Bryce Wade O'Neil v. State ( 2006 )

Opinion filed January 19, 2006

Opinion filed January 19, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00209-CR

                                                    __________

                                   BRYCE WADE O=NEIL, Appellant

                                                             V.

                                    THE STATE OF TEXAS, Appellee

                                        On Appeal from the 142nd District Court

                                                        Midland County, Texas

                                                Trial Court Cause No. CR 29,327

                                                                   O P I N I O N

Bryce Wade O=Neil was indicted for two counts of intoxication manslaughter and one count of intoxication assault.  Appellant filed motions to suppress statements he made to law enforcement officers while in the hospital emergency room and the results of tests on two blood samples taken at the hospital.  The trial court granted appellant=s motions in part and denied them in part. Appellant then pleaded guilty and waived his right to a jury trial.  The trial court sentenced appellant to twenty years confinement for one intoxication manslaughter count and five years each for the second intoxication manslaughter count and the intoxication assault count.  Appellant challenges the trial court=s ruling on his pretrial motions to suppress.  We find no error and affirm.

                                                               Background Facts

Appellant was in a serious two-vehicle accident in Midland County on January 30, 2004, shortly before 9 p.m.  The accident involved a Ford Ranger pickup, owned by appellant, and a Chevrolet Astro van. Angela Dawn Lester, the driver of the van, and Nicanor Lopez Hernandez, a passenger in the pickup, died as a result of the accident.  Appellant and Rachell Warmuskerken, also a passenger in the pickup, were injured. Appellant sustained broken bones in both arms.  He and Warmuskerken were taken by ambulance to the hospital for treatment.

Kaci Beth Schulte, an emergency room nurse, took two blood samples from appellant.  The first was taken at 9:42 p.m. at the request of an emergency room doctor and was submitted to the hospital laboratory. The second was taken shortly after midnight at the request of DPS Troopers Oscar Villarreal and Nathan Lann who were investigating the accident.

Trooper Villarreal had previously investigated the accident scene.  He was advised by another officer that Hernandez was deceased and was seat-belted into the passenger side of the pickup.  Trooper Villarreal helped extract Lester from the van. Lester was alive at the scene, but Trooper Villarreal learned that she died in route to the hospital.  Trooper Villarreal was able to determine that the pickup had been occupied by three persons:  Hernandez, Warmuskerken, and appellant.  The pickup had a strong odor of alcoholic beverages.  There were two bottles of liquor in the cab of the pickup, and numerous beer bottles and beer cans were in the debris field near the vehicle.

Troopers Villarreal and Lann went to the hospital.  Warmuskerken could not be interviewed because of her condition, but Trooper Villarreal confirmed that she had injuries consistent with being the middle seat passenger in the pickup.

Trooper Villarreal then contacted appellant who was being treated in the emergency room. Trooper Villarreal smelled a strong odor of alcohol emanating from appellant.  Trooper Villarreal identified himself and Trooper Lann to appellant and administered a Miranda^[1] warning.  Appellant waived his rights and agreed to an interview.  Trooper Villarreal conducted the interview. Appellant initially stated that Hernandez was driving the pickup but later admitted that he was the driver. After interviewing appellant, Trooper Villarreal read him the DIC-24 warnings^[2] and requested a blood sample.  Appellant consented, and Schulte took the second blood sample.

Appellant was arrested under warrant on February 3, 2004, upon his release from the hospital and was charged with intoxication manslaughter of Lester and Hernandez and intoxication assault of Warmuskerken.  Appellant filed motions to suppress the hospital blood tests and results and his statements to police officers while in the emergency room. The trial court held an evidentiary hearing and granted appellant=s motion to suppress his statements to Texas Alcoholic Beverage Commission Agent Rodney White Allee but denied his requests to suppress his statements to Troopers Villarreal and Lann and the results of his two blood tests.

Appellant waived his right to a jury trial and pleaded guilty.  The trial court held a punishment hearing and sentenced appellant to twenty years confinement for the intoxication manslaughter of Lester, five years for the intoxication manslaughter of Hernandez, and five years for the intoxication assault of Warmuskerken.  The trial court ordered that the five-year sentence for intoxication manslaughter run consecutively to the twenty-year sentence but that the five-year sentence for the intoxication assault run concurrently to the twenty-year sentence.

                                                             Issues

Appellant challenges the trial court=s pretrial ruling with four issues.  Appellant contends that the trial court erroneously allowed the use of statements made by him to Troopers Villarreal and Lann before receiving a Miranda warning; the use of statements secured with unconstitutional coercion; and the use of the two blood samples taken at the hospital because the first was taken without the consent required for medical treatment and the second was taken without constitutionally sufficient consent for a law-enforcement-requested blood sample.

                                                                      Discussion

The denial of a motion to suppress is reviewed for an abuse of discretion.  Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).  We are required to afford almost total deference to the trial court=s determinations of historical facts and credibility and to review de novo determinations that do not turn on an evaluation of credibility and demeanor.  Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). The evidence is reviewed in the light most favorable to the trial court=s ruling, and it is assumed that the trial court made implicit findings of fact supported in the record.  The trial court=s decision will be sustained if it is correct on any theory of law applicable to the case.  State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000).

Miranda Warnings

Appellant contends initially that his statements in the emergency room to Troopers Villarreal and Lann were made after he had been arrested but before he had been given a Miranda warning and, therefore, that the statements should  be suppressed.^[3]  A Miranda warning is required when a person being questioned by law enforcement officials has been taken into custody or otherwise deprived of his freedom of action in any significant way.  State v. Subke, 918 S.W.2d 11, 14 (Tex. App.CDallas 1995, pet. ref=d). 

The parties strenuously dispute whether appellant was in custody at the time of his statements to Troopers Villarreal and Lann.  It is unnecessary for us to resolve this issue because the record supports a finding that appellant received a Miranda warning before he provided any statement to law enforcement officials.

Trooper Villarreal, Trooper Lann, and Schulte each testified during the suppression hearing. Troopers Villarreal and Lann testified that appellant was given a Miranda warning before being interviewed.  Both testified that appellant waived his rights and then answered their questions. Schulte could not recall the specifics of their conversation but did verify that the troopers gave appellant a Miranda warning and that appellant talked to them after receiving the warning.

Troopers Villarreal and Lann testified that, after their interview, Trooper Villarreal read appellant a DIC-24 warning and asked for a blood sample.  Both testified that appellant then agreed to provide a sample. Schulte confirmed this.

Appellant=s counsel vigorously cross-examined the State=s witnesses.  Troopers Villarreal and Lann prepared a form in connection with their administration of the DIC-24 warnings.  The form indicates that the warning was given at 11:30 p.m.  The warning starts:  AYou are under arrest for an offense arising out of acts alleged to have been committed while you were operating a motor vehicle or watercraft in a public place while intoxicated. . . .@  On February 8, approximately one and one-half weeks after their interview, Trooper Lann prepared a report of their investigation.  In that report, Trooper Lann indicated that appellant was given a Miranda warning at 12:35 a.m.  This, according to appellant, indicates that he was not given a Miranda warning until one hour after he had been arrested and after he had answered questions and given a blood sample.

Troopers Villarreal and Lann both testified that Trooper Lann=s report was incorrect on the timing of the Miranda warnings.  Counsel challenged this by showing that neither trooper prepared a corrected report, that Trooper Lann=s report provided a chronological summary of the events and it listed the Miranda warning after the blood sample had been taken, and that there was no audio recording of the troopers giving appellant a Miranda warning. Appellant also points to inconsistencies in Trooper Villarreal=s testimony during the suppression hearing about the sequence of events.

Counsel=s vigorous cross-examination created a fact question on whether appellant was given a Miranda warning before or after providing a statement to the troopers.  The trial court is the exclusive trier of fact and judge of the credibility of the witnesses at a suppression hearing.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We cannot say that the trial court erred when it resolved this conflicting testimony against appellant. Appellant=s first issue is overruled.

The Coercive Nature of the Interrogation

Alternatively, appellant argues that his due process rights were violated because of the coercive nature of the troopers= interrogation.  Appellant contends that his statements were not freely given because of the circumstances. He had a broken left arm and broken right wrist and, therefore, was in tremendous pain.  He was in a hospital room from which he was unable to leave, and the troopers= interrogation lasted approximately forty-two minutes.  Finally, he was intoxicated.

The State counters that this argument was not presented to the trial court and, therefore, has been waived.  The law is clear that an argument must be raised in the trial court to preserve it for appeal.  See Tex. R. App. P. 33.1(a); Bell v. State, 938 S.W.2d 35, 54-55 (Tex. Crim. App. 1996).  Appellant=s motions to suppress do not raise coercion as a ground for suppressing the challenged evidence.  Moreover, even if this issue had been raised, there was adequate testimony in the record from Trooper Villarreal, Trooper Lann, and Schulte to support a finding that appellant=s consent was knowingly and freely given. Appellant=s second issue is overruled.

The Blood Tests

In appellant=s third issue, he contends that the second blood test should have been suppressed because it was obtained without effective consent.  Appellant acknowledges that the State can require a blood sample when a fatal accident has occurred but only after the suspect is arrested.  See Tex. Transp. Code Ann. ' 724.012(b) (Vernon Supp. 2005).  Appellant argues that this provision is inapplicable because he was not arrested until after he left the hospital and, therefore, implied consent was not present.

It is unnecessary for us to address whether appellant was in custody while in the emergency room.  The evidence is sufficient to support a finding that Trooper Villarreal asked appellant for a blood sample and that appellant voluntarily agreed to provide one. Appellant criticizes Trooper Villarreal=s and Trooper Lann=s testimony as self-serving and points out that appellant did not sign a written consent, that there is no reference to a consensual blood specimen draw in his medical records, and that the audio tape of his interrogation contains no evidence of appellant=s consent.^[4]  These challenges go to the credibility of the witnesses, the resolution of which is in the exclusive province of the trial court.  Guzman, 955 S.W.2d at 85.  Appellant=s third issue is overruled.

Appellant=s fourth issue challenges the use of the initial blood sample taken by Schulte. Appellant contends that this sample was taken illegally because it was done without his consent and, therefore, that it may not be used in any criminal prosecution against him.  Appellant argues that Schulte needed his consent because he was conscious, he was able to communicate, he was not a minor, and no family member otherwise provided consent.

The State counters that this issue was not raised before the trial court and, therefore, is waived on appeal.  Alternatively, the State argues that it was not illegal for Schulte to draw the blood for a medical purpose based on a doctor=s order and that the record supports a finding of implied consent for medical treatment.

Appellant=s issue was not raised in the trial court and cannot be raised for the first time on appeal.  Rule 33.1(a); Bell, 938 S.W.2d at 35.  Moreover, because we have found the evidence sufficient to support a finding that appellant consented to the second blood sample and because this sample showed an alcohol level of 0.29 grams per 100 ml three hours after the fatal accident, any error would be harmless.  See Tex. R. App. P. 44.2.

                                                                     Conclusion

We find that the trial court did not err by denying appellant=s motions to suppress his statements to Troopers Villarreal and Lann and the results of his blood tests.  The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

January 19, 2006

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

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.

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     ^[1]Miranda v. Arizona, 384 U.S. 436 (1966).

     ^[2]See 37 Tex. Admin. Code ' 17.4(1) (2005)(Administrative License Revocation)(Referring to Form DIC‑24). This form contains the warnings required by Tex. Transp. Code Ann. ' 724.015 (Vernon Supp. 2005).

     ^[3]Appellant also relies upon Tex. Crim. Proc. Code Ann. art. 38.22 (Vernon 2005). These will be collectively referred to as Miranda warnings.

     ^[4]Trooper Villarreal left the video camera in his car on when he went into the hospital.  He also left his lapel microphone on.  Some, but not all, of his conversations in the hospital could be heard on the tape.