|
|
|
|
Opinion filed October 2, 2008
In The
Eleventh Court of Appeals
__________
No. 11-07-00153-CR
__________
GERALD DON GATEWOOD, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 106th District Court
Gaines County, Texas
Trial Court Cause No. 06-3674
M E M O R A N D U M O P I N I O N
Gerald Don Gatewood appeals his conviction by a jury of the offense of driving while intoxicated with two or more prior convictions for the same type offense. The jury answered true on the special issue of a deadly weapon. The jury assessed his punishment at fifty years in the Texas Department of Criminal Justice, Institutional Division. Gatewood contends in a single issue that the trial court erred when it admitted blood test results obtained as a result of a search warrant, which he contends was in violation of Tex. Transp. Code Ann. ' 724.013 (Vernon 1999). We affirm.
Following an accident involving Gatewood and another party, Gatewood stated that he was the driver of the vehicle involved in the accident. The investigating officer, after observing evidence indicating that alcohol was a factor in the accident, asked Gatewood if he would submit to a breath test. When Gatewood refused, the officer sought and obtained a search warrant for a sample of Gatewood=s blood. The officer was permitted to testify concerning the results of the testing of Gatewood=s blood, over Gatewood=s objection.
Gatewood contends that the trial court erred by admitting evidence of the blood test based on the blood sample obtained by the search warrant because obtaining such a sample is prohibited by Section 724.013. That section together with Tex. Transp. Code Ann. ' 724.012(b) (Vernon Supp. 2008) provide that a breath or blood specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer except under certain specified circumstances. Gatewood contends that, since in this case those specified circumstances were not met, the specimen of his blood was obtained illegally and should not have been admitted at trial. As Gatewood himself acknowledges, the Texas Court of Criminal Appeals has held that this statute does not prevent the State from obtaining evidence by alternative constitutional means. Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002). The court held that, once a valid search warrant is obtained by presenting facts establishing probable cause to a neutral and detached magistrate, consent, implied or explicit, becomes moot. Id. As an intermediate appellate court, we respectfully decline Gatewood=s invitation not to follow Beeman. We overrule Gatewood=s sole issue on appeal. The judgment is affirmed.
PER CURIAM
October 2, 2008
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.[1]
[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.