COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JESUS JOSE DURAN,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

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No. 08-17-00108-CR

Appeal from the

County Court at Law No. 1

of El Paso County, Texas

(TC# 20140C11470)

O P I N I O N

In this appeal from a conviction of driving while intoxicated, Jesus Jose Duran contends 

that the trial court abused its discretion by failing to suppress the results of a blood draw taken 

after a motorcycle accident. The State argued—and the trial court agreed—that Duran gave 

voluntary consent to have his blood drawn, meaning the results of the draw were admissible at 

trial.

We find no abuse of discretion on this record. The judgment of the trial court is affirmed.

Factual History

This case arises from the aftermath of a one-person motorcycle accident involving Duran. 

El Paso Police Department Officer Raul Gallegos was dispatched to the accident scene at 

approximately 10:30 p.m., where he saw Duran sitting on a curb next to a motorcycle that was on 
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the ground. According to Gallegos, an eyewitness told him that Duran smelled like alcohol and 

that he (the eyewitness) had to stop Duran from attempting to lift the motorcycle off the ground 

and ride off. 

Gallegos testified that Duran told him that he had blacked out while riding home after 

having drank three or four beers at a bar. Gallegos saw a black tire mark on the curb, a cell phone 

and wallet that apparently belonged to Duran, and a pool of blood. Duran was the only person at 

the scene, which led Gallegos to surmise that Duran had hit the curb and flown off the motorcycle.

Duran was transported by ambulance to the hospital, where his blood was drawn. Testing 

revealed that Duran’s blood alcohol content was .215. The legal limit in Texas is .08. The central 

issue in this case is whether that blood draw was done with Duran’s consent. 

Procedural History

Prior to trial, Duran moved to suppress his arrest and all evidence and statements. At a 

pretrial hearing, Officer Gallegos testified that at the hospital, he Mirandized Duran. According 

to Gallegos, Duran then consented to the blood draw. Gallegos testified that he did not coerce or 

pressure Duran in any way. When asked why the DIC-24 form was not signed by Duran, Gallegos 

testified that the form is only signed by defendants who refused to provide a breath or blood 

specimen. Gallegos did not obtain a warrant for the blood draw, believing Duran’s consent to be 

sufficient.

Duran testified that he never saw the DIC-24 form. He also maintained that he had blacked 

out from his head injury and did not recall the accident, speaking with Officer Gallegos, or giving 

consent for the blood draw. 

The trial court issued findings of fact and conclusions of law. Among them, the trial court 

found that Duran was Mirandized and gave consent for the blood draw. With respect to the head 
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injury, the trial court found:

The defendant’s testimony was that he got knocked out (i.e. had a head-injury) and 

did not recollect consenting to a blood specimen. Nonetheless, on crossexamination by the State, defendant admitted misjudging the curb while on the 

bike; thus, crashing. He provided officer with clear specific answers at the scene, 

and never stated he could not recall due to some head injury or being knocked out. 

The faulty memory only arose at the hospital with respect to the issue of the blood 

draw.

Duran was ultimately convicted of driving while intoxicated. This appeal followed.

DISCUSSION

In Issue One, Duran maintains that the blood draw at the hospital violated his Fourth 

Amendment rights because Officer Gallegos did not have a warrant to seize his blood, thereby 

violating Missouri v. McNeeley.

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 The State counters that Duran consented to the blood draw and 

that the trial court’s finding that Duran consented to the blood draw is supported by the record, 

meaning that Duran’s constitutional rights were not violated and that the trial court was within its 

discretion to deny the motion to suppress. We agree with the State.

Standard of Review and Applicable Law

We review a trial court’s decision on a motion to suppress under a bifurcated standard, 

affording almost total deference to both (1) the trial court’s assessments of witness credibility and 

demeanor and (2) the trial court’s findings of historical fact, so long as those findings are supported 

by the record. Crain v. State, 315 S.W.3d 43, 48 (Tex.Crim.App. 2010). We review the 

application of the law to the facts de novo. Id. We view the evidence in the light most favorable 

to the trial court’s ruling. Wade v. State, 422 S.W.3d 661, 666 (Tex.Crim.App. 2013).

The Fourth Amendment protects people against unreasonable searches and seizures. U.S.

CONST. amend. IV. The taking of a blood specimen constitutes a seizure for purposes of the Fourth 

 

1 133 S.Ct. 1552 (2013)
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Amendment. Schmerber v. California, 384 U.S. 757, 767 (1966). To be constitutionally 

reasonable, a search or seizure such as a blood draw must be supported by a warrant, unless an 

exception to the warrant requirement applies. State v. Villarreal, 475 S.W.3d 784, 795 

(Tex.Crim.App. 2014). Voluntary consent is an exception to the warrant requirement. Fienen v. 

State, 390 S.W.3d 328, 333 (Tex.Crim.App. 2012). Consent vitiates an officer’s need to get a 

warrant before conducting a search or seizure. Id. The State bears the burden of proving the 

voluntariness of consent by clear and convincing evidence. Id. Consent is voluntary when it is 

freely given and not the result of physical or psychological pressure from the police; the 

defendant’s will must not have “been overborne and his capacity for self-determination critical 

impaired[.]” Id. We review the totality of the circumstances to determine whether consent was 

voluntarily given. Id.

Analysis

In his sole issue on appeal, Duran asserts that the State violated McNeeley by seizing his 

blood without a warrant. But Duran’s position presupposes the lack of consent to the seizure. The 

trial court specifically found that Duran did consent to having his blood drawn. As such, the 

threshold question in this case is whether Duran consented to the seizure of his blood. If so, no 

warrant was required, McNeeley does not apply, and the evidence was admissible. Only if Duran 

did not consent—or if his consent was not voluntary—would McNeeley apply. 

Determining whether a person consented to a search or seizure is a mixed question of fact 

and law, one that may turn largely on witness credibility and demeanor. See, e.g., Aguayo v. State, 

No. 08-13-00283-CR, 2015 WL 6741873, at *4 (Tex.App.--El Paso Nov. 4, 2015, no pet.)(not 

designated for publication)(the question of whether a defendant in a hospital consented to a blood 

draw by law enforcement when the only evidence presented was the testimony of the defendant 
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and the testimony of the officer hinged on witness credibility); Hernandez v. State, No. 08-05-

00384-CR, 2007 WL 867651, at *2 (Tex.App.—El Paso Mar. 22, 2007, no pet.)(not designated 

for publication)(trial court was free to resolve question of whether defendant had mental faculties 

to consent to a blood test against defendant where officer testified defendant was awake and 

appeared to be coherent at time warnings were given). Here, as in Aguayo and Hernandez, the

issues of whether Duran (1) consented and (2) had the mental capacity to consent to the blood 

draw ultimately boil down to a conflict in testimony between Duran and Officer Gallegos. At the 

suppression hearing, Duran insisted that he did not consent to the blood draw. Officer Gallegos 

testified that Duran did consent. Because the trial court heard live testimony and we operate from 

a cold record, we must afford almost total deference to the trial court on which witness was more 

credible. 

Notwithstanding the high hurdle of challenging a credibility determination on appeal, 

Duran argues that Officer Gallegos’ assertion that consent was given is not credible as a matter of 

law because (1) Officer Gallegos knew that Duran was in a hospital receiving medical attention 

for head trauma, (2) Officer Gallegos could not conduct field sobriety tests on Duran because 

Duran was not physically able to do them in his condition, and (3) Officer Gallegos did not write 

down that Duran had consented to a blood draw, nor did he have a video or audio recording of 

Duran giving consent. Even given these factors, the trial court was still in a better position than 

this Court to determine whether Officer Gallegos’ testimony was credible. Additionally, the trial 

court noted that there were inconsistencies in Duran’s account of events that cast doubt on his 

credibility as a witness. 

Again, mental capacity to consent to a search is an issue for the finder of fact. Hernandez, 

2007 WL 867651, at *2. Given the conflict in evidence, given the lack of any third-party evidence 
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tending to corroborate testimony one way or another, and given that the issue of Duran’s consent 

largely hinges on a trial-level credibility determination as between Duran’s word and Officer 

Gallegos’ word, the trial court’s credibility determination controls the outcome here, and this Court 

is not in a position to reverse the trial court’s decision. The trial court’s determination that Duran 

consented to the blood draw was supported by the record, meaning that the trial court was within 

its discretion to deny the motion to suppress. 

Issue One is overruled. 

CONCLUSION

We find no reversible error presented before us. The judgment of the trial court is affirmed.

June 10, 2019

YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)