Weekly Case Summaries: November 13, 2009

Texas Courts of Criminal Appeals

State v Johnston – 2nd COA

11/05/09 : Cite No. 2-08-246-CR : DWI Blood Draws

Issue 1:

Did a blood draw taken by a peace officer pursuant to a DWI search warrant violate the Fourth Amendment?

Holding 1:

Yes. Although the appellate court agreed with the State that the Transportation Code does not control blood draws obtained pursuant to a search warrant, the circumstances in this case--particularly the lack of a medical interview, the choice not to record the blood draw on videotape, and the use of restraints with no use of force guidelines for this situation--led the court to conclude that the search was not executed in a reasonable manner and therefore violated the Fourth Amendment. Read Opinion.

Issue 2:

Does the good faith exception apply to a blood draw taken in good faith reliance on a warrant but performed in an unreasonable manner?

Holding 2:

The State did not correctly preserve this argument, but the court suggested that it is doubtful that this exception applies to evidence obtained through an unreasonable procedure. Read Opinion.


This case is ripe for PDR. Relying on some very loose SCOTUS dicta in Schmerber by Justice Brennan from over 40 years ago, the court of appeals invents some very questionable standards for measuring whether the draw of blood using a search warrant was reasonable. This case was obviously influenced by the trial judge's dislike of the use of a peace officer (cross-trained in phlebotomy) to draw blood. For offices that use non-officers to collect blood, this case should not present a problem. Meanwhile, be diligent in making sure that your phlebotomist is properly trained. And next time: (1) argue good faith before the trial court and (2) compare the harmlessness argument used in no knock cases.

Grey v State – 3rd COA

11/04/09 : Cite No. No. 03-08-00355-CR : Melendez-Diaz


Was the defendant’s Sixth Amendment right to confrontation violated when the State introduced a “pen pack” documenting the defendant’s 1989 retaliation conviction?


No. The document was prepared for internal use in classification and assignment.  Melendez-Diaz requires a statement made for prosecutorial use. Read Opinion.


The prosecutor probably didn't even need a pen packet at punishment, given that appellant's statement just before the crime was, "God forgive me for this, I'm going to kill you bitch." Nonetheless, the contents of the pen packet that summarized his criminal history were not generated as part of any criminal investigation. They were business records designed to help the prison system classify appellant. Be careful, though, because such records could still contain information subject to a hearsay upon hearsay objection. They just don't violate the 6th Amendment Confrontation Clause. 

Simpkins v State – 6th COA

11/05/09 : Cite No.06-09-00062-CR : Sex offender registration


When a road runs through both the city limits and the unincorporated portion of the county, must the State show which part of the road the defendant lives on to prove failure to register as a sex offender?


Yes. The defendant’s duty to register with a particular law enforcement agency depended upon where he lived. Without that evidence the case is legally insufficient to support a conviction. Read Opinion.


A pretty weak reason to acquit, particularly given that a reasonable inference could be drawn that the county sheriff was the proper place to register.

Sony v State – 4th COA

11/11/09 : Cite No. 04-08-00806-CR : Street Racing


Did the court err when it allowed the State to use pictures of after-market additions to the defendant’s vehicle to prove the charge of racing?


No. The pictures helped the jury decide if the defendant was racing based on the presence of high performance additions common to racing vehicles.Read Opinion.


The concurring opinion urges the legislature to amend the statute and redefine the term racing. Read Concurrence.


Nice use of pictures. If you want to prove the appellant was racing, you show the jury pictures of his racing car. Also, good discussion of the unusual racing statute.

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