### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00552- CR

Bobb y Joe Stovall, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 26TH JUDICI AL DISTRICT NO. 09- 999- K2 6, H ONO RAB LE B ILLY RAY STUB B LEF IELD, JUDGE P RESIDING

O P I N I O N

A jury found Bobby J oe Stovall g uilty of driving while intox icated (DWI ), enhanc ed to a first-de g ree felony

by previous convic tions. See Tex. P enal Code A nn. §§ 12.42 (West Supp. 2010), 49.04 (West 2003), 49.09 (W est Supp. 2010). The trial court assessed punishment at life imprisonment. On appea l, Stovall contends that the trial court err ed in deny ing his motion to
suppress evidenc e obtained pursuant to a sear ch war rant for the seizure of his blood. We aff irm the judgme nt of conviction.

BACK GR OUND

On the evening of J uly 3, 2 0 0 9 , o fficers from the Round Rock Police Depa rtment

wer e dis patche d to a vehicle colli sion on State Hig hway 79, near the Dell Diamond baseba ll field in Round Rock, Texas. An acc ident had occur red in the heavy traff

ic following a R o u n d R o ck
Ex press baseba ll g ame and subsequent firew orks show, and one of the vehicles involved had left thescene . Offic er J ason Hu f wa s one of the first to arr ive, at which time he saw a red For d Foc us

stopped in the entra

nce of a g roce ry store parking lot off the highw ay . The car ’s passeng er side was

sever ely damag ed. Be s i d e the driver side door stood Bobby J oe Stovall, the reg istered owner of the ca r. 1
Huf approa ched Stovall, who explained to the office r that he had been try ing to turn into t h e s t o re ’s parking lot when another vehicle struck him. Huf noticed signs that Stovall was intox icated; he later descr ibed Stovall as “having a hard time standing in place ,” “swa y ing back and forth,” and having slurred speec h and the smell of metabolized alcohol on his brea th. Howeve r, Huf 2
deter mined that he should turn hi s attention to an injured pa sseng er still inside the vehicle, a nd he asked for another office r to continue with Stovall. Acc ording to Huf, when he was able to resume 3
proce ssing the cra sh repor t for the scene , he found inside the car a full can of malt liquor, an 18-pac k of bee r, and a

n empty beer can tha t was still cold and cover ed in conde nsation. Offic er J ack J ohnson continued the questioning of Stovall for Huf, who sug g ested investiga ting for a potential DWI offe nse. Acc ord i n gl y , J ohnson led Stovall to a more remote portion of the par

king lot and se t the came ra on his patr ol car to rec ord. Stovall ag ain said that he

was driving the For d Foc us toward the g roce ry store when he was hit. Stovall admitted to drinking

The fa cts rec ited here in are taken f rom the testimony

and exhibits admitted at trial. 1 Wit ness Sy lvia Martinez also testified that when she stopped to chec k on the occupa nts of 2 the re d ca r j u s t af

t er the acc ident, she saw Stovall step out of the driver’ s seat and could smell alcohol on his brea

th. Wit nesses testified that a fema le passeng er in Stovall’s car had g lass and blood on her fac e, 3 appea red to be in shock, and had to be cut fre e of the car by the Fire Depa rtment. She was ultimately trea ted for c uts, bruises, and a c oncussion. 2only two beer s more than three hours ear lier, but J ohnson testified that he could smell alcohol on

Stovall’s breath, see him sway ing ba ck and f

orth, and he ar tha

t his speech wa s slurred.
C o n s e q u e n t l y , J o h n s o n c o m m e n c e d t h e s t a n d a r d iz e d f i e l d

- s o b ri e t

y t e s t s . A d m i n i s t e ri n g the horizontal g aze ny stag mus test, J ohnson observe d that Stovall had difficulty focusing enoug h to complete the test and ultimately exhibi ted six of six possible clues of intox ication. On the nine-step 4
walk-a nd-turn test, he noted that Stovall exhibi ted six of eig ht possible clues. On the one-le g stand test, Stovall ex hibited three of four possible clue s. J ohnson decide d to test Stovall further , first asking him to count backw ard from the number 67 to 50, which Stovall could not manag e. “I don’t know if any two numbers made it in the rig ht or der,” J ohnson stated at trial. “We wer e from the 50s to the 40s to 55. W e we re a ll ove r the place .” L astly , J ohnson asked Stovall to rec ite the alphabe t, which he also failed to do. Acc ording
to J ohnson, “I t was slurred, of course . But he might have g ot a few in the rig ht o rd er . Bu t i t was nothing to complete the AB C’s.” J ohnson testified that, based on his experience and the totality of these re sults, he concluded tha t Stovall was intox icated.

J ohnson place d Stovall under arr est for DWI and rea d him the statutor y war ning about implied consent to a brea th sample. See Tex. Transp. Code Ann. § 724.015 (West 2011) (listing disclosures that police must make to DWI s uspects befor e reque sting a brea th sample). Stovall ref

used to g ive a sample or even sign the form, and he then beg an deny ing that he had driven the Ford Fo cu s that evening

. J ohnson testified t hat, upon chec king Stovall’s criminal hi story and

The horizontal g aze ny stag mus te st is a field-sobrie ty test that examines a suspect’s e y es 4 for inability to smoothly trac k a moving object. See Emerson v. State , 880 S.W .2d 759, 762 (Tex. 1994). 3rea liz ing that this DWI char g e would be prosec uted as a felony , he deter mined that he should pursue

a war rant to test Stovall’s blood. He offe red Stovall another chanc e to g ive a brea th sample 5 voluntarily , and Stovall ag ain re fused.

A f te r r e tu r n in g St o v a ll to H u f f

o r tr a n s p o r t a t i o n t o t h e W i l l i a m s o n Co u n ty Ja il , Jo h n s o n
prepa red an aff idavit of probable cause and a sear ch war rant for signa

ture by a mag istrate. I n part, the af fidavit stated:

My name is Jack Johns on , and I am commissioned as a peac e office r and employ ed by the Round Rock P olice De partm ent

. 1. There is in Wil liamson County , Texas, a suspected person descr ibed and located as follows:
An individual named Bobb y Joe Stovall , who

. . . shall here afte r be call ed “suspec ted party .” Suspected party is prese ntly in custody at the Round Rock Police Depa rtment in Round Rock, Texas.
2. Said suspected pa

rty is presently

in the control and custody of Affia nt, w ho will prese nt suspected pa

rty for pur poses of e x ecution of the war rant re quested he reby

. 3. I t is the belief of Affia nt that said suspected party has p o s s es s i o n o f and is conce aling the following proper ty : human blood.
4. I t is the belief of Affia

nt, and he here by char g es and acc uses that on or about July 3, 2009, Bobb y Joe S tovall did t h en an d t h ere opera te a motor vehicle in a publi c place while intox icated by not having the normal use of mental or phy sical fac ulties by rea son of the introduction of alcohol, controlled substance, drug , or a dang erous drug into the body

. 5. On July 3, 2009 at 10:34 p.m . , th e R R P D d i s p atcher dispatched Offic er Huff [si c] of the Round Rock Police Depa rtment to a two car collision which had occur red

This arr est occur

red two months befor e the September 1, 2009, eff ective date of state 5 leg islation mandating a blood or breath sample whe re the driver ha s at least two prior c onvictions of DWI

. See Tex. Transp. Code Ann. § 724.012 (West Supp. 2010). 4in the 1700 block of East Palm Valley Blvd, which i s a l o cation in Wil liamson

C o u n t y , T exas. When Offic er Huff [si c] arr ived, he has told Affia nt that he made contac t wi t h t he defe ndant, Bobb y Joe Stovall , and observe d a strong odor of alcohol about his person, slurred speec h, and that the defe ndant sway ed while he was standing

. An independe nt witness, Sy lvia Martinez observe d the co l l i sion and verba lly identified S tovall as t he driver of one of the vehicles. I n addition, Stovall ad mitted to Affia

nt and Offic er Huff [si c] that he had been driving

. Af fi an t administered f

ield sobriety

tests to Stovall afte r dealing with othe rs involved in the collision. The defe ndant perf ormed poorly on the tests and exhibi ted 6 clues on the HGN test . . . . After observing the suspecte d party during this contact and his perf ormanc e on the field sobriety tests, I deter mined that he was i n t o x i ca t ed , and I place d him under arr est for Driving Whil e I ntox icated. I re q u es t ed a sample of his brea th which suspected pa

rty ref used to provide.
Af fi an t k n ows from previous experience and training that the above listed clues of intox i cation indicate the person display ing the clues is often intox icated. Affia nt knows from previous experience and training that qualified labora tory persona l [si c] such as those employ ed at t h e T ex as Depa rtment of Public Safety , Crime L abora tory , can throug h testing, deter mine the alcohol conce ntration in [si c] individual by

testing a sample of that individual’s blood. Wherefor e, Affia

nt asks for a sear ch war

rant that will authorize Affia nt or his ag ent to sear ch the person of the suspected party for the proper ty descr ibed above and seize the same as evidenc e that the offe nse descr ibed was committed and that suspected party committed said offe nse.

At 1:31 a.m. on J uly 4, a mag istrate signe d the aff idavit and war

rant, and J ohnson proce eded to the jail, wher e a phlebotomist took a sample of Stovall’s blood. A scientist at the Texas Depa rtment of Public Safety Crime L ab tested the sample and later testified as to the results, indicating that Stovall’s blood alcohol conce ntration was .32 g rams per 100 milli liters, four times the leg al limit of .08 g rams per

100 milli liters. See Tex. P enal Code A nn. §§ 49.01, .04 (West 2003). Stovall wa s char g ed with felony DWIand with using his motor vehicle as a deadly

wea pon. Be fore trial, he filed a motion to s u p p re s s evidence perta ining to his blood sample and

5tox icolog y results. At a hear ing on his motion, Stovall arg ued that the sear ch war rant for his blood

was inadequa tely supported by probable cause beca use the aff

idavit failed to state the date and time of his alleg ed offe nse. This information was pertinent to the mag istrate’s deter mination that a blood
test taken three hours afte r the arr est would reve al evidenc e of Stovall’s alleg ed offe nse. The court denied Stovall’s motion, and the blood-test evidenc e wa s admitted at trial.

After hear ing the evidenc e, a jury found Stovall g uilty of the DWI char g e, but did not find that he used a deadly wea pon during the offe nse. Stoval l el ec t ed fo r t h e trial court to assess punishment, and the court order ed a pre- sentenc e investiga t i o n of the prior convictions used to enhanc e Stovall’s offe nse to a first-deg ree felony

. See id

. § 12.42. The investiga tion reve aled that Stovall had prior convictions of coca ine possession, driving while license su s p ended, cre dit car d abuse, a nd burg lary , along with eig ht prior convictions and one pending char g e of DWI

. The trial
court assessed Stovall’s punishment at imprisonment f or life. Stovall now appea ls on the g rounds that the trial cour

t erre d in deny ing his motion to suppress.

STANDARD OF REVIEW
A trial co urt’s ruling on a motion to suppress is revie wed on appea l for abuse of discretion. Crain v. State , 315 S.W .3d 43, 48 (Tex. Crim. App. 2010 ). No rm al l y , we apply this standard in a bifurca

ted fashion, g iving almost total defe renc e to the trial court’s deter minations of fac t, inc luding witness cre dibilit y and demea nor, while revie wing de novo its a pplications of law.
State v. McLain , 337 S.W .3d 268, 271 (Tex. Crim. App. 2011); Crain , 315 S.W .3d at 48. Howeve r, in the case of a motion to suppres s b as ed o n t h e issuance of a sear ch war rant, the trial court is constraine d t o t h e fo u r corners of the aff idavit and thus makes no cre dibilit y deter minations.

6McLain , 337 S.W .3d at 271. Consequently , a unique standard of revie w is a pplied when a motion
to suppress is based on a mag istrate’s decision to issue a war rant. State v. W

ebre , 347 S.W .3d 381,
384 (Tex. App.—Aus t i n 2011, no pet.). Both trial and appellate courts revie wing a mag istrate’s decision to is s ue a war rant apply a highly defe rential standard ref lecting the constitutional pref ere nce for sear ches to be conducte d pursuant to a war rant as opposed to being war rantless.
McLain , 337 S.W .3d at 271; Rodriguez v. State , 323 S.W .3d 55, 61 (Tex. Crim. App. 2007). Under this defe rential review, the duty of t he reviewing court is s i m p l y to ensure that the m ag istrate had

a substantial basis for concluding that probable cause exis ted. State v. Jordan , 342 S.W .3d 565, 569 (Tex. Crim. App. 2011) (quoting Illinois v. Gates , 462 U.S. 213, 238–39 (1983)).

As an appellate court revie wing an issuing mag istrate’s decision to issue a war rant,

we too are constraine d to the four corne rs of the aff idavit. W ebre , 347 S.W .3d at 382. Howeve r, we

are not to analy

ze the aff idavit in an hy

perte chnica l manner . Rodriguez , 232 S.W .3d at 59. Rather,

we interpre t the aff

idavit in a “commonsensica l and rea listi c manner , rec og nizi ng that the mag istrate
may draw rea sonable infere nces. When in doubt we d ef er t o all rea sonable infere nces that the
mag istrate could ha

ve made .” Id . at 61.

DISCUSSIO N Denial of Motion to Suppress

I n his only point of error, St o v all claims that the t rial court abused its discretion in deny ing his motion to suppress. Stovall claims the war rant for his blood sample was issued without probable cause beca

use the a ffidavit in support of the w arr ant fa iled to sta te the date and time that the alleg ed DWI offe nse occur red. See Tex. Code Crim

. Proc. Ann. art. 18.01(c) (West 2005).

7Stovall arg ues that without this information the mag istrate had no basis to conclude th at a b l ood

sample would re veal e vidence of Stovall’s g uilt. 6

Ar t i cl e 18.02 of the Texas Code of Criminal Procedur e authorizes the issuance o f

a war rant to seize blood. Id

. art. 18.02

. T h e s ea rc h war rant must be supported by an aff idavit containing sufficie nt f

acts to show probable cause that: (1) a specific offe nse has been committed; (2) the items to be sear ched for and seized co n s titute evidenc e of that offe nse or that a particula r person committed that offe nse; and (3) the items are located at or on the particula r person, place , or thing to be sear che d

. Id. art

. 1 8

. 0 1 ( c )

. Pr o b a b le c a u s e e xis ts w h e n a ma g is tr a te h a s “ a

s u b s ta n ti a l b a s is f

o r c o n c lu d in g th a

t a s e a r c h w o u ld u

n c o v e r e v id e n c e o f w r o n g d o in g . ” S ta te v
. D u g a s , 296 S.W .3d 112, 116 (Tex. App.—Houston [14t h Dist.] 2009, pet. ref ’d). A mag istrate deter

mines whether probable cause ex i sts from the totality of the circ umstances set forth in the aff idavit.
See Jordan , 342 S.W .3d at 570 (noting that the U.S. Supreme Court has instructed appellate courts “to revie w the ‘totality of the circ umstances’ set forth within t h e fo u r co rners of the aff idavit” (quoting Gates , 462 U.S. at 238)). Whil e restric t ed t o t h e co n tents of the four corne rs of the aff idavit, the mag istrate may construe those contents in a common-sense , non-tec hnical manner and

Stovall’s proposition relies heavily on our opinion in State v. Jordan , 315 S. W

. 3 d 660 6 (Tex. App.—Austin 2010), rev’ d, 342 S.W .3d 565 (Tex. Crim. App. 2011). I n that case , we he ld that an aff

idavit a lleg ing the date of an offe nse only in the aff iant’s introductory statement, but not in the rec itation of fac ts, failed to state probable cause . Stovall rea sons that if the date and time wer e improperly set out in the fac t alleg ations in the aff idavit in his case , the mag istrate would be left to rely on the date provided in the g ener al acc usation para g raph, which our Jordan opinion prohibited. Ho we v er , as the State corr ectly notes, that opinion was reve rsed by the Texas Court of Crimi n al Appea ls a fter Stovall submitted his br ief in this appea l. See State v. Jordan , 342 S.W .3d 565, 567 (Tex. Crim. App. 2011). I n its opinion, th e co u rt h eld that the aff iant’s introduction and the rec itation of fac ts in an aff idavit must not be considere d separ ately and the introduction is a perf ectly acc eptable sour ce of

information as to date and time. Id. at 571. 8draw

rea sonable infe renc es from the facts and circumstance s they prese nt. Flores , 319 S.W .3d at 702. I n this case, g iven the totality of the circ umstances set forth in the a ffidavit, we cannot a g ree that the mag istrate lacke d a substantial basis for concluding that Stovall’s blood sample would

uncover evidenc e of his alleg ed DWI offe nse. First, the af

fi d avit supporting the war rant for Stovall’s blood sample states that Offic er Huf was dispatched to the acc ident at 10:34 p.m. on J uly 3, 2009. Acc ording to Stovall, the time of the police dispatch was not a sufficie nt indicator of the time he committed the DWI offe nse. S t o v all disputes that, as the trial court sug g ested, the mag istrate could have draw n a reas o n ab l e infere nce from “common knowledg e that dispatcher s dispatch promptly wher e an acc ident occur s.”
S ee Ritz Car W

ash, Inc. v. Kastis , 976 S.W .2d 812, 814 (Tex. App.—Houston [1st Dist. ] 1988, pet. denied) (flammable nature of gasoline wa s “common knowledg e” f or produc ts liabili ty purposes). Stovall instead char acte rizes this knowledg e as “spec ialized.” See Cardona v. State , 134 S.W .3d 854, 860 (Tex. App.—Amar illo 2004, p et

. ref’d) (mag istrate improperly relied on “spec ialized knowledg e” to infer that anhy drous am m o n i a was illicitl y obtained and improperly stored for purposes of manufa cturing methamphetamine beca use it was found hidden in machine shop). Our sister court observe d in Cardona v. State that “the rule of law prohibits us from perusing
any thing other than the four corne rs of the [affidavit]. Any specia liz ed knowledg e ly ing within the mind of a police office r or jurist and g arne red throug h the y ear s fa l l s o u t s i d e that rea lm.” Id

. Howeve r, we need not decide whether the mag istrate could have proper ly relied on any knowledg e
reg arding the promptness of dispatc hes.

9I n this case , it was not nece ssary fo r t h e mag istrate to rely on any knowledg e that

dispatcher s dispatch promptly in order to conclude that Stovall c o mm it ted the alleg ed offe nse shortly b ef o re 1 0 : 3 4 p.m. Acc ording to the affidavit, Offic er Huf was dispatched quickly enoug h to fi n d Stovall, his damag ed vehic le, and a witness still at the acc ident scene . Stovall admitted twice that he had been driving , and the witness, who had observe d the acc ident, also identified Stovall as one of the drivers. Thus, the aff idavit on its fa ce sets out suf ficient fac ts w here by the mag istrate could have r easona

bly inferr ed that Stovall was driving his vehicle just prior to the time of the dispatc h. Second, the aff

idavit states that Offic er Huf observe d Stovall ex h i b iting signs of intox ication such as sway ing, slurred speech , an d a s t rong odor of alcohol when police arr ived sometime afte r 10:34 p.m. The aff iant, Of fi ce r J o h n son, then administered field-sobrie ty tests to Stovall. He perf

ormed poorly , “exhibiti ng six clues on the HGN test,” and was promptly taken into police custody wher e he rema ined from that p o i n t forwa rd. Given these fac ts submitt ed in the aff idavit, the mag istrate had a substantial basis to deter mine that evidenc e of intox ication would still be prese nt in Stovall’s blood when the sear ch war rant issued less than three hours later at 1:31 a.m. 7
See Dugas , 296 S.W .3d at 117 (“[C] onsidering that a maxi mum of six ho u rs had elapse d since appellee was stopped

. . . we cannot say it was unrea sonable for the mag istrate to presume that there still would be some evidenc e of in t o x i ca t ion found in appellee ' s blood when the war rant was signe d.”).

The mag istrate could also have inferr ed that Stovall had driven while intox icated from his 7 ref usal to submit to a b re at h t es t. See generally Tex. Transp. Code Ann. § 724.061 (West 2011) (re fusal to g ive brea

th specimen is admissible at trial); Bartlett v. State , 270 S.W .3d 147, 153 (Tex. Crim. App. 2008) (evide nce of ref usal to submit to brea th test is relevant be cause it tends to show that defe ndant had c onsciousness of g uilt). 10We h o ld th a t, in te r p r e ti n g the aff

idavit in a common-sense manner , the mag istrate had

a substantial basis to conclude that Stovall committed the DWI offe nse just shortly befor e the police

wer e dispatched and that the blood sam p l e soug ht in the war rant would uncover evidenc e of that offe nse. The aff

idavit was adequate to g ive the mag istrate a substantial b as i s for concluding that probable cause exis ted. The trial court did not abuse its discretion in deny ing the motion to suppress, and Stovall’s sole point of err or is overr uled.
Harm Analysis Although we hold that the trial court did not err in deny ing Stovall’s motion, we note that even if

err or had oc curr ed, we would nonetheless f ind it har mless. Stovall urg es that bec ause the seizure of his blood violated the Four th Amendment, this Court must apply a constitutional harm analy sis and thus reve rse his conviction unless we deter mine bey ond a rea sonable doubt that the err or did not contribute to the verdic t. Tex. R. App. P. 44.2(a) ; Hernande z v. State , 60 S.W .3d 106, 108 (Tex. Cri m . App. 2001). The State counter s that if the trial court did err , at most it violated state statutory law, warra

nting a non-constitutional harm ana ly sis under which w e would find harmless

err or. See Tex. R. App. P. 44.2(b). We ag ree that any err or in Stovall’s case would have been purely statutory and, g iven the fa cts prese nted at trial, ha rmless. The taking of a blood sample is a sear ch and seizure under both the fede ral and Texas constitutions. Aliff v. State , 627 S.W .2d 166, 169 (Tex. Crim. App. 1982). Howeve r, under cer tain circ umstances, a blood sample t aken without a warra nt is not an unreasonable sear ch and seizure, and therefor e comports with constitutional require ments. Schme rber v. California , 384 U.S. 757,
770–71 (1966)

. Police office rs may constitutionally obtain a blood sample without a war rant or
11consent if they have probable cause , exigent circ umstances, and a rea sonable method of extraction.

Id. The fac t that alcohol dissipates quickly in the blood has been held to constit u t e exigent circ umstances. State v. Laird , 38 S.W .3d 707, 713 (Tex. App.—Austin 2000, pet. ref ’d). Thus, the

rea sonable taking of a blood sample for evidenc e of a DWI offe n s e, wher e probable cause exis ts, meets constitutional require ments despite the abse nce of a valid wa

rra nt or consent. Id

. I n Texas, howeve r, there are additional statutory require ments that must also be met

w h e n a p e r s o n is a

r r e s te d f o r a n in to xic a ti o n - r e la te d o f f e n s e . S e e T e x. T r a

n s p . Co d e A

n n . § § 7 2 4

. 0 1 1 , .013, .015 (West 2011) ; Laird , 38 S.W .3d at 713–14. Texas’s implied c onsent statute g overns the
State’s ability to obtain a brea th or blood sample from a person arr ested for an intox ication-re lated offe nse and provides that an arreste d suspect has impliedly consente d to the t aking of a sample i n

cer tain circ umstances. See generally Tex. Transp. Code Ann. §§ 724.001, et seq .; State v. Johnston , 336 S.W .3d 649, 661 (Tex Crim. App. 2011). At the s am e t i m e, the statute limit s the ability of police off icer s to obtain a sample whe n the arrested suspect expressly ref uses, as S tovall arg

uably did here

. See Tex. Transp. Code Ann. § 724.013.

When a v al i d sear ch war rant is obtained for a blood or brea th sample, the require ments of cha

pter 724 do not apply

beca use there is no need to obtain the ar rested suspe ct’s
consent. Bee man v. State , 86 S.W .3d 613, 616 (Tex. Crim. App. 2002) (“[I ]f the State has a va lid

sear ch war

rant, it ha s no need to obta in the suspect’s consent [under chapte r 724].”). Howeve r, in the absenc e of a valid sear ch war rant, full compliance with chapte r 724 is require d, even though the sample is taken from the arr ested suspect under exigent circ umstances. See Laird , 28 S.W .3d at 713 (“Te x as courts require full compliance with the provisions of Chapter 724 when a blood sa mple is

12taken from an arr ested suspect even though exigent circ umstances exis t.”). As a result, the State

is corr ect that if the war rant had not been supported by probable cause in this case , the only potential err or by the t rial court would fall under chapter 724. As a non-constituti onal error, thi s 8
would justify reve rsal of Stovall’s conviction only if the rec ord provided us with less than “fa i r

as s u ranc e that the err or did not influence the jury , or had but a slight eff ect.” Johnson v. S t a t e , 967 S.W .2d 410, 417 (Tex. Crim. App. 1998).

At trial, the results of Stovall’s blood test wer e compounded by evidenc e including his

t wo admissions that he was driving ; his admission that he had been drinking ; the testimon y that alcohol was found in his vehicle; the testimony that he smelled of alcohol, slurred his sp eech, and sway ed while standing at the acc ident scene ; the results of the field-sobrie ty tests; an d the u nflattering patrol-c ar video on which he failed even to rec ite the alphabe t. I n light of this overwhelming evidenc e, the blood-conc entra tion evidenc e was essentially cumulative. We would h av e m ore than “fa ir assura nce that the err or . . . had but a slight eff ect” and would hold the err o r harmless, a ffirming Stovall’s conviction even in the a bsence of a va lid warra

nt.

CONCLUSION We affir m the judgme nt of conviction.

I n Stovall’s case , his many visibl e s y m p toms of intox ication and admission to 8 driving clea

rly provided the office r with proba b l e ca u s e t o suspect him of DWI ; the dissipation of alcohol from his blood prese nted exigent circ umstances; and the phlebot o m i s t at police headqua rters supplied a rea sonable means of extraction. See S t a t e v. Johnson , 336 S.W .3d 649, 662–63 (Tex. Crim. App. 2011) (noting that a police phlebotomist draw ing blood in a hy g enic room inside a jail is considere d a rea sonable method of extraction). Thus, the constitutional require ments for a war ra n t l es s b l o od sample wer e met, and the results would have been admissible under the Four th Amendment. 13____________________________________ Diane M. H enson, Jus tice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: Nove mber 23, 2011 Publis h

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