### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00338
- CR

The State of Texas, Appellant

v. Thomas Fikes, Appellee

FROM COUNTY COURT AT LAW NO. 8 OF TRAVIS COUN TY

NO. C
- 1
- CR
- 17
- 20962 4 THE HONORABLE CARLOS HUMBERTO BARRERA, JUDGE PR ESIDI NG

O P I N I O N

Appellee Thomas Fikes was charged by information with driving while into xicated. He filed a motion to suppress the results of a blood

- alcoh ol analysis. The trial court granted the

mot io n to suppress, and the State now appeals . We wi ll reverse the trial cour t ’ s order suppressing the evidence and remand this cause to the trial court for further proceeding s.

BACKGROUND Rebecca Morton was the phlebotomist who drew Fikes ’ s blood

. 1 Before th e blood draw, Mo r ton had arranged vari ous item s on the top of the “ sharps container, ” also called the

“ biohazard bin. ” After Fikes entered the room, Morton removed a pair of gloves f rom the top of the sharps container and put them on. While wearing the gloves, she ran h er hands through her
h air and put on a sweater . F ikes sat in a chair that was near both the sharps container and a small

1 At the suppressio n hearing, the State in t roduced a vide o of the blood draw

.2

trash can . Morton applied a tourniquet to Fi kes ’ s arm t hat she had removed from the top of the sharps con tainer. S he then removed tw o unopened pac kages of disinfe ctant wipes from the top of the sharp s container, opene d one pack age , and wiped Fikes ’ s arm . S he threw the package and used wip e into the tra sh can, opened the othe r package, wiped Fik es ’ s arm again, and thr ew the second pac k age and wipe into the trash

. Morton then removed a piece of gauze that was not in a

pa ckag e from the top of the sharps container and placed it on the armrest of Fikes ’ s chair. She
also rem oved a syringe in a package from the top of the sharps container, opened the package, an d
filled t wo vials with Fikes ’ s blood

.

Afte r drawing the blood, Morton removed the tourniquet , thre w the used syringe
into the opening on the top of the sharps container, and placed the gau ze on Fikes ’ s arm, placing the side of the gauze that had been fa cing up when it was sittin g on the sharps container on his

arm
. Morton labeled the vials and then remo ved a n adhesive bandage from the top of the sharps

con t ainer. The b andage ’ s wrapper was partially opened, and the exposed part of the ba ndage had
been s t icking to the container

. She applied the bandage to Fikes ’ s arm. Mort o n then thre w the bandage wrapper and her gloves into the trash can

.

At th e suppres s ion hearing, Morton testified to the following:

• S he used t he to p of the sharps c ontainer because “ it prov ides a nice, flat surface to have everything there so that you ’ re not having to turn around

. ” She did not like to turn her ba ck to the ar rest ees, w ho might not be cooperative

.

• The sharps container has a on e
- w ay valve so that noth ing comes back o ut of the container.

• Based on her usual practice , she assumes that she used bleach wipes to wipe down all the surf aces in the room , including the top of the sharps container, at the be ginning of her shift.

• The peop le fr om whom she draws bl ood are not al wa ys clean . As Morton testified, “ [T] he level of cleanliness of the person I ’ m drawing the blood on is a huge factor because there3

are plenty of people who h aven ’ t showered in days, who just came from wrestling in th e gra vel, who totaled the ir car. ”

• She do es not u sually clean the sh arps container between blood draws.

• She does not know whether Fikes was the first blood draw of her shift.

• She cannot name anyo ne else who uses the sharps container as a workstation.

• Sh e does not know whether u sing t he sharps containe r as a workstation is recognized by the scientific community or is standard medical pra ctice.

• She now has a table to use as a workstation , and the sharps container is attac hed to the wall. She c annot remember when the table was in stalled

.

• The pa rt of th e bandage that touched the puncture in Fikes ’ s arm was still closed when the ba ndage was stuck to the sharps cont ainer.

Morton was the Sta te ’ s on ly witness. F ikes then c alled Joseph Urena , who testified to the following:

• He wo rks at St. David ’ s as a c ertified phlebotomist and phleb otomy trainer. He has been doin g that job for “ well over two decades ” and has been training phlebotomists for at le ast 15 years

.

• He is responsible for “ reeducation ” if phlebotomists or nurses are no t following proc edures.

• A bio hazard container is not considered clean and is not a work surface.

• “ [A] ny kind of blood path ogen whatsoever ” can potential ly be on the top o f the sharp s container.

• Hepatitis C can live in dry blood up to three weeks on a su rface like the s harps con t ainer.

• HIV can live for up to three hours.

• If a person touches her hair with gloves on, the glov es are no longer considered c lean, and it is sta ndard pro cedure for the person to change gloves be fore drawing blood.

• There can be “ transference ” fr om the t op of the bio hazard container to gau ze.4

• In “ a hospital setting or pretty much any medical setting , ” the biohazard container should not be sitting on the fl oor and should instead be attached to the wall

.

• It is possib le for blood to splash back up from the needle to the top of the biohazard container. These blood droplet s can be micr oscop ic , but even a micr oscopic portion of blood can be “ enough to get somebody sick

. ”

• Phlebotomists at St. Davi d ’ s would not be allowed to use a sharp s bin as a works tation. When asked what would happen if a phlebotomist a t St. David ’ s did use the sharp s bin, Urena res pon ded, “ Well, I mean, it ’ s possible they would be written up. If i t continues on it could go

— I mean, we just don ’ t see that really hap pen. ” Alth ough the phleb otomist would be “ written up, ” the blood would not be discarded , and they would “ still medically
r ely ” on the blood s pecimen.

• He wat ched the vide o of F ikes ’ s blood draw. He would not characteriz e this blood draw as

“ following sta ndard phlebotomy procedur es
. ” He affirmed that t his type of behavior could

“ possibly lead to risk of infection or disease to a patient

. ”

The trial court recessed the p ro ceedings, and the hearing resumed at a later date. After hearing argument from cou nsel, the trial court stat ed the following:

I have no problem with the sealed sterile gauze used to wipe his arm or the n eedle or anything like that, but that bare four

- by

- four gauze on top of the sharps container and that open Band

- Aid adhered to it, yo u know, that are applied di r ectly to the puncture site, to me that ’ s just way beyond the pale so I do grant the Motion to S uppress.

The trial court signed an order grantin g Fikes ’ s motion to suppress and issued findings of fact and
conclusions of law

. T he court ma de the foll owing f indings and conclusions , among others :

• “ On the floo r just in front of the chair upon which Fik es sat for his blood draw was a sharps container b ox labeled biohazard, conveniently to the left of Morton as she dr ew Fike s ’ s blood. ”

• “ On the top of the sha rps container Morton had placed a bare 4 by 4 inch gauze pad to be used, and used, to wipe Morton ’ s [sic] puncture wound after the draw. ”

• “ Hanging f

rom the top front edge of the sharps container Morton adhered a somewhat opened ‘ ba nd aid ’ to be us ed, and use d , to cover Fikes ’ s puncture wound after the draw. ”5

• “ The open gauze and ‘ band aid ’ as placed and used posed an extreme potenti al risk of c ontami na tion and infection to Fikes. ”

• “ Although the general environment of the blood draw room may have be en clean an d sanitary, the exposure of the 4 by 4 gauze and the ‘ band aid ’ on the bioha zard sharps containe r exposed Fikes to an unjustifiable risk of in fe ct ion [and] was therefore a violation of the Fourth Amendment of the Uni ted States Co nstitution as an un reasonab le search. ”

This appeal followed.

APPLICABLE LAW AND S TANDARD OF REVIEW
The Fourth Amendment provid es that “ [t]he right of the people to be s ecure in their persons, houses, papers, and effects, against unreasonable searches an d seizures, shal l not be
vi ol ated. ” U.S. Const. amend. IV. “ The touchstone of the Fourth Amendment is reasonableness. ”
S tate v . Villarreal , 475 S.W.3d 784, 795 (Tex. Cr im. App. 2014) (citing Riley v. California , 573 U.S. 373, 381 (2014)). “ The drawing of a person ’ s bl ood is a sea rc h under the Fourth
Amen dment. ” Roop v. State , 484 S.W.3d 594, 598 (Tex. App.

— Austin 2016, pe t. ref ’ d) ; see Sch merber v. Ca lifornia , 384 U.S. 757, 769 (1966) (describing blo od draws as “ searches involving intrusions beyond the body ’ s surface ” ) . Indeed, as the Supreme Court has recognized, “ [s]uch

an invasion of bodily integrity impli cates an indi vidua l ’ s ‘ most personal and deep

- rooted
expectat ions of privacy. ’ ” Missouri v. McNeely , 569 U.S. 141, 148 (2013) (quoting Winston v. Lee , 470 U.S. 7 53, 760 (19 85 ))

.

“ A blood draw is reasonable under governing Fourth Amendment requirements if the police had a justification for requiring the blood samp le to be taken and if reasonable means and procedures were used in obtaining the bloo d sample. ” Stat e v. Gray , No

. 03

- 17

- 00174

- CR, 2017 WL 2729672, at *2 (Tex. App.

— Austin June 22, 2017, no pet.) (mem. op., not designated for p ublication) (citing State v. Johnston , 336 S.W.3d 649, 658 (Tex. Crim. App. 2011) ). “ When6

assessing whether the second requireme nt is met, re viewing courts must consider whether the test chosen by the police was reasonable and whether the test was performed in a reasonable manner. ”
Id. (citing Schmerber , 384 U.S. at 771 ). “ If a defendant seeks to suppress evidence on the basis of
the Fourth Am endment, the burden of proof is on the defendant to overcome the presump tion of proper police conduct. ” Martinez v. State , 220 S.W.3d 183, 1 86 (Tex. App.

— Austin 2007, no pet.) ; see State v . Martinez , 569 S.W.3d 621, 623 (Tex. Crim. App. 2019 )

.

We revi ew a trial court ’ s ruling on a mo tion to suppress for an abuse of discretion.
See State v. Cor tez , 543 S.W.3d 198, 203 (Tex. Cr im. App. 2018)

. We view the record in the

“ light most favorable to the trial court ’ s conclusion and revers e the jud gment only if i t is outside
the zone of reaso nable disagreement. ” State v. Dixon , 206 S.W.3d 5 87, 590 (Tex . Crim. App. 2006). Furthermore, we use a bifur cated standard , see Ro op , 484 S.W.3d at 597 , “ giving almost
total deference to the hi storical facts f ou nd by the t ri al court and analyzing de novo the tr ial court ’ s application of the law. ” State v. Cuong Phu Le , 463 S.W.3d 872, 876 (Tex. Crim. App. 2015) ;

see Morales Chavez v. State , No. 03

- 17

- 00 637

- CR, 2019 WL 2293566, at *2 (Tex. App.

— Austin May 30, 2 01 9, no pet. ) ( mem. op., not designated for publi cation) ( “ [W] e review a trial court ’ s application of search and seizure law to the facts de novo. ” )

. I n cases involving video evidence,

we “ view the video in the light most favorable to t he trial court ’ s r u ling, ” State v. Espinoza , No. 08

- 16

- 00087

- CR, 201 8 WL 6259210, at *3 (Tex. App.

— El Paso Nov. 30, 2018, no pe t .) (not designated for publication), althou gh we review de novo “ indisputable visual evidence , ” State v.
Duran , 396 S.W.3d 563, 570 (Tex. Crim. Ap p . 2013)

.7 DISC US SION
I n the trial court, Fikes argue d, and the court agreed, that Fikes ’ s blo od draw

v iolat ed the Fourth Amendment because it exposed F ikes to an unjustified risk of infection

. Fikes
relies on Schmerber v. California , in whi ch the Sup reme Court stated :

[T] he record shows tha t the test was performed in a reasonable manner. Petit ioner ’ s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus n ot prese nted with the se rious questions wh ich would aris e if a search involving u se of a medical technique, even of the most rudime ntary sort, were made by other than medical pers o nnel or in other than a medical environment

— for example, if it were adm inistered by police in the pr ivacy of the stati onhouse. To t ol erate searches under th ese conditions might be to invite an unjustified e lemen t of personal risk of infection and pain.
W e thus conclude that the present record shows no violation of petitioner ’ s right unde r the Fourth and Fourteenth Amendm ents to be fre e of unreasonable searche s and seizures. It bears repeating, however, that we r each this judgment only on the facts of the present record. The integrity of an individual ’ s person is a cherished value of our society. That we today hold that the Constitut io n does not forbid the S tates minor intrusions into an individual ’ s body u nder stringently limited condit ions in no way in d icates that it permits more substantial intrusions, or intrusions under other condit ions.

Schmerber , 384 U.S. at 771

– 7 2

.

Fikes con te nds that, unlike in S chmerber , his blood draw exposed him to an unjusti fiabl e risk of infection because Morton used a s h a rps container as a workstatio n. In two

app ellate issues, the State contends that t he blood draw di d not violate the Fo urth Amendment a nd that, even if it d id, the trial court abused its discretion in suppressin g the results of the blood test.

A s the S t ate admits, using a bio hazard container as a workstation for a blood draw
is n ot ide al. How ever , ev en viewing the evide nce in the lig ht most f avorable to the trial court ’ s

r uling, we conclude that Fikes failed to mee t his burden of showing that Morton ’ s a ctions were so egregious that they created an “ unjustified e lemen t of personal risk of infection and pain ” that rose8

t o the level of v i o lating the Fourth Amendment. See id. at 772

. Al though Ur ena testifie d that path ogens can live on the top of the conta i ner and be spread through contact with blood, Fikes presented no evid ence concerning the likelihood that Morton ’ s action s woul d spread a p athogen

. Morton testified that it was her practice to disinfect each sur fac e a t the beginning of her shift,
includin g the sharps container, and Fikes presented no eviden ce of how many people, if any,
M orton drew blo od from that shift bef ore drawing his b lood. Finally , Fikes presented no evidence
tha t any part of the gauze or bandage tha t touched the sharps cont ainer la t er made contact with his puncture site

. 2
Because the record before us does not dem onstrate th a t Fi kes ’ s blood draw vio lated
the Fourt h Amendment by subjecting him to an unjustified risk of infection, we conclude that the
trial court abu sed its discretio n in granting his motion to suppress the results of the blood analysis

. See Zalman v . State , No. 13

- 13

- 00471

- CR, 2015 WL 512914, at *9 ( Te x. App.

— Corpus Christi Feb. 5, 2015, pet. ref ’ d) (mem. op., not designated for publi cation) ( concluding that “ appella n t has
not shown that the blood draw was unreasonable ” despite pr esence of inse ct s in room du ring blood draw); Adkins v. State , 418 S.W.3 d 856, 861 (Tex. App.

— Houston [14th Dist.] 2013, pet. ref ’ d) ( “ Appellant p resented e vidence at trial that t h e cotton ball used to clea n the injection area was placed on a table before it was u sed. This alone , however, is not enough evidenc e to prove that th e environment or the procedure presented an unjustified risk of infectio n or pain. ” ) ; Gambini v. State ,

2 The Sta te argues on appeal that the search and seizure end ed the moment that M o rton finished extra cting blood from Fikes ’ s ar m a nd that the application of the g a uze and bandage was therefore not part of the search

. Because we conclude that there was no Fourth Am endment violation e ven considering the application of the gauze and ban d ag e, we need not, and do not, decid e whether t he State is correct about when the search and seizure concluded. We do note, however, that the issue of whether Fikes c ou ld assert a Four th Amendment violat ion is not a juris dictional question of standing, as the State seems to contend

. See Byrd v. Unite d S tates , 138 S. Ct. 1518, 1530

– 31 (2018)

.9

N o
. 01

- 12

- 00395

- CR, 2013 WL 4680380, at *5 (Tex. App.

— Houston [1st Dist.] Aug. 29, 201 3, pet. ref ’ d) ( mem. op., not designated for pub lication) ( rejec ti ng appellant ’ s argument that “ the procedures used to take her blood were unreasonable ” even though nu r se who drew her blood

“ touched his nose, mouth, and hair, as well as [ appellant ’ s] l eg and the strap s on the chair ” with his gloved hand s ) ; see also Sta te v. May , 112 P.3d 39, 41

– 42 ( Ariz. Ct. App. 2005) ( holding that
the trial court did not err in denyin g defendant ’ s motion to suppress blood draw evi dence even though deputy drew his bl ood “ while they stood at the rear of a police car ” )

.

Accordingly, we s us tain the State ’ s first appellate issue

. Bec ause we reverse the
trial court ’ s order on this basis, we need no t reac h the State ’ s re maining issue

.

CONCLUSION
Fikes failed to show that his blood draw was an unreasonable search and seizu re
that violated t he Fourth Amendm e nt , and the trial court abused its discretion in granting his motion to suppr ess . T herefore, we rev erse the trial court ’ s order granting Fikes ’ s motion to suppress
and remand this cause to the trial court for fur ther pro ceedings consis t en t with this opin i on.

________ __________________________________ Chari L. Kel ly , Justice
Before Justices Goodwin, B aker, and Kelly
Revers ed and Remanded
F i led: September 6, 2019
Publi sh