Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-24-00792-CR Ryan David Miller, Appellant v. The State of Texas, Appellee FROM THE COUNTY COURT OF MILAM COUNTY NO. CR37700, THE HONORABLE BILL WHITMIRE, JUDGE PRESIDING MEMORANDUM OPINION Ryan David Miller was convicted of driving while intoxicated and argues on appeal that the trial court abused its discretion in denying his motion to suppress evidence of his blood-alcohol concentration because (1) the DPS trooper who obtained the evidence lacked reasonable suspicion to believe Miller had engaged in criminal activity and (2) the State violated statutory provisions governing grand jury subpoenas. We overrule both issues and affirm. BACKGROUND1 Sometime before 9:00 at night on June 6, 2022, Miller, driving his truck, missed a curve on a “very rural” road; struck a road sign warning of the curve; skidded into the roadside drainage ditch; and came to rest against “a large tree that is set on the corner just before a 1 The facts come from the suppression-hearing record and exhibits. cornfield.” Miller was pinned in the truck. Milam County Sheriff’s Office Deputy Alexander Infantino was among the responders. “The driver’s side of the vehicle was plunged out and he was hanging, for lack of a better term, out of the vehicle with his arm hanging out of the window with blood dripping from it.” Miller was “in and out of consciousness or a deep state of shock due to the crash and a possible head injury.” Infantino did not know if Miller had worn a seatbelt, so he “just assumed that it was probably injury from the crash that was causing his state at that time.” Infantino saw an open container in the front passenger portion of the truck. And, while putting a tourniquet on Miller’s arm, Infantino “observed the odor of metabolized alcoholic beverages coming from or about his person,” which indicated that “alcohol might have been a factor of the crash.” Infantino told DPS Trooper Robert Sims that information as Sims took over the scene. Sims investigated while the Cameron Fire Department worked on extracting Miller by removing the roof of the truck. Sims recognized Miller and was worried he was not going to make it. Miller was so seriously injured that he could not talk. Although no accident reconstruction was done on the case, Sims figured speed had been a factor. Sims smelled alcohol coming from Miller and the truck and saw open and unopened beer bottles. EMS transported Miller to Scott & White Hospital in Temple for emergency medical treatment. Because Sims concluded that Miller may have been driving while intoxicated, he sought a grand jury subpoena duces tecum from the Milam County District Attorney’s Office to obtain medical records from the custodian of records at Scott & White. Those records reflected that Miller “had a BAC of .173,” which Sims converted to a legal BAC of “.149.” Miller was charged by information with misdemeanor DWI. He filed a motion to suppress, asserting the State violated the Fourth Amendment and misused the subpoena process. 2 The trial court held a hearing at which Infantino and Sims testified. Exhibits included Sims’s hour- long body-cam video. The trial court denied the motion. It made these fact findings: 1. On June 6, 2022, at approximately 9:00 PM, Milam County Sheriff’s Deputy Alex Infantino and DPS Trooper Broderick Sims investigated a one-vehicle crash on FM 1915 in Milam County, Texas. 2. The vehicle in question left the roadway on a curve, struck a road sign, and came to rest after striking a tree. 3. The investigating officers identified the driver of the vehicle as Defendant, Ryan Miller. 4. Defendant was the driver and sole occupant of the vehicle involved in the crash. 5. Defendant was seriously injured in the crash and was incapacitated. 6. Both Deputy Infantino and Trooper Sims smelled an odor of an alcoholic beverage on Defendant's person. 7. Both Deputy Infantino and Trooper Sims observed an open container of an alcoholic beverage in the passenger compartment of the vehicle. 8. Defendant was subsequently transported to the hospital in Temple, Texas by Emergency Medical Services. 9. On or about August 4, 2022, Trooper Sims requested a Grand Jury subpoena from the Milam County District Attorney’s Office to secure Defendant's medical records of his treatment stemming from the crash. 10. On or about August 11 , 2022, a Grand Jury subpoena was issued. 11. On or about August 12, 2023, the Grand Jury subpoena was served on Scott & White Hospital in Temple, Texas. 12. On or about September 1, 2022, Trooper Sims received a copy of Defendant's medical records pursuant to the Grand Jury subpoena. 13. Trooper Sims learned from said medical records of Defendant that Defendant's blood alcohol content was 0.149 grams of alcohol per 100 milliliters of blood. 14. On or about January 20, 2023, a warrant to arrest Defendant for the charge of Driving While Intoxicated was issued by a Milam County Judge based on the probable cause affidavit of Trooper Sims. 15. On or about February 20, 2023, Trooper Sims arrested Defendant on said warrant. 3 The trial court concluded that Sims had reasonable suspicion of DWI during the initial investigation; the medical records were not obtained in violation of the law; and Sims had probable cause to obtain a warrant for Miller’s arrest for the DWI. Miller pleaded guilty to misdemeanor DWI, reserving the right to appeal the ruling on the motion. ANALYSIS Motion to Suppress Standard of Review We review a trial court’s ruling on a motion to suppress under a bifurcated standard. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018). We afford almost total deference to a trial court’s determination of historical facts. Id. at 190. When a trial court makes express findings of fact, an appellate court must examine the record in the light most favorable to the ruling and uphold those fact findings so long as they are supported by the record. State v. Rodriguez, 521 S.W.3d 1, 8 (Tex. Crim. App. 2017). We then apply a de novo standard of review to determine the legal significance of those facts. Id. 1. Sims had Reasonable Suspicion of Criminal Activity Miller first argues that Sims sought the grand jury subpoena as a fishing expedition—without reasonable suspicion to believe he had engaged in criminal activity. “[W]hen the State itself extracts blood from a DWI suspect, and when it is the State that conducts the subsequent blood alcohol analysis, two discrete ‘searches’ have occurred for Fourth Amendment purposes.” State v. Huse, 491 S.W.3d 833, 840 (Tex. Crim. App. 2016). But “whatever interests society may have in safeguarding the privacy of medical records, they are not sufficiently strong to require protection of 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, 4 527 (Tex. Crim. App. 1997). HIPAA represents a societal expectation that private health information will generally be kept private, State v. Martinez, 570 S.W.3d 278, 292 (Tex. Crim. App. 2019), but HIPPA does not undercut Hardy. Huse, 491 S.W.3d at 842. Instead, under HIPPA, a DWI offender would have no legitimate expectation of privacy sufficient to block a health care provider from disclosing otherwise protected health care information when required to do so under the terms of a grand jury subpoena. Id. (citing 45 C.F.R. § 164.512). Nevertheless, evidence obtained via a grand jury subpoena defective under either federal or state law may require exclusion under the Texas exclusionary rule. Id.; Tex. Code Crim. Proc. art. 38.23(a). “Grand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or an intent to harass.” United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991). Nor may a grand jury issue a subpoena too sweeping in its terms to be regarded as reasonable. United States v. Dionisio, 410 U.S. 1, 11 (1973). Likewise, the prosecution may not legitimately use a grand jury subpoena either as an “office subpoena” (a subterfuge to obtain an investigative interview) or as a tool to prepare for trial on an already-pending indictment. Huse, 491 S.W.3d at 845. Miller argues that “left open by the Court, and alluded to in both Hardy and Huse’s narrowed interpretation of standing and the right to privacy in medical records, are the circumstances or scenario wherein the interests of society are sufficiently strong to require protection, in this case against a ‘sham’ Grand Jury Subpoena request.” Miller argues Sims made a sham request because the legal possession and legal consumption of alcohol by a person of age 21 years or older cannot alone lead law enforcement to reasonably suspect criminal activity. To support a reasonable suspicion, the articulable facts must show (1) some activity out of the ordinary has occurred, (2) some suggestion to connect the subject to the unusual 5 activity, and (3) some indication the unusual activity is related to crime. Derichsweiler v. State, 348 S.W.3d 906, 916 (Tex. Crim. App. 2011). Here, the articulable facts show (1) a truck wrapped around a tree (some activity out of the ordinary has occurred), (2) Miller in the driver’s seat (some suggestion to connect the subject to the unusual activity), and (3) Miller smelling of “metabolized alcoholic beverages” and possessing open and unopened beer bottles in the front of his truck (some indication the unusual activity is related to crime). Here, reasonable suspicion—which is not itself required to make a grand jury subpoena lawful2—defeats Miller’s claim that the grand jury subpoena was a sham. We overrule Miller’s first issue. 2. The State Complied with the Articles Governing Grand Jury Subpoenas Miller next argues that the State failed to comply with the articles governing grand jury subpoenas so the evidence should have been suppressed under the Texas exclusionary rule. Grand juries in Texas have the constitutional authority to investigate misdemeanor offenses. Huse, 491 S.W.3d at 844; Tex. Const. art. V, § 17. Either the foreman of the grand jury or the attorney representing the State has the authority to issue a subpoena to an in-county or out-of-county witness on the grand jury’s behalf. Tex. Code Crim. Proc. arts. 20A.251, .252. A grand jury subpoena, like a regular subpoena, may require the witness to appear and produce records and documents. See id. art. 24.02 (subpoena duces tecum). A subpoena may be served in several different ways including by “delivering a copy of the subpoena to the witness.” Id. 2 See United States v. Dionisio, 410 U.S. 1, 15 (1973) (“A grand jury has broad investigative powers to determine whether a crime has been committed and who has committed it. The jurors may act on tips, rumors, evidence offered by the prosecutor, or their own personal knowledge.”). 6 art. 24.04(a)(2). If delivered in person, the officer having the subpoena “shall make due return thereof, showing the time and manner of service.” Id. art. 24.04(b). “[T]here is a presumption of regularity attending the purported acts of a grand jury, which the opposing party has the burden to overcome.” Huse, 491 S.W.3d at 845, 847 (applying presumption even though grand jury was unaware of grand jury subpoena at time it was issued). Miller first argues the State’s evidence suggests that someone who was not an “attorney representing the State” issued the subpoena. Miller notes that Sims’s testimony that he contacted the DA’s office to get the subpoena on August 4, 2022, is not reflected on the subpoena; Sims testified that he did not know Billy Curry, the officer who obtained the subpoena and delivered it to Scott & White; and “it is unknown from the record as to whether Mr. Torrey [who signed the subpoena] was an employee of the Milam County District Attorney’s Office[.]” But the trial court was entitled to believe Sims’s testimony that he contacted that office to get the subpoena on August 4, 2022; it does not matter that Sims did not know who Billy Curry was; and the subpoena, admitted as a defense exhibit, reflects that W.W. Torrey issued the subpoena, signing it as the “County and District Attorney” and commanding the return of the records “Pursuant To An Official Investigation Being Conducted By The Milam County DPS and Milam County District Attorney, W.W. Torrey.” And Sims, in his testimony, clarified he was not involved in drafting or serving the subpoena; that was done by the district attorney’s office. The grand jury subpoena complied with the articles providing that “the foreperson or the attorney representing the state may issue” a grand jury subpoena. See Tex. Code Crim. Proc. arts. 20A.251, .252. Miller also argues that the return information—that Officer Billy Curry received the subpoena on August 12, 2022, at 8:20 a.m. and executed it by delivering it in person to Scott 7 & White ten minutes later, at 8:30 a.m.—reflects an impossibility because the hospital is 36 miles away from the Cameron County District Attorney’s Office. But for all the record shows, Curry received the subpoena over email while sitting outside the hospital in Temple, knowing it was on the way. The record contains the required return showing the time and manner of service; and the distance Miller points to is insufficient to defeat the presumption of regularity. Id. art. 24.04(b); Huse, 491 S.W.3d at 847. Finally, Miller argues the State violated the article 20A.252 requirement that the “attorney representing the state” cause a subpoena to be issued to an out-of-county witness “by submitting a written application to the district court stating the name and residence of the witness and that the witness’s testimony is believed to be material.” Tex. Code Crim. Proc. art. 20A.252. This complaint was neither raised by Miller in his motion nor adjudicated at the motion to suppress hearing. We therefore find Miller failed to preserve it for appeal. See Resendez v. State, 306 S.W.3d 308, 313 (Tex. Crim. App. 2009); Tex. R. App. P. 33.1(a)(1)(A). Because the State obtained the medical records in the absence of any specific statutory violation, article 38.23(a) does not mandate that the records be suppressed. We overrule Miller’s second issue. CONCLUSION Having overruled Miller’s complaints about the grand jury subpoena, we hold the trial court did not abuse its discretion in denying the motion to suppress. 8 __________________________________________ Chari L. Kelly, Justice Before Justices Triana, Kelly and Ellis Affirmed Filed: October 8, 2026 Do Not Publish 9