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Court of Appeals Tenth Appellate District of Texas 10-25-00125-CR Guadalupe Gonzales Kesen, Appellant v. The State of Texas, Appellee On appeal from the County Court at Law No. Two of McLennan County, Texas Judge T. Bradley Cates, presiding Trial Court Cause No. 20231996CR2 CHIEF JUSTICE JOHNSON delivered the opinion of the Court. MEMORANDUM OPINION The appellant, Guadalupe Gonzales Kesen, pleaded guilty to the misdemeanor offense of driving while intoxicated, second offense. TEX. PENAL CODE ANN. §§ 49.04, 49.09(a). The trial court assessed her punishment at 365 days in jail, suspended imposition of the sentence, and placed Kesen on community supervision for a period of 24 months. In a single issue, Kesen argues that the trial court erred by denying her motion to suppress evidence. We affirm. A. Background After Kesen was arrested for driving while intoxicated, she was taken to the County Jail where she refused to provide a blood or breath sample. The arresting officer subsequently obtained a search warrant for Kesen’s blood. Pursuant to the warrant, a licensed vocational nurse (LVN) employed by the McLennan County Sheriff’s Office prepared Kesen’s arm for the blood draw and inserted the needle into a vein in Kesen’s arm. Then, the arresting officer attached the collection vials to the other end of the tube attached to the needle to collect Kesen’s blood. In the trial court, Kesen filed a motion to suppress the blood and derivative evidence arguing that the arresting officer’s act of attaching the collection vials to the tube rendered the seizure unreasonable under the United States Constitution, Texas Constitution, and Section 724.017 of the Texas Transportation Code. B. Standard of Review We review a trial court’s ruling on a motion to suppress evidence for an abuse of discretion using a bifurcated standard. See St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 Kesen v. State Page 2 (Tex. Crim. App. 1997). “We conduct a de novo review of evidence when the resolution of mixed questions of law and fact do not turn on an evaluation of credibility and demeanor.” St. George, 237 S.W.3d at 725 (citing Guzman, 955 S.W.2d at 89). We also review the trial court’s legal rulings de novo. State v. Iduarte, 268 S.W.3d 544, 548 (Tex. Crim. App. 2008). When ruling on a motion to suppress, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). Furthermore, we view all the evidence in the light most favorable to the trial court’s ruling. State v. Garcia– Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). If the trial court could have reasonably denied a motion to suppress given the record evidence and given the applicable law, the appellate court must affirm the trial court’s ruling. Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003). C. Issue One In Kesen’s sole issue, she argues that the trial court abused its discretion in denying her motion to suppress the blood evidence on the grounds that the arresting officer was not qualified to participate in the blood draw and therefore Kesen’s blood was collected in an unreasonable manner. Kesen v. State Page 3 1. Authority The Fourth Amendment does not forbid all searches, just unreasonable searches. See Rhodes v. State, 945 S.W.2d 115, 117 (Tex. Crim. App. 1997). A blood draw is a search under the Fourth Amendment. State v. Villarreal, 475 S.W.3d 784, 808 (Tex. Crim. App. 2014). “A warrant-based search is presumptively reasonable, and it is the defendant’s burden to prove that a search is unreasonable.” Adkins v. State, 418 S.W.3d 856, 860 (Tex. App.— Houston [14th Dist.] 2013, pet. ref ’d) (citing Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). We assess the reasonableness of a warrant-based search by analyzing the totality of the circumstances. State v. Johnston, 336 S.W.3d 649, 661 (Tex. Crim. App. 2011). 2. Discussion The Court of Criminal Appeals adopted the United States Supreme Court’s analysis in Schmerber to assess the reasonableness of a warrant-based search involving a blood draw. See Johnston, 336 S.W.3d at 658; Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). The first prong of the analysis is whether the police had a legal justification to conduct the search. Johnston, 336 S.W.3d at 658. Here, the police had a legal justification to conduct the search because they had a valid search warrant, which Kesen does not challenge. Kesen v. State Page 4 The second prong contains a two-part analysis. Id. The first is whether the means employed by the officer executing the search warrant were reasonable. Id. To resolve the reasonableness of the means, we must determine whether the test chosen was reasonable. Id. The venipuncture blood-draw test utilized in this case is a reasonable procedure because these tests are presumptively reasonable under the Fourth Amendment. See id. at 659. The second is whether the procedure that the officer employed to execute the search warrant was reasonable. Id. at 658. To determine the reasonableness of the procedure, the Court must objectively evaluate the manner in which the officer executed the search warrant by the totality of the circumstances of the blood draw on a case-by- case basis. Id. at 661. “[T]o determine if the manner used to seize a blood sample was reasonable is not whether departure from standard technique or the standard of care occurred but on the effect of the bodily intrusion (including any departures from standard technique or the standard of care) on the defendant’s safety, health, dignitary interests, and personal privacy.” Siddiq v. State, 502 S.W.3d 387, 403 (Tex. App.—Fort Worth 2016, no pet.) (citing Winston v. Lee, 470 U.S. 753, 761, 105 S.Ct. 1611, 1617, 84 L.Ed.2d 662 (1985); Schmerber, 384 U.S. at 771–72, 86 S.Ct. at 1836). Kesen v. State Page 5 During the suppression hearing Kesen stipulated that: [T]his case came about from a traffic stop, a DWI investigation on the roadside and an arrest that the Defense has stipulated were all lawful and is not contesting probable cause or suspicion. The Defendant was taken to the jail and refused to provide a blood or breath sample, at which point the arresting officer obtained a search warrant which was signed by Judge Luna. Again, the Defense has not indicated that they are challenging the validity of that warrant or the means in which it was obtained and executed. As you know, Your Honor, the search warrant was accompanied by an order for assistance in execution search warrant. And then the facts that are critical to this hearing are that the licensed vocational nurse who was working at the jail, employed by the sheriff’s defendant [sic] that night, began the preparatory steps to draw the blood from the Defendant, that she checked her arm, applied the tourniquet, sanitized the area, took the needle, and injected that into the Defendant’s -- into the Defendant’s vein. At that point, the arresting officer took the vials that the blood was to be collected in and inserted it into the other end of the tube that was being used to collect the blood. And that -- that -- then the blood was collected without any other deviation but for the fact that it was the arresting officer who inserted the vial into the far end of the . . . tube after the licensed vocational nurse had completed all of the prior steps pursuant to that blood draw. In addition to the stipulation, the State called an LVN employed by the McLennan County Sheriff’s Office who testified regarding the procedure for performing a blood draw pursuant to a warrant. The LVN testified that he places a tourniquet on the subject’s arm; puts on his sterile gloves; locates a Kesen v. State Page 6 vein; cleans the area with a non-alcoholic cleanser; inserts a butterfly needle into the vein; and obtains the vials from the peace officer. Later in the LVN’s testimony, he indicated that once the vials are obtained from the peace officer, he connects them to a vacutainer attached to the needle and after the blood draw, he then rotates them to make sure they are properly mixed. The LVN stated he then hands the vials back to the peace officer, who places a sticker on the vial to seal it then both the peace officer and the LVN sign and date the sticker. When asked, the LVN agreed that peace officers wear gloves during blood draws. The LVN testified that sometimes he needs someone to help hold the vacutainer and connect the vial while he has a needle in a subject’s arm. When asked whether he considered the person who performed all the preparatory steps and inserted the needle into the subject’s vein, or the person who connected the vials to the vacutainer, to have performed the blood draw, the LVN replied that it was the person who inserted the needle. On cross- examination, the LVN indicated that he had never seen a peace officer attach the vials to the vacutainer. Kesen argues that the blood draw was unreasonable because of the arresting peace officer’s involvement in collecting the blood and that the officer was unqualified and lacked medical training. 1 The stipulation confirms that 0F 1 Kesen requested that we take judicial notice of an article regarding the risks of blood draws. We decline to do so because Kesen presents the article for the first time in her appellate brief and it speaks Kesen v. State Page 7 it was the LVN that checked Kesen’s arm, applied the tourniquet, sanitized the area, and injected the needle into Kesen’s vein. The peace officer only assisted with the collection of the blood, not inserting the needle into the vein. It was the testifying LVN’s conclusion that it is the person who performs all the preparatory steps and inserts the needle into a subject’s vein that performs a blood draw. The trial court concluded as a matter of law, that “[a]n individual who connects a blood collection vial to a vacutainer but takes no other action in the collection of a blood sample has not conducted a blood draw.” Even if the arresting officer’s acts amounted to a blood draw Kasen failed to present evidence that the bodily intrusion affected her safety, health, dignitary interests, or personal privacy. See Siddiq v. State, 502 S.W.3d at 403. The circumstances here did not invite an unjustified element of personal risk of infection or pain. See Schmerber, 384 U.S. at 771, 86 S. Ct. at 1836. The trial court could have reasonably denied Kesen’s motion to suppress because Kesen failed to satisfy her burden to rebut the presumption of reasonableness. Under the totality of the circumstances, we conclude that the record contains evidence to the merits of this case. See Delgado v. State, 635 S.W.3d 730, 744 (Tex. App.—Dallas 2021, pet. ref ’d) (Appellate courts may take judicial notice on appeal but are reluctant to do so on matters that go to the merits of a dispute.). Kesen v. State Page 8 supporting the trial court’s conclusion that the blood draw was conducted in a manner that was reasonable. 2 1F We conclude that the trial court did not abuse its discretion in denying Kesen’s motion to suppress. Therefore, we overrule Kesen’s sole issue. D. Conclusion Having overruled Kesen’s sole issue on appeal, we affirm the trial court’s judgment. MATT JOHNSON Chief Justice OPINION DELIVERED and FILED: October 22, 2026 Before Chief Justice Johnson, Justice Harris, and Justice Westerfeld Affirmed Do not publish CR25 2 To the extent Kesen relies on Section 724.017 of the Texas Transportation Code to measure the reasonableness of the search, that reliance does not help her. Chapter 724 “is not controlling authority” on how a blood draw is performed under the Fourth Amendment, and it is inapplicable when the draw is made under a warrant. Johnston, 336 S.W.3d at 660-61. Compliance with Section 724.017 would provide “one way” to establish reasonableness, but the statute “in no way provides the exclusive means” of doing so. Id. at 661. Kesen v. State Page 9