raised,
except maybe pertained to in the State’s motion that this was a second search of the
blood.” Although the trial court acknowledged it “didn’t hear much argument on
that,” it was revealed by counsel for the State during the hearing that the blood
specimen had been previously tested for alcohol. The trial court saw “questions
about . . . whether or not this additional analysis was legal, considering [the
specimen] had already been searched previously,” and the court apparently
considered this to be yet another reason to grant the motion to suppress.
In its findings of fact and conclusions of law, the court found that appellee’s
motion to suppress was based on “the staleness of the search warrant when the blood
was analyzed,” and it concluded as follows:
–3– 1. Article 18.07(a)(3) of the Texas Code of Criminal Procedure states that the number of days allowed for a warrant to be executed is within three (3) days, exclusive of its issuance and the day of its execution.
2. The analysis in this case was performed twelve (12) days after the issuance of the warrant for the blood. 3. The Court found the analysis of this blood constituted a search that fell outside the running time of the warrant and should therefore be suppressed.
The State’s brief on appeal argues the trial court erred in granting the
defendant’s motion to suppress for two reasons: (1) the blood analysis was not a
search because appellee lost his expectation of privacy against intoxicant testing
when the blood was drawn for forensic purposes with a valid warrant; and (2) the
blood-draw warrant was properly executed when the blood was drawn, and there is
no deadline for performing the analysis.
On the search issue, the Texas Court of Criminal Appeals’ decision in Crider
v. State, 607 S.W.3d 305 (Tex. Crim. App. 2020) is dispositive. In Crider, the Court
of Criminal Appeals held that “the chemical testing of the blood, based upon a
warrant that justifies the extraction of blood for that very purpose, is a reasonable
search for Fourth Amendment purposes.” Id. at 308. Considering similar facts to
those before us now, the court stated:
Here, the State obtained the blood sample by way of a magistrate’s determination that probable cause existed to justify its seizure—for the explicit purpose of determining its evidentiary value to prove the offense of driving while intoxicated. That magistrate’s determination was sufficient in this case to justify the chemical testing of the blood. And this is so, we hold, even if the warrant itself did not expressly authorize the chemical testing on its face. –4– Id. Thus, we reject appellee’s contention that the State was required to obtain a
search warrant before testing appellee’s blood specimen for the reasons stated by the
Court of Criminal Appeals in Crider. Id.
Regarding appellant’s argument that the blood specimen was not analyzed
within the three-day statutory window for the execution of the warrant, this Court’s
decision in State v. Jones, 608 S.W.3d 262 (Tex. App.—Dallas 2020, pet. ref’d) is
dispositive. In Jones, we noted that article 18.07 of the Texas Code of Criminal
Procedure, entitled “Days allowed for warrant to run,” gives an officer three days
for the “execution” of most search warrants, excluding the date of issuance and date
of execution. Id. at 265 (citing TEX. CODE CRIM. PROC. ANN. art. 18.07(a)(3)). We
observed that article 18.07 “specifies that with certain exceptions not applicable
here, a warrant must be executed within three days of its issuance, exclusive of the
day of issuance and the day of execution,” and we concluded that “[t]he execution
of the warrant is the blood draw, not the testing and/or analysis of that blood.” Id.
We accordingly declined appellant’s invitation to create new law on this subject.
See id. We similarly decline appellee’s invitation here.
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Reverse and Remand; Opinion Filed March 22, 2021
In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00298-CR
THE STATE OF TEXAS, Appellant V. JASON DEFON ARMSTRONG, Appellee
On Appeal from the County Criminal Court of Appeals No. 2 Dallas County, Texas Trial Court Cause No. M1761288
MEMORANDUM OPINION Before Justices Myers, Osborne, and Carlyle Opinion by Justice Myers This is a State’s appeal from an order granting the defendant’s motion to
suppress a driving while intoxicated (DWI) blood analysis. Appellee Jason Defon
Armstrong was charged via complaint and information with DWI. See TEX. PENAL
CODE ANN. § 49.04. The trial court suppressed the blood analysis and the State
appealed. We reverse and remand.
DISCUSSION
The State brings two issues arguing that, under the Fourth Amendment, the
blood analysis that revealed PCP in appellee’s (a DWI arrestee’s) warrant-drawn
blood specimen was not an illegal search under the Fourth Amendment, and that a blood warrant with a three-day execution deadline was timely executed when the
blood was seized eleven minutes after the warrant’s issuance.
The record shows appellee was arrested for DWI after being observed failing
to maintain a single lane and falling asleep at the wheel. After arresting appellee for
DWI and finding, as stated in the search warrant affidavit, an “empty PCP vial”
underneath the driver’s seat, a police officer requested a specimen of appellee’s
blood. Appellee refused and the officer applied for a search warrant to obtain a
blood specimen. The officer also requested authorization to forensically analyze the
blood for the presence of intoxicants.
A magistrate issued an evidentiary search warrant on October 7, 2017, at 1:13
a.m., and gave the officer three days to execute the warrant. At 1:24 a.m., eleven
minutes after the warrant issued, a qualified technician from Parkland Hospital drew
appellee’s blood. The following day, the specimen was sent to the Southwestern
Institute of Forensic Sciences (SWIFS) crime lab for analysis. A test conducted on
October 19, 2017, twelve days after the warrant’s issuance, indicated the presence
of methamphetamine, Phencyclidine (PCP), Oxycodone, and Zolpidem in appellee’s
blood specimen. The State charged appellee with DWI.
Appellee filed a motion in limine and a “Motion to Suppress Blood Alcohol
Analysis,” each requesting suppression of the results of the October 19th “blood
alcohol analysis.” Appellee argued that the blood analysis was a separate Fourth
Amendment search. He also argued this separate search required a warrant, and
–2– although the warrant in this case authorized the State to analyze the blood specimen,
the specimen was not analyzed within the three-day execution window for the
warrant. See TEX. CODE CRIM. PROC. art. 18.07(a)(3) (three-day period allowed for
execution of search warrant, exclusive of day of issuance and day of execution).
The trial court held a pretrial hearing on appellee’s motion to suppress. After
admitting the search warrant affidavit and quality control packet, and hearing
arguments from the parties, the court granted the motion to suppress. The court
observed that the warrant, by its own terms and by statute, needed to be executed
within three days. The blood analysis revealing the specimen’s PCP concentration
occurred more than three days after the warrant issued; thus, the court suppressed it.
Alternatively, the trial court also referred to “questions that weren’t really raised,
except maybe pertained to in the State’s motion that this was a second search of the
blood.” Although the trial court acknowledged it “didn’t hear much argument on
that,” it was revealed by counsel for the State during the hearing that the blood
specimen had been previously tested for alcohol. The trial court saw “questions
about . . . whether or not this additional analysis was legal, considering [the
specimen] had already been searched previously,” and the court apparently
considered this to be yet another reason to grant the motion to suppress.
In its findings of fact and conclusions of law, the court found that appellee’s
motion to suppress was based on “the staleness of the search warrant when the blood
was analyzed,” and it concluded as follows:
–3– 1. Article 18.07(a)(3) of the Texas Code of Criminal Procedure states that the number of days allowed for a warrant to be executed is within three (3) days, exclusive of its issuance and the day of its execution.
2. The analysis in this case was performed twelve (12) days after the issuance of the warrant for the blood. 3. The Court found the analysis of this blood constituted a search that fell outside the running time of the warrant and should therefore be suppressed.
The State’s brief on appeal argues the trial court erred in granting the
defendant’s motion to suppress for two reasons: (1) the blood analysis was not a
search because appellee lost his expectation of privacy against intoxicant testing
when the blood was drawn for forensic purposes with a valid warrant; and (2) the
blood-draw warrant was properly executed when the blood was drawn, and there is
no deadline for performing the analysis.
On the search issue, the Texas Court of Criminal Appeals’ decision in Crider
v. State, 607 S.W.3d 305 (Tex. Crim. App. 2020) is dispositive. In Crider, the Court
of Criminal Appeals held that “the chemical testing of the blood, based upon a
warrant that justifies the extraction of blood for that very purpose, is a reasonable
search for Fourth Amendment purposes.” Id. at 308. Considering similar facts to
those before us now, the court stated:
Here, the State obtained the blood sample by way of a magistrate’s determination that probable cause existed to justify its seizure—for the explicit purpose of determining its evidentiary value to prove the offense of driving while intoxicated. That magistrate’s determination was sufficient in this case to justify the chemical testing of the blood. And this is so, we hold, even if the warrant itself did not expressly authorize the chemical testing on its face. –4– Id. Thus, we reject appellee’s contention that the State was required to obtain a
search warrant before testing appellee’s blood specimen for the reasons stated by the
Court of Criminal Appeals in Crider. Id.
Regarding appellant’s argument that the blood specimen was not analyzed
within the three-day statutory window for the execution of the warrant, this Court’s
decision in State v. Jones, 608 S.W.3d 262 (Tex. App.—Dallas 2020, pet. ref’d) is
dispositive. In Jones, we noted that article 18.07 of the Texas Code of Criminal
Procedure, entitled “Days allowed for warrant to run,” gives an officer three days
for the “execution” of most search warrants, excluding the date of issuance and date
of execution. Id. at 265 (citing TEX. CODE CRIM. PROC. ANN. art. 18.07(a)(3)). We
observed that article 18.07 “specifies that with certain exceptions not applicable
here, a warrant must be executed within three days of its issuance, exclusive of the
day of issuance and the day of execution,” and we concluded that “[t]he execution
of the warrant is the blood draw, not the testing and/or analysis of that blood.” Id.
We accordingly declined appellant’s invitation to create new law on this subject.
See id. We similarly decline appellee’s invitation here.
Appellee also argues the search warrant was not a valid warrant because it
was not supported by probable cause in that the attached sworn statement of the
police officer did not provide sufficient probable cause. It was, therefore, according
to appellee, conclusory in nature without setting forth sufficient facts. However, the
general rule is that when an appellee proffers an alternative legal theory for the first
–5– time on appeal as a basis to affirm an otherwise erroneous order that turns upon the
production of predicate facts by an appellant that it was never fairly called upon to
adduce during the proceedings below, the alternative theory should not be
considered “law applicable to the case” and available to justify an otherwise
erroneous ruling. See State v. Esparza, 413 S.W.3d 81, 90 (Tex. Crim. App. 2013);
Martinez v. State, No. 05-18-01107-CR, 2020 WL 913857, at *7 n.5 (Tex. App.—
Dallas Feb. 26, 2020, pet. ref’d) (mem. op., not designated for publication) (“[W]e
will not affirm on a theory first raised on appeal if the appellant was not fairly called
upon to develop the factual record on which the issue turns.”); State v. Duncan, No.
05-13-01176-CR, 2014 WL 2937175, at *3 (Tex. App.—Dallas June 26, 2014, no
pet.) (mem. op., not designated for publication) (same); see also State v. Copeland,
501 S.W.3d 610, 613 (Tex. Crim. App. 2016) (“A ‘theory of law’ is applicable to
the case if the theory was presented at trial in such a manner that the appellant was
fairly called upon to present evidence on the issue.”).
In this case, appellee never argued in his motion to suppress that the search
warrant was invalid because it was not supported by probable cause in that the
attached sworn statement of the police officer did not provide sufficient probable
cause, nor was this issue litigated at the suppression hearing. Thus, the record is not
adequately developed to rule on the issue for the first time on appeal, and it cannot
be used as a basis for affirming the trial court’s order. See, e.g., Esparza, 413 S.W.3d
–6– at 90.1
We conclude the trial court erred in granting appellee’s motion to suppress.
We sustain the State’s issues, reverse the trial court’s order granting the defendant’s
motion to suppress, and we remand this case for further proceedings.
/Lana Myers/ LANA MYERS JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b) 200298F.U05
1 The same is true for any alternative finding by the trial court—an issue that was neither raised in appellee’s motion to suppress nor litigated at the hearing. Accordingly, here, too, the record is inadequately developed to rule on the issue for the first time on appeal. See id. –7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
THE STATE OF TEXAS, Appellant On Appeal from the County Criminal Court of Appeals No. 2, Dallas No. 05-20-00298-CR V. County, Texas Trial Court Cause No. M1761288. JASON DEFON ARMSTRONG, Opinion delivered by Justice Myers. Appellee Justices Osborne and Carlyle participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
REVERSED, and the cause REMANDED for further proceedings consistent with
this opinion.
Judgment entered this 22nd day of March, 2021.
–8–