In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-12-00383-CR 

________________________

STATE OF TEXAS, APPELLANT 

 

V. 

 

HAYDEN HUSE, APPELLEE 

 

 

On Appeal from the County Court of Law No. 1 

Lubbock County, Texas 

Trial Court No. 2011-467345; Honorable Mark Hocker, Presiding 

 

March 6, 2014 

 

MEMORANDUM OPINION 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

 

Appellant, State of Texas, appeals the trial court’s order suppressing medical 

records of Appellee, Hayden Huse, in a misdemeanor, driving while intoxicated case.1 

In support of its position that the trial court erred in suppressing those records, the State 

asserts: (1) Appellee lacked standing to challenge the grand jury subpoena by which 

the State obtained those records; (2) the trial court erroneously concluded the State 

 

1

See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2013).
2

unlawfully obtained Appellee’s medical record because the State did comply with 

federal requirements under the Health Insurance Portability and Accountability Act of 

1996 (HIPAA);2(3) the trial court erroneously concluded Appellee’s medical records 

should be suppressed under article 38.23 of the Texas Code of Criminal Procedure

because those records were legally obtained; and (4) the trial court erroneously 

concluded Appellee’s blood-alcohol test results were scientifically unreliable or 

irrelevant. We reverse and remand for further proceedings consistent with this opinion.

BACKGROUND

On February 13, 2010, at approximately 2:00 a.m., Appellee failed to make a turn 

and drove his car into a dirt embankment before coming to stop in a cotton field. 

Lubbock County Sheriff deputies responded to the accident, and Appellee was 

transported to a hospital due to injuries he sustained in the accident. When Texas 

Department of Public Safety Trooper Troy McKee arrived to investigate, the deputies 

told him Appellee’s breath smelled of an alcoholic beverage. 

At approximately 5:15 a.m., Trooper McKee arrived at the hospital. He also 

noticed Appellee smelled of an alcoholic beverage and that his eyes were red, 

bloodshot, and watery. Trooper McKee was unable to administer any field sobriety 

tests due to Appellee’s injuries. During their conversation, Appellee admitted that, prior 

to the accident, he drank six to seven beers between 7:30 and 11:30 p.m. at several 

 

2

See Pub. L. No. 104-191, 110 Stat. 1936 (1996), codified as amended at 42 U.S.C. §§ 1320d1320d-8 (West 2012). Specifically, the State asserts the disclosure of Appellee’s medical records did not 

violate HIPAA’s Privacy Rule. The United States Department of Health and Human Services promulgated 

the Privacy Rule under title 45 of the Code of Federal Regulations. See 45 C.F.R. pts. 160 & 164 (2013) 

(Privacy Rule). 
3

local bars. Appellee also indicated his last drink was at 11:30 p.m. and he had nothing 

to drink since the accident. Based on this information coupled with Appellee’s failure to 

negotiate the curve resulting in the accident, Trooper McKee believed Appellee was 

intoxicated when the accident occurred. He did not request a mandatory blood draw 

and Appellee refused to give a breath or blood specimen. Hospital personnel had, 

however, drawn Appellee’s blood for medical purposes at approximately 4:50 a.m.—two 

hours and fifty minutes after the accident.3

Based upon Trooper McKee’s offense report, on March 30, 2010, a Lubbock 

Assistant County Criminal District Attorney filed an application for a subpoena seeking 

Appellee’s medical records related to his injuries from the accident. At that time, no 

grand jury investigation concerning Appellee was pending. The next day, Appellee was 

charged by Complaint and Information in Cause No. 2010-460,173, with driving while 

intoxicated. Ultimately, Appellee’s medical records were obtained as a result of the 

March 30 subpoena when, on April 15, 2010, a hospital business records affidavit, with 

Appellee’s medical records attached, was delivered to the Criminal District Attorney’s 

Office. 

On December 15, 2010, Appellee filed a generic motion to suppress, seeking 

suppression of any evidence obtained as the result of “illegal acts on behalf of the 

State” committed on February 13, 2010, the date of the accident. That motion was 

subsequently amended on March 14, 2011, to specifically seek suppression of blood 

evidence “illegally” taken in violation of Appellee’s rights under HIPPA, through the use 

 

3

The results of Appellee’s blood serum test by hospital personnel showed Appellee’s blood 

alcohol content was 0.219. Other emergency room records indicate Appellee was diagnosed as suffering 

from acute alcohol intoxication. 
4

of a “sham” grand jury subpoena. Before an order disposing of that motion was 

entered, the prosecution of Cause No. 2010-460,173 was dismissed on September 27, 

2011, on the State’s motion.

Eight days later, on October 5, 2011, a second application for a subpoena was 

filed, again seeking production of Appellee’s medical records related to his injuries 

resulting from the accident. This time the application was signed by the foreman of the 

grand jury. That same day, the District Clerk issued a new “Grand Jury Subpoena.” 

The next day, Appellee was again charged with driving while intoxicated—this time in 

Cause No. 2011-467,345—arising out of the same events of February 13, 2010. 

Shortly thereafter, on October 11, 2011, the hospital’s business records affidavit and 

Appellee’s medical records were again delivered to the Criminal District Attorney’s 

Office.4

On January 25, 2012, a suppression hearing was held addressing the issues 

originally raised in the amended motion to suppress filed in Cause No. 2010-460,173. 

In addition to testimony of Trooper McKee, the facts surrounding the subpoena process 

and the obtaining of medical records were stipulated to between the State and Appellee, 

leaving only the issue of whether Appellee’s medical records were illegally obtained 

and, therefore, excludable. 

On August 6, 2012, the trial court granted Appellee’s amended motion to 

suppress and on November 30, 2012, it filed its Trial Court’s Findings of Fact and 

Conclusions of Law. In those Findings the trial court found, in pertinent part, that: (1) 

 

4

Appellee’s medical records produced under the second grand jury subpoena were essentially 

the same as those produced under the first grand jury subpoena.

 
5

Appellee had standing to challenge the grand jury process by which the State obtained 

his medical records; (2) HIPAA creates an expectation of privacy in a person’s medical 

information; (3) the first grand jury subpoena was defective; (4) medical records 

obtained pursuant to the first grand jury subpoena violated HIPAA; (5) the second grand 

jury subpoena did not cure the first subpoena’s HIPAA violation;5(6) the State failed to 

demonstrate any attenuation of the taint arising from the first grand jury subpoena, (7) 

the State did not acquire Appellee’s medical records via a warrant; (8) article 38.23 of 

the Texas Code of Criminal Procedure applies because the State violated state and 

federal law through the use of the first subpoena; (9) the grand jury subpoenas used to 

obtain Appellee’s HIPPA protected medical records were unlawful, (10) the doctrine of 

inevitable discovery is not available under Texas law; and (11) there is no scientifically 

reliable way to relate Appellee’s medically tested serum blood-alcohol level back to a 

whole blood-alcohol level at the time of driving. This appeal followed.

DISCUSSION

STANDARD OF REVIEW

We review a trial court’s ruling on a motion to suppress evidence under a 

bifurcated standard of review. Ford v. State, 158 S.W.3d 488, 493 (Tex. 2005). We do 

not engage in our own factual review, Romero v. State, 800 S.W.2d 539, 543 (Tex. 

Crim. App. 1990), but give almost total deference to the trial court’s rulings on questions 

of historical fact and application-of-law-to-fact questions that turn on an evaluation of 

credibility and demeanor. Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 

 

5

Appellee does not assert nor did the trial court conclude in its Conclusions of Law that the 

second grand jury subpoena was defective.
6

2006). When the trial court makes explicit fact findings, we determine whether the 

evidence, when viewed in the light most favorable to the trial court’s ruling, supports 

those fact findings. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). 

When the trial court’s rulings are reasonably supported by the record and are correct 

under “any theory applicable to the case,” an appellate court should affirm. State v. 

White, 306 S.W.3d 753, 757, n.10 (Tex. Crim. App. 2010). See also Calloway v. State, 

743 S.W.2d 645, 651-52 (Tex. Crim. App. 1988) (leading some legal analysts to refer to 

this rule as “the Calloway rule”). Accordingly, if the trial court’s findings are supported 

by the record, we must affirm the decision if it is supported by our de novo review of the 

theories of law “applicable to the case.” Kelly, 204 S.W.3d at 819.

MOTION TO SUPPRESS

A motion to suppress is a specialized objection regarding the admissibility of 

evidence. Hall v. State, 303 S.W.3d 336, 342 n.9 (Tex. App.—Amarillo 2009, pet. ref’d). 

See Galitz v. State, 617 S.W.2d 949, 952 n.10 (Tex. Crim. App. 1981) (op. on reh’g). 

Such a motion is the proper remedy when evidence is illegally obtained in violation of a 

defendant’s constitutional or statutory rights. Hall, 303 S.W.3d at 342 n.9 (citing Wade 

v. State, 814 S.W.2d 763, 764 (Tex. App.—Waco 1991, no pet.)). See Reyes v. State, 

361 S.W.3d 222, 230 (Tex. App.—Fort Worth 2012, pet. ref’d).6 Only those acts which 

violate a person’s privacy rights or property interests are subject to the state or federal 

exclusionary rule. Miles v. State, 241 S.W.3d 28, 36 n.33 (Tex. Crim. App. 2007). See, 

 

6

As a procedural safeguard, a defendant has at least two opportunities to seek redress for any 

alleged violation of law by (1) filing a pretrial motion to suppress evidence or (2) objecting to the 

admission of the evidence at the time it is offered at trial and request a hearing outside the presence of 

the jury. Hall, 303 S.W.3d at 342. 
7

e.g., Chavez v. State, 9 S.W.3d 817, 822 (Tex. Crim. App. 2000) (Price, J., concurring) 

(“[U]nless someone’s privacy or property interests are illegally infringed upon in the 

obtainment of evidence, the core rationale for providing this prophylactic measure is not 

met and its use is unwarranted.”). 

The mere filing of a motion to suppress does not impose on the State the initial 

burden of showing compliance with the law. Wilkerson v. State, 173 S.W.3d 521, 532

(Tex. Crim. App. 2005). It is “settled law that the burden of proof is initially on the 

defendant to raise the exclusionary rule issue by producing evidence of a statutory 

violation, and that this burden then shifts to the State to prove compliance.” Pham v. 

State, 175 S.W.3d 767, 772, 773 (Tex. Crim. App. 2005) (“We have long held that the 

burden of persuasion is properly and permanently placed upon the shoulders of the 

moving party.”). Before evidence is rendered inadmissible, the defendant must also 

show a causal connection between the violation and the evidence obtained. Id. at 773. 

If there is no causal relationship between the illegal conduct and the acquisition of the 

evidence, the evidence is not obtained in violation of the law. Bell v. State, 169 S.W.3d 

384, 391 (Tex. App.—Fort Worth 2005, pet. ref’d) (citing Gonzales v. State, 67 S.W.3d 

910, 912 (Tex. Crim. App. 2002)). After defendant establishes a violation of the law and 

produces evidence of a causal connection, the State may either disprove the causal 

connection or make an attenuation-of-taint argument. See Wilson v. State, 277 S.W.3d 

446, 448 (Tex. App.—San Antonio 2008), aff’d, 311 S.W.3d 452 (Tex. Crim. App. 

2010).7 

 

7

If arguing attenuation-of-taint doctrine, the State must establish the taint of the illegality was so 

far removed from obtaining the evidence that the causal chain is broken. Pham, 175 S.W.3d at 773. 

When determining whether the taint of a violation of law was attenuated; the court considers the following 
8

“When a hearing on [a] motion to suppress is granted, the court may determine 

the merits of said motion on the motions themselves, or upon opposing affidavits, or 

upon oral testimony, subject to the discretion of the court.” TEX. CODE CRIM. PROC. ANN.

art. 28.01 § 1(6) (West 2006). A motion to suppress that is sworn to or supported by 

affidavit and admitted into evidence at the hearing may be considered as evidence. 

See Gonzales v. State, 977 S.W.2d 189, 190 (Tex. App.—Austin 1998, pet. ref’d) 

(“[M]otions to suppress [are] mere pleadings; they [are] not self-proving and they [are] 

not evidence.”). See also Bizzami v. State, 492 S.W.2d 944, 946 (Tex. Crim. App. 

1973) (allegations in a brief do not constitute proof). 

For purposes of logical analysis, we will address issue one, pertaining to 

standing, first. We will then briefly address issues two and three together, before finally 

addressing issue four separately.

ISSUES ONE—STANDING

By its first issue the State asserts Appellee lacked standing to challenge the 

grand jury subpoena by which the State obtained Appellee’s medical records because 

Appellee did not have a reasonable expectation of privacy in the blood-alcohol test 

results obtained by hospital personnel for medical purposes after the accident. 

Accordingly, the State contends the trial court erred in finding that he had standing to 

challenge the grand jury subpoenas by which the State obtained his medical records

because it erroneously rejected the holding of the Criminal Court of Appeals in State v. 

__________________________

four factors: (1) whether Miranda warnings were given; (2) the violation’s temporal proximity; (3) the 

presence of intervening circumstances; and (4) the purpose and flagrancy of the official misconduct. 

Johnson v. State, 871 S.W.2d 744, 751 (Tex. Crim. App. 1994). 
9

Hardy, 963 S.W.2d 516, 527 (Tex. Crim. App. 1997) and our holding in Kennemur v. 

State, 280 S.W.3d 305 (Tex. App.—Amarillo 2008, pet. ref’d), cert. denied, 556 U.S. 

1191, 129 S.Ct. 2005, 173 L.Ed.2d 1101 (2009). 

In Kennemur, appellant asserted that his medical records resulting from 

emergency treatment at a hospital following a traffic accident caused by his intoxication 

were obtained in violation of HIPAA’s Privacy Rule. Id. at 311. We held appellant 

lacked standing to challenge the State’s use of his medical records at trial due to an 

alleged HIPAA violation under Hardy and stated the following:

There is no Fourth Amendment reasonable expectation of privacy 

protecting blood-alcohol test results from tests taken by hospital personnel 

solely for medical purposes after a traffic accident. State v. Hardy, 963 

S.W.2d 516, 527 (Tex. Crim. App. 1997). The Hardy rule applies in 

instances where the accused challenges the State’s use of his or her 

medical records at trial due to an alleged HIPAA violation. See Murray v. 

State, 245 S.W.3d 37, 42 (Tex. App.—Austin 2007, pet. filed); Tapp v. 

State, 108 S.W.3d 459, 461-62 (Tex. App.—Houston 2003, pet. ref’d). 

Because Appellant has no constitutional or statutory reasonable 

expectation of privacy with respect to blood-alcohol test results obtained 

solely for medical purposes following an accident, he has no standing to 

complain that the State obtained his medical records in violation of HIPAA. 

See Ramos v. State, 124 S.W.3d 326, 338-39 (Tex. App.—Fort Worth 

2003, pet. ref’d). 

We are mindful that “standard, requirement or implementation 

specification” adopted under the Privacy Rule generally preempts contrary 

state laws. Murray, 245 S.W.3d at 42 (citing 45 C.F.R. § 160.203). 

Nevertheless we are constrained to follow existing law under Hardy

absent any guidance or instructions to the contrary from the Court of 

Criminal Appeals. Id.; Tapp, 108 S.W.3d at 463. That said, HIPAA 

requirements for disclosure conform with the holding in Hardy as follows:

A covered health care provider providing emergency health care in 

response to a medical emergency . . . may disclose protected health care 

information to a law enforcement official if such disclosure appears 

necessary to alert law enforcement to: (A) The commission and nature of 

a crime; (B) The location of such crime or of the victim(s) of such crime; 
10

and (C) The identity, description, and location of the perpetrator of such 

crime. 45 C.F.R. § 164.512(f)(6)(i).

Kennemur, 280 S.W.3d at 311-12.

That appellant’s medical records in Kennemur were obtained by the State via a 

subpoena duces tecum as opposed to a grand jury subpoena is of no moment. See 

Tapp, 108 S.W.3d at 462-63 (injured motorist lacked standing to complain that his 

blood-alcohol test results were not obtained in compliance with the grand jury subpoena 

process when his blood was drawn by emergency medical personnel for medical 

purposes after a traffic accident). Accord Garcia v. State, 95 S.W.3d 522, 526-27 (Tex. 

App.—Houston [1st Dist.] 2002, no pet.); Dickerson v. State, 965 S.W.2d 30, 31 (Tex. 

App.—Houston [1st Dist.] 1998, pet. dism’d, improvidently granted), 986 S.W.2d 618

(Tex. Crim. App. 1999); Hicks v. State, No. 01-02-00165-CR, 2003 Tex. App. LEXIS 

9280, at *6 (Tex. App.—Houston [1st Dist.] Oct. 20, 2003, no pet.) (mem. op., not 

designated for publication); Harmon v. State, No. 01-02-00035-CR, 2003 Tex. App. 

LEXIS 6172, at *6-7 (Tex. App.—Houston [1st Dist.] July 17, 2003, no pet.) (mem. op., 

not designated for publication). This is particularly so where, as here, the State 

obtained the medical records by a grand jury subpoena following a prior allegedly 

defective grand jury subpoena. See Ramos, 124 S.W.3d at 338-39 (finding appellant 

lacked standing to assert medical records were inadmissible because the State 

obtained the records by subpoena following a prior allegedly defective grand jury 

subpoena). 

Thus, we hold that, because there is no expectation of privacy in one’s bloodalcohol test results when the blood is obtained by hospital personnel after a traffic 
11

accident for medical purposes, Appellee lacks standing to assert that using a grand jury 

subpoena to obtain his blood results constituted an unreasonable search and seizure.8 

Because Appellee lacked standing to challenge the process by which his medical 

records were obtained, the trial court erred by addressing the question. Issue one is 

sustained.

ISSUES TWO AND THREE—LEGALITY OF SEIZURE OF MEDICAL RECORDS

Even if we were to assume that Appellee had standing to challenge the process 

by which the first grand jury subpoena was issued, the trial court made no finding in its 

Conclusions of Law that the second grand jury subpoena was defective. Therefore, we 

must assume that the basis for the exclusion of Appellee’s medical records was the 

State’s failure to “demonstrate any attenuation of the taint” from the first subpoena. 

By his motion to suppress, Appellee proffers two reasons why his medical 

records were illegally seized and should be suppressed: (1) the evidence was obtained 

in violation of his rights under HIPPA; and (2) the evidence was obtained through the 

use of a “sham” grand jury investigation. 

The trial court’s basis for finding the first grand jury subpoena defective was its

conclusion that, because “no actual grand jury” was involved, the medical records were 

obtained in violation of HIPPA requirements because such records should only be 

 

8

Although, generally speaking, taking a blood sample is a search and seizure within the scope of 

the Fourth Amendment to the United States Constitution and article 1, section 9 of the Texas Constitution,

Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Aliff v. State, 627 

S.W.2d 166, 169 (Tex. Crim. App. 1982), Fourth Amendment search and seizure principles are not 

implicated here because the blood extraction did not involve police conduct. State v. Kelly, 166 S.W.3d 

905, 910 (Tex. App.—Corpus Christi 2005), aff’d, 204 S.W.3d 808 (Tex. Crim. App. 2006). Accordingly, 

the absence of a search warrant or a court order are not theories of law applicable to the case before us. 

See id. at 911.
12

released in response to a grand jury subpoena. In that regard, the trial court found that 

based on the “common and accepted practice” of the Lubbock County Criminal District 

Attorney’s Office, grand jury subpoenas were regularly issued “independent of any 

grand jury or grand jury process” as a ruse to “illegally” obtain medical records under 

the guise of a grand jury investigation. In particular, the trial court condemned the 

practice of issuing a grand jury subpoena upon the application of an Assistant Criminal 

District Attorney rather than a grand jury member without reference to any pending 

investigation. While this practice may be the subject of another issue in another case, 

that practice is not the issue we must address in this case because the medical records 

produced in this case were produced in response to the second grand jury subpoena,

which was itself issued upon the request of the foreman of the grand jury. We will not 

look beyond the issuance of the subpoena to determine whether the matter is a 

legitimate matter of consideration by the grand jury. Because disclosure of medical 

records under HIPAA is permissible without an individual’s permission when the 

information is disclosed for law enforcement purposes and is obtained pursuant to a 

grand jury subpoena, the medical records in this case were not illegally obtained. See

45 C.F.R. § 164.512(f)(1)(ii)(B), (f)(6)(i) (2013).9 This exception to HIPAA’s Privacy 

Rule is not qualified according to whether the grand jury subpoena is the first grand jury 

subpoena or a subsequent such subpoena.

 

9 Neither did Appellee prove a causal connection between the disclosure of his medical records 

by the hospital and any violation of a right to privacy at the hearing. State v. Johnson, 871 S.W.2d 744, 

751 (Tex. Crim. App. 1994) (“The subsequent procurement of an arrest warrant was an intervening 

circumstance.”). That said, the attenuation-of-taint doctrine is inapplicable here because Appellee has no 

standing to complain about the seizure of the evidence, i.e., no invasion of Appellee’s right to privacy 

occurred when his medical records were seized from the hospital, a third party. See Chavez v. State, 9 

S.W.3d 817, 819 (Tex. Crim. App. 2000) (citing Fuller v. State, 829 S.W.2d 191, 210-12 (Tex. Crim. App. 

1992)). 

 
13

The State further asserts it did not violate article 38.23 of the Texas Code of 

Criminal Procedure because the State’s grand jury subpoenas were not defective and, 

even if the first subpoena was defective, the second was not. Because Appellee failed 

to establish any causal connection between issuance of the first and second 

subpoenas, and because the medical records in question were lawfully produced in 

response to the second subpoena, the trial court erred in finding the State did not 

comply with the requirements of HIPAA. Accordingly, the State’s second and third 

issues are sustained.

ISSUE FOUR

By its fourth issue, the State asserts the trial court erroneously concluded 

Appellee’s blood-alcohol test results were inadmissible because they were scientifically 

unreliable and irrelevant. We review a trial court’s decision to admit or exclude 

evidence for abuse of discretion. Page v. State, 213 S.W.3d 332, 337 (Tex. Crim. App. 

2006). “Appellate courts will uphold a trial court’s ruling on admissibility of evidence as 

long as the trial court’s ruling was at least within the zone of reasonable disagreement.” 

Id. See Hernandez v. State, 205 S.W.3d 555, 558 (Tex. App.—Amarillo 2006, pet. 

ref’d). 

Here, the trial court abused its discretion by holding that Appellee’s medical 

records were inadmissible. Suppression of evidence is the proper remedy when 

evidence is illegally obtained in violation of the defendant’s rights. Hall, 303 S.W.3d at 

342 n.9 (citing Wade v. State, 814 S.W.2d 763, 764 (Tex. App.—Waco 1991, no pet.)); 

Reyes, 361 S.W.3d at 230. As stated above, Appellee’s medical records were legally 
14

obtained. If Appellee’s objection is to the admissibility of that evidence due to a lack of 

relevance or reliability, then the proper method of exclusion would be either a pretrial 

motion in limine or a trial objection when the evidence is offered. Wade, 814 S.W.2d at 

764-65. See State v. Robinson, 334 S.W.3d 77, 782 (Tex. Crim. App. 2011).10

Furthermore, in State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013), the 

Court of Criminal Appeals dealt with the issue of whether the granting of a motion to 

suppress could be justified on appeal on the basis of grounds that were not raised in the 

lower court. The Esparza Court held a trial court’s finding that breath-alcohol test 

results were inadmissible due to their lack of scientific reliability “was not a ‘theory of law 

applicable to the case’ that [was] available to justify the trial court’s otherwise erroneous 

ruling on the [defendant’s] motion to suppress” because that issue was never joined at 

the trial court level. Id. at 86. Where the State was not put on notice that the 

admissibility of the breath-alcohol test results were being questioned on the basis of 

their scientific reliability, Rule 702 of the Texas Rules of Evidence was not a “theory of 

law applicable to the case.” Id.

By finding the evidence inadmissible because the State failed to come forward 

with evidence of its reliability and relevancy in the context of a pretrial suppression 

proceeding, the trial court impermissibly shifted the burden of production and 

persuasion from Appellee to the State.11 Appellee produced no evidence concerning 

 

10 “A motion in limine seeks to exclude objectionable matters from coming before the jury through 

a posed question, jury argument, or other means. Wade, 814 S.W.2d at 764. “In essence, a motion in 

limine’s fundamental purpose is to obtain an order requiring an initial offer of objectionable evidence out 

of the jury’s presence.” Id. (citing M. Teague, B. Helft, 3 Texas Criminal Practice Guide § 73.02[2] 

(1990)).

11 Even if we were to cast the suppression motion as a motion in limine, the result would be the 
15

the scientific unreliability or irrelevancy of his blood-alcohol test.

12

 In Robinson, the 

Criminal Court of Appeals stated as follows:

Mr. Robinson contends that the State has the burden to show compliance 

with the state statute concerning the blood draw. Indeed it does—at trial. 

As the proponent of the evidence at trial, the State must fulfill all required 

evidentiary predicates and foundations. Thus, at trial, the State will be 

required to offer evidence that the blood was drawn by a qualified person 

before evidence of the blood, the blood test, and the blood test results are 

admissible. Its burden at trial is to establish the admissibility of its 

evidence by a preponderance of the evidence. See TEX. R. EVID. 104(a). 

At a motion to suppress evidence, however, it is the burden of the movant 

(the person who opposes use of the evidence) to establish that the 

evidence should not be admitted because of unlawful conduct. See State 

v. Kelly, 204 S.W.3d 808, 819 & n.22 (Tex. Crim. App. 2006). And Mr. 

Robinsion failed to satisfy both his burden of production and his burden of 

persuasion.

Robinson, 334 S.W.3d at 782.

13

 Thus, even if Appellee’s evidentiary objections were 

somehow cognizable in the suppression proceedings, Appellee failed to satisfy both his 

burden of production and persuasion either by affidavit or oral testimony at the hearing. 

Furthermore, Appellee reads too much into the statement by the Court of 

Criminal Appeals in Bigon v. State regarding proof of intoxication by retrograde 

__________________________

same. 

12 In addition, Appellee did not raise unreliability or irrelevancy as grounds for suppression in his 

original DWI Motion To Suppress or his First Amended Motion to Suppress filed March 14, 2011, or argue 

these grounds at the suppression hearing on January 25, 2012. Further, there were no preliminary 

matters raised by either party seven days before the hearing or good cause motion subsequent to the 

hearing. TEX. CODE CRIM. PROC. ANN. art. 28.01, § 2 (West 2006). See Taylor v. State, 850 S.W.2d 294, 

295-96 (Tex. App.—Houston [1st Dist.] 1993, no pet.) (op. on reh’g). 

13 “It is possible that a blood sample taken by someone who is not qualified may be determined to 

be unreliable, but this is a question of admissibility to be raised at trial rather than a pre-trial suppression 

issue. Therefore, article 38.23 does not apply in this case.” 334 S.W.3d at 782 (Meyers, J., and Price, J., 

dissenting). See, e.g., Kennemur, 280 S.W.3d at 309, 316-17 (blood serum test admissible at trial in the 

absence of any retrograde extrapolation analysis and despite that blood sample obtained seven hours 

after the accident). 

 
16

extrapolation when it said, “research indicates that a blood test can be reliable if taken 

within two hours of driving.” Bigon v. State, 252 S.W.3d 360, 368 (Tex. Crim. App. 

2008). Nowhere in Bigon does the Court hold, as a matter of law, that a blood test 

taken more than two hours after driving is unreliable or irrelevant in a driving while 

intoxicated case. See, e.g., Kennemur, 280 S.W.3d at 309, 316-17 (blood serum test 

admissible at trial to show intoxication in the absence of testimony regarding retrograde 

extrapolation despite the fact that the blood sample was obtained seven hours after 

accident). 

This is not an instance where the State seeks to use a blood test obtained hours 

after an accident that was below the legal limit of intoxication and, through retrograde 

extrapolation, attempts to show Appellee’s blood-alcohol level exceeded the legal limit 

at the time of the accident. Rather, the State eschews a retrograde extrapolation 

analysis in favor of establishing an inference at trial that, because Appellee exceeded 

the legal limit of alcohol consumption hours after the accident with nothing to drink 

between the time of the accident and the blood test, a jury may reasonably infer 

Appellee was intoxicated at the time of the accident. Kennemur, 280 S.W.3d at 316

(appellant’s blood-alcohol results taken hours after the accident are probative of 

appellant’s intoxication even in the absence of any retrograde extrapolation because, 

under an impairment theory, the State need not prove appellant’s exact blood alcohol 

content at the time of the accident). Accordingly, scientific unreliability or irrelevance 

was not a theory of law applicable to the case for purposes of excluding Appellee’s 

medical records. The State’s fourth issue is sustained.
17

Conclusion

Because Appellee’s medical records were not subject to exclusion under “any 

theory applicable to the case,” the trial court’s order granting Appellee’s motion to 

suppress is reversed and the cause is remanded for proceedings in conformity with this 

opinion.

Patrick A. Pirtle

 Justice

Do not publish.

Quinn, C.J. Concurring in the decision of the court and joining that portion of the opinion 

under which it is determined that Appellee lacked standing to contest the acquisition of 

the records.