IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 119-00

 

THOMAS WYMAN BADGETT, Appellant

v.



THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY


Meyers, J., filed this concurring opinion.

CONCURRING  OPINION



I join the opinion of the Court. I write to point out that the Court of Appeals' holding writes into the controlling statute a presumption that, once established, places a burden on the defendant to overcome it, in contravention of the plain language.

The Transportation Code provides that a police officer shall require the taking of a blood specimen if, among other requirements, "(1) the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft; and (2) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense." Tex. Transp. Code 724.12(b). Thus, the State must show these requirements have been met in order to justify an involuntary taking of a blood specimen. (1)

The Court of Appeals held that section 724.012(b)(2) could not "reasonably be interpreted to impose an obligation on law enforcement personnel to possess specific evidence that an intoxicated defendant was at fault in causing the accident before a specimen may be taken involuntarily, but only that an accident has occurred in which an intoxicated driver was involved." Badgett v. State, 7 S.W.3d 645, 648 (Tex. App.-Houston [14th Dist.] 1999). Under the Court of Appeals' holding, the State need only show that the driver was intoxicated in order to meet the additional statutory requirement that the officer have a reasonable belief that the driver's intoxication was the cause of the accident. The State's burden is met on the causation element once intoxication is shown; it need not show more. Presumably, a defendant could overcome the State's case by showing that he did not cause the accident. But the burden would be on the defendant because the State has already shown all it needs to in order to establish a valid search. See n.1, supra. It would appear to work like this: once the State has shown that the driver was intoxicated, a presumption arises that the accident was caused by the intoxication. The defendant then has the burden of overcoming the presumption by proving that the intoxication did not cause the accident and that the officer had conclusive evidence of this fact. Placement of the burden on the defendant to prove a negative is contrary to the plain language of the statute. Nothing in the language of the provision contemplates the application of a presumption. The Court of Appeals erred in holding otherwise.

With these comments, I join the opinion of the majority.



Delivered April 11, 2001

Publish

1. The defendant bears the initial burden on his motion to suppress evidence to establish the basis for his Fourth Amendment claim. State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998). Once this basis has been established, the burden shifts to the prosecution to show the validity of the search under an applicable theory of law. In this case, the State is relying on section 724.12(b) to show the validity of the search.