Page 76 - Police Officer's Guide 2013

DISCOVERY OF CHILD PORNOGRAPHY ON SUSPECTS COMPUTER BY GUEST.
ADMISSIBLE.

The Defendant hired Killian to stay at his home and care for his dog while he was away on vacation.
During her stay, Killian used the appellant's computer in his master bedroom and found child pornography. At a
pre-trial motion to suppress hearing, the appellant claimed that Killian's access to his bedroom and computer was
illegal; therefore, the State could not use the evidence against him at his trial, under Article 38.23(a) of the Texas
Code of Criminal Procedure. The trial court denied the motion to suppress, and the Tenth Court of Appeals
affirmed. We granted the appellant's petition for discretionary review to examine this holding. We now affirm.

Whether Killian committed either trespass or breach of computer security depends upon whether she had
the appellant's "effective consent."

The evidence supports a finding that the appellant gave Killian his apparent consent. The appellant invited
Killian to help herself to "anything" and "everything," and this invitation was not limited to the refrigerator and
pantry, but was repeated during the course of the tour of the house, which included his master bedroom. Whatever
he may have intended, the appellant told Killian only that he required her to keep the bedroom door closed in
order to keep the dog out. He did not expressly banish her from the bedroom, nor did he forbid her to use his
computer. He showed her how to operate the television and stereo. He did not power the computer down or
password-protect it, and he admitted that he allowed his roommate to use it regularly. Given this convergence of
facts, the trial court was justified in concluding that Killian had the appellant's apparent consent--that is to say, it
is clear and manifest to the understanding that she had his assent in fact--to enter his bedroom and use his
computer.

th
Baird v. State, No. PD-0159-12, Tex. Court of Crim. Appeals, May 8 , 2013.

DWI ARREST, BLOOD DRAW. EMT-1 WAS NOT QUALIFIED TO MAKE BLOOD DRAW.

After appellant was arrested for driving while intoxicated, his blood was drawn at a hospital by Rachel
Lopez. Although Lopez's job title was "emergency medical technician" and she was licensed as an EMT-I, her
primary duty at the hospital was to draw blood in non-emergency situations. The questions in this case are
whether, under § 724.017 of the Transportation Code, Lopez was "emergency medical services personnel" and,
if so, whether that fact renders her unable to be a "qualified technician" authorized to take blood specimens in
driving-while-intoxicated cases. After reviewing Lopez's job duties, we hold that she was not "emergency
medical services personnel" and that she was a "qualified technician" within the meaning of the statute. We
reverse the judgment of the court of appeals.

Appellant moved to suppress the results of the blood test, arguing that Lopez was not a person authorized
by § 724.017 of the Transportation Code to take a blood specimen. Specifically, appellant contended that Lopez
was not a "qualified technician" within the meaning of the statute because she was part of the hospital's
"emergency medical services personnel." Section 724.017(a) provides:

Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse
may take a blood specimen at the request or order of a peace officer under this chapter.

Section 724.017(c) says:
In this section, "qualified technician" does not include emergency medical services personnel.

A Peace Officer’s Guide to Texas Law 69 2013 Edition