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Fleming v. State2/17/1999
Appellant's first two points contend that the State violated his rights against illegal search and seizure by procuring appellant's medical records as well as information contained in his medical records because said information was procured without a search warrant and in violation of the state and federal constitutions and the Texas exclusionary rule. The specific information in question is appellant's blood alcohol content. A pretrial suppression hearing was conducted by the trial court. Trooper Johnson and appellant were the only witnesses at the hearing. Johnson testified that he was notified of the accident at about 6:38 p.m., and arrived on the scene at about 6:59 p.m. Johnson then remained at the accident scene while appellant and Clifford Howard were taken to the hospital. Johnson left the accident scene and arrived at the hospital at about 11:00 p.m. Because Johnson felt appellant was intoxicated at the time of the collision, he placed appellant under arrest at the hospital at about 11:30 p.m. Prior to arresting appellant at the hospital Johnson did not make any requests of appellant to submit to any tests, blood or breath. At the hospital, appellant was transported via wheelchair to Johnson's patrol unit and then taken by Johnson to jail.
At the jail, appellant was taken into the intoxilyzer room by Johnson. Once in this room, Johnson began video taping the processing of appellant for Driving While Intoxicated. At this time, appellant was read his statutory warnings and given his "Miranda" rights. It was at this time that Trooper Johnson first requested appellant submit to a breath test.
Appellant refused to take a breath test. At some later time, Trooper Johnson obtained a sample of appellant's blood from the hospital through a grand jury subpoena. This sample was taken to Department of Public Safety laboratory in Houston for testing but the sample was apparently too small and no results were produced. After this attempt, through the issuance of another subpoena, Johnson secured appellant's medical records from the hospital. These records contained the results of blood tests run on samples taken from appellant when he was being treated the evening of the collision. Johnson emphatically denied that the withdrawal of appellant's blood by hospital personnel was at his (Johnson's) request or demand.
At the hearing, appellant testified that he remembered Trooper Johnson approaching him in the hospital while he was being treated for his injuries.
Appellant stated that Johnson asked him for a specimen of blood, breath, or urine.
Appellant also stated that he agreed to a blood test.
Appellant further testified that he did not recall being read any warnings or rights, and that he was arrested after the blood specimen was taken.
Appellant indicated that certain events were not clear to him as he had suffered a head injury "from going through the windshield and landing on the hood of my truck."
A ruling on a motion to suppress lies within the sound discretion of the trial court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At the hearing on the motion, the trial court serves as the sole Judge of the credibility of the witnesses and the weight to be given their testimony. Id. (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990)). As the record of the suppression hearing contained contradictory testimony from two opposing witnesses, we will afford the trial court total deference with regard to its ruling denying the motion to suppress, because assessment of witness credibility and demeanor was a factor for the trial court. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
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