Zanzetta Alvina Franklin v. State

Affirmed and Memorandum Opinion filed September 6, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00961-CR

ZANZETTA ALVINA FRANKLIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 3 and Probate Court
Brazoria County, Texas
Trial Court Cause No. 179470

MEMORANDUM OPINION
In three issues, appellant Zanzetta Alvina Franklin argues that the trial court erred
by denying her motion to suppress and by permitting the State to ask leading questions of
its witness. We affirm.

BACKGROUND

In May 2010, Officer Dusty Wortman of the Pearland Police Department saw a
vehicle swerve in and out of an oncoming lane of traffic. Officer Wortman stopped the
vehicle and identified appellant as the driver. He asked appellant to step out of the vehicle
and observed that she swayed and appeared unsteady on her feet. Officer Wortman also
detected an odor of alcohol emanating from appellant and found that she had red,
bloodshot, and watery eyes. Appellant admitted to the officer that she had consumed one
beer that evening. Examination of the vehicle’s interior revealed an open container of
vodka and an empty can of beer.

Officer Wortman initiated a horizontal gaze nystagmus test on appellant. The test
ended, however, when appellant refused to follow the officer’s instructions. The officer
attempted to administer additional field sobriety tests, but appellant refused again to
cooperate. Officer Wortman then placed appellant under arrest for driving while
intoxicated.

When appellant refused to voluntarily provide a blood specimen, Officer Wortman
petitioned for a search warrant to have a blood draw performed. The petition was faxed
with a completed application and affidavit to a Pearland municipal judge. The judge
swore the officer over the telephone and transmitted the warrant via facsimile.

With the warrant secured, Officer Wortman escorted appellant to a freestanding
emergency room clinic where a specimen of her blood was collected. Appellant became
combative with a registered nurse and verbally resisted the extraction of her blood. Her
behavior attracted the attention of Trinidy Boutwell, an officer waiting in nearby room.
Officer Boutwell came to assist Officer Wortman in restraining appellant for the
procedure. During that process, appellant managed to scratch one of the officers as he
attempted to restrain her.

Testing revealed that appellant’s blood alcohol level was 0.266, more than three
times the legal limit. At trial, appellant moved to suppress the blood specimen evidence,
arguing that it was procured by an invalid search warrant. In her motion to suppress,
appellant specifically maintained that the warrant was defective because the arresting
officer did not swear to the affidavit in the presence of the magistrate. Appellant also
urged that the blood results should be suppressed because the blood sample was extracted
using unreasonable means and excessive force.

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 The trial court denied the motion to suppress, finding that the officer obtained the
blood sample under a good faith belief that he had a valid search warrant based on
probable cause issued by a neutral magistrate. The court also determined that the use of
force during the execution of the warrant was reasonable under the facts and
circumstances.

The jury convicted appellant of driving while intoxicated. Punishment was
assessed at 180 days’ community supervision. This appeal followed.

ANALYSIS

I. Motion to Suppress

In her first and third issues, appellant argues that the trial court erred by denying
her motion to suppress because the blood sample was obtained pursuant to a defective
warrant, and because the blood draw was performed using unreasonable means in
violation of her constitutional rights.

When reviewing a trial court’s ruling on a motion to suppress evidence we use a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). We do not engage in our own factual review in evaluating the trial court’s
decision. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The trial judge
is the sole trier of fact and determining body of the credibility of witnesses and the weight
to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App.
2007). Consequently, we give almost total deference to the trial court’s determination of
historical facts when they are supported by the record, as well as to the trial court’s
rulings on mixed questions of law and fact when resolution of those questions depends
upon an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673. This same
highly deferential standard applies regardless of whether the trial judge has granted or
denied a motion to suppress evidence. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.
Crim. App. 2008). Thus, the party who prevailed in the trial court is afforded the
strongest legitimate view of the evidence and all reasonable inferences that may be drawn

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from that evidence. Id. We review de novo the trial court’s application of law to any facts
that do not turn on an evaluation of credibility and demeanor. Estrada v. State, 154
S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex.
Crim. App. 2002). All purely legal questions are reviewed de novo. Kothe v. State, 152
S.W.3d 54, 62–63 (Tex. Crim. App. 2004).

A. Validity of the Warrant

Article 18.02 of the Texas Code of Criminal Procedure provides that a warrant
may be issued for the seizure of blood. See Tex. Code Crim. Proc. Ann. art. 18.02(10)
(West 2011); Gentry v. State, 640 S.W.2d 899, 902 (Tex. Crim. App. 1982). Before a
search warrant may issue, however, the peace officer requesting the warrant must file a
sworn affidavit ―setting forth substantial facts establishing probable cause.‖ Tex. Code
Crim. Proc. Ann. art 18.01(b).

Appellant contends that the warrant used to obtain her blood draw was invalid
because Officer Wortman did not personally swear an oath in the presence of a
magistrate. Her argument depends on the premise that Texas law requires a face-to-face
meeting between officer and judge, an issue that has divided some courts of appeals.

In an unpublished opinion, the Tyler Court of Appeals concluded that telephonic
oaths do not comply with Texas law, and that an officer seeking a warrant must make ―a
physical, personal appearance . . . either before the magistrate, or before someone who is
qualified to administer oaths.‖ Aylor v. State, No. 12-09-00460-CR, 2011 WL 1659887,
at *4 (Tex. App.—Tyler Apr. 29, 2011, pet. ref’d) (mem. op., not designated for
publication). More recently, the Waco Court of Appeals disagreed with that opinion,
concluding that face-to-face meetings between officer and judge are not required. Clay v.
State, — S.W.3d —, No. 10-09-00355-CR, 2012 WL 955323, at *4–5 (Tex. App.—
Waco Mar. 21, 2012, pet. granted). In reaching their decisions, both courts relied on
different readings of the same case, Smith v. State, 207 S.W.3d 787 (Tex. Crim. App.
2006).

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 In Smith, the court of criminal appeals held that an officer’s failure to sign a
probable cause affidavit did not invalidate a warrant if other evidence could prove that
the officer swore to the facts contained in the affidavit before the issuing magistrate. Id.
at 793. Recognizing that the purpose of the oath is to call upon the affiant’s sense of
moral duty to tell the truth, the court reasoned that it is the act of swearing, not the
signature itself, that is essential to the validity of the affidavit. Id. at 792. The court also
expressed that it was important for the law to retain some flexibility in the face of
technological advances:

For example, the federal courts and some state courts, now permit
telephonic search warrants, and one can foresee the day in which search
warrants might be obtained via e-mail or a recorded video conference with
a magistrate located many miles away. In a state as large as Texas, such
innovations should not be foreclosed by the requirement of a signed
affidavit if the officer’s oath can be memorialized by other, equally
satisfactory, means. We leave those potential future changes to the Texas
Legislature, but we should not stand in the way of the future by declaring
that all affidavits, which are properly sworn to but unsigned, are necessarily
invalid.
Id. at 792–93 (footnotes omitted).

The Aylor Court construed Smith as implying that purely telephonic oaths were not
permissible under established law. See Aylor, 2011 WL 1659887, at *3–4 (citing Lowry
v. State, 164 Tex. Crim. 178, 181–83, 297 S.W.2d 848, 850–51 (1956), superseded by
statute on other grounds as stated in Hardy v. State, 213 S.W.3d 916 (Tex. Crim. App.
2007); and Sullivan v. First Nat’l Bank of Flatonia, 37 Tex. Civ. App. 228, 229, 83 S.W.
421, 422 (1904, no writ)). Relying on dicta in Smith, the court suggested that allowing
such oaths would represent a shift in the law more properly left to legislative judgment.
See id. at *4 (referring, in part, to ―quoted dicta‖ as authority that a physical, personal
appearance is necessary). The Clay Court seized on other language in Smith, which
focused on the purpose of an oath and the need for flexibility in the law. Clay, 2012 WL
955323, at *4–5. In this more expansive reading, the court concluded that a face-to-face
meeting was not required because it was the act of swearing that was paramount. Id.

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Moreover, because the judge in Clay was personally familiar with the officer’s voice, the
court determined that there were ―very strong indicia of truthfulness, trustworthiness, and
reliability‖ in the procedure that was employed. Id.

Confronted with this split in authority, the court of criminal appeals is presently
considering whether Texas law requires a face-to-face meeting between officer and
judge.1 We need not decide that issue here, as we may dispose of this case on narrower
grounds. Assuming without deciding that the affidavit was defective due to the manner in
which it was presented, we conclude that appellant’s blood was seized pursuant to an
applicable ―good faith exception‖ provided under article 38.23 of the Texas Code of
Criminal Procedure. See Estrada, 154 S.W.3d at 607 (recognizing that a trial court’s
suppression ruling ―must be upheld if it is correct under any theory of law applicable to
the case‖); Swenson v. State, No. 05-09-00607-CR, 2010 WL 924124, at *2 (Tex. App.—
Dallas Mar. 16, 2010, no pet.) (mem. op., not designated for publication) (analyzing the
good faith exception where issue of telephonic oath was unnecessary to disposition of the
case).

Article 38.23(a) provides that evidence obtained in violation of the law may not be
admitted in evidence against the accused on the trial of any criminal case. Tex. Code
Crim. Proc. Ann. art. 38.23(a). This rule is otherwise known as the exclusionary rule.
Article 38.23(b) provides that ―[i]t is an exception to the provisions of Subsection (a) of
this Article that the evidence was obtained by a law enforcement officer acting in
objective good faith reliance upon a warrant issued by a neutral magistrate based on

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The court of criminal appeals granted a petition for discretionary review in Clay v. State on June 27,
2012, based on the following issues presented:
1. The trial court erred in denying appellant’s motion to suppress by ruling that the affiant
in support of a search warrant under Texas law need not personally appear before the
magistrate to swear out the truthfulness of the facts in support thereof.
2. Whether search warrants issued based on oaths administrated telephonically and/or by
facsimile are valid absent the adoption by the Texas Legislature of a statutory scheme
providing for same?
See Granted Issues, http://www.cca.courts.state.tx.us/issues/ISSUES.pdf (last visited August 29, 2012).

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probable cause.‖ Id. art. 38.23(b); see Dunn v. State, 951 S.W.2d 478, 479 (Tex. Crim.
App. 1997) (concluding that exception applied in case where magistrate had failed to sign
the warrant, as was required by statute, but record otherwise established that officers had
acted in objective good faith).

The good faith exception was not discussed in Aylor because the state did not
argue the issue at trial or on appeal. See Aylor, 2011 WL 1659887, at *4. In Clay, the
good faith exception was addressed only in a concurring opinion. See Clay, 2012 WL
955323, at *5–7 (Davis, J., concurring) (criticizing the Clay majority for forging new
public policy by concluding that purely telephonic oaths were permissible, and arguing
that the case could have been disposed on narrower grounds where trial stipulations
indicated that the officer had acted in objective good faith). In the present case, the trial
court expressly cited the good faith exception as a basis for denying appellant’s motion to
suppress. In deciding whether the good faith exception was correctly applied, we first
determine whether the warrant was issued on probable cause. Flores v. State, 367 S.W.3d
697, 703 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d). We then assess the
objective—not subjective—good faith of the officer executing the warrant. Id.

No one disputes that the warrant was issued on probable cause in this case. It is
also undisputed that the warrant was issued by a magistrate. We presume the magistrate
was neutral, and there is no evidence in the record rebutting this presumption. See Roman
v. State, 145 S.W.3d 316, 319 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (―In the
absence of a clear showing to the contrary, this court will presume that the trial court was
neutral and detached.‖). Thus, we must ascertain whether the evidence supports a finding
that Officer Wortman acted in objective good faith reliance upon the warrant when he
arrested appellant.

Officer Wortman prepared a comprehensive affidavit in which he asserted
numerous facts pertaining to appellant’s intoxication. At the suppression hearing, Officer
Wortman testified that he believed that he was in possession of a valid search warrant at
the time of the blood draw. The warrant contains language that the judge authorized the

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search after reviewing ―an affidavit in writing, under oath, hav[ing] been made before
[him] by D. Wortman.‖ Officer Wortman stated that there was nothing about the warrant
that may have caused him to believe that it was invalid, and that he had a good faith
belief that the warrant was issued based on probable cause by a neutral magistrate.
Officer Wortman also testified that after he executed the warrant, he signed it and turned
it in along with his report to the municipal court.

We conclude these facts support a finding that Officer Wortman acted in objective
good-faith reliance upon the warrant during the evidentiary search. Cf. Flores, 367
S.W.3d at 703 (concluding that officer acted in good faith where officer testified that he
followed standard procedure in attesting to his complaint and obtaining the warrant, and
where the warrant contained language indicating that the complaint was made under
oath). Appellant’s first issue is overruled.

B. Reasonableness of the Blood Draw

Appellant maintains next that the State conducted the blood draw using
unreasonable methods. Specifically, appellant complains that no inquiry into her medical
history was conducted prior to the procedure, the officers restrained her using excessive
force during the procedure, and this use of force resulted in appellant’s transfer to a
hospital via ambulance.

The United States Supreme Court has adopted a two-part test for determining the
legality of a blood draw. See Schmerber v. California, 384 U.S. 757, 768 (1966). A blood
draw is permissible under the Fourth Amendment if the police had justification in
requiring the suspect to submit to a blood test, and the police employed reasonable means
and reasonable procedures in taking the suspect’s blood. Id.; accord State v. Johnston,
336 S.W.3d 649, 658 (Tex. Crim. App. 2011). Here, appellant does not challenge
whether the police had probable cause or justification to obtain a sample of her blood.
Therefore, we only address the second step and determine whether the police employed
reasonable means and reasonable procedures in taking appellant’s blood.

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 This second part of the analysis contains two discrete questions. First, in
determining whether police employed reasonable ―means,‖ we must decide whether the
chosen test was reasonable. Johnston, 336 S.W.3d at 658. Second, in determining
whether police employed a reasonable ―procedure,‖ we must decide whether the test was
performed in a reasonable manner. Id.

1. Reasonableness of Chosen Test

For the general population, the Supreme Court has determined that a blood test is a
reasonable means from which to analyze an individual’s blood alcohol level. Schmerber,
384 U.S. at 771; see also Breithaupt v. Abram, 352 U.S. 432, 435–36 (1957) (explaining
that those entering the military, marrying, or going to college must take blood tests and
millions of people voluntarily donate blood, so the blood test procedure has become
routine in our everyday life). The court of criminal appeals has also stated directly that
―there is a presumption that venipuncture blood-draw tests are reasonable under the
Fourth Amendment.‖ Johnston, 336 S.W.3d at 659. Some courts may deem blood testing
to be unreasonable over another method of testing when ―the few who on grounds of fear,
concern for health, or religious scruple might prefer some other means of testing.‖
Schmerber, 347 S.W.3d at 771. However, the burden falls to the appellant to show that
the type of test employed was ―not a reasonable means to obtain a blood alcohol
assessment as to him or her, individually.‖ Johnston, 366 S.W.3d at 660. The record must
contain evidence showing that the police chose a test that was not reasonable due to a
―verifiable medical condition,‖ or we will presume that the choice to administer the test is
reasonable. Id.; see Pacheco v. State, 347 S.W.3d 849, 854 (Tex. App.—Fort Worth
2011, no pet.).

Appellant argues that the chosen test was unreasonable because no inquiry was
made into her preexisting conditions or her status as a ―bleeder.‖ But, ―the failure to
make an inquiry into an individual’s medical history before drawing blood and to conduct
a follow up examination does not render blood draws per se unreasonable.‖ Johnston,

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366 S.W.3d at 659. Moreover, appellant has not demonstrated that a venipuncture blood
draw would be unreasonable if administered to her individually.

The record contains no evidence that appellant suffers from a medical condition
that would have made another means of testing preferable. Other than some small
hematomas and numbing in her fingers and hand, there is also absent from the record any
verifiable evidence that appellant suffered negative medical consequences from the
drawing of her blood. A DWI suspect, naturally familiar with her own medical history, is
in the best position to identify and disclose any peculiar medical condition that could
result in risk, trauma, or more than de minimis pain if a blood draw were performed. Id. at
662. Appellant cites to no evidence, however, that she apprised the professionals drawing
her blood of any existing medical conditions that might make the blood draw
unreasonable. Therefore, the presumption stands that the venipuncture blood test chosen
here was a reasonable method of measuring appellant’s blood alcohol level.

2. Reasonableness of Manner of Performance

Addressing the second prong of the reasonableness analysis, appellant argues that
the arresting officer and registered nurse did not perform the blood draw in a reasonable
manner because physical force was used to restrain her during the procedure. She
complains that two male police officers restrained her, causing bilateral wrist pain. The
incident led to her transport to a hospital, where doctors prescribed ice packs for her wrist
and hands.

It is appropriate to invoke traditional Fourth Amendment principles to determine
whether a blood draw was performed in a reasonable manner. See State v. Hardy, 963
S.W.2d 516, 524 (Tex. Crim. App. 1997) (recognizing that the Fourth Amendment
imposes certain reasonableness requirements as a condition for obtaining blood
evidence). Accordingly, the reasonableness of the manner in which a DWI suspect’s
blood was drawn should be assayed on an objective, case-by-case basis in light of the
totality of the circumstances surrounding the draw. Johnston, 336 S.W.3d at 661.

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 Police officers act reasonably when extracting a blood sample if the procedure is
carried out in accordance with acceptable medical practices. Id. at 663. Here, the
procedure was performed by a registered nurse in a freestanding medical facility.
Appellant has not identified anything inherently unsafe about the environment in which
the procedure took place. Instead, appellant focuses on other circumstances surrounding
the blood draw, such as the officers’ use of handcuffs and force to physically restrain her.

The record contains audio tapes of the blood draw as it was being performed. Our
review of the recordings confirms testimony from the officers and nurse that appellant
was combative throughout the procedure. She loudly resisted the blood draw, was
verbally abusive, and even used her nails against one of the officers. One officer stated on
tape that appellant was being restrained during the procedure to prevent any further
injury. Based on these facts, we cannot determine that the State acted unreasonably
through its use of force. Cf. Carmouche v. State, 10 S.W.3d 323, 329–30 (Tex. Crim.
App. 2000) (concluding that an officer was justified in handcuffing suspect out of
concern for his own safety). Nor can we determine from appellant’s subsequent visit to
the hospital that the procedures employed were so unreasonable as to require the
exclusion of the blood specimen evidence.

Appellant’s third issue is overruled.

II. Leading Questions

In her second issue, appellant contends that the trial court erred by overruling her
objection to leading questions. In particular, appellant complains about the following
exchange between the prosecutor and the arresting officer:

STATE: At the time you typed and later executed this evidentiary
search warrant for Ms. Franklin’s blood, did you believe you
had a valid search warrant at the time you executed it?
DEFENSE: Objection -- object to Counsel leading.
COURT: Overruled.
STATE: Let me do it over again. Did you believe you had a valid
search warrant at the time you executed the warrant?
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 WITNESS: Yes, I did.
STATE: Is there anything about the warrant that caused you to believe
it was invalid?
WITNESS: No.
STATE: Did you believe you had a good and valid warrant?
WITNESS: Yes.
STATE: Did you have a good faith belief that the warrant was issued
based on probable cause by a neutral and detached
magistrate?
WITNESS: Yes.

A leading question indicates the preferred answer, instructs the witness how to
answer, or puts words into the witness’s mouth to be echoed back. See Tinlin v. State, 983
S.W.2d 65, 70 (Tex. App.—Fort Worth 1998, pet. ref’d). Leading questions posed to a
party’s own witness are acceptable at the trial court’s discretion. Myers v. State, 781
S.W.2d 730, 733 (Tex. App.—Fort Worth 1989, pet. ref’d). It is appropriate to ask a
leading question of a witness if the question is necessary to develop his testimony. Wyatt
v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000).

To preserve error on the issue of leading questions, an appellant must present to
the trial court a timely objection made as soon as basis for the objection becomes
apparent. See Tex. R. App. P. 33.1(a); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.
App. 1998); see also Tex. R. Evid. 103(a)(1). If an appellant fails to do this, error is not
preserved and the complaint is waived. Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim.
App. 1996); see also Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)
(holding that party is required to continue to object each time inadmissible evidence is
offered in order to preserve error).

Here, the record does not indicate that appellant preserved her complaint for our
review. Although appellant registered an objection on the record, the prosecutor
withdrew her initial question before the witness could answer. After withdrawing this
question, the prosecutor rephrased it in essentially the same terms. But appellant did not

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object to the newly posed question. Nor did she object to any of the questions that
followed. Appellant’s failure to reassert any objections to leading questions accordingly
waives any error on this issue. See Myers, 781 S.W.2d at 733. Appellant’s second issue is
overruled.

CONCLUSION

The judgment of the trial court is affirmed.

/s/ Adele Hedges
Chief Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).

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