Texas Courts of Appeals
Thom v. State
No. 14-12-00973-CR 6/19/14
Can a magistrate issue a warrant for a blood draw even after a defendant has consented to a breath test and that breath test displayed a BAC of 0.00?
Yes. Article 18.01(j) of the Code of Criminal Procedure does not require that a defendant refuse both a breath and a blood test before a warrant can be issued. Submitting to a breath test but refusing a blood test is sufficient, provided there are facts establishing probable cause that the defendant is intoxicated. Read the opinion.
A useful case because it supports the idea that we can still get blood even if a suspect agrees to give a breath sample and that officer can choose which test to offer. In this case, the suspect declined to give blood and therefore the defendant’s argument lacked merit. Note that Art. 18.01(j) was at issue because the particular magistrate worked for a county court. Regular judges acting as magistrates are not limited by Article 18.01(j). This case will also be useful because of its holding that a 0.00 breath test does not defeat a showing of probable cause that the defendant’s blood contained an intoxicant other than alcohol.
Lundgren v. State
No. 02-12-00285-CR 6/19/14
When the defendant waived the right to appeal and pleaded guilty to his second DWI, then committed a third DWI a week later, was the second DWI a “final” conviction such that the third DWI could be charged as a felony?
No. The waiver of right to appeal did not waive the right to file a motion for new trial, and therefore the second DWI was not a final conviction at the time the third DWI occurred. Read the opinion.
What an interesting defendant—two published opinions from two different appellate courts in one week. Perhaps he needs to dry out a bit. Succinctly, a conviction is not final for use as a prior or enhancement if, during the time for filing a motion for new trial or notice of appeal, a defendant files an effective MNT or NOA, even if he does so after committing another offense for which a final conviction could be used for enhancement or as a prior. An MNT or NOA will not be effective if the defendant waived his right to appeal or right to seek a new trial. Let’s be thankful this situation does not arise all that often.
Nelson v. State
No. 04-13-00276-CR 6/25/14
In a DWI case, was the State required to introduce expert evidence regarding the way certain prescription drugs interact with alcohol to justify a jury instruction that jurors should consider whether those drugs made the defendant more susceptible to the alcohol she consumed?
No. A synergistic effect instruction is proper without expert testimony if the State presents evidence at trial that a substance other than alcohol may have contributed to intoxication. Furthermore, a trial court must provide a synergism effect instruction when a defendant raises evidence of intoxication due to an interaction with medication, and in this case, the defendant told the arresting officer that stress and her medication caused her erratic behavior, not the 12 drinks she had consumed. Read the opinion.
Here, thanks to good police work, the State had admissions from the defendant that she had consumed about four glasses of wine, four saké shots, Adderall, bi-polar medication, and Ambien at some unspecified time. She admitted she had been told not to drink excessively while taking her medication. Because there was some evidence that a “substance other than alcohol may have contributed to intoxication,” the State was entitled to the synergistic effect instruction.
Murray v. State
No. 07-13-00356-CR 6/26/14
When the intoxicated defendant was found sleeping in his truck with the engine in park but running, and the vehicle partially in a fireworks stand parking lot and partially on the shoulder of the road, were those facts alone sufficient to support a DWI conviction?
No. Without evidence that the defendant had attempted to engage the transmission of the vehicle or operate the controls, or that the vehicle was ever actually moving at the same time the defendant was intoxicated, these facts are distinguishable from other cases that involved an intoxicated defendant found sleeping in his vehicle with the engine running. Read the opinion.
Couldn’t the jury infer that the defendant became intoxicated elsewhere and stopped at the fireworks stand to sleep it off? There were no empties in the car, so he did not become intoxicated just sitting in the car. Could the result have been different had the State filed a brief?