Daniel Zalman v. State

NUMBER 13-13-00471-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DANIEL ZALMAN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law
of Wharton County, Texas.

MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Longoria

By two issues, which we reorganize and will address as four, appellant Daniel

Zalman appeals his conviction for driving while intoxicated, first offense. See TEX. PENAL

CODE ANN. § 49.04 (West, Westlaw through 2013 3d C.S.). We affirm.
 I. BACKGROUND

A. Background Facts

On September 13, 2009, Officer Jason Gingles of the El Campo Police Department

(Gingles) and Texas Department of Public Safety Trooper Jose Mena (Mena) were

working “secondary employment” by providing private security at a Whataburger in the

city of El Campo in Wharton County, Texas. That particular Whataburger employed

officers on Friday and Saturday nights between 11:00 p.m. and 3:00 a.m. because, in

Mena’s words, “that’s when the bars close on Fridays and Saturday, and a lot of people

go to Whataburger” afterwards. At approximately 1:45 a.m., the manager informed both

officers that the drive-through line had stopped moving. Both Mena and Gingles testified

that they knew from past experience working security at that Whataburger that if the line

stopped moving early in the morning, it usually meant that a driver was intoxicated and

had lost consciousness.

After exiting the building, the two officers saw an SUV with a male in the driver’s

seat and a female in the passenger seat. Both officers testified that the driver, appellant,

was “slumped over” behind the wheel. Mena, who approached on the driver’s side,

testified that appellant’s eyes were closed. The female passenger, appellant’s wife,

noticed the two officers approaching and shook appellant by the shoulder. Appellant

pulled the car forward until he stopped near where Mena stood on the grass next to the

drive-through lane and rolled down the window. Mena asked if appellant was “alright”

and appellant responded that he was “fine.” Mena testified that he smelled a strong odor

of alcohol coming from appellant and observed that his eyes were “red, glassy, [and]

bloodshot.” Mena asked appellant to step into the backseat of the car so that Mena could

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drive the car to the parking lot of the business next door, where the two officers planned

to perform a DWI investigation. Trooper Mark Contreras (Contreras), who was on duty

and exiting the Whataburger at the time, took over the investigation. After observing

appellant and requesting that he perform a field sobriety test, Contreras arrested

appellant for driving while intoxicated. See id.

Following his arrest, appellant refused to provide a breath sample. Contreras

applied to Justice of the Peace Cynthia Kubicek for a search warrant to draw a sample of

appellant’s blood for testing. In the affidavit attached to the application, Contreras stated

that “[o]n or about the 13th day of September, 2009, [appellant] did then and there

operate a motor vehicle in a public place in Wharton County, Texas while intoxicated.”

He further stated that Mena “told me that he/she witnessed the suspect operating a motor

vehicle in a public place in Wharton County, Texas, shortly before I contacted [appellant].”

Contreras stated that he smelled a strong odor of alcoholic beverages coming from

appellant and observed that appellant had “red, blood shot and glassy” eyes, slurred

speech, failed the Horizontal Gaze Nystagmus field sobriety test, and admitted to

Contreras that he had been drinking alcoholic beverages. Judge Kubicek signed a search

warrant to draw appellant’s blood at 3:09 a.m. on the same day.

Appellant waited in the “Intoxilyzer” room inside the Wharton County Jail while

Contreras applied for the warrant. During that time, an insect crawled down appellant’s

right sleeve. At approximately 3:30 a.m., Emergency Medical Technician Scott Gann

(Gann) drew a vial of blood from appellant’s left arm. Gann testified that he followed

standard procedure for blood draws, including cleaning the injection site with an iodine

solution, and using sterile equipment that he obtained from the hospital. Gann also

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testified that the room appeared sanitary at the time of the blood draw. Contreras testified

that the room is routinely cleaned by jail trustees, but that he did not know the time of the

last cleaning. Contreras did not see any insects at the time of the blood draw but admitted

on cross-examination that he heard crickets chirping in the background on the video of

the blood draw.

B. Legal Background

Appellant filed a pretrial motion to suppress the blood test results on four grounds:

(1) Mena and Gingles detained appellant without reasonable suspicion; (2) Contreras’s

affidavit was insufficient to establish probable cause because it did not include the specific

time that Mena and Contreras observed him driving and allegedly displaying signs of

intoxication; (3) the blood draw did not occur in a sanitary place as is required by statute;

and (4) the search warrant was not signed by a licensed attorney as required by the code

of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 18.01(j) (West, Westlaw

through 2013 3d C.S.). The trial court granted the motion specifically on the second

ground. Three months later, the trial court granted the State’s motion to reconsider the

previous ruling, withdrew the order suppressing the blood evidence, and denied the

motion to suppress. On the same day, the trial court denied a separate motion to

suppress that reasserted the first ground. No findings of fact were requested or filed at

any time.

The case was tried to a jury, which returned a verdict of guilty. By agreement, the

trial judge assessed a sentence of 180 days in county jail, a $500 fine, and court costs,

suspended the sentence, and placed appellant on community supervision for twelve

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months. A visiting judge granted appellant’s motion for a new trial.1 The State appealed,

and the Texas Court of Criminal Appeals eventually reversed. State v. Zalman, No. 13-

11-00115-CR, 2012 WL 3792737 (Tex. App.—Corpus Christi Aug. 31, 2012), rev'd, 400

S.W.3d 590, 594–95 (Tex. Crim. App. 2013). Appellant now challenges his conviction on

direct appeal.

By four issues, which we have reordered, appellant asserts that the trial court

abused its discretion by denying appellant’s motions to suppress because: (1) Judge

Kubicek had no authority to sign the warrant because she was not a licensed attorney;

(2) Mena and Gingles did not possess reasonable suspicion to justify detaining appellant;

(3) the affidavit was insufficient to establish probable cause because it did not specify the

time when Mena and Contreras observed appellant; and (4) the blood draw was

unreasonable because it occurred in an unsanitary place.2

II. MOTION TO SUPPRESS STANDARD OF REVIEW

We review a trial court’s ruling on a motion to suppress under a bifurcated standard

of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We afford

almost total deference to the trial judge’s determination of historical facts because the

judge is the sole trier of fact and judge of the credibility of the witnesses and the weight

to be given to their testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.

2010). When, as here, the trial court does not issue findings of fact, we imply all

1 The newly-elected judge of the trial court recused himself because appellant and his family
contributed to his judicial campaign.

2 Appellant raised these issues in a “memorandum of law” that he filed in support of his motion for

new trial. The Texas Court of Criminal Appeals held that the memorandum was an untimely amendment
and that the motion alone was not sufficient to raise these evidentiary issues. State v. Zalman, 400 S.W.3d
590, 594–95 (Tex. Crim. App. 2013). The Court emphasized that its holding did not mean that appellant
waived any of these issues. Id. at 595.

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necessary findings in support of the trial court’s ruling if the evidence, viewed in the light

most favorable to the ruling, supports those findings. State v. Kelly, 204 S.W.3d 808, 819

(Tex. Crim. App. 2006). We review de novo the trial court’s application of law to the facts

of the case unless the implied findings are also dispositive of the legal issue. Id. We will

sustain the trial court’s ruling if it is reasonably supported by the record and correct on

any applicable theory of law. Turrubiate, 399 S.W.3d at 150.

III. AUTHORITY TO ISSUE THE WARRANT

By his first issue, appellant argues that the court should have granted his motion

to suppress because only magistrates who are attorneys licensed in this State may sign

a warrant to obtain a blood sample, and Judge Kubicek is not a licensed attorney. See

TEX. CODE CRIM. PROC. ANN. art. 18.01(j). We disagree.

A. Standard of Review and Applicable Law

Statutory interpretation is a question of law that we review de novo. Tha Dang

Nguyen v. State, 359 S.W.3d 636, 641 (Tex. Crim. App. 2012). When interpreting a

statute, courts “seek to effectuate the ‘collective’ intent or purpose of the legislators who

enacted the legislation.” Reynolds v. State, 423 S.W.3d 377, 382 (Tex. Crim. App. 2014)

(citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). We begin with the

language of the statute and attempt to discern the “fair, objective meaning” of the statutory

text at the time of its enactment. Id. If the statute’s language is clear and unambiguous,

we will give effect to its plain meaning unless that interpretation would lead to absurd

consequences that the Legislature could not have intended. Dobbs v. State, 434 S.W.3d

166, 170 (Tex. Crim. App. 2014). We assume that the Legislature chose every word with

a purpose, and we attempt to give effect to each word, phrase, clause, and sentence in

6
the law if reasonably possible. Id. at 172.

The code of criminal procedure authorizes magistrates3 to issue search warrants

for the seizure of “property or other items, except personal writings by the accused,

constituting evidence of an offense or constituting evidence tending to show that a

particular person committed an offense.” TEX. CODE CRIM. PROC. ANN. art. 18.02(10)

(West, Westlaw through 2013 3d C.S.). A blood specimen is an item that may be

searched for and seized under article 18.02(10). Clay v. State, 391 S.W.3d 94, 97 n.7

(Tex. Crim. App. 2013); Thom v. State, 437 S.W.3d 556, 560 (Tex. App.—Houston [14th

Dist.] 2014, no pet.). Only a judge of a municipal court of record who is an attorney

licensed in this state, a county court judge who is a licensed Texas attorney, a statutory

county court judge, a district court judge, a judge of the Texas Court of Criminal Appeals,

a justice of the Supreme Court of Texas, or a magistrate with criminal jurisdiction serving

a district court may sign an evidentiary warrant. TEX. CODE CRIM. PROC. ANN. art. 18.01(c)

(West, Westlaw through 2013 3d C.S.). Justices of the Peace are excluded from this list

and generally may not issue warrants pursuant to article 18.02(10). State v. Acosta, 99

S.W.3d 301, 303 (Tex. App.—Corpus Christi 2003, pet. ref'd) (en banc). However, in a

county that does not have a judge of a municipal court of record who is a licensed

attorney, a county court judge who is a licensed attorney, or a statutory county court

judge, “any magistrate may issue a search warrant under subdivision (10)” of article

18.02. TEX. CODE CRIM. PROC. ANN. art. 18.01(i) (West, Westlaw through 2013 3d C.S.).

And subsection (j) provides: “[a]ny magistrate who is an attorney licensed by this state

3Justices of the Peace are magistrates under the code of criminal procedure. TEX. CODE CRIM.
PROC. ANN. art. 2.09 (West, Westlaw through 2013 3d C.S.).

7
may issue a search warrant under Article 18.02(10) to collect a blood specimen” from a

person who is arrested for driving while intoxicated or other alcohol-related offenses and

who refuses to submit to a breath or alcohol test. Id. art. 18.01(j).

B. Discussion

It is undisputed that Wharton County does not have a judge of a municipal court of

record who is a licensed attorney, a county court judge who is a licensed attorney, or a

statutory county court judge. Appellant argues that whether subsection (i) applies to

Wharton County is irrelevant because subsection (j) provides that only magistrates with

a law license may sign a search warrant to obtain a blood specimen. Therefore, the

warrant is void because Judge Kubicek, a justice of the peace, had no authority to issue

it. Appellant reasons that by enacting subsection (i) the Legislature expanded the number

of magistrates available to issue evidentiary warrants in certain counties but later took

away that power as it applied to warrants to obtain a blood specimen by enacting

subsection (j).

We disagree. Appellant is correct that subsection (i) expands the list of

magistrates with the authority to issue evidentiary warrants in certain counties. Barrios v.

State, No. 07-13-00426-CR, ___ S.W.3d. ___, 2014 WL 6836310, at *7 (Tex. App.—

Amarillo Dec. 2, 2014, no pet. h.); see Muniz v. State, 264 S.W.3d 392, 398 (Tex. App.—

Houston [1st Dist.] 2008, no pet.) (interpreting the former version of subsection (i)).

Subsection (j) provides that “any” magistrate who is an attorney licensed in this state

“may” issue an evidentiary warrant to collect a blood specimen. TEX. CODE CRIM. PROC.

ANN. art. 18.01(j). To read subsection (j) as restricting which magistrates may issue a

warrant to obtain a blood specimen essentially requires us to substitute “only” for “any” in

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the text of the statute. The Amarillo Court recently observed that “any,” as it is used in

subsection (j), “is an adjective used to indicate a person or thing that is not particular or

specific.” Barrios, 2014 WL 6836310, at *8 (internal citations omitted). We must presume

that the Legislature chose every word in the statute carefully and for a purpose. 4 See

Dobbs, 434 S.W.3d at 170. The plain language of subsection (j) is not ambiguous and

does not create an absurdity: any magistrate who is also an attorney licensed by this

state may sign an evidentiary warrant to obtain a blood specimen whether or not the

magistrate is located in a county where subsection (i) applies. Barrios, 2014 WL 6836310,

at *8. This interpretation harmonizes subsections (i) and (j) and gives full effect to each,

while appellant’s interpretation restricts the reach of subsection (i). See Dobbs, 434

S.W.3d at 172 (observing that we must give effect to the entire statute if reasonably

possible); see also Barrios, 2014 WL 6836310, at *8.

Appellant argues that the Legislature must nevertheless have intended to restrict

the authority to issue warrants to obtain a blood specimen because a forced blood draw

is an invasion of bodily integrity which “implicates an individual's most personal and deep-

rooted expectations of privacy.” Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013)

(internal quotation marks omitted). We agree that a blood draw implicates especially

personal expectations of privacy, but just as with any search, a warrant to collect a blood

specimen is simply required to comply with the requirements of the Fourth Amendment.

See id. (citing Schmerber v. California, 384 U.S. 757, 768 (1969)); Sanchez v. State, 365

4 If the Legislature wanted to provide that “only” some magistrates may sign certain types of

warrants, it knew how to do so and, in fact, did so elsewhere in article 18.01. Compare TEX. CODE CRIM.
PROC. ANN. art. 18.01(c) (providing that “only” certain magistrates may sign evidentiary warrants), and id.
art. 18.01(h) (providing that “only” the same three classes of judges may issue a search warrant for the
seizure of contraband), with id. art. 18.01(j) (providing that “any” magistrate who is a licensed attorney may
issue a search warrant to obtain a blood specimen so long as certain conditions are met).

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S.W.3d 681, 684 (Tex. Crim. App. 2012) (“Although a blood draw constitutes a search

under the Fourth Amendment, the Constitution will not be offended if the draw occurs

pursuant to a valid search warrant.”). And, in any event, even if we agreed with appellant

about the Legislature’s intent in enacting the statute, courts must apply the text of an

unambiguous statute so long as it does not create an absurdity. See Dobbs, 434 S.W.3d

at 170.

We conclude that the plain language of subsection (j) does not restrict the power

to sign a blood evidence warrant to magistrates who are also Texas-licensed attorneys,

but instead identifies one permissible set of magistrates authorized to issue a search

warrant for the collection of a blood specimen. It does not restrict the authorization

extended by subsection (i), which governs this case. See Barrios, 2014 WL 6836310, at

**7–8. Because Judge Kubicek had the authority to issue the warrant under subsection

(i), we overrule appellant’s first issue.

IV. WHEN WAS APPELLANT DETAINED?

By his second issue, appellant argues that Mena and Gingles lacked reasonable

suspicion to detain him because they were not in possession of any facts indicating that

he was intoxicated. Appellant’s argument presupposes that he was detained as soon as

he stopped his car, but the State responds that appellant was not detained until Mena

requested that appellant exit the driver’s seat, at which time the officers possessed

reasonable suspicion to detain him. We agree with the State.

A. Applicable Law

Courts have recognized three general categories of police-citizen interactions: (1)

consensual encounters, which do not implicate the Fourth Amendment; (2) investigatory

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detentions, which require reasonable suspicion; and (3) arrests, which require probable

cause. State v. Castleberry, 332 S.W.3d 460, 466 (Tex. Crim. App. 2011) (internal

footnotes omitted). An officer is just as free as anyone to stop and question a fellow

citizen, and the citizen is free to terminate the encounter at will. Id.; see Florida v. Bostick,

501 U.S. 429, 434 (1991) (observing that “a seizure does not occur simply because a

police officer approaches an individual and asks a few questions”). But if an officer

detains a citizen through force or a show of authority, the interaction has become an

investigative detention that requires reasonable suspicion. Wade v. State, 422 S.W.3d

661, 668 (Tex. Crim. App. 2013).

There is no bright-line rule for determining when an encounter becomes a

detention. Id. at 667. Instead, courts must look to the totality of the circumstances

surrounding the interaction to determine whether a reasonable person would have felt

free to terminate the encounter. Id. at 667–68. We take into account the time, place, and

other circumstances surrounding the interaction, but the most important factor is the

officer’s conduct. Castleberry, 332 S.W.3d at 467. The Texas Court of Criminal Appeals

has explained that “[a]t bottom the issue is whether the surroundings and the words or

actions of the officer and his associates communicate the message of ‘We Who Must Be

Obeyed.’” State v. Garcia-Cantu, 253 S.W.3d 236, 243 (Tex. Crim. App. 2008).

B. Discussion

Appellant argues that Mena detained him by commanding him to stop the vehicle

and, at the time, Mena and Gingles were not in possession of any facts supporting

reasonable suspicion to detain him. Mena and Gingles were only aware that appellant

had probably fallen asleep behind the wheel of his car, which appellant asserts is not a

11
criminal offense. However, Mena did not testify that he commanded appellant to stop the

car.5 By denying the motion to suppress, the trial court impliedly found Mena’s testimony

to be credible, and we may not disturb this record-supported finding. See Kelly, 204

S.W.3d at 819.

A vocal command is not a required element of a seizure, see Wade, 422 S.W.3d

at 667–68, but when viewing the totality of the circumstances in the light most favorable

to the trial court’s ruling, we find nothing to indicate that appellant was seized before Mena

requested appellant to go to the backseat of the car. Mena and Gingles approached the

car, Mena asked appellant a question, and appellant responded. Until this point, neither

Mena nor Gingles gave any sign that appellant not was not free to leave. 6 At that time,

the interaction was a consensual encounter which required no objective justification. See

Castleberry, 332 S.W.3d at 466 (observing that a police officer is just as free as anyone

to stop and question a fellow citizen). After appellant lowered his window and responded

to Mena’s question, Mena observed that appellant’s eyes were red, glassy, and

bloodshot, and he perceived that appellant gave off a strong odor of alcohol. Appellant

does not contest that Mena had reasonable suspicion to detain appellant for a DWI

5 The portion of Mena’s testimony that appellant cites is as follows:

[Defense Counsel]: But it is clear that you stopped [appellant] as he attempted to pull
forward in the drive-through, correct?

[Mena]: He pulled up next to me.

[Defense Counsel]: Okay. Did you order his car to stop or was it Officer Gingles?

[Mena]: No. He stopped, I mean, he just stopped when he got to me because I stepped
over to the grass. I was walking up and stepped over to the grass and he stopped when
he came up to me. Had he not stopped, I would have stopped him, yes.
6Appellant cites to State v. Griffey as support that he was detained, but the officer in that case
used his police vehicle to block the drive-through lane to prevent the driver, who was reportedly “passed
out behind the wheel,” from exiting. 241 S.W.3d 700, 702 (Tex. App.—Austin 2007, pet. ref'd).

12
investigation at that time based on those observations. We accordingly overrule

appellant’s second issue.

V. WAS THE AFFIDAVIT SUFFICIENT TO ESTABLISH PROBABLE CAUSE?

By his third issue, appellant argues that the trial court erred in denying his motion

to suppress because the facts within the four corners of the affidavit attached to the

warrant application were not sufficient to establish probable cause that alcohol would still

be present in his bloodstream.

A. Standard of Review and Applicable Law

Both the federal and state constitutions provide that warrants may not issue except

on a showing of probable cause. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9.

Magistrates may issue a warrant only after a peace officer has filed an affidavit “setting

forth substantial facts establishing probable cause.” TEX. CODE CRIM. PROC. ANN. art.

18.01(b).

When reviewing a magistrate’s decision to issue a warrant, we apply a highly

deferential standard of review because of the constitutional preference for searches

conducted pursuant to warrants over warrantless searches. Bonds v. State, 403 S.W.3d

867, 873 (Tex. Crim. App. 2013). We will uphold the magistrate’s determination provided

that there was a “substantial basis” for concluding that probable cause existed. Id. While

the “substantial basis” standard does not mean that reviewing courts act as a rubber

stamp, it “does mean that the magistrate's decision should carry the day in doubtful or

marginal cases, even if the reviewing court might reach a different result upon de novo

review.” Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (internal quotation

marks omitted).

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 Probable cause exists when, under the totality of the circumstances, there is at

least a “fair probability,” or a “substantial chance” that contraband or evidence of a crime

will be found at the specified location at the time the warrant issues and the search is

executed. Crider v. State, 352 S.W.3d 704, 707 (Tex. Crim. App. 2011). Neither federal

nor Texas law defines precisely what degree of probability is sufficient to establish

probable cause, but it cannot be based only on the conclusory statements of the affiant.

Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007). The affidavit must provide

sufficient facts to allow the magistrate to make an independent determination of whether

probable cause exists to issue a warrant. Id. In making this determination, the trial court

is limited to the four corners of the affidavit. Bonds, 403 S.W.3d at 873. The magistrate

interprets the affidavit in a non-technical, common-sense manner and may draw

reasonable inferences from the facts contained within the affidavit. Id.

Facts brought forth in an affidavit which would ordinarily support probable cause

can become “stale” by the passage of time. Crider, 352 S.W.3d at 707. To determine

whether facts in an affidavit have become stale, courts examine “in light of the type of

criminal activity involved, the time elapsing between the occurrence of the events set out

in the affidavit and the time the search warrant was issued.” Id. (internal quotation marks

omitted). When, as here, the facts in the affidavit show a single, nonrecurring crime that

occurred at a specific location, the question is how long after that time “evidence of that

single crime can be expected to remain at the scene.” Id. at 708. Because alcohol quickly

dissipates from a person’s bloodstream, facts brought forward to support issuing a

warrant to obtain a specimen of blood from a DWI suspect become stale “quite rapidly.”

Id. However, there is no hard rule setting the outer limit of time between the arrest of a

14
DWI suspect and the time when there is no longer a substantial basis to believe that

evidence of intoxication could probably be found in the suspect’s blood. Id. at 707.

B. Discussion

Trooper Contreras alleged in his affidavit that “[o]n or about the 13th day of

September, 2009, [appellant] did then and there operate a motor vehicle in a public place

in Wharton County, Texas while intoxicated.” The affidavit did not include the specific

time when Trooper Contreras allegedly observed appellant exhibiting signs of intoxication

or when Trooper Mena allegedly observed him operating a vehicle while intoxicated.

Appellant reasons that in light of these deficiencies, the judge must have improperly

looked outside the affidavit to conclude that the facts alleged therein were not stale.7

We disagree. The Texas Court of Criminal Appeals decided a case with similar

facts in State v. Jordan, 342 S.W.3d 565, 567 (Tex. Crim. App. 2011). In that case, the

arresting officer presented an affidavit in which he stated that he had reason to believe

that the suspect committed the offense of driving while intoxicated “on or about” June 6,

2008. Id. The officer applied for the warrant in the “early morning hours” of the same

day. Id. The affidavit detailed observations by other police officers that the defendant

drove the wrong way down a one-way street and exhibited various other signs of

intoxication, but did not specify the date and time of those observations. Id. at 567–68.

The magistrate signed the warrant at 3:54 a.m. on June 6, 2008. Id. at 568. The Texas

Court of Criminal Appeals reasoned that under the facts and circumstances of the case,

7 Appellant also argues that affidavit was insufficient because it “failed to include the existence of

an informer, what time the officers were informed, and what the informer told the officers,” but the affidavit
alleged that Mena informed Contreras that he witnessed appellant operating a vehicle while intoxicated.
Appellant further argues that the affidavit was insufficient because it did not give the location of the
Whataburger within Wharton County, but appellant does not explain why supplying the exact location where
these events allegedly occurred was necessary to establish probable cause in this particular case.

15
the affidavit’s introductory statement alleging that the offense occurred on “June 6, 2008”

gave the magistrate a substantial basis to infer that the officers also observed the

elements of the offense on June 6, 2008. Id. at 570–71. By comparison, in Crider, the

Court concluded that there was no probable cause when the gap between the arrest of

the allegedly-intoxicated driver and the signing of the warrant could have been as long as

twenty-five hours. 352 S.W.3d at 710.

Contreras’s affidavit is similar to the one filed in Jordan. He alleged that appellant

committed an offense on or about September 13, 2009 and described Mena’s

observations as well as his own, but did not specifically state at what hour these

observations occurred. Contreras swore the affidavit in the early morning of the same

date on which he alleged in the affidavit that appellant committed the offense, and the

magistrate signed and issued the warrant at 3:09 a.m. The time that elapsed between

the arrest and the signing of the warrant was, at most, three hours and nine minutes, less

than the four hours approved by the Court in Jordan. See 342 S.W.3d at 570–71. Under

the specific facts and circumstances of this case, we conclude that the magistrate had a

substantial basis to infer that the observations of Mena and Contreras in the affidavit also

occurred on September 13, 2009.8 See id. We overrule appellant’s third issue.

VI. WAS THE BLOOD DRAW CONDUCTED IN AN UNREASONABLE MANNER?

By his fourth issue, appellant argues that trial court should have granted his motion

to suppress because his blood was drawn in a room “covered in insects” in violation of

8 We emphasize that our holding does not mean that a similar affidavit submitted on the same day
as an arrest, even one shortly after the arrest, is necessarily sufficient to establish probable cause. As the
Texas Court of Criminal Appeals observed in Crider: “[t]he ultimate criteria in determining the evaporation
of probable cause are not found in case law, but in reason and common sense.” Crider v. State, 352
S.W.3d 704, 707 (Tex. Crim. App. 2011). We hold only that under the particular facts and circumstances
of this case, the magistrate had a sufficient basis to determine that probable cause existed to issue a search
warrant to obtain a blood specimen from this particular appellant.

16
his constitutional right against unreasonable searches and seizures and the statutory

requirement that a blood sample “must be taken in a sanitary place.” TEX. TRANSP. CODE

ANN. § 724.017(a-1) (West, Westlaw through 2013 3d C.S.). We disagree.

A. Applicable Law

When a blood draw is conducted pursuant to a warrant, chapter 724 of the

transportation code is inapplicable because consent, implied or otherwise, is irrelevant.

State v. Johnston, 336 S.W.3d 649, 661 (Tex. Crim. App. 2011); Beeman v. State, 86

S.W.3d 613, 616 (Tex. Crim. App. 2002) (en banc). Assessment of whether a blood draw

was reasonable is thus “purely a matter of Fourth Amendment law.” Johnston, 336

S.W.3d at 661. Making this determination involves a two-part inquiry: (1) whether police

were justified in making a defendant submit to a blood draw; and (2) “whether the means

and procedures employed in taking [the defendant’s] blood respected relevant Fourth

Amendment standards of reasonableness.” Schmerber, 384 U.S. at 768; accord

Johnston, 336 S.W.3d at 658.

The second inquiry contains two discrete questions: whether the means of testing

were reasonable, and whether the “test was performed in a reasonable manner.”

Johnston, 336 S.W.3d at 658. A “venipuncture” blood draw is a presumptively reasonable

means of measuring a suspect’s blood alcohol content. Id. at 660. The defendant bears

the burden of rebutting that presumption by presenting evidence of a verifiable medical

condition that would make a blood draw from that particular defendant unreasonable. Id.

We determine whether the test was performed in a reasonable manner on an objective

basis in light of the totality of the circumstances surrounding the blood draw. Id. at 661.

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 B. Discussion

Appellant challenges only the second prong of the second part of the Schmerber

reasonableness test: whether the test was performed in a reasonable manner. Appellant

asserts that the presence of insects “in a room [and] that crawled on a person prior to a

blood draw for evidentiary purposes [is] at a minimum unreasonable under the

circumstances and present[ed] an unjustified risk of infection to” appellant.

The Fourth Amendment does not require that a blood draw occur in a medical

environment or an ideal one, only that the “environment is a safe place in which to draw

blood.”9 Id. at 662. Appellant asserts that the presence of insects in the room makes the

blood draw unreasonable, but he has provided no evidence that the presence of insects

affected the safety of the blood draw or placed him at an unjustified risk of infection or

pain. See Schmerber, 384 U.S. at 771–72. The one insect that came into contact with

appellant did not crawl down the arm used to draw blood, and it was gone by the time of

the blood draw. Gann testified that he followed the normal procedure for a blood draw:

he used sterile equipment from the hospital, used iodine to clean and sterilize the injection

site, and properly bandaged the injection site afterwards. See Johnston, 336 S.W.3d at

662–63 (holding the fact that a blood draw performed according to medical practice by a

police officer trained as an emergency medical technician supported the reasonableness

of the blood draw). Gann also testified that the room appeared sanitary at the time of the

blood draw. By overruling appellant’s motion to suppress, the trial court impliedly found

9 Because the blood draw in this case was conducted pursuant to a warrant, we need not discuss
section 724.017(a-1) of the transportation code any further. See State v. Johnston, 336 S.W.3d 649, 661
(Tex. Crim. App. 2011) (holding that chapter 724 does not apply to blood draws conducted pursuant to a
warrant); Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002) (en banc) (same); see also TEX. R.
APP. P. 47.1. And even if chapter 724 did apply to this case, it is not clear that it would afford appellant any
greater relief. See TEX. TRANSP. CODE ANN. § 724.017 (West, Westlaw through 2013 3d C.S.). The term
“sanitary place” is undefined in the statute and there is no case law interpreting it.

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the testimony of both witnesses to be credible. See Kelly, 204 S.W.3d at 819.

While we agree that an environment totally devoid of insects would be an ideal

environment in which to draw blood, Schmerber does not require an ideal environment,

only a safe one. Johnston, 336 S.W.3d at 662. Even if we accept that there were multiple

crickets present in the Intoxilyzer room at the time of the blood draw, appellant still has

not shown how the presence of insects made the blood draw unreasonable. Appellant

has not shown that the insects contaminated Gann’s equipment, for example, or touched

the injection site during or after the actual blood draw. See id.; see also Martin v. State,

No. 10-10-00426-CR, 2012 WL 3242666, at *3 (Tex. App.—Waco Aug. 9, 2012, pet. ref'd)

(mem. op., not designated for publication) (upholding a blood draw conducted in a room

at the jail that the nurse drawing blood testified was “relatively sanitary” and where the

nurse testified that she used a sterile procedure following accepted medical practice).

Because appellant has not shown that the blood draw was performed in a manner that

included an “unjustified element of personal risk or infection or pain,” Schmerber, 384

U.S. at 771–72, we conclude that appellant has not shown that the blood draw was

unreasonable. See Johnston, 336 S.W.3d at 662. We overrule appellant’s fourth issue.

VII. CONCLUSION

We affirm the judgment of the trial court.

NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of February, 2015.

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