September 13, 2019

Court of Criminal Appeals

State v. Ruiz

No. PD-0176-18                 9/11/19


Is it unreasonable under the Fourth Amendment for an officer to rely on an unconscious driver’s implied consent for a blood draw when the unconsciousness prevents the officer from seeking actual consent?


Yes. “Irrevocable implied consent is not free and voluntary and does not satisfy the consent exception to the warrant requirement of the Fourth Amendment.” In this case, the defendant was unconscious through his entire encounter with law enforcement and had no capacity for self-determination. The defendant was not able to hear the officer read warnings to him and could not limit or revoke his consent. Thus, the warrantless blood draw was an unreasonable application of the consent exception to the Fourth Amendment warrant requirement. The Court also remanded for reconsideration the question of whether exigent circumstances justified the warrantless blood draw in light of Mitchell v. Wisconsin. Read Opinion.

Concurring and Dissenting (Keller, J. joined by Slaughter, J.):

“… I concur in the Court’s decision to remand for further proceedings in light of Mitchell but dissent to the Court’s resolution of the implied-consent issue.” Read Opinion


Arguably, the majority has conflated inability to withdraw implied consent with voluntariness of the implied consent. But the Supreme Court’s opinion in Mitchell v. Wisconsin probably drove this decision. There, though the Court granted cert. to determine whether implied consent authorized a blood draw, it swerved into a different lane and decided the case based under the exigent circumstances doctrine. The CCA, following this roadmap, seems to have rendered implied consent a dead end.

Diruzzo v. State

No. PD-0745-18                 9/11/19


Did the district court lack subject matter jurisdiction when an indictment alleged only misdemeanor offenses for illegally practicing medicine under the Texas Occupations Code?


Yes. The Court held that because the indictment alleged that the defendant unlawfully practiced medicine without a license, but failed to allege harm, the indictment alleged no more than a misdemeanor offense. Practicing medicine without a license is a Class A misdemeanor under Occupations Code §165.151, unless the State can prove harm. In reaching that decision, the Court concluded that §165.152—the provision under which the indictment purported to charge the defendant—applies only to conduct of a licensed physician. Because the defendant was not a doctor, the State would have needed to allege and show harm to make it a felony offense and invoke the district court’s subject matter jurisdiction. Read Opinion


While prosecutions for unlicensed practice of medicine are rare, this case demonstrates how the Court construes two conflicting statutes. Much of the Court’s statutory construction jurisprudence in recent years has dealt with plain language and grammatical construction. Rarely has it engaged in this sort of statutory construction.

Fraser v. State

No. PD-0711-17      9/11/19


Can some versions of the offense of injury to a child be lesser-included offenses of manslaughter for purposes of the felony murder statute?


No. Because the victim’s status as a child is always an element of the offenses of injury to a child and child endangerment, and that element is not within the statutory elements of manslaughter, the offenses of injury to a child and child endangerment are never lesser-included offenses of manslaughter for the purpose of the felony murder statute’s manslaughter exclusion. Read opinion.

Concurrence (Newell, J., Hervey and Richardson, JJ. Joining):

“… I join the Court because it correctly resolves only what is before it. While I agree that the text of the statute allows for a conviction for felony murder when the underlying felony is separate from the act clearly dangerous to human life, the statute does not expressly require a separate act. After all, the statute reads ‘commit an act’ not ‘commit a separate act.’” Read opinion.

Concurrence (Walker, J.):

“… I believe that our felony murder statute, §19.02(b)(3), requires proof of an underlying felony, that is not manslaughter, that is also separate and distinct from the act clearly dangerous to human life that caused the death. Our felony murder jurisprudence should be revisited. In this case, however, there is evidence from which the jury could find that [the defendant] committed multiple underlying felonies, that are not manslaughter, that are also separate and distinct from the act clearly dangerous to human life which caused the death of” the victim. Read opinion.

Dissent (Slaughter, J.):

“We are the only high court in America that interprets its felony-murder statute in a way that permits unlimited strict first-degree criminal liability for any accidental death arising from the commission or attempted commission of any felony (except manslaughter or lesser included offenses of manslaughter). I believe our current interpretation is wrong. It runs contrary to both the plain language of the felony-murder statute and the Legislature’s criminal-justice grading scheme.” Read opinion.


Court watchers will tally two judges who want to restrict the felony murder doctrine.

Hankston v. State

No. PD-0887-15     9/11/19


In light of the U.S. Supreme Court’s holding in Carpenter v. U.S., 138 S.Ct. 2206 (2018), does the Fourth Amendment require suppression of evidence of a defendant’s call logs and cell site location (CSLI) records if they were seized without a warrant?


The Court remands the case for the lower court of appeals to re-examine its affirmance of the defendant’s murder conviction in light of Carpenter. In 2017, the Court initially held that the third-party doctrine applied to CSLI under the Fourth Amendment. Hankston v. State, 517 S.W.3d 112, 112-13 (Tex. Crim. App. 2017) (citing Ford v. State, 477 S.W.3d 321 (Tex. Crim. App. 2015)). Read opinion.

Texas Court of Appeals

State v. Fikes

No. 03-19-00338-CR         9/6/19


Was a blood draw unreasonable under the Fourth Amendment when the phlebotomist used a sharps container (also called a biohazard bin) as a workstation to draw the defendant’s blood?


No. The phlebotomist’s use of a sharps container as a workstation to draw blood was not so egregious that it created an “unjustified element of personal risk of infection and pain” that rose to the level of violating the Fourth Amendment. The phlebotomist testified that it was her practice to disinfect each surface at the beginning of her shift, including the sharps container. There was no evidence that any part of the gauze or bandage that touched the sharps container later made contact with the defendant’s puncture site. Thus, the blood draw did not expose the defendant to an unjustifiable risk of infection that would violate the Fourth Amendment. Read Opinion


Pay close attention the next time you have your blood drawn to see if the phlebotomist does every single step correctly, and then be glad your work is (probably) not recorded on video.


Because the TDCAA staff will be in Corpus Christi next week at the Annual Criminal & Civil Law Update, there will be no case summaries email on Sept. 20. Case summaries will resume publication on Sept. 27.

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