Harmon, Derek v. State

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Opinion Issued July 17, 2003

























In The

Court of Appeals

For The

First District of Texas



NO. 01-02-00035-CR

____________



DEREK HARMON, Appellant



V.



THE STATE OF TEXAS, Appellee



On Appeal from County Criminal Court at Law No. 5

Harris County, Texas

Trial Court Cause No. 1067624



MEMORANDUM OPINION

Appellant, Derek Harmon, pleaded guilty to driving while intoxicated after his pretrial motion to suppress evidence was denied. The trial court accepted appellant's guilty plea, found appellant guilty, and assessed punishment at 180 days' confinement, probated for two years, and a $500 fine. In two issues, we determine whether the trial court erred in denying appellant's motion to suppress blood-test results and whether a grand-jury subpoena under which appellant's medical information was obtained was overly broad. We affirm.

Facts

On April 6, 2001, appellant drove a car into a concrete barrier on Memorial Drive in Houston. Another driver, who did not witness the accident, called the police. Houston Police Officer Farias arrived at the scene and noticed that appellant had a strong odor of alcohol on his breath and a sway in his stance. Officer Farias also found two tumblers containing alcohol inside appellant's car. Appellant, who appeared to be injured and was taken to the hospital, was not arrested at that time. After learning that hospital personnel would draw blood from appellant, Officer Farias obtained a grand-jury subpoena requesting appellant's medical records from the hospital. The subpoena stated the following:

Please provide all medical records for Derek Harmon, W/M, DOB 8-5-59, who was treated on 4-6-01 through 4-7-01, [sic] please provide all records reflecting chemical or blood alcohol results. Kindly indicate who drew, transported and tested the blood.



Appellant's medical records showed that he had a blood alcohol content of 0.18.



Standard of Review

A trial court's ruling on a motion to suppress evidence is reviewed under an abuse of discretion standard. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). In a suppression hearing, the trial court is the sole trier of facts and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). Expectation of Privacy

In his first issue, appellant contends that the trial court erred in denying his motion to suppress blood-test results because the State did not meet its burden to prove the reasonableness of the search, because there were defects in the grand-jury subpoena process, and because appellant had a statutory right to privacy under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Pub. L. No. 104-191, 110 Stat. 1936 (1996).

A. Standing

Appellant first complains that the State failed to meet its burden "to show that the blood test results were obtained pursuant to a recognized exception to the warrant requirement" and because there were defects in the grand-jury subpoena process. The State argues that appellant lacks standing to complain about the manner in which the blood test results were obtained because appellant can have no reasonable expectation of privacy in blood-alcohol test results taken by hospital personnel solely for medical purposes.

To determine whether appellant may complain of the reasonableness of the search, we must determine whether he has established standing. See Villareal v. State, 893 S.W.2d 559, 561 (Tex. App.--Houston [1st Dist.] 1994), aff'd, 935 S.W.2d 134 (Tex. Crim. App. 1996). An accused has standing to challenge the admission of evidence obtained by a governmental intrusion only if he had "a legitimate expectation of privacy in the place invaded." Richardson v. State, 865 S.W.2d 944, 948 (Tex. Crim. App. 1993).

In State v. Hardy, the Court of Criminal Appeals held that an accused does not have a legitimate expectation of privacy in medical records containing blood-alcohol test results "taken by hospital personnel solely for medical purposes after a traffic accident." See id., 963 S.W.2d 516, 527 (Tex. Crim. App. 1997). The Hardy court based its holding on the determination that the societal interests in safeguarding the privacy of medical records were not sufficiently strong enough to require protection of blood-alcohol test results obtained by medical personnel after traffic accidents. See id.

We addressed complaints in Garcia v. State (1) and Dickerson v. State (2) that are similar to appellant's complaints. Relying on Hardy, we held in both cases that there was "no Fourth Amendment reasonable expectation of privacy . . . that protects the record of blood test results of an injured motorist from being given to law enforcement officers pursuant to a grand jury subpoena." Dickerson, 965 S.W.2d 30, 31 (Tex. App.--Houston [1st Dist.] 1998, pet. dism'd, improvidently granted); Garcia, 95 S.W.3d 522, 526 (Tex. App.--Houston [1st Dist.] 2002, no pet.). We concluded that, because the Fourth Amendment does not confer a reasonable expectation of privacy under these circumstances, an accused does not have standing to assert an unreasonable search or seizure under the Fourth Amendment or to challenge any defects in the grand-jury subpoena process. See id.

Following Garcia and Dickerson, we hold that appellant does not have standing to challenge either the reasonableness of the search or any defects in the grand-jury subpoena process.

B. HIPAA

Appellant also argues that the grand-jury subpoena under which his medical information was obtained violates HIPAA. Pub. L. No. 104-191, 110 Stat. 1936 (1996).

On August 21, 1996, Congress enacted HIPAA and instructed the Secretary of Health and Human Services to promulgate final regulations containing "standards with respect to the privacy of individually identifiable health information" if Congress failed to enact such privacy standards within 36 months of the enactment of HIPAA. 110 Stat. 2033-34. On February 13, 2001, the Secretary of Health and Human Services promulgated final regulations imposing the standards, requirements, and implementation specifications under which a health care provider is required to release an individual's health information. 45 C.F.R. § 164.102 (2002).

Even if HIPAA imposed a new statutory right of privacy that trumps the State's power to issue grand-jury subpoenas in a criminal investigation, disclosure of medical records under HIPAA is permissible without an individual's permission when the information is disclosed for law enforcement purposes and is obtained pursuant to a grand-jury subpoena. (3)

45 C.F.R. § 164.512(f)(1)(ii)(B) (2002).

We overrule appellant's first issue.





Grand-Jury Subpoena

In his second issue, appellant contends that the grand-jury subpoena under which his medical information was obtained was overly broad because the subpoena sought all of his medical records made during his hospitalization, rather than the medical records pertaining only to his blood-alcohol tests. Appellant complains that, because the trial court refused to suppress these records, they became "open for full view to prosecutors, grand jurors, courts, and the public."

A two-step inquiry determines whether we address the merits of a claim regarding a trial court's denial of a pretrial motion to suppress evidence prior to a guilty plea. Gonzales v. State, 966 S.W.2d 521, 524 (Tex. Crim. App. 1998). We first identify the fruits that the trial court refused to suppress. Id. We then determine whether these fruits have "somehow been used" by the State. Id. (citing Kraft v. State, 762 S.W.2d 612, 614 (Tex. Crim. App. 1988)). If the fruits have not somehow been used by the State, then we need not address the merits of the claim. Id. In the context of a guilty plea, evidence is used if the evidence could have "contributed in some measure to the State's leverage in the plea bargaining process." McKenna v. State, 780 S.W.2d 797, 799-800 (Tex. Crim. App. 1989) (citing Kraft, 762 S.W.2d at 614). Evidence is used against a defendant and contributes to the State's leverage if the evidence is inculpatory. Kraft, 762 S.W.2d at 615.

Appellant, who pleaded guilty to driving while intoxicated, has not identified any information in the remaining portion of his medical records that was inculpatory or that may have contributed in some measure to the State's leverage in the plea-bargain process. Except for appellant's blood-test results, none of the other information in appellant's medical records was discussed at the hearing on appellant's motion to suppress evidence. Because the record does not show that appellant's medical records, other than his blood-test results, contributed to the State's leverage in the plea-bargaining process, we need not address the merits of his claim. See id.

We overrule appellant's second issue.Conclusion

We affirm the judgment of the trial court.









Tim Taft

Justice



Panel consists of Justices Taft, Jennings, and Hanks.



Do not publish. Tex. R. App. P. 47.2(b).

1. 95 S.W.3d 522 (Tex. App.--Houston [1st Dist.] 2002, no pet. h.).

2. 965 S.W.2d 30 (Tex. App.--Houston [1st Dist.] 1998, pet. dism'd, improvidently granted).

3. We also note that compliance with HIPAA was not required when appellant's medical records were sought because the HIPAA regulations did not become effective until April 14, 2003. 45 C.F.R. § 164.534(a) (2001).