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Date: 05-20-2021
Case Style:
Jiuliano Florentino Balderas v. The State of Texas
Case Number: 01-20-00174-CR
Judge: Veronica Rivas-Molloy
Court: Court of Appeals
For The
First District of Texas
Plaintiff's Attorney: Eric Kugler
Daniel C. McCrory
The Honorable Kim K Ogg
Defendant's Attorney:
Description:
Houston, Texas - Criminal defense attorney represented Jiuliano Florentino Balderas with a Murder charge.
On June 25, 2017, at approximately 11:00 p.m., Raul Perez, the complainant,
was traveling westbound on West Little York Road in Harris County, Texas.
Appellant, who was traveling eastbound against traffic in the westbound lane of
West Little York Road, collided with Perez’s vehicle, killing him. Two children,
ages four and eleven, were passengers in appellant’s vehicle at the time of the
collision.
Deputy David Bass with the Harris County Sheriff’s Office (HCSO) was
dispatched to the scene of the accident. Deputy Bass testified that when he arrived,
appellant was standing next to his vehicle and the complainant was pinned inside of
his truck. Deputy Bass testified that the complainant, who was not breathing, was
deceased. Appellant provided Deputy Bass with his name and date of birth and
stated, “I know I’m going away for a long time.” An ambulance transported
appellant and the two children to the hospital.
As part of the fatality motor vehicle investigation, HCSO Deputy Blake
Bondurant went to the hospital to speak with appellant. He testified that appellant
exhibited multiple signs of intoxication: appellant emitted an odor of alcohol from 3
his breath and person, his eyes were bloodshot, and his speech was slurred.
Appellant admitted that he had consumed three alcoholic drinks earlier that day, the
first at 4:00 p.m. and the last at 8:00 p.m. Appellant told Deputy Bondurant that he
was the driver of the Tahoe involved in the accident and that two children were in
the Tahoe at the time of the collision. The emergency medical records admitted at
trial showed that the children were appellant’s four-year-old son and an eleven-yearold girl.
Based on appellant’s signs of intoxication and his admission that he had
consumed alcohol prior to the accident, Deputy Bondurant administered the
horizontal gaze nystagmus (HGN) test to appellant. Deputy Bondurant testified that
the HGN test consists of a total of six clues (three for each eye), that four clues in an
individual suggests intoxication, and that appellant exhibited all six clues. Deputy
Bondurant did not administer the other two standardized field sobriety tests—the
walk-and-turn test and the one-leg stand test—because appellant was lying in a
hospital bed and was not ambulatory.
Deputy Bondurant presented appellant with a DIC-24 Form advising him that
he was under arrest for driving while intoxicated and requesting a blood specimen.
After appellant refused to consent to a blood draw, Deputy Bondurant obtained a
search warrant to take a blood sample. The warrant issued by the magistrate, which 4
referenced Deputy Bondurant’s complaint establishing probable cause for issuance
of the warrant, provided:
YOU ARE THEREFORE COMMANDED to forthwith search the
body of the person therein named, to wit: JIULIANO FLORENTINO
BALDERAS, . . . with the authority to search for and to seize any and
all evidence that may be found therein, namely blood sample.
FURTHERMORE, pursuant to Article 18.08 Texas Code of Criminal
Procedure, the officer executing this warrant may call to his or her aid
any number of citizens in Harris County, who shall be bound to aid in
the execution of this search warrant. The officer executing this warrant
is therefore directed to execute this warrant by taking the subject to any
medical personnel, paramedic, nurse, doctor, or other person qualified
to draw blood and that person is hereby bound to assist the officer in
his attempt to obtain the requested sample.
The search warrant does not expressly state that forensic analysis or chemical testing
of the collected blood specimen is authorized.
A hospital nurse drew appellant’s blood on June 26, 2017, at 2:39 a.m.,
pursuant to the warrant. The State then had the blood specimen tested for the
presence of alcohol.
Appellant moved to suppress the results of the blood alcohol analysis.
Relying on State v. Martinez,
1 defense counsel argued that the blood kit blood draw
was inadmissible because the search warrant authorized only the drawing of
appellant’s blood and not the analysis of the blood sample. Defense counsel further
argued that the analysis of appellant’s blood was not completed within three days of
1 570 S.W.3d 278 (Tex. Crim. App. 2019).5
the warrant’s issuance and was, therefore, untimely. In response, the State argued
that Martinez does not require a separate search warrant for the analysis of a blood
sample drawn pursuant to a valid search warrant or that the search warrant explicitly
authorize analysis of the blood sample. As to the timeliness issue, the State argued
that Texas Code of Criminal Procedure article 18.04 does not mandate that a warrant
be executed within a stated period, and that the warrant in this case complied with
all statutory requirements. The trial court denied appellant’s motion to suppress.
Jason Gaswint, a toxicologist with the Harris County Institute of Forensic
Sciences (HCIFS), tested appellant’s blood sample. He testified that the test results
showed that appellant’s blood-alcohol concentration (BAC) was 0.126 grams of
ethanol per 100 milliliters of blood, which is above the legal limit of 0.08.
Amy Kelly, the HCIFS Deputy Chief toxicologist, performed a retrograde
extrapolation of appellant’s blood sample to determine appellant’s BAC at the time
of the accident. Kelly testified that, based on her calculations, appellant’s BAC was
0.191 at the time of the collision.
At the conclusion of trial, the jury found appellant guilty of murder as charged
in the indictment.2
The trial court assessed appellant’s punishment at twenty-six
years’ confinement. This appeal followed.
2 A person commits the offense of felony murder if he commits or attempts to commit
a felony other than manslaughter and, in the course of and in furtherance of the
commission or attempt, he commits or attempts to commit an act clearly dangerous 6
Discussion
Appellant challenges the trial court’s denial of his motion to suppress the
results of his blood alcohol analysis.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019);
State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019). Under the
bifurcated standard, the trial court is given almost complete deference in its
determination of historical facts, especially if based on an assessment of demeanor
and credibility, and the same deference is afforded the trial court for its rulings on
application of law to questions of fact and to mixed questions of law and fact, if
resolution of those questions depends on an evaluation of demeanor and
credibility. Martinez, 570 S.W.3d at 281 (quoting Crain v. State, 315 S.W.3d 43, 48
(Tex. Crim. App. 2010)). Our review of questions of law is de novo. Id. We view
the record in the light most favorable to the trial court’s ruling and uphold the ruling
if it is supported by the record and is correct under any theory of the law applicable
to the case. Ruiz, 577 S.W.3d at 545.
to human life that causes the death of an individual. TEX. PEN. CODE § 19.02(b)(3).
In this case, the indictment alleged that appellant committed a felony when
he drove his car in a public place while intoxicated with a child passenger who was
younger than fifteen years of age. See id. § 49.045.7
B. Applicable Law
Under the Fourth Amendment, “[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 . . . .” U.S. CONST. amend. IV. A Fourth Amendment claim
may be based on a trespass theory of search, where one’s own personal effects have
been trespassed, or a privacy theory of search, where one’s own expectation of
privacy has been breached. Martinez, 570 S.W.3d at 283; State v. Rodriguez, 521
S.W.3d 1, 9 (Tex. Crim. App. 2017). Under the privacy theory, a person has standing
to contend that a search or seizure was unreasonable if (1) he has a subjective
expectation of privacy in the place or object searched, and (2) society is prepared to
recognize that expectation as reasonable or legitimate. Martinez, 570 S.W.3d at 283.
To comply with the Fourth Amendment, a search warrant must describe the
things to be seized with sufficient particularity to avoid the possibility of a general
search. See Groh v. Ramirez, 540 U.S. 551, 558–61 (2004) (discussing various
purposes for particularity requirement); see also U.S. CONST. amend. IV (providing
that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or
things to be seized”); TEX. CODE CRIM. PROC. art. 18.01(c) (setting out requirements
for affidavits supporting search warrants). The degree of specificity required is
flexible and will vary according to the crime being investigated, the item being 8
searched, and the types of items being sought. See Gonzales v. State, 577 S.W.2d
226, 228–29 (Tex. Crim. App. 1979); see also Thacker v. State, 889 S.W.2d 380,
389 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d) (holding that items to be
seized must be described with sufficient particularity such that executing officer is
not left with any discretion to decide what items may be seized, but “requirements
for the particularity of a description of an item may vary according to the nature of
the thing to be seized”). To determine whether a search and seizure falls within the
warrant’s scope, we follow a common sense and practical approach rather than an
overly technical one. See State v. Elrod, 538 S.W.3d 551, 556 (Tex. Crim. App.
2017) (stating magistrate may use logic and common sense to make inferences based
on facts in affidavit).
C. Analysis
In his sole point of error, appellant contends that the trial court erred in
denying his motion to suppress the results of the blood test analysis. He argues that
the test results should have been excluded from evidence because the search warrant
authorized only the blood draw and not the forensic analysis of his blood. Appellant
asserts that the admission of the test results into evidence violated his reasonable
expectation of privacy in the contents of his blood and that the testing violated the
particularity requirement of the Fourth Amendment.9
In support of his argument, appellant relies on the Court of Criminal Appeals’s
decision in State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019). There, the
defendant was involved in a traffic accident and taken to a hospital where a nurse
drew his blood for medical purposes. Id. at 281–82. The defendant told medical
personnel that he “could not afford any tests” and voluntarily left the hospital. Id. at
282. Subsequently, without a warrant and instead relying on a grand jury subpoena,
the hospital released the defendant’s blood sample to the State, and the State
forwarded the blood specimen to a crime laboratory for testing. Id. At his trial for
intoxication manslaughter, the defendant moved to suppress the blood test results.
Id. at 281. The trial court granted the motion and the court of appeals affirmed. Id. at
281–82.
The Court of Criminal Appeals affirmed the court of appeals, holding that
“there is a Fourth Amendment privacy interest in blood that has already been drawn
for medical purposes.” Id. at 292. Because the Court determined that the defendant
had a subjective expectation of privacy in his blood drawn for medical purposes, and
the State’s warrantless testing of the blood “was a Fourth Amendment search
separate and apart from the seizure of the blood,” the State had to obtain a warrant
or establish an exception to the warrant requirement before testing the defendant’s
blood. Id.10
The facts in Martinez are distinguishable from those before us. First,
appellant’s testing was not a warrantless search, i.e., a search “conducted outside the
judicial process, without prior approval by judge or magistrate,” Katz v. U.S., 389
U.S. 347, 357 (1967), as it was in Martinez. Second, appellant’s blood was not
collected for medical purposes and later tested without a warrant for the presence of
alcohol. Instead, the State obtained appellant’s blood pursuant to a valid search
warrant permitting collection of a blood sample for eventual alcohol testing and,
therefore, the collection and testing in this case were not unrelated events as they
were in Martinez. Other courts of appeals—including this one—have distinguished
Martinez on similar grounds. See, e.g., Davis v. State, 608 S.W.3d 283, 290 (Tex.
App.—Houston [1st Dist.] 2020, pet. denied) (“Martinez deals with a different
question—whether ‘an individual has an expectation of privacy in blood previously
drawn for purposes other than police testing’—and, thus, does not create an
obligation for an additional warrant or additional warrant language when blood was
collected pursuant to a warrant.”); Hyland v. State, 595 S.W.3d 256, 261 (Tex.
App.—Corpus Christi–Edinburg 2019, no pet.) (“[U]nlike in Martinez, the search
here was not warrantless.”).
That the search warrant failed to provide for the analysis of appellant’s blood
specimen expressly does not change the analysis. Since the trial court issued its
ruling and this appeal ensued, the Texas Court of Criminal Appeals issued its opinion 11
in Crider v. State, 607 S.W.3d 305 (Tex. Crim. App. 2020), cert. denied, __ S. Ct.
__ (2021), holding that a separate warrant for blood testing is not required under the
present circumstances. There, a citizen called 9-1-1 to report the defendant’s erratic
driving and the location where the defendant eventually parked. See id. at 306.
Upon arrival at the parked location, the dispatched officer found the defendant sitting
alone in his vehicle. See id. The officer noticed that the defendant exhibited a strong
odor of alcohol, glassy and bloodshot eyes, an unsteady gait, and slow, slurred
speech. See id. After the defendant refused to submit to field sobriety testing based
on claims of recent injuries, the officer conducted an HGN test during which the
defendant exhibited all six signs of intoxication. See id. The officer arrested the
defendant and obtained a search warrant for extraction of his blood. See id.
Although the warrant did not explicitly authorize chemical testing of the defendant’s
blood, the state performed chemical testing revealing an alcohol concentration level
of .19. See id. The defendant moved to suppress the results of the chemical testing.
See id. The trial court denied the defendant’s motion to suppress, and the court of
appeals affirmed. See id.at 306–07.
In affirming the lower court’s judgment, the Court of Criminal Appeals
distinguished Martinez, stating
Here, the State obtained the blood sample by way of a
magistrate’s determination that probable cause existed to justify its
seizure—for the explicit purpose of determining its evidentiary value
to prove the offense of driving while intoxicated. That magistrate’s 12
determination was sufficient in this case to justify the chemical testing
of the blood. And this is so, we hold, even if the warrant itself did not
expressly authorize the chemical testing on its face.
Id. at 308.
Here, the State collected appellant’s blood sample following his arrest based
on probable cause that he was driving under the influence of alcohol. Based
on Crider, the magistrate’s determination that probable cause existed to justify the
seizure of appellant’s blood sample, without expressly providing for the eventual
forensic analysis of the specimen, was sufficient to justify the chemical testing of
the blood seized.3 See id. at 307 (“A neutral magistrate who has approved a search
warrant for the extraction of a blood sample, based upon a showing of probable cause
to believe that a suspect has committed the offense of driving while intoxicated, has
necessarily also made a finding of probable cause that justifies chemical testing of
that same blood.”); see also Jacobson v. State, 603 S.W.3d 485, 491 (Tex. App.—
Fort Worth 2020, pet. ref’d) (“[T]he Fourth Amendment does not require the State
to obtain a second warrant to test a blood sample that was seized based on probable
cause that a person was driving while intoxicated.”); State v. Staton, 599 S.W.3d
614, 618 (Tex. App.—Dallas 2020, pet. ref’d) (“[C]ommon sense dictates that blood
3 Appellant acknowledges that the holding in Crider “appears to apply to the case at
bar” and “will ultimately settle this issue” but notes that “Crider remains on appeal
as of the filing of this appellate brief.” The mandate in Crider issued on October
13, 2020. The United States Supreme Court denied appellant’s petition for writ of
certiorari on February 22, 2021.13
drawn for a specific purpose will be analyzed for that purpose and no other.”).
Indeed, that was the very “purpose of the blood extraction.” Crider, 607 S.W.3d at
307.
We hold that the trial court did not err when it denied appellant’s motion to
suppress the forensic analysis of his blood sample. See id. We overrule appellant’s
sole point of error.
Outcome: We affirm the trial court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: