Dane Alexander Dennison v. State

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00525-CR
____________________

DANE ALEXANDER DENNISON, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the County Court at Law No. 2
Jefferson County, Texas
Trial Cause No. 309604
________________________________________________________________________

MEMORANDUM OPINION

Dane Alexander Dennison (Dennison or Appellant) was charged by

information with driving while intoxicated, level 0.15 or more, a class A

misdemeanor. See Tex. Penal Code Ann. § 49.04(d) (West Supp. 2016).1 A jury

found Dennison guilty. The trial court assessed punishment of 180 days of

confinement in the county jail and a fine of $1,500, and placed Dennison on

1
We cite to the current version of the statute unless a previous version of the
statute applies and the subsequent amendments would materially affect our
analysis.
1
probation for two years, required Dennison to serve 8 days in the county jail,

placed an ignition interlocking device on Dennison’s vehicle, and imposed other

conditions of probation. Dennison timely filed a notice of appeal.

Dennison’s arguments on appeal challenge the trial court’s denial of his

motion to suppress. Dennison contends that the trial court committed reversible

error in denying his motion to suppress because the warrantless blood draw was

done in violation of Dennison’s Fourth Amendment rights under the Constitution

of the United States and under Article I, section 9 of the Texas Constitution. The

State argues that exigent circumstances existed to justify the warrantless blood

draw. On appeal, Dennison specifically challenges the trial court’s findings of fact

11, 12, and 15, and the trial court’s conclusion of law that, based upon the totality

of circumstances, there were exigent circumstances that justified the warrantless

blood draw. Dennison contends that “[r]elying on a statement made by a Sheriff’s

Deputy about the unavailability of one out of several Jefferson County judges

during the late evening hours does not create exigent circumstances to excuse the

warrant requirement to obtain a blood sample.” We affirm.

Motion to Suppress

Prior to trial, Dennison filed a motion to suppress all evidence relating to his

warrantless blood draw, including the test results pertaining to the blood draw,

2
arguing that the blood specimen evidence was seized in violation of his Fourth

Amendment right to be free from an unreasonable search and seizure. The State

argued that the warrantless blood draw was done pursuant to exigent

circumstances. See Tex. Transp. Code Ann. § 724.012 (West 2011). Prior to jury

selection, the trial court held a hearing on the motion to suppress.

At the hearing, in response to Dennison’s position that the warrantless blood

draw was in violation of his rights under the Fourth Amendment of the United

States Constitution and Article I, section 9 of the Texas Constitution, the State

argued that the warrantless blood draw was justified because of exigent

circumstances. At the conclusion of the hearing, the trial court announced its ruling

on the record and denied the motion to suppress. The parties proceeded with the

jury trial. Subsequently, the trial court entered written findings of fact and

conclusions of law in support of the denial of the motion to suppress.

Evidence Presented at the Suppression Hearing

The State called Deputy Guadalupe James Flores, Officer Michael Wirfs,

and Trooper Kimberly Sarrett as witnesses at the hearing. The State also made a

proffer of three exhibits at the hearing: Exhibit 1, a November 2015 article from

The Examiner; Exhibit 2, an October 2014 article from the Beaumont Enterprise

3
website; and Exhibit 3, a copy of a Laboratory Report. The trial court sustained

Dennison’s objections to all three exhibits.

According to Jefferson County Sheriff’s Deputy Guadalupe James Flores

(Deputy Flores), on May 9, 2014, he and his training officer responded to an

accident on Highway 73 to assist the Texas Department of Public Safety (DPS).

The accident involved two vehicles and one of the vehicles was registered to

Dennison. At the time of the accident, Deputy Flores’s father, Guadalupe Flores,

was the presiding Judge over Jefferson County Court at Law No. 2. After

reviewing a segment of the police video footage from the evening in question,

Deputy Flores testified that one of the voices that can be heard on the video was

his own voice and that he was the person who stated Judge Flores was

“unattainable.” Deputy Flores testified that he knew that Judge Flores was

“unattainable[]” that night because the Deputy had spoken to Judge Flores prior to

that night, and Deputy Flores knew that his father, Judge Flores, was “out of town”

and outside of Jefferson County at that time.

On cross-examination, Deputy Flores agreed that he did not know if anyone

talked to Judge Flores that night, or if anyone attempted to call Judge Flores that

evening. Deputy Flores agreed that he was familiar with Judge Flores’s practice of

getting a blood warrant back within fifteen to twenty minutes through the use of a

4
fax machine, and Deputy Flores agreed that even if Judge Flores was in Houston at

the time, it was possible that Judge Flores could have been contacted by cell

phone, and a warrant could have been obtained “in about 15, 20 minutes[.]”

Michael Wirfs (Officer Wirfs), a Beaumont patrol officer, also testified at

the hearing. At the time of the hearing, Officer Wirfs had been a peace officer for

four years and he stated that he was familiar with the procedures used for

investigating cases involving driving while intoxicated that existed at the time of

this accident. Officer Wirfs testified that he was also familiar with situations where

a warrant can be applied for to draw blood from a suspect, and he testified about

the procedure:

Q. If I may, in May of 2014, how would that have worked back then?

A. Okay. May of 2014 there were certain stipulations. It would be if
someone was transported to the hospital for medical care, is involved
in -- met a party in a wreck; if they were under a certain age; if they
had three or more convictions; or this is their third or more arrest for
DWI; if serious bodily injury occurred; if death occurred, things like
that.

Q. Okay. Was there a policy in place at that time if you wanted to
obtain a warrant to obtain someone’s blood?

A. Yes, there was.

Q. How would you -- how would you apply for a warrant in such a
case?

5
 A. Basically we had a printout on a computer, and it would say
warrant that was -- in Beaumont, someone wants to fill in the blank
type warrant, you fill out your information; and we would try and
contact a judge to get the warrant signed off on.

Q. And how would you try and contact a judge?

A. Typically we would have dispatch try and contact a judge. We had
certain ones, of course, only certain judges could sign off on a
warrant; but we would have them try and contact them.

Q. Okay. Now, after -- now, were there times when it was easier to get
a judge than other times?

A. Yes, sir.

Q. When were the times it was more difficult to get a judge?

A. Late at night, middle of the night, early in the morning. Things like
that.

Q. Would it be fair to say after office hours it would be a difficult
time?

A. Yes, sir.

Officer Wirfs testified that, based upon his experience as an officer, at the

time of the accident there were no certain judges who were “routinely available” to

sign off on blood warrants, but “more often than not Judge Flores would be

available[,]” and if Judge Flores was not available it would be very difficult to find

another judge to sign off on a warrant. Officer Wirfs testified that based on his

experience it would take “[a] long time, two to -- minimum two hours[]” to get a

6
warrant. On cross-examination, Officer Wirfs admitted that he did not know

whether other judges in Jefferson County had signed blood warrants, he did not

know what attempt was made to get a warrant in this case, he did not know

whether Trooper Sarrett knew the Beaumont police policy, he did not know

whether the dispatch had a list of cell phone and home numbers of all the judges

who could sign blood warrants, and he did not know whether any attempts were

made to contact judges that night.

Kimberly Sarrett (Trooper Sarrett) testified that she was currently employed

with the Boise Police Department in Boise, Idaho, but she formerly worked as a

Texas DPS officer for about four years. At the time of the accident on May 9,

2014, she held a position with DPS traffic investigation and enforcement. Trooper

Sarrett testified that at some point during the accident investigation, she believed

she might need to obtain a warrant for a blood draw. Trooper Sarrett explained

that, at the time of the accident, she was not aware of a procedure in place to obtain

a blood draw warrant in the evening and that, based upon past experience, Judge

Flores was the only judge used for such warrants because “he was the only one

who was available anytime we tried to get ahold of him later in the evening.”

According to Trooper Sarrett, typically, she would contact Judge Flores by

telephone, but given the facts that she was aware of on the evening in question,

7
Judge Flores was not available to sign a warrant. Trooper Sarrett testified that

“[Judge Flores’s] son was actually at the crash scene and said that [Judge Flores]

was out of town.” Trooper Sarrett explained that since May of 2014, a procedure

has been developed to address this issue, whereby officers may use a tablet to send

a request for a warrant to a list of “on-call” judges. According to Trooper Sarrett,

because Judge Flores was not available she could not obtain a warrant in this case,

and she did not know how long it would have taken to find another judge. By the

time the blood draw occurred, it had been “[a]bout three -- almost four hours[]”

since the accident occurred. Trooper Sarrett agreed that if there had been any

alcohol in Dennison’s system, it would have been dissipating at that point. Trooper

Sarrett agreed that if she had waited longer, it could have taken several hours to

find another judge and the blood alcohol content test would have been less

accurate. Trooper Sarrett testified that before she discovered she needed a warrant

she was working the accident scene and investigation on Highway 73. Trooper

Sarrett also explained that the hospital to which Dennison was taken is on the other

end of the county. According to Trooper Sarrett, Dennison was on a stretcher and

receiving medical treatment at the accident scene.

The accident occurred at 9:00 p.m. on May 9, 2014, and Trooper Sarrett did

not get to the hospital until about 12:00 midnight. Trooper Sarrett did not make the

8
determination that she had probable cause for a warrant until she observed

Dennison at the hospital. Trooper Sarrett explained that the DPS only had one to

three troopers on the night shift in question to cover the entire county, and Trooper

Sarrett testified that to obtain a warrant at the hospital she would have needed to

find a computer in the hospital to use, fill out a form, and then try to get it faxed to

a judge if a judge was available. Trooper Sarrett also believed that Dennison was a

“flight risk[]” because, when she initially arrived at the hospital, Dennison was

trying to leave and had checked himself out of the hospital.

According to Trooper Sarrett, while she was administering the field sobriety

tests, Dennison informed her that he did not want to continue with the tests, that he

had a brain injury, and he wanted to check himself back into the hospital. Trooper

Sarrett explained that once he went back into the hospital he could have received

medications or ingested other drugs or alcohol, which would then alter the blood

alcohol content, or he could have sobered up, impacting the reliability of the blood

analysis.

When Trooper Sarrett first encountered Dennison at the hospital, Dennison

was walking out of the hospital. It took less than one hour after she first saw

Dennison at the hospital for her to develop probable cause to believe he might be

intoxicated. According to Trooper Sarrett, Dennison’s eyes were red and glassy

9
and as she began to talk to him “the smell of alcohol was strong.” She explained at

the hearing that she did not smell alcohol on him at the crash scene because she

was not able to talk with him in close proximity at the scene. After encountering

Dennison at the hospital, Trooper Sarrett asked Dennison to step over to her patrol

car so she could record a video of the sobriety field testing. Trooper Sarrett

testified that she administered the horizontal gaze nystagmus (HGN) test, on which

Dennison showed six clues indicating intoxication.2 When she attempted to

administer the walk-and-turn test, Dennison refused the test and said he had a brain

injury. According to Trooper Sarrett, after she read the DIC warnings to Dennison,

the warrantless blood draw was performed by the hospital staff at “12:41[a.m.]”

On cross-examination, Trooper Sarrett agreed that she did not attempt to

locate Judge Flores or any other judge, and she did not call her dispatcher at the

DPS and ask them to contact any other judge. Trooper Sarrett agreed that there was

another DPS officer with her at the scene of the accident and at the hospital.

Trooper Sarrett agreed that she did not ask the other officer to call dispatch

regarding getting a judge for a warrant because “there wasn’t a judge available.”

2
See, e.g., Compton v. State, 120 S.W.3d 375, 377 (Tex. App.—Texarkana
2003, pet. ref’d) (noting the total possible clues on the HGN test is six).
10
 Trial Court’s Written Findings of Fact and Conclusions of Law

The trial court made twenty-eight findings of fact, with one finding having

multiple subparts, and one conclusion of law, with multiple subparts. With respect

to the credibility of the witnesses, the trial court found that Trooper Sarrett, Officer

Wirfs, and Deputy Flores were credible and reliable witnesses. The trial court also

made the following factual findings that Dennison does not challenge on appeal:

Trooper Sarrett, a certified peace officer, was dispatched to the scene of a two-

vehicle accident on May 9, 2014, and arrived at 9:00 p.m.; three people were

injured in the accident; Dane Dennison was the driver of the vehicle at fault in the

accident; no officer was able to conduct field sobriety testing at the accident scene

because Dennison was being strapped to a stretcher and taken to a hospital;

Trooper Sarrett stayed at the scene to complete her investigation of the accident,

which required approximately two hours; there was no on-call system in place to

get in touch with another judge in May of 2014 and no official procedure was in

place to obtain a blood draw warrant; it was the officers’ experience that if Judge

Flores was unavailable they would not be able to find a judge to sign a warrant;

and, after Trooper Sarrett completed her investigation at the scene, she drove to the

hospital, which was about a thirty-minute drive.

11
 On appeal, Dennison specifically challenges the following findings of fact

by the trial court:

11) While at the scene, Trooper Sarrett discovered through Deputy
Flores, a reliable source, that Judge Flores, the only judge available to
sign a blood warrant to the knowledge of the officers based on past
experience, was in Houston and could not be reached for a warrant.
Deputy Flores was Judge Flores’ son and had personal knowledge that
his father was unavailable to sign a warrant.

12) It was known to the officers that it was more difficult to reach a
judge late at night and early in the morning than during office hours.
No judge was routinely or consistently available to sign off on blood
warrants at that time.

15) Trooper Sarrett could not task someone else with obtaining a
warrant since DPS works all crashes and each officer takes care of
his/her own cases. That night there were only two or three DPS
troopers to cover the entirety of Jefferson County. Tasking another
officer with obtaining a warrant would have left Jefferson County
bereft of troopers to patrol the county.

Dennison argues that Deputy Flores’s and Trooper Sarrett’s testimony do

not support finding of fact number 11 because Trooper Sarrett could not know

whether Judge Flores was available if Trooper Sarrett did not “directly attempt

direct communication” with the Judge. Dennison asserts that Trooper Sarrett’s

testimony contradicts finding of fact number 12 because Trooper Sarrett testified

that Judge Flores was the only judge she knew that was always available to sign

warrants in the evening and late at night. As to finding of fact number 15,

Dennison argues that Trooper Sarrett testified that there was another trooper at the
12
scene of the accident and with Trooper Sarrett throughout the investigation and at

the hospital. According to Dennison, no evidence was presented that the DPS

policy is that each officer investigates his or her own crash scene exclusively or

that other troopers may not assist other troopers.

Dennison also challenges the following conclusion of law:

b. Based upon the totality of circumstances, exigent circumstances
existed in this instance to justify the warrantless blood draw in order
to prevent the destruction of evidence of the alcohol concentration of
Dennison’s blood.

Discussion

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 review the trial court’s factual findings for an abuse of discretion. Id.

We give almost total deference to the trial court’s determination of historical facts,

particularly when the trial court’s fact findings are based on an evaluation of

credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App.

2010). The same deference is afforded the trial court with respect to its rulings on

the application of the law to questions of fact and to mixed questions of law and

fact, if resolution of those questions depends on an evaluation of credibility and

demeanor. Id. For mixed questions of law and fact that do not fall within that

category, a reviewing court conducts a de novo review. Id.
13
 At a suppression hearing, the trial court is the exclusive trier of fact and

judge of the credibility of the witnesses. Maxwell v. State, 73 S.W.3d 278, 281

(Tex. Crim. App. 2002). A trial court may choose to believe or to disbelieve all or

any part of a witness’s testimony, even if that testimony is uncontroverted. State v.

Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). We must uphold the trial

court’s ruling on a motion to suppress if that ruling was supported by the record

and was correct under any theory of law applicable to the case, even if the trial

court gave the wrong reason for its ruling. Armendariz v. State, 123 S.W.3d 401,

404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).

The Fourth Amendment provides in relevant part that “[t]he right of the

people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause[.]” U.S. Const. amend. IV. Taking blood from a

suspect requires an intrusion into the human body and implicates an individual’s

“most personal and deep-rooted expectations of privacy,” and therefore such falls

under the Fourth Amendment’s warrant requirement. Cole v. State, 490 S.W.3d

918, 923 (Tex. Crim. App. 2016) (quoting Missouri v. McNeely, 133 S. Ct. 1552,

1558 (2013)).

14
 The Court of Criminal Appeals has explained that the exceptions to the

requirement of a search warrant include “voluntary consent to search, search under

exigent circumstances, and search incident to arrest[.]” McGee v. State, 105

S.W.3d 609, 615 (Tex. Crim. App. 2003). Once the accused establishes that the

search was conducted without a warrant, it is the State’s burden to show that the

warrantless search falls within one of these exceptions. See id; see also State v.

Betts, 397 S.W.3d 198, 207 (Tex. Crim. App. 2013). Because there was no search

warrant for the blood draw performed on Dennison, the State had the burden of

proof to establish an exception to justify the warrantless search and seizure of his

blood. See McGee, 105 S.W.3d at 615. On appeal, the State relies only on exigent

circumstances as the basis for its failure to obtain a warrant.

The touchstone of the Fourth Amendment is “reasonableness.” Riley v.

California, 134 S. Ct. 2473, 2482 (2014) (quoting Bingham City v. Stuart, 547 U.S.

398, 403 (2006)). When the government undertakes a search for the purpose of

furthering a criminal investigation, “‘reasonableness generally requires the

obtaining of a judicial warrant.’” Id. (quoting Vernonia Sch. Dist. 47J v. Acton, 515

U.S. 646, 653 (1995)). “A warrantless search of a person is reasonable only if it

falls within a recognized exception[]” to the warrant requirement. Cole, 490

15
S.W.3d at 922; see also State v. Villarreal, 475 S.W.3d 784, 796 (Tex. Crim. App.

2014), cert. denied, 136 S. Ct. 2544 (2016).3

In Cole and in Weems v. State, 493 S.W.3d 574 (Tex. Crim. App. 2016), the

Court of Criminal Appeals summarized the applicable law pertaining to exigent

circumstances and warrantless blood draws.

As Villarreal made plain, a warrantless search is per se unreasonable
unless it falls within a well-recognized exception to the warrant
requirement. The exigency exception operates “when the exigencies
of the situation make the needs of law enforcement so compelling that
a warrantless search is objectively reasonable under the Fourth
Amendment.” Exigency potentially provides for a reasonable, yet
warrantless search “because ‘there is compelling need for official
action and no time to secure a warrant.’” Whether law enforcement
faced an emergency that justifies acting without a warrant calls for a
case-by-case determination based on the totality of
circumstances. “[A] warrantless search must be strictly circumscribed
by the exigencies which justify its initiation.” An exigency analysis
requires an objective evaluation of the facts reasonably available to
the officer at the time of the search.

In Schmerber v. California, [384 U.S. 757, 770-72 (1966)] the United
States Supreme Court held that, based on the circumstances
surrounding the search, a warrantless seizure of a driver's blood was
reasonable.

3
Post Missouri v. McNeely, 133 S. Ct. 1552 (2013), and prior to the denial
of the rehearing in Villarreal, this Court issued opinions in two blood draw cases,
State v. Anderson, 445 S.W.3d 895, 902-03 (Tex. App.—Beaumont 2014, no pet.),
and Gaubatz v. State, No. 09-13-00401-CR, 2014 Tex. App. LEXIS 11833 (Tex.
App.—Beaumont Oct. 29, 2014, pet. ref’d) (mem. op., not designated for
publication), wherein we discussed the “totality of the circumstances” approach to
warrantless searches as mandated and applied by the Supreme Court in Missouri v.
McNeely.
16
 ....

Adopting a totality-of-circumstances approach, the Court held that the
circumstances surrounding the blood draw rendered the warrantless
search reasonable: (1) the officer had probable cause that Schmerber
operated a vehicle while intoxicated; (2) alcohol in the body naturally
dissipates after drinking stops; (3) the lack of time to procure a
warrant because of the time taken to transport Schmerber to a hospital
and investigate the accident scene; (4) the highly effective means of
determining whether an individual is intoxicated; (5) venipuncture is a
common procedure and usually “involves virtually no risk, trauma, or
pain”; and (6) the test was performed in a reasonable manner.

Weems, 493 S.W.3d at 578-79 (footnoted citations omitted).

. . . [T]he Court in McNeely held that the natural dissipation of
alcohol in the bloodstream did not create a per se exigency justifying
an exception to the Fourth Amendment’s warrant requirement for
nonconsensual blood testing. The McNeely Court held firm to the
warrant requirement by stating that “where police officers can
reasonably obtain a warrant before a blood sample can be drawn
without significantly undermining the efficacy of the search, the
Fourth Amendment mandates that they do so.” Yet the Court still
recognized the gravity of the body’s natural metabolic process and the
attendant evidence destruction over time. With this balance in mind,
the Court adhered to a totality of the circumstances analysis with the
notion that certain circumstances may permit a warrantless search of a
suspect’s blood. The narrow issue before the Court prohibited it from
providing an exhaustive analysis of when exigency in intoxication
related offenses may be found. However, the Court provided insight
on the issue by identifying a few relevant circumstances that may
establish exigency in this context. In addition to the body’s
metabolization, they include “the procedures in place for obtaining a
warrant,[”] “the availability of a magistrate judge,” and “the practical
problems of obtaining a warrant within a timeframe that still preserves
the opportunity to obtain reliable evidence.”
Cole, 490 S.W.3d at 924 (footnoted citations omitted).
17
 As recognized in McNeely, even in “routine” DWI cases, a combination of

factors could combine to create exigency, depending upon the particular

circumstances in each case:

Although the Missouri Supreme Court referred to this case as
“unquestionably a routine DWI case,” the fact that a particular drunk-
driving stop is “routine” in the sense that it does not involve “‘special
facts,’” such as the need for the police to attend to a car accident, does
not mean a warrant is required. Other factors present in an ordinary
traffic stop, such as the procedures in place for obtaining a warrant or
the availability of a magistrate judge, may affect whether the police
can obtain a warrant in an expeditious way and therefore may
establish an exigency that permits a warrantless search. The relevant
factors in determining whether a warrantless search is reasonable,
including the practical problems of obtaining a warrant within a
timeframe that still preserves the opportunity to obtain reliable
evidence, will no doubt vary depending upon the circumstances in the
case.

McNeely, 133 S. Ct. at 1568 (citations omitted).4

4
The State alleged in its bill of information in this case that Dennison was
operating a motor vehicle in a public place, while intoxicated, and the information
did not allege any prior offenses. The State made no argument at trial nor does it
argue on appeal that Dennison’s blood was drawn pursuant to a subdivision of
section 724.012(b). See Tex. Transp. Code Ann. § 724.012(b)(1) (West 2011). As
we previously stated in Anderson and Gaubatz,

Simply because the statute requires the taking of a specimen of the
person’s breath or blood, however, does not end our inquiry. “Where a
search is undertaken by law enforcement officials to discover
evidence of criminal wrong doing . . . reasonableness generally
requires the obtaining of a judicial warrant[.]” Vernonia Sch. Dist. 47J
v. Acton, 515 U.S. 646, 652-53 (1995). “In the absence of a warrant, a
search is reasonable only if it falls within a specific [recognized]
18
 The exigency exception applies “when the exigencies of the situation make

the needs of law enforcement so compelling that a warrantless search is objectively

reasonable under the Fourth Amendment.” Id. at 1558 (quoting Kentucky v. King,

563 U.S. 452, 460 (2011)). Exigent circumstances may justify a reasonable yet

warrantless search “because ‘there is compelling need for official action and no

time to secure a warrant.’” Id. at 1559 (quoting Michigan v. Tyler, 436 U.S. 499,

509 (1978)). Whether law enforcement faced an emergency that justified acting

without a warrant calls for a case-by-case determination based on the totality of

circumstances. Id. An exigent circumstances analysis requires an objective

evaluation of the facts reasonably available to the officer at the time of the search.

Cole, 490 S.W.3d at 923 (citing Stuart, 547 U.S. at 404).

In Cole, the Court of Criminal Appeals concluded that a warrantless search

was justified under the exigency exception to the Fourth Amendment’s warrant

requirement. Id. at 927. Cole ran a red light and struck a pickup truck, causing an

exception to the warrant requirement.” Riley v. California, 134 S. Ct.
2473, 2482 (2014). There is no language in section 724.012(b) that
authorizes a police officer to take the specimen without a warrant. See
McGruder v. State, No. 10-13-00109-CR, 2014 Tex. App. LEXIS
9022, at *7 (Tex. App.—Waco Aug. 14, 2014, no pet. h.) (mem. op.).

Gaubatz, 2014 Tex. App. LEXIS 11833, at **13-14 (quoting Anderson, 445
S.W.3d at 902).

19
explosion that killed the driver of the pickup truck. Id. at 920. Officer Castillo was

the first officer on the scene, Castillo and other officers removed Cole from Cole’s

vehicle and EMS personnel arrived shortly thereafter and began evaluating Cole’s

injuries. Id. The lead accident investigator, Officer Higginbotham, arrived on the

scene after the EMS had already removed Cole and taken Cole to the hospital. Id.

Higginbotham then spent approximately three hours at the scene of the accident

performing his investigation, which was the “most significant obstacle law

enforcement faced in obtaining a warrant for Cole’s blood.” Id. at 920, 925. The

severity of the accident caused debris to be strewn along the road for about a block,

and Officer Higginbotham had to complete his investigation of the roadway,

damaged vehicles, distances, and debris to “form probable cause to believe that

Cole was responsible for the accident” and the other driver’s death. Id. at 925.

Additionally, the time to complete the investigation and lack of available law

enforcement personnel also hindered the warrant process. Id.

Higginbotham testified that he believed it was not feasible for him to
leave the accident scene and abandon the accident investigation or to
wait until the accident investigation was complete before attempting
to obtain a warrant. Because he was the only available officer capable
of performing the accident investigation, his continued presence at the
scene was vital. And without first completing the investigation, debris
could not be cleared from the intersection and reopened to traffic. In
Higginbotham’s estimation, Officer Wright would not be able to
obtain a warrant for him. After placing Cole under arrest, Wright was
now responsible for his custody at the hospital and could no longer
20
handle that responsibility while simultaneously drawing up a
statement regarding her belief of Cole’s intoxication.

The accident scene’s location and the public-safety danger required a
number of officers at the scene to perform necessary responsibilities
including securing the accident scene, directing traffic, and keeping
the public away from the scene. We do not disagree with the court of
appeals’ conclusion that “[t]here is no indication that officers not on
the scene were unavailable to help obtain a warrant.” We do disagree,
however, that an exigency finding cannot be made without the record
establishing—and by extension, the State proving—that there was no
other officer available to get a warrant in the lead investigator’s stead.
In all but the rarest instances, there will theoretically be an officer
somewhere within the jurisdiction that could assist the lead
investigator. Requiring such a showing in every case where exigency
is argued improperly injects the courts into local law-enforcement
personnel management decisions and public policing strategy. It
further reduces the exigency exception to an exceedingly and
inappropriately small set of facts, and would defeat a claim of
exigency on the basis of a single circumstance in direct opposition to
the totality-of-circumstances review McNeely requires. Nonetheless,
the availability of other officers is a relevant consideration in an
exigency analysis.

This record establishes that fourteen officers were present and who, in
Higginbotham’s estimation, were all performing important law
enforcement or public-safety duties. Taking any one of them away,
according to Higginbotham, would have left a necessary duty
unfulfilled. This record further reflects that the fourteen officers at the
scene made up nearly half of the minimum amount of officers the
Longview Police Department requires for the entire city over two
shifts. By the same estimation, the record does not establish that there
was a readily available officer who could have gotten a warrant while
Higginbotham continued his investigation and Wright kept Cole in
custody at the hospital.

Even had Higginbotham attempted to secure a warrant from an on-call
magistrate, the issuance of a warrant would have taken an hour to an

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 hour and a half “at best.” During that time, Higginbotham was
reasonably concerned that both potential medical intervention
performed at the hospital and the natural dissipation of
methamphetamine in Cole’s body would adversely affect the
reliability of his blood sample. According to EMS, Cole reported
having “pain all over.” Higginbotham was reasonably concerned that
the administration of pain medication, specifically narcotics, would
affect the blood sample’s integrity.

In addition to the logistical obstacles of securing a warrant,
Higginbotham knew that during the hour to an hour and a half
necessary to obtain a warrant Cole’s body would continue to
metabolize the methamphetamine and other intoxicating substances he
may have ingested. The court of appeals correctly notes that the
record does not contain evidence regarding the rate the body
metabolizes methamphetamine. But the lack of a known elimination
rate of a substance law enforcement believes a suspect ingested does
not necessarily mean that the body’s natural metabolism of
intoxicating substances is irrelevant to or cuts against the State's
exigency argument. In fact, it serves to distinguish this case from
McNeely.

The McNeely Court relied in significant part on the widely known fact
that alcohol “naturally dissipates over time in a gradual and relatively
predictable manner.” The lack of a known elimination rate is at odds
with the undercurrent running through the McNeely opinion: While
time is of the essence, a minimally delayed test when dealing with an
alcohol-related offense does not drain the test of reliability because
experts can work backwards to calculate blood-alcohol content at an
earlier date. In this case, without a known elimination rate of
methamphetamine, law enforcement faced inevitable evidence
destruction without the ability to know—unlike alcohol’s widely
accepted elimination rate—how much evidence it was losing as time
passed.

Id. at 925-27. From a review of the totality of the circumstances, the Court

concluded that

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 law enforcement reasonably believed that obtaining a warrant in this
case would have significantly undermined the efficacy searching
Cole’s blood. The circumstances surrounding the taking of Cole's
blood sample demonstrate that obtaining a warrant was impractical.
Like the officer in Schmerber, law enforcement was confronted with
not only the natural destruction of evidence through natural
dissipation of intoxicating substances, but also with the logistical and
practical constraints posed by a severe accident involving a death and
the attendant duties this accident demanded. We therefore conclude
that exigent circumstances justified Cole’s warrantless blood draw.

Id. at 927 (footnoted citations omitted).

In contrast to Cole, the Court of Criminal Appeals held in Weems that “[o]n

review of the totality of the circumstances found in the record, we conclude that

Weems’s warrantless blood draw was not justified by exigent circumstances.”

Weems, 493 S.W.3d at 580. Weems was involved in a one-car accident when he

drove himself and a friend home from a bar where the two had been drinking

alcohol. Id. at 575. On the way home, Weems’s car veered off the road, flipped

over, and hit a utility pole. Id. A nearby witness testified she observed Weems

crawl out of the vehicle from the driver’s side window, and when the witness asked

if Weems was okay, Weems said he was drunk. Id. Weems then fled the scene. Id.

The witness called 911, and Deputy Munoz responded to the call and later found

Weems hiding under a nearby parked car, nearly forty minutes after the accident.

Id. at 575-76, 581.

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 Deputy Bustamante testified that he took custody of Weems and noticed

Weems’s bloodshot eyes, slurred speech, bloodied face, inability to stand, and a

strong smell of alcohol on Weems’s breath. Id. at 576. Because Bustamante

believed Weems had sustained injuries in the accident, the officer did not conduct

field sobriety tests. Id. Based upon his observations, the officer arrested Weems on

suspicion of driving while intoxicated. Id. Weems refused to give a breath sample

or blood sample, and EMS provided treatment to Weems at the location of his

arrest, and then transported Weems to the hospital for further treatment. Id. Deputy

Bustamante followed the ambulance to the hospital, which took only a couple of

minutes, and Bustamante filled out a form for the hospital to draw blood from

Weems. Id. Bustamante was not the only deputy charged with investigating the

accident, and he was accompanied by Deputy Shannon, Bustamante’s instructor.

Id. at 582. Because the hospital was busy that evening, Weems’s blood was not

drawn until about two hours after Weems was arrested. Id. at 576. The testing of

the blood revealed that Weems had a .18 blood-alcohol concentration. Id. Prior to

his trial, Weems filed a motion to suppress the evidence relating to the warrantless

blood draw. Id. Without making any findings of fact or conclusions of law, the trial

court denied the motion to suppress, and Weems was tried and convicted by the

jury. Id. On appeal, Weems argued that the trial court erred in denying the motion

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to suppress the blood alcohol evidence, and the Fourth Court of Appeals agreed the

trial court erred and found the admission of the evidence harmful. Id.

On review, the Court of Criminal Appeals affirmed. Id. at 582. The Court

held that “[o]n review of the totality of the circumstances found in the record, we

conclude that Weems’s warrantless blood draw was not justified by exigent

circumstances.” Id. at 580. The Court explained that “[a]side from Weems’s own

self-imposed delay” when he fled the scene and the forty minutes worth of alcohol

dissipation caused by Weems, “little else in the record lends support to finding

exigency in this case.” Id. at 581. The record was silent as to whether Bustamante

knew that it would take over two hours for the hospital to draw the blood, but the

testimony from Bustamante suggested that substantial delay in obtaining Weems’s

blood was “at least forseeable.” Id. Bustamante described the routine practice of

transporting suspects to the magistrate’s office, and if the suspect refused to

consent to the blood draw, then the deputy would draw up an affidavit and present

it to the magistrate for a warrant. Id. There was no testimony in the record about

how long the process would take. Id. The record did not reflect what procedures

were in place, if any, for obtaining a warrant when the suspect is taken to the

hospital or whether Bustamante could have reasonably obtained a warrant. Id. The

Court concluded that it was unable to weigh the time and effort required to obtain a

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warrant against the circumstances that informed Bustamante’s decision to order the

warrantless blood draw. Id. The Court expressly distinguished the facts from those

in Schmerber:

Although both this case’s record and that presented in Schmerber
involved an alcohol-involved accident, the similarity of the two
records end there. In Schmerber, the Court noted “where time had to
be taken to bring the accused to the hospital and to investigate the
scene of the accident, there was no time to seek out a magistrate and
secure a warrant.” This passage does not accurately describe the
circumstances surrounding Weems’s blood draw. First, Deputy
Bustamante testified that the hospital was only a “couple of minutes”
away. So transporting Weems to the hospital did not necessarily make
obtaining a warrant impractical or unduly delay the taking of
Weems’s blood to the extent that natural dissipation would
significantly undermine a blood test’s efficacy. Second, Bustamante
was not alone charged with both investigating the scene of the
accident and escorting Weems to the hospital for treatment. Deputy
Shannon—Bustamante’s instructor—waited with Bustamante and
Weems at the hospital until Weems’s blood was taken. Once the blood
was drawn, Shannon left the hospital to place the blood sample in the
evidence locker at the Magistrate’s Office for subsequent testing.
Another [officer’s] presence or the “hypothetically available officer”
that, in theory, could have secured a warrant in the arresting officer’s
stead will certainly not render all warrantless blood draws a Fourth
Amendment violation, nor do we suggest it is a circumstance that the
State must disprove in every case to justify a warrantless search under
an exigency theory. But this record establishes that Shannon was with
Bustamante and Weems throughout the investigation and while they
were at the hospital waiting for Weems’s blood to be drawn. On this
particular record, Shannon’s continued presence distinguishes
Schmerber from the present case and militates against a finding that
practical problems prevented the State from obtaining a warrant
within a time frame that preserved the opportunity to obtain reliable
evidence.

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Id. at 582 (footnoted citations omitted).

Regarding Dennison’s specific challenges to findings of fact 11, 12, and 15,

we note that the trial court expressly found the testimony of Officer Wirfs, Trooper

Sarrett, and Deputy Flores to be credible and reliable. Deputy Flores agreed that he

knew that Judge Flores was “unattainable” that night because the Deputy had

spoken to Judge Flores prior to that night, and Deputy Flores knew that his father,

Judge Flores, was “out of town[]” and outside Jefferson County at that time.

Trooper Sarrett explained that, at the time of the accident, there was no procedure

in place to obtain a blood draw warrant at that hour and that, based upon past

experience, Judge Flores was the only judge that was used for such warrants

because “he was the only one who was available anytime we tried to get ahold of

him later in the evening.” Trooper Sarrett testified that, given the facts that she was

aware of on the evening in question, Judge Flores was not available to sign a

warrant. Trooper Sarrett testified that “[Judge Flores’s] son was actually at the

crash scene and said that [Judge Flores] was out of town.” According to Trooper

Sarrett, the only judge she had been able to use at a late hour was Judge Flores and

she was informed by Judge Flores’s son that Judge Flores was unavailable.

Trooper Sarrett testified that because Judge Flores was not available she could not

obtain a warrant in this case, and she did not know how long it would have taken to

27
find another judge. Trooper Sarrett also explained that she did not ask the other

officer who was with her that night to call dispatch regarding getting a judge for a

warrant because “there wasn’t a judge available.” Giving almost total deference to

the trial court’s determination of historical facts, we conclude the evidence

supports the trial court’s factual findings 11, 12, and 15, and the trial court did not

abuse its discretion in making such findings.

Based upon the totality of the circumstances, considering the testimony of

Trooper Sarrett, along with the testimony from Officer Wirfs and Deputy Flores, as

well as the video footage, and the remainder of the evidence submitted before the

trial court at the hearing, exigent circumstances justified the warrantless blood

draw. We find the facts before us to be more aligned with Cole and distinguishable

from Weems. Unlike Weems, the investigating officer, Trooper Sarrett, testified

that she was solely responsible for the DPS investigation of this accident, that

Judge Flores was the only Judge she could call for a blood warrant, and further that

based upon information provided by Deputy Flores, Judge Flores’s son, Judge

Flores was unavailable at the time of the accident. According to Trooper Sarrett,

there was no on-call system in place to get in touch with another Judge in May of

2014, there was no official procedure in place to obtain a blood draw warrant at

that time, and based on her own experience, if Judge Flores was not available, she

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would not be able to find a judge to sign off on a warrant. Trooper Sarrett did have

another trooper with her at the scene of the accident and at the hospital.

Nevertheless, the trial court found Trooper Sarrett to be a credible witness and

found that her testimony was uncontroverted. The trial court also found Officer

Wirfs and Deputy Flores to be reliable and credible witnesses. Unlike Weems

where the drive to the hospital was only a “couple” of minutes, in the present case

the drive from the scene of Dennison’s accident to the hospital was approximately

thirty minutes. And, unlike Weems, the testimony from Trooper Sarrett

affirmatively established that there was no on-call procedure in place to secure a

blood-alcohol warrant and the Judge who normally issued such warrants was

unavailable.

Similar to the facts in Cole, the record establishes that Trooper Sarrett had to

secure the scene, take statements, and conduct an accident investigation that took

approximately two hours, before she could leave and drive to the hospital to

interview Dennison. See Cole, 490 S.W.3d at 920, 925. While at the scene,

Trooper Sarrett discovered through Deputy Flores, a reliable source, that Judge

Flores, the only judge available to sign a blood warrant, was out of town and could

not be reached for a warrant. Deputy Flores testified that he had personal

knowledge that his father was unavailable to sign a warrant. According to Trooper

29
Sarrett, it was known to the officers that it was more difficult to reach a judge late

at night and early in the morning than during office hours, and no judge was

routinely or consistently available to sign off on blood warrants at that time.

Trooper Sarrett testified that she could not task someone else with obtaining a

warrant because each DPS officer takes care of his or her own cases. Dennison

presented a flight risk because he was trying to leave the hospital against medical

advice and refused to cooperate with her investigation. Additionally, by the time

Trooper Sarrett was able to get to the hospital to speak with Dennison, Dennison

had already left the hospital against medical advice. Trooper Sarrett testified that

she asked Dennison to remain in the hospital parking lot so that she could further

investigate, that she smelled alcohol on Dennison’s breath at the hospital, and that

Dennison had red, glassy eyes. Trooper Sarrett conducted the HGN test on

Dennison and Dennison performed poorly and the test showed six of six clues.

Trooper Sarrett asked Dennison to continue with other tests but Dennison refused

to perform further field sobriety testing and stated that he wanted to check himself

back into the hospital. Trooper Sarrett testified that further medical care and

treatment could have altered the content of his blood, and she believed the

introduction of medication into Dennison’s system could make the results of a

blood test less reliable.

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 On the record before it, the trial court could have reasonably determined that

Trooper Sarrett went to the hospital as soon as was practicable considering the

circumstances. The findings of fact entered by the trial court depend in large part

on the trial court’s assessment of the testimony from and credibility of Trooper

Sarrett, Officer Wirfs, and Deputy Flores, and we must defer to the trial court’s

determination of such matters. See Crain, 315 S.W.3d at 48. Considering the

totality of the circumstances, we conclude exigent circumstances justified the

warrantless blood draw, and the trial court did not err in denying Dennison’s

motion to suppress. See Schmerber, 384 U.S. at 770-71; Cole, 490 S.W.3d at 927;

see also Cosino v. State, No. 10-14-00221-CR, 2016 Tex. App. LEXIS 11431, at

*22 (Tex. App.—Waco Oct. 19, 2016, pet. ref’d) (upholding trial court’s denial of

motion to suppress warrantless blood draw because exigent circumstances existed;

suspect did not give consent, blood draw occurred about two and a half hours after

the accident, and police officer testified it would have taken another hour and a

half to obtain a warrant).

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 For the foregoing reasons, we overrule Dennison’s issues and affirm the trial

court’s judgment.

AFFIRMED.

_________________________
LEANNE JOHNSON
Justice

Submitted on July 14, 2016
Opinion Delivered January18, 2017
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.

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