On appeal from The County Criminal Court No. 10 Tarrant County, Texas ">

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Date: 02-11-2022

Case Style:

Philip Jafarosman Kury v. The State of Texas

Case Number: 02-19-00417-CR

Judge: Dabney Bassel


Court of Appeals Second Appellate District of Texas at Fort Worth

On appeal from The County Criminal Court No. 10 Tarrant County, Texas

Plaintiff's Attorney: Joseph W. Spence
Jeanette E. Walston Strange

Defendant's Attorney:

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Fort Worth, Texas - Criminal Defense lawyer represented defendant with a driving while intoxicated (DWI), enhanced by a prior DWI conviction.

Kury was initially detained because his car matched the description of a vehicle
associated with a fight at a nearby apartment complex. Once the officers cleared him
of the assault, they investigated him for DWI. Kury had bloodshot, watery eyes and a
strong odor of an alcoholic beverage coming from his mouth. He admitted that he
had consumed three beers and that he had been driving. Kury also slurred his words
and his answers to the officers’ questions seemed a “little off.”
Kury refused to perform the standardized field sobriety tests and was very
uncooperative throughout the investigation; he acted erratically and refused to
respond to verbal commands. Kury was arrested and taken to Medical City Arlington,
where his blood was drawn pursuant to a warrant. Kury continued to be
uncooperative during the blood draw by refusing to listen to officer commands,
kicking hospital equipment, and escaping multiple times from leg restraints. Kury’s
blood alcohol concentration was 0.209.
II. Sufficient Evidence
Kury’s first point attacks the sufficiency of the evidence in two subparts:
evidence that he was “operating” the vehicle and evidence that he was intoxicated.
Because the evidence was sufficient to support both elements, we overrule his first
A. Standard of Review
Federal due process requires that the State prove beyond a reasonable doubt
every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
2781, 2787 (1979); see U.S. Const. amend. XIV. The Jackson standard of review, which
is explained below, is the “only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a criminal
offense that the State is required to prove beyond a reasonable doubt.” Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling Clewis v. State, 922 S.W.2d 126
(Tex. Crim. App. 1996)). “[W]e review the sufficiency of the evidence establishing the
elements of a criminal offense under the single sufficiency standard set out in Jackson
v. Virginia.” Acosta v. State, 429 S.W.3d 621, 624 (Tex. Crim. App. 2014).
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99
S. Ct. at 2789; Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
B. Evidence of Operation
Kury argues that the State failed to prove he was operating a vehicle.
Specifically, he argues police at the scene never saw him take any action that would
“enable” the use of the vehicle. We disagree with his arguments.
To establish that Kury committed the offense of DWI, the State was required
to prove that he was “intoxicated while operating a motor vehicle in a public place.”
See Tex. Penal Code Ann. § 49.04(a). For the evidence to be sufficient to support a
conviction for DWI, a “temporal link” must exist between the defendant’s
intoxication and his driving. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App.
2010). This temporal link may be established by circumstantial evidence. Id. (noting
that circumstantial evidence is as probative as direct evidence in establishing guilt).
The Penal Code does not define “operate” or “operating.” However, in the
context of a DWI, the Court of Criminal Appeals has defined “operate” as taking
“action to affect the functioning of [a] vehicle in a manner that would enable the
vehicle’s use.” Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995). And
other courts have also interpreted “operating” a motor vehicle “very broadly.” Priego
v. State, 457 S.W.3d 565, 569 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting Smith v.
State, 401 S.W.3d 915, 919 (Tex. App.—Texarkana 2013, pet. ref’d)). “[W]hile driving
does involve operation, operation does not necessarily involve driving.” Denton, 911
S.W.2d at 389; Priego, 457 S.W.3d at 569 (stating that “any action that is more than
mere preparation toward operating the vehicle” falls under definition of “operating”
and that “[t]he action taken to affect the functioning of the vehicle ‘need not succeed
in causing the vehicle to function for the person to be operating it”’ (quoting Smith,
401 S.W.3d at 919, and Strong v. State, 87 S.W.3d 206, 215 (Tex. App.—Dallas 2002,
pet. ref’d), abrogated on other grounds by Pfeiffer v. State, 363 S.W.3d 594 (Tex. Crim. App.
2012))). Courts have therefore upheld DWI convictions in situations in which the
defendant was not actually driving the vehicle. Priego, 457 S.W.3d at 569. We must
consider the totality of the circumstances in determining whether sufficient evidence
supports a conclusion that the defendant operated the vehicle. See Harrell v. State, No.
PD-0985-19, 2021 WL 1556073, at *2 (Tex. Crim. App. Apr. 21, 2021) (holding
evidence was sufficient to support jury’s conclusion that defendant operated vehicle
when defendant was found in driver’s seat of minivan with seatbelt buckled and
defendant confessed that he had been driving same minivan identified by 911 caller as
driving erratically); Dansby v. State, 530 S.W.3d 213, 228 (Tex. App.—Tyler 2017, pet.
ref’d) (concluding that evidence was sufficient to support conviction when officer
found unoccupied truck running in restaurant parking lot and defendant, who was
inside restaurant, admitted he had driven vehicle to restaurant).
Here, a reasonable jury could conclude that Kury had been operating the
vehicle in a public place due to Officer Willis’s testimony that (1) he saw Kury exit the
vehicle from the vehicle’s driver’s seat, (2) moments before he came upon the vehicle
that Kury exited, he saw the vehicle driving down Green Oaks Blvd., (3) the vehicle
was running and sitting in a lane of traffic, (4) Kury told Willis that he had stopped his
vehicle because he was having trouble with the vehicle’s brakes, and (5) Kury
admitted that he was the driver of the vehicle. Based on the totality of the
circumstances, we find the evidence sufficient to demonstrate that Kury “took action
to affect the functioning of his vehicle in a manner that would enable the vehicle’s
use.” Denton, 911 S.W.2d at 390. We therefore overrule this portion of his first point.
C. Evidence of Intoxication
Kury also claims that “[e]ven if there had been sufficient evidence of operation,
the State was unable to show that [Kury] was actually intoxicated during that
operation.” We disagree.
Intoxication may be proven in either of two ways: (1) loss of normal use of
mental or physical faculties or (2) alcohol concentration in the blood, breath, or urine
of 0.08 or more. Tex. Penal Code Ann. § 49.01(2). The first definition is the
“impairment” theory, while the second is the “per se” theory. See State v. Mechler, 153
S.W.3d 435, 437 (Tex. Crim. App. 2005). They are not mutually exclusive, and both
theories are submitted in the jury charge as long as there is evidence that would
support both definitions. Kirsch v. State, 306 S.W.3d 738, 743 (Tex. Crim. App. 2010).
Here, the trial court submitted both theories of intoxication to the jury.
A medical worker drew Kury’s blood several hours after he was detained. The
blood test showed that Kury’s blood alcohol concentration level was 0.209 at the time
his blood was drawn. As Kury points out, the State did not present retrogradeextrapolation evidence demonstrating that Kury’s blood alcohol level was 0.08 or
higher at the time he was driving. However, the Court of Criminal Appeals has stated
that blood alcohol tests, even absent expert retrograde extrapolation testimony, are
often highly probative to prove both per se and impairment intoxication, particularly
when considered in conjunction with additional signs of intoxication. Id. (considering
test results and additional evidence of erratic driving, stumbling, swaying, slurring or
mumbling words, inability to perform field sobriety tests or follow directions,
bloodshot eyes, and any admissions by the defendant concerning what, when, and
how much he had been drinking as supporting an inference that a defendant was
intoxicated at the time of driving); see also Mechler, 153 S.W.3d at 441.
Here, in addition to the blood test result, the State presented other evidence
that logically raised an inference that Kury was intoxicated while he was driving. Two
police officers testified to Kury’s demeanor while they spoke to him. One observed
that Kury had bloodshot, watery eyes and emitted a strong odor of alcohol. The
At trial, Kury did not object to the trial court’s submission of both theories of
intoxication to the jury.
other officer described Kury as slurring his words, uncooperative, erratic, and refusing
to respond to verbal commands. Moreover, Kury does not dispute his admission to
the officers that he had been drinking beer. One officer opined that if Kury had been
allowed to drive, “he would have presented a danger to himself and others”; the other
testified that he believed Kury was intoxicated based solely on his observations of
Kury’s behavior that night. Such evidence was sufficient for a rational trier of fact to
have found beyond a reasonable doubt that Kury was intoxicated at the time he was
operating his vehicle. Accordingly, we find the evidence sufficient to support the
jury’s finding that Kury was intoxicated at the time he operated his vehicle. We
overrule the remainder of Kury’s first point of error.
III. Reasonableness of the Blood Draw
In his second point, Kury argues that the trial court erred in overruling his
motion to suppress the blood test evidence because the State failed to show that the
procedures used to take his blood were reasonable under the Fourth Amendment.
We disagree.
A. Facts Concerning the Blood Draw
The record reflects that the blood draw occurred at Medical City Arlington.
Laura Wiggs, the day shift supervisor at the hospital, drew Kury’s blood. Wiggs did
not testify at trial.
During his testimony, Officer Willis testified about a form—the “Blood
Withdrawal Procedure” form—that he utilizes during blood draws. The form
contains the steps, with confirmation boxes, that should be followed when
conducting a blood draw. The form was signed by Laura Wiggs in the spot
designated “Nurse/Medical Technician” and also by Officer Willis. Officer Willis
admitted that a few of the boxes on the Blood Withdrawal Procedure form had not
been checked as completed; however, the officer testified that every step on the form
had been followed and completed. Willis explained that due to Kury’s disruptive and
“combative nature” during the blood draw, he was unable to check off each box as
the steps were completed. Willis stated that he would not have signed the form if all
of the steps had not been completed.
In response to defense counsel’s questions regarding why it is important to
have sanitary conditions when conducting a blood draw, Officer Willis stated that he
took Kury to the hospital in order to comply with such requirements. However,
Officer Willis admitted that he was not aware of when the examination room had last
been cleaned or sanitized. Officer Willis also acknowledged that Wiggs placed the
blood kit on a stool in the room and was not aware when that specific stool had been
previously sanitized. Officer Willis was, however, aware that Wiggs cleaned the site
where the blood was drawn with betadine solution.
Kury also presented evidence that Wiggs picked up something from the floor
(Kury characterized it as trash; however, an officer believed it was medical supplies
that Kury had kicked over) and used her phone to call a translator to speak to Kury—
while she had gloves on—before she performed the blood draw.
The trial court held a suppression hearing regarding the reasonableness of the
blood draw; however, it did not make a ruling at the end of the hearing. The trial
court allowed the parties to present further evidence to the jury before making a
ruling. Ultimately, the trial court denied Kury’s motion to suppress the blood taken
from the draw and the results of such draw.
B. Standard of Review
We apply a bifurcated standard of review to a trial court’s ruling on a motion to
suppress evidence. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer almost totally to
a trial court’s rulings on questions of historical fact and application-of-law-to-fact
questions that turn on evaluating credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor.
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App.
2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
C. The Law Concerning the Reasonableness of Blood Draws
A blood draw constitutes a search and seizure under the Fourth Amendment.
Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834 (1966); Pacheco v. State,
347 S.W.3d 849, 853 (Tex. App.—Fort Worth 2011, no pet.). Whether a blood draw
is conducted pursuant to a warrant or not, the assessment of reasonableness is purely
a matter of Fourth Amendment law. State v. Johnston, 336 S.W.3d 649, 661 (Tex. Crim.
App. 2011) (applying Schmerber).
A two-part test exists to determine whether a blood draw is reasonable: (1) did
the police have justification to require the suspect to submit to a blood test, and
(2) did the police employ reasonable means and reasonable procedures in taking the
suspect’s blood? Id. at 658. Kury challenges only the second prong. When reviewing
the reasonableness of a blood draw, courts consider the evidence on a case-by-case
basis in light of the totality of the circumstances surrounding the blood draw. Id. at
The focus of a Fourth Amendment reasonableness analysis regarding the
manner in which blood was drawn is on the effect of the bodily intrusion on the
defendant’s safety, health, dignitary interests, and personal privacy. Siddiq v. State, 502
S.W.3d 387, 403 (Tex. App.—Fort Worth 2016, no pet.).
Such an analysis can
include the consideration of any departures from standard technique or the standard
of care. Id.
The Court of Criminal Appeals has previously held that venipuncture blood
draws are presumed reasonable as a means for measuring a suspect’s blood alcohol
content. See Johnston, 336 S.W.3d at 660. Accordingly, Kury has the burden to rebut
In Siddiq, a medical assistant deviated from accepted medical standards when
extracting the defendant’s blood. Siddiq, 502 S.W.3d at 398–99, 403. The medical
assistant reused equipment, positioned the defendant’s arm incorrectly, and
performed parts of the blood draw incorrectly. Id. at 399–400. Despite these errors,
this court held that the blood draw was performed reasonably under the Fourth
Amendment because there was no evidence that the manner in which the blood draw
was performed threatened the defendant’s safety or health, caused the defendant
trauma or pain, endangered the defendant’s life or health, or created a level of
intrusiveness greater than a typical blood draw. Id. at 403.
the presumption by presenting evidence that makes his blood draw unreasonable. See
D. The Blood Draw was Performed in a Reasonable Manner
Kury asserts that “[t]he circumstances of the blood draw were too filthy to
constitute a ‘reasonable’ search under the Fourth Amendment,” but this argument is
not supported by the evidence. Kury initially points to the fact that Wiggs did not
testify at trial and therefore the State failed to show that Wiggs was actually qualified
as a technician or a nurse to take blood. Kury’s argument seems to focus on the
requirements of Chapter 724 of the Texas Transportation Code, which provides that
only a physician, qualified technician, registered professional nurse, licensed
vocational nurse, or a licensed or certified emergency medical technician can take a
blood specimen. Tex. Transp. Code Ann. § 724.017(a). But Chapter 724 is not
controlling authority when it comes to determining the reasonableness of how a blood
draw was performed under the Fourth Amendment. Johnston, 336 S.W.3d at 661
(holding that Chapter 724 is inapplicable when there is a warrant to draw blood).
Accordingly, compliance with Chapter 724 is not necessary to satisfy the Fourth
Amendment. Id.; Beeman v. State, 86 S.W.3d 613, 615, 616 (Tex. Crim. App. 2002)
(holding that compliance with Section 724.017 provides one way to establish
reasonableness under the Fourth Amendment., but Section 724.017 in no way
provides the exclusive means for establishing reasonableness). Moreover, the
evidence supports an inference that Wiggs was qualified to take Kury’s blood
specimen—Wiggs signed the Blood Withdrawal Procedure form in the spot
designated “Nurse/Medical Technician,” and Wiggs worked as the “day shift
supervisor” at the hospital where the blood was drawn. In fact, Kury even referred to
Wiggs as a “nurse” during trial.
Next, Kury argues that the “physical circumstances of the blood draw itself”
violated the Fourth Amendment’s requirement of reasonableness. Specifically, Kury
complains that the blood draw was not conducted in a sanitary environment. Kury
points to the fact that after Wiggs washed her hands and put on gloves, she picked up
“trash” on the floor and touched her cell phone before taking his blood. He also
states that there was no evidence that the hospital room where his blood was taken
had been cleaned prior to the blood draw. However, there was no evidence that
Wiggs’s touching of items with her gloved hand threatened Kury’s health or safety, or
exposed him to an unreasonable risk of pain or infection. In fact, Kury does not
argue that Wiggs’s action in touching items with her gloved hands before conducting
the blood draw impacted him in any negative way. And as to his claim regarding the
cleanliness of the hospital room, Kury provided no evidence that the room was
unsanitary. Moreover, one police officer that assisted at Kury’s blood draw testified
that Medical City Arlington was generally a place that he would deem sanitary and that
there was nothing unsanitary about the blood draw in this case. Another police
officer present during Kury’s blood draw also testified that he believed the hospital
room that Kury was placed in for purposes of the blood draw was clean.
There is simply no evidence that the manner in which the blood draw was
performed on Kury—including Wiggs’s action in picking up items from the floor of
the hospital room—threatened Kury’s safety or health, caused Kury trauma or pain,
endangered Kury’s life or health, or created a level of intrusiveness greater than a
typical blood draw. See Siddiq, 502 S.W.3d at 403. We therefore hold that the trial
court did not err by determining under the totality of the circumstances that the blood
draw on Kury was performed in a reasonable manner as required by the Fourth
Amendment. See Schmerber, 384 U.S. at 758–59, 86 S. Ct. at 1829; Johnston, 336 S.W.3d
at 659–64; Siddiq, 502 S.W.3d at 403. We overrule Kury’s second point

Outcome: Having overruled Kury’s points on appeal, we affirm the trial court’s judgment.

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