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.
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The trial court held a hearing at which Infantino and Sims testified. Exhibits included Sims’s hourlong 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.
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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,
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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
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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.”).
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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
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& 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.
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Chari L. Kelly, Justice
Before Justices Triana, Kelly and Ellis
Affirmed
Filed: October 8, 2026
Do Not Publish
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