REVERSE and REMAND and Opin ion Filed January 26, 2021 

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### Court of Appeals Fifth District of Texas at Dallas No. 05-20-00698-CR THE STATE OF TEXAS, Appellant V. JACK BRYAN TIGHE II, Appellee On Appeal from the County Criminal Court No. 9 Dallas County, Texas Trial Court Cause No. MB18-49378-K MEMORANDUM OPINION Before Justices Myers, Osborne, and Carlyle Opinion by Justice Osborne The trial court granted appellee Jack Bryan Tighe II’s motion t o suppress the results of the State’s alcohol analysis of his blood after he w as charged with driving while intoxicated. The State appeals the trial court’s ruling. We reverse the trial court’s order and re mand the case to the t rial court for furthe r proceedings.
B ACKGROUND On April 23, 2018, Texas Department of Public Safety officer Ja mal Manigo responded to a single vehicle crash on the Dallas North Tollway . Manigo identified the driver of the vehicle as Tighe. While interviewing Tighe, M anigo detected an–2– odor of alcohol coming from Tighe’s breath and observed that Ti ghe’s eyes were bloodshot, glassy, and watery. Tighe told Manigo that he had co nsumed two alcoholic beverages earlier that day at a work event. After conducting standardized field sobriety tests on Tighe, Ma nigo determined that Tighe had lost the normal use of his physical f aculties by reason of alcohol and placed him under arre st for driving while intoxicat ed. Manigo asked Tighe for permission to take a blood sample. When Tighe refused , Manigo executed an affidavit for a search warrant to obtain a blood specimen fr om Tighe. The magistrate issued a search war rant that provided in part: Now, therefore, you are commanded to take custody of the suspec t and transport the suspect to a medical or jail facility in Dallas C ounty, Texas where you shall search for, sei ze and maintain as evidence the property described in said Affidavit, to-wit: human blood from the body of [Tighe]. Manigo took Tighe to Parkland Hos pital in Dallas, Texas and exe cuted the warrant less than an hour after the magistrate issued it by hav ing a registered nurse draw the blood from Tighe. The blood specimen was submitted to the Texas Department of Public Safety Crime Lab in Garland on April 24, 2 018. The lab issued an Alcohol Content Laboratory Re port dated August 30, 2018, sho wing that Tighe’s blood had an alcohol concentration of 0.186 grams of alcohol pe r 100 milliliters of blood. Tighe moved to suppress the results of the analysis of his bloo d that was seized pursuant to the warrant. Relying on State v. Martinez , 570 S.W.3d 278 (Tex. Crim.–3– App. 2019), Tighe argue d that the search warrant only allowed t he state to seize his blood; it did not allow the Sta te to analyze the blood it colle cted. At the hearing on Tighe’s motion to suppress, all of the suppor ting documents including the affidavit, the wa rrant, and the laboratory report were admitted into evidence. The trial court heard the parties’ arguments and stat ed on the record that Tighe’s motion was granted for two reasons: (1) the State faile d to obtain a second warrant for testing as Martinez requires, and (2) the analysis was not made within three days of the warrant’s issuance, as required by the code o f criminal procedure.
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. art. 18.07(a)(3) (three-day period allowed for execution of search warrant, exclusive of day of issuance and day of exec ution). The trial court also signed a written order gran ting the motion on November 11, 2019. This appeal followed.
A NALYSIS In a single issue, the State argues that the trial court erred by granting the motion to suppress. 1 We review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. State v. Staton , 599 S.W.3d 614, 616 (Tex. App.— Dallas 2020, pet. ref’d) (citing State v. Ruiz , 577 S.W.3d 543, 545 (Tex. Crim. App. 2019)). We give almost total defe rence to the trial court’s det ermination of historical

1 Tighe has not filed an appellate brief. As we have explained, Tighe argued in the trial court that Martinez required suppression of the test results because the warrant a uthorized only seizure of his blood, not testing. In its appellate issue, the State challenges both grounds cited by the trial court in its oral ruling, Martinez and code of criminal procedure § 18.07.–4– facts and review de novo the application of the law to the fact s. Id. We view the record in the light most favorable to the trial court’s ruling and uphold the ruling if it is supported by the record and is correct under any theory o f the law applicable to the case. Id. After the trial court signed its order in this case and this ap peal was filed, the Texas Court of Criminal Appeals issued its opinion in Crider v. State , 607 S.W.3d 305 (Tex. Crim. App. 2020), petition for cert. filed , No. 20-823 (U.S. Dec. 17, 2020). Considering similar facts to those before us now, the court sta ted: “Here, the State obtained the blood sample by way of a magistrate’s determinatio n that probable cause existed to justify its seizure—for the explicit purpose o f determining its evidentiary value to prove the offense of driving while intoxic ated. That magistrate’s determination was sufficient in t his case to justify the chemic al testing of the blood. And this is so, we hold, even if the warrant itself did not exp ressly authorize the chemical testing on its face.” Id. at 308. Here as in Crider , the magistrate’s determination that probable cause existed to justify the seizure of the blood sample from Tighe was suffi cient to justify the chemical testing of the blood seized. See id. ; see also State v. Jones , 608 S.W.3d 262, 264 (Tex. App.—Dallas 2020, pet. ref’d) (concluding Martinez did not apply to blood draw pursuant to warrant “because it dealt with a diff erent question—i.e., whether ‘an individual has an expectation of privacy in blood p reviously drawn for purposes other than po lice testing,’” quoting Staton , 599 S.W.3d at 618).–5– Also after the trial court issued its order and the State filed this appeal, this Court considered and rejected the argument that code of crimina l procedure article 18.07 governs the time for testing blood as well as the time fo r seizing it. In State v.
Jones , we explained: [Article 18.07] merely provides the deadlines for seizing the e vidence, not analyzing it. It specifies tha t with certain exceptions not applicable here, a warrant must be executed within three days of its issuance, exclusive of the day of issuan ce and the day of execution. . . . The execution of the warrant is the blood draw, not the testing and /or analysis of that blood. Our opinion in Staton says nothing about imposing a deadline for the test ing and/or analysis of blood, m uch less applying the statutory deadline of article 18.07(a)(3) to the t esting and/or analysis of the blood, a nd we decline Jones's invitation to create new law on this subject. Jones , 608 S.W.3d at 264–65 (citing Staton , 599 S.W.3d at 618). We conclude the trial court erre d by granting appellee’s motion to suppress. See Crider , 607 S.W.3d at 308; Jones , 608 S.W.3d at 264–65; Staton , 599 S.W.3d at 618. We sustain the State’s sole issue.
C ONCLUSION We reverse the trial court’s order granting the motion to suppr ess and remand the case to the trial court for further proceedings.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT THE STATE OF TEXAS, Appellant

No. 05-20-00698-CR V. JACK BRYAN TIGHE II, Appellee On Appeal from the County Criminal Court No. 9, Dallas County, Texas Trial Court Cause No. MB18-49378- K. Opinion delivered by Justice Osborne. Justices Myers and Carlyle participating. Based on the Court’s opinion of this date, the trial court’s N ovember 19, 2019 order granting appellee Jack Bry an Tighe II’s motion to suppres s is REVERSED and the cause is REMANDED for further proceedings.
Judgment entered January 26, 2021