Alexis Aguayo v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

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ALEXIS AGUAYO, No. 08-13-00283-CR
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Appellant, Appeal from
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v. County Court at Law No. 7
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20120C10722)
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OPINION

This is an appeal from a conviction in a misdemeanor driving while intoxicated case. A

jury found Appellant guilty and the trial court assessed his punishment at confinement for 365

days, probated for twenty one months, along with a partially probated fine. We affirm.

FACTUAL SUMMARY

Appellant was involved in a somewhat spectacular traffic accident on May 27, 2012.

Witnesses at the scene indicated that Appellant, while driving erratically, ran a red light and hit a

pick-up truck which was making a lawful left hand turn in front of him. The pick-up spun around

180 degrees. Appellant’s vehicle caught fire just as he stepped out of the vehicle. He was

dragged away from the burning car by a good Samaritan. At the scene, he was going in and out
of consciousness. Several witnesses smelled alcohol on his person. He was seventeen years old

on the date of the accident.

Appellant was taken to Del Sol Medical Center. The exact nature of his injuries is not

developed in the record. While at the Emergency Department, he was questioned by Officer

Albert Gandara who had investigated the accident. Based on his observations, Officer Gandara

placed Appellant under arrest for driving while intoxicated. The officer read Appellant the

statutorily required warnings pertaining to giving blood specimens, commonly referred to as the

DIC-24. Appellant then signed a form giving permission for his blood to be drawn. The blood

sample revealed a blood alcohol level of 0.188. He was subsequently charged with operating a

motor vehicle in a public place with an alcohol concentration of 0.15 or more, a class A

misdemeanor. TEX.PENAL CODE ANN. § 49.04 (d)(West Supp. 2014).

This case was tried to a jury. During the course of the trial, defense counsel took Officer

Gandara on voir dire outside the presence of the jury to challenge the admission of the blood

sample evidence. Officer Gandara testified that he met Appellant at the Del Sol Emergency

Room. Officer Gandara was in uniform, speaking to Appellant who was lying on a bed. The

officer would have first inquired as to Appellant’s recollection of the accident, and matters such

as where he had been and where he was going. Officer Gandara recalled that Appellant’s

responses to those questions were all coherent. Appellant was able to recall the type of vehicle

he was in, and where he had been immediately before the accident. According to the officer,

Appellant was conscious during the entire encounter. Officer Gandara acknowledged that he did

not know what medications Appellant may have been given, nor what injuries Appellant may

have sustained, other than they were not life threatening.

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 Officer Gandara read the DIC-24 form to Appellant which informed him that: he was

under arrest; a refusal to give a specimen would result in a driver’s license suspension for not

less than 180 days; a refusal might still result in the officer applying for a warrant; and a refusal

may be admissible in any subsequent prosecution. After giving the statutory warnings, Officer

Gandara testified that Appellant gave voluntary consent for the blood draw, which is evidenced

by Appellant’s signature on a consent form.1 Officer Gandara’s interaction with Appellant was

not videotaped.

Appellant was also permitted to take the stand for the limited purpose of addressing the

consent issue, again outside the presence of the jury. He recalled signing the consent form. He

was on medication for his foot as he was in pain. As a result, Appellant claimed he was not

totally conscious while in the hospital, nor while he interacted with Officer Gandara. While he

recalled only parts of his dealings with the Officer, he understood the Officer was requesting

permission to take his blood. He also understood that if he did not sign the form, his license

would be suspended, and if did sign it, they were going to draw blood. Appellant did not think

his consent was voluntary because he did not recall everything that was said. Based on this

testimony, counsel objected that his consent for the blood draw was not voluntary. He also

objected that the Officer did not videotape the consent process as Appellant was seventeen years

old at the time. The trial court overruled Appellant’s objections. No findings of fact or

conclusion of law were ever requested.

The issue of consent was also submitted to the jury by way of instruction. 2 Accordingly,

the jury heard substantially the same testimony that Officer Gandara had given in the voir dire,

1
Appellant’s signature on the consent form looks different from that on other court paperwork. The State suggests
this was because he was lying on his back when he signed the consent form.
2
The jury charge provided:

3
with a few additions. Before the jury, Officer Gandara also testified that Appellant still smelled

of alcohol at the hospital about an hour after the accident. Officer Gandara performed the

horizontal gaze nystagmus test, which looks for intoxication clues from eye movements, and

Appellant tested positive. Officer Gandara also acknowledged that he had not advised Appellant

of his right to remain silent, or to counsel, before seeking consent to take the blood draw.3 The

phlebotomist who drew Appellant’s blood recalled being with him for about twenty minutes and

that he was conscious during that entire period of time.

Appellant did not testify before the jury. Following his conviction, Appellant re-urged

his objections to the blood evidence which trial court again overruled. This appeal follows.

Appellant brings two issues for review. While the first issue is somewhat multifarious,

we discern essentially two arguments being advanced.4 Appellant in part complains that his

Fifth Amendment rights, as statutorily codified in Article 38.22 of the Code of Criminal

Procedure, and as explained in Miranda v. Arizona, were violated in the process whereby he

gave consent. Second, he contends his Fourth Amendment rights against unreasonable search

and seizure were violated in that his consent was not voluntary given.

You are further instructed that blood may not be taken from an individual without their consent or
without a search warrant, unless done by medical personnel for a lawful medical purpose in
treating an individual seeking medical care.

Therefore, before you consider the blood evidence in this case, you must first find beyond a
reasonable doubt that the blood was drawn with consent. If you do not so find beyond a reasonable
doubt, you will disregard such evidence,
3
Based on this testimony, Appellant raised additional objections to the blood draw evidence, which the trial court
also overruled.
4
Appellant parses Issue One this way: “Officer Gandara violated seventeen year old Alexis Aguayo’s
constitutional rights when he took blood from him after effecting an arrest in an attempt to bolster the States [sic]
case by the addition of evidence that was not required for probable cause. The blood draw when looked at under the
totality of the circumstances test violated the Defendant’s 5th Amendment Constitutional rights, his rights under
Miranda as commonly known, and the Texas Code of Criminal Procedure 38.22 as well. The blood was taken from
him in the hospital while he was under unknown medications, in pain and not having been advised or his rights or
during a [sic] electronically recorded statement. This violation of rights was the substantial cause of the defendant’s
conviction for the offense of driving while intoxicated.”

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 Appellant’s second issue focuses on the lack of videotaping of his consent to give a blood

sample. Specifically, he contends that his equal protection rights were violated because a

seventeen-year-old who has had a prior charge of delinquency would have had the statutory right

to have the entire consent process videotaped, while those without such a delinquency history do

not. We address each of these matters in turn.

FOURTH AMENDMENT ISSUES

Applicable Law

The Fourth Amendment prevents unreasonable searches and seizures. U.S. Const. amend.

IV; Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 473, 142 L.Ed.2d 373 (1998). Taking

blood from a person constitutes a search and seizure under the Fourth Amendment. Schmerber

v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966). A search or

seizure conducted without a warrant is per se unreasonable subject to a few specifically defined

and well-delineated exceptions. Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130,

2135, 124 L.Ed.2d 334 (1993); McGee v. State, 105 S.W.3d 609, 615 (Tex.Crim.App. 2003).

This maxim holds true for blood draws as well, and absent a warrant, the State must find a

recognized exception under the Fourth Amendment to support the seizure of blood from a

person. State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 at *8 (Tex.Crim.App. Nov. 26,

2014, pet. reh. granted). In this case, the State relies on one of those well recognized exceptions-

-voluntary consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 227, 93 S.Ct. 2041,

2043-44, 36 L.Ed.2d 854 (1973)(voluntary consent as a recognized exception); Meekins v. State,

340 S.W.3d 454, 458 (Tex.Crim.App. 2011)(same).

A driver’s consent to give a blood or breath sample must be free and voluntary, and it

must not be the result of physical or psychological pressures brought to bear by law enforcement.

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Fienen v. State, 390 S.W.3d 328, 333 (Tex.Crim.App. 2012); Meekins, 340 S.W.3d at 458. The

State must prove that voluntary consent by clear and convincing evidence. Fienen, 390 S.W.3d

at 333. The question of whether a person validly consented is determined from the totality of the

circumstances and from the point of view of the objectively reasonable person. Id.

While the Transportation Code provides that a person arrested for driving while

intoxicated is deemed to have given consent to providing a breath or blood specimen, a person

generally retains a right to revoke that implied consent. Fienen, 390 S.W.3d at 332–33;

TEX.TRANSP.CODE ANN. § 724.011(a)(West 2011).5 That refusal must be strictly honored, but it

comes with consequences. Fienen, 390 S.W.3d at 333; McCambridge v. State, 712 S.W.2d 499,

504 n.16 (Tex.Crim.App. 1986). Here, for instance, the DIC-24 warnings informed Appellant

that his refusal: (1) can be admissible against him in court; and (2) his driver’s license will be

suspended for not less than 180 days. TEX.TRANSP.CODE ANN. § 724.015(1)-(2)(West Supp.

2014). Even if he gave a sample, and an analysis of the specimen showed that he had an alcohol

concentration at any positive level, his license to operate a motor vehicle would be automatically

suspended for not less than 60 days, whether or not he was subsequently prosecuted as a result of

the arrest. Id. at § 724.015(4)(rule specifically applicable to those under 21 years of age).

Standard of Review

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

review. Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997). First, we afford almost total

deference to a trial judge’s determination of historical facts, particularly when that determination

5
There are some exceptions to this revocation right not at issue in this case. The Transportation Code mandates a
blood draw under several circumstances such as when the driver either has two or more prior convictions for driving
under the influence, or is involved in a collision causing death or serious bodily injury. TEX.TRANSP.CODE ANN. §
724.012(b)(1),(3)(West 2011). Whether the implied consent provision of the Transportation Code meets
constitutional muster under these circumstances is an issue presently pending review. State v. Villarreal, No. PD-
0306-14, 2014 WL 6734178 (Tex.Crim.App. Nov. 26, 2014, pet.reh.granted).

6
is based on credibility or demeanor. Fienen, 390 S.W.3d at 335. The trial court is the sole trier

of the facts and judge of the credibility of the witnesses, as well as the weight to be given their

testimony. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.Crim.App. 2010). The trial judge may

believe or disbelieve all or part of the witness’s testimony and we recognize that the trial judge is

the one who had the opportunity to observe demeanor and appearance. Id. But questions of law

and “mixed questions of law and fact” that do not depend on an evaluation of credibility and

demeanor are reviewed de novo. Fienen, 390 S.W.3d at 335; Guzman, 955 S.W.2d at 89.

When findings of fact are not entered, as here, we view the evidence in the light most

favorable to the trial court’s ruling and assume the trial court made implicit findings of fact

supporting that ruling. Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App. 2000). We will

sustain the trial court’s ruling if it finds reasonable support in the record and is correct on any

theory of law applicable to the case. Valtierra, 310 S.W.3d at 448.

Analysis

We view the record as primarily raising credibility issues which were impliedly resolved

by the trial court against Appellant. Officer Gandara testified that Appellant was coherent and

never lost consciousness in his presence at the hospital. Conversely, Appellant maintains he was

in and out of consciousness. The phlebotomist’s testimony was more consistent with Officer

Gandara’s recollection. The officer testified that the consent was freely given. Appellant says it

was not, but only because he did not recall everything said. Appellant maintains he had an

impaired level of consciousness due to medication given him at the hospital, but he never

identified the medication, or the nature of his injuries, even though both were or could be known

to him. Applying the applicable standard of review, we credit the trial court with almost total

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deference in having resolved these credibility issues against Appellant and find that the evidence

supports those implied findings.

We also note that while Appellant did not recall all of his conversation with Officer

Gandara, he did recall the most important parts. He recalled that he was given the choice of

providing a blood sample, and that if he refused, he would lose his license for a period of time.

After being given that choice, he signed the consent. That decision may not have been an easy

one, but it was the choice that he had nonetheless. See South Dakota v. Neville, 459 U.S. 553,

564, 103 S.Ct. 916, 922-23, 74 L.Ed.2d 748 (1983)(“We recognize, of course, that the choice to

submit or refuse to take a blood-alcohol test will not be an easy or pleasant one for a suspect to

make. But the criminal process often requires suspects and defendants to make difficult

choices.”). Having reviewed the totality of the circumstances in the light most favorable to the

trial court’s ruling, we conclude that the State proved by clear and convincing evidence that

Appellant voluntarily consented to giving a blood specimen for testing. The trial court did not

abuse its discretion by overruling Appellant’s claims under the Fourth Amendment.

FIFTH AMENDMENT, MIRANDA, AND ARTICLE 38.22 OBJECTIONS

Appellant also claims under Issue One that the trial court erred in admitting his

statements surrounding the consent process because they were made in derogation of his rights

under the Fifth Amendment, Miranda v. Arizona, and TEX.CODE CRIM.PROC.ANN. art. 38.22 § 2

(West Supp. 2014). The linchpin of these arguments is that Appellant was not informed of his

right to counsel, and his right to remain silent, before Officer Gandara read the DIC-24 warnings

and elicited his consent to the blood draw.

The Self-Incrimination Clause of the Fifth Amendment protects one from being

“compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.

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Miranda v. Arizona extends that protection to statements elicited in a custodial interrogation.

Miranda v. Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 1620-21, 16 L.Ed.2d 694 (1966). Article

38.22 provides that a written statement by an accused made as a result of a custodial

interrogation is not admissible unless “on the face of statement” it shows the accused received,

among other things, notice of the right to remain silent and right to counsel. TEX.CODE

CRIM.PROC.ANN. art. 38.22 § 2(1),(3)(West Supp. 2014).

But the process of giving statutory warnings, such as the DIC-24, is not a custodial

interrogation such that these constitutional or statutory guarantees apply. The United States

Supreme Court articulated this point in South Dakota v. Neville, 459 U.S.553, 564, 103 S.Ct.

916, 922-23, 74 L.Ed.2d 748 (1983):

In the context of an arrest for driving while intoxicated, a police inquiry of
whether the suspect will take a blood-alcohol test is not an interrogation within
the meaning of Miranda. As we stated in Rhode Island v. Innis, 446 U.S. 291,
301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980), police words or actions
‘normally attendant to arrest and custody’ do not constitute interrogation. The
police inquiry here is highly regulated by state law, and is presented in virtually
the same words to all suspects. It is similar to a police request to submit to
fingerprinting or photography. Respondent’s choice of refusal thus enjoys no
prophylactic Miranda protection outside the basic Fifth Amendment protection.

Id. at 564 [internal footnotes omitted]; see also Pennsylvania v. Muniz, 496 U.S. 582, 603, 110

S.Ct. 2638, 2651, 110 L.Ed2d 528 (1990)(accused responses to scripted instructions read by

Officer in administering field sobriety tests were not statements from a custodial interrogation).

Texas law has followed this reasoning. McCambridge, 712 S.W.2d at 506 (suspect’s

decision to take or refuse a breath test and the questions prompting the decision, were not part of

custodial interrogation, and did not involve the constitutional privilege against self-

incrimination); Lemmons v. State, 75 S.W.3d 513, 522 (Tex.App.--San Antonio 2002, pet.

ref’d)(a request for consent for a blood sample does not constitute interrogation under the Fifth

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Amendment, nor invoke a critical stage under the Sixth Amendment right to counsel); Jones v.

State, 7 S.W.3d 172, 175 (Tex.App.--Houston [1st Dist.] 1999, pet. ref’d)(request for consent to

search vehicle does not constitute interrogation under the Fifth Amendment).

Based on the foregoing, we easily dispense with Appellant’s claim that the lack of

Miranda or Article 38.22 warnings compelled the trial court to suppress the consent form, or the

conversations immediately surrounding execution of the consent form. These protections simply

do not apply to the largely scripted process of reading a driver the statutory DIC-24 warnings and

eliciting the driver’s decision whether to consent to provide a blood sample. As this court said in

Morris v. State, 897 S.W.2d 528, 531 (Tex.App.--El Paso 1995, no pet.):

Police requests that suspects perform sobriety tests and directions on how
suspects are to do the tests do not constitute interrogation; neither do queries
concerning a suspect’s understanding of his rights. Likewise, asking a suspect in
custody whether he will take a blood alcohol test or repeatedly asking a suspect to
give a breath sample are not ‘interrogations.’ If the police limit themselves to
these sorts of questions, they are not interrogating a DWI suspect.

Id. at 531 [internal citations omitted]. Morris similarly rejected the claim that the disclosures

required by Article 38.22 were required in the blood/breath sampling disclosures. See also

Hernandez v. State, No. 08-05-00384-CR, 2007 WL 867651 at *2 (Tex. App.--El Paso, Mar. 22

2007, no pet.)(not designated for publication).

Appellant points us to those cases where the police elicited substantive statements beyond

those needed to accomplish a statutory warning or field sobriety test. In Pennsylvania v. Muniz,

for instance, the court held that statements made during a field sobriety test were admissible, but

the answer to an unscripted additional question was not. 496 U.S. at 592, 110 S.Ct. at 2645. The

officer in Muniz asked the defendant, what year was it when you were six years old? Id. The

defendant fumbled his answer to that question, which the State then attempted to use as

substantive evidence of intoxication. But Appellant fails to point us to any specific statement

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here which bore on his guilt. Officer Gandara, for instance, did not testify that Appellant made

any particular incriminating statement, such as the number of drinks that he had. Nor does

Appellant direct to us to objections made to any specific statement offered to the jury. 6 We agree

with the State that it would subvert our role in the appellate process to pour through the record to

construct such specific arguments. See Alvarado v. State, 912 S.W.2d 199, 210 (Tex.Crim.App.

1995)(appellate court not obligated to search through record to verify an appellant’s claim);

Busby v. State, 253 S.W.3d 661, 673 (Tex.Crim.App. 2008)(appellate court not obligated to

construct and compose issues and arguments). Accordingly, we overrule Issue One.

VIDEOTAPING THE CONSENT INTERVIEW

The Texas Family Code provides that when a peace officer apprehends a “child” they

should promptly take the child to a “juvenile processing office” or in lieu of that, to another

specified caretaker (such as a parent, guardian, or school principal). TEX.FAM.CODE ANN.

§ 52.02(a)(West 2014). One of those specified caretakers includes a medical facility if the child

requires medical attention. Id. at §52.02(a)(5). The Code provides an exception, however, when

the officer has reasonable grounds to believe that the child has been operating a motor vehicle in

a public place while having any detectable amount of alcohol. Under Section 52.02 (c), before

taking the child to one of the specified caretakers set out in subsection (a), the officer may take

the child for a blood or breath sample. Id. But when the officer does so, the taking of the blood

or breath sample should be videotaped. Id. at. §52.02(d).

6
Even constitutional errors may be waived by a failure to object at trial. Briggs v. State, 789 S.W.2d 918, 924
(Tex.Crim.App. 1990). Further, “a party must object each time the inadmissible evidence is offered or obtain a
running objection.” Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). While the voir dire of Officer
Gandara could be considered as a part of a hearing on a motion to suppress, and thus preserve the Fourth
Amendment issue, the Fifth Amendment/Miranda/Article 38.22 issues did not come up until afterwards when
Officer Gandara testified to before the jury.

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 For the purposes of this statute, a child is defined as anyone over nine, but under

seventeen years of age, or a person:

[S]eventeen years of age or older and under 18 years of age who is alleged or
found to have engaged in delinquent conduct or conduct indicating a need for
supervision as a result of acts committed before becoming 17 years of age.

TEX.FAM.CODE ANN. § 51.02(2)(B). Appellant was seventeen at the time, but was not alleged to

have engaged in prior delinquent conduct, nor in need of supervision. He was an adult for the

purposes of the Texas Penal Code. TEX.PENAL CODE ANN. § 8.07(b)(West Supp. 2014).7 His

argument here is that treating ordinary seventeen-year-olds differently from those who are

delinquent, or in need of supervision, violates his rights under the Equal Protection Clause to the

United State Constitution. In Appellant’s view, a law-abiding seventeen-year-old is given less

protection than one who is delinquent or in need of supervision, the latter being entitled to have

the consent process videotaped.

The State first challenges Appellant’s standing to make this claim. We agree. Appellant

must show that the statutory scheme is unconstitutional as applied to him. County Court of

Ulster County, New York v. Allen, 442 U.S. 140, 154-55, 99 S.Ct. 2213, 2223-24, 60 L.Ed.2d

777 (1979); Parent v. State, 621 S.W.2d 796, 797 (Tex.Crim.App. 1981). In Parent, for

instance, the defendant complained that a then existing provision of the Penal Code allowed

promiscuity as a defense to deviate sexual intercourse with an underage person of the opposite

sex, but not for one of the same sex. Id. As here, the defendant claimed this violated his equal

protection rights. But the statutory defense only applied to victims who were fourteen years or

7
We note that a minor, defined as anyone under age twenty-one, can be charged under the Alcohol Beverage Code
for driving under the influence if they have any detectable amount of alcohol in their system. TEX.ALCO.BEV.CODE
ANN. § 106.041 (West Supp. 2014). That charge differs from driving while intoxicated under TEX. PENAL CODE
ANN. § 49.04 (d)(West Supp. 2014), and the two are not in conflict with each other. Findlay v. State, 9 S.W.3d 397,
400 (Tex.App.--Houston [14th Dist.] 1999, no pet.). In this case, the Information made a specific reference to the
0.15 blood alcohol level, indicated Appellant was charged under the Penal Code.

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older, and the victim in Parent was thirteen years old at the time. Id. Because the statute would

not have applied to him in any event, the defendant simply lacked standing to raise the equal

protection argument. Id.

The same logic applies here. When officers apprehend a child, they must deliver the

child to a juvenile processing office, or another specified caretaker. TEX.FAM.CODE ANN.

§ 52.02(a). As an exception to that delivery requirement, the officer may first obtain a blood

sample when the officer suspects the child was driving while intoxicated. Id. at § 52.02(c). But

in this case, Appellant was already with one of the designated caretakers specified in the statute--

here a hospital. The language of the statute does not require video-taping when the child is

already with such a caretaker. That requirement applies only if the officer first takes the child for

a blood or breath sample before the child is taken to a designated caretaker. Accordingly,

because the video-taping requirement would not apply to any seventeen-year-old in Appellant’s

situation, he lacks standing to complain of its application to him. Parent, 621 S.W.2d at 797.

But even if we reached the merits, Appellant’s argument would fail. The Equal

Protection Clause of the Fourteenth Amendment essentially requires that “all persons similarly

situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440,

105 S.Ct. 3249, 3254–55, 87 L.Ed.2d 313 (1985). The classification at issue here is between

seventeen-year-olds with no prior criminal record, and those with prior allegations of

delinquencies, or a need for supervision. Neither group is within a suspect classification, nor

implicates a fundamental right, and the statute is therefore reviewed under the rationale basis

test.8 Id. at 440, 105 S.Ct. at 3254-55; see also City of New Orleans v. Dukes, 427 U.S. 297,

8
Appellant relies upon Salinas v. Texas, ___U.S.___, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013) which holds that in a
non-custodial interview, a defendant waives his Fifth Amendment right to remain silent if he does not invoke it.
Appellant appears to argue that because some seventeen-year-olds would have the consent process videotaped, and
another not, one group would have an easier time proving that they invoked their right to remain silent. From this,

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303-04, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976). Under this test, the Legislature’s

classification need only be rationally related to a legitimate state purpose or interest to survive an

equal protection challenge. See City of Cleburne, 473 U.S. at 439-40, 105 S.Ct. at 3254. We

also presume the constitutionality of the statute and accord the legislature wide latitude in the

exercise of its police powers. Dukes, 427 U.S. at 303; 96 S.Ct. at 2517. We easily find a rational

basis for what the legislature has done.

Section 52.02(d) requires that children who are asked to give a blood sample away from

their parents, or other designated caretaker, have the benefit of a videotape to document the

process. Consent and coercion issues with children might logically require a more discerning

evaluation than that for adults. And the Family Code provides that certain seventeen-year-olds

are included in the definition of a child--those who by prior conduct have demonstrated a lack of

maturity. The Legislature could well have reasoned that this subgroup of seventeen-year-olds, as

demonstrated by their past history of delinquency, have acted more like children and less like

adults. But those seventeen-year-olds who have no such record can be treated as adults. This

classification is rationale and we fail to see how it violates the equal protection guarantees. We

therefore overrule Issue Two and affirm the judgment of conviction.

November 4, 2015
ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)

Appellant reasons that a fundamental right is imperiled which invokes strict scrutiny. But this seems a false issue in
that the blood sampling process is not even a custodial interrogation. South Dakota v. Neville, 459 U.S. 553, 564,
103 S.Ct. 916, 922-23, 74 L.Ed.2d 748 (1983). Even so, the video-taping only relates to proving or disproving a
claimed violation of a right, not whether the right itself was ever violated.

14