Michael D. Howard A/K/A Michael David Howard v. State ( 2015 )

Opinion issued July 23, 2015.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00112-CR
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MICHAEL D. HOWARD A/K/A MICHAEL DAVID HOWARD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 391st District Court
Tom Green County, Texas
Trial Court Case No. D-12-1004-SB
MEMORANDUM OPINION
A jury convicted appellant Michael D. Howard a/k/a Michael David Howard
of felony driving while intoxicated.1 The trial court assessed his punishment at
1
See TEX. PENAL CODE ANN. §§ 12.42(a), 49.09(b)(2) (West Supp. 2014)
(third-degree felony enhanced by prior felony conviction, thereby elevating
punishment range to that of second-degree felony).
sixteen years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice. On appeal, Howards contends that his conviction should be
reversed because the trial court erred in denying his motion to suppress evidence
relating to the warrantless blood draw. We reverse the trial court’s judgment and
remand for a new trial.2
Background
Howard was stopped for a traffic violation and was subsequently arrested for
DWI. After Howard refused to provide a breath specimen, the arresting officer
transported him to a hospital where a warrantless blood draw was taken pursuant to
Texas Transportation Code section 724.012(b)(3)(B). See TEX. TRANSP. CODE
ANN. § 724.012(b)(3)(B) (West 2011). Howard filed a motion to suppress the
blood analysis results, challenging the warrantless blood draw on Fourth
Amendment grounds.3
2
This appeal, originally filed in the Third Court of Appeals, Austin, Texas, was
transferred to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (West 2013) (authorizing transfer of cases).
3
Howard also argued that the warrantless blood draw violated the Texas
Constitution. TEX. CONST. art. I, §§ 9, 10. We need not consider whether the
warrantless blood draw violates the state constitution, however, because Howard
did not separately brief his state and federal constitutional issues or argue that the
Texas Constitution provides greater protection than the United States Constitution.
See Keehn v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009) (not reaching
defendant’s state constitutional issue regarding warrantless search because
defendant did not brief state and federal constitutional issues separately); Black v.
State, 26 S.W.3d 895, 896 (Tex. Crim. App. 2000) (“The [defendant] offers no
reason for construing the Texas Constitution as conferring greater protection in
2
At the pre-trial hearing on Howard’s motion to suppress, Sergeant A. Scott
testified that he assisted Officer H. Miller in obtaining Howard’s blood specimen.
Sergeant Scott testified that he remained at the scene to inventory Howard’s
vehicle after Howard was arrested and transported to the jail. The arresting officer,
Officer Miller, called Sergeant Scott and informed him that Howard had two
previous DWI convictions and had refused to provide a breath specimen. At that
point, Sergeant Scott met Howard and Officers Miller and N. Anderson at the
hospital where Sergeant Scott assisted the officers in conducting a mandatory
blood draw. Although Howard had agreed to provide a blood specimen at the jail,
he revoked his consent to the blood draw at the hospital. Sergeant Scott testified
that the officers did not attempt to obtain a warrant because once Howard refused
to provide a breath specimen at the jail they “had the mandatory blood draw in
effect.” Sergeant Scott testified that he believed that Howard’s consent to the blood
draw was irrelevant in light of the mandatory blood draw statute.
The trial court denied Howard’s motion to suppress. In its findings of fact
and conclusions of law, the trial court found that there was no testimony as to any
exigent circumstances that required the drawing of a blood specimen from Howard
without a search warrant and that the blood specimen obtained from Howard was
“mandated by Chapter 724, Texas Transportation Code.” The trial court also
this area of the law than the federal constitution, and therefore we will not address
his state constitutional argument.”).
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concluded that the warrantless blood draw was “authorized under the implied
consent law of Chapter 724, Texas Transportation Code.”
At trial, Officer Miller testified about the circumstances of the traffic stop
that led to Howard’s arrest and to his observations of Howard. Officer Miller
testified that based on his observations, he believed that Howard was intoxicated.
Officer Anderson administered standardized field sobriety tests to Howard at
the scene. Officer Anderson testified that although he was previously certified to
administer such tests, his certification had lapsed as of the date of the arrest. He
also testified that all of the tests he administered to Howard were flawed in some
respect. Although the court allowed Officers Miller and Anderson to testify
regarding their observations of Howard, Officer Anderson was prohibited from
opining about whether he believed that Howard was intoxicated based upon his
performance on the field sobriety tests.
Dusky Wells, the medical technologist who drew Howard’s blood specimen,
and Marissa Silva, the forensic scientist with the Texas Department of Public
Safety Laboratory in Midland who analyzed the blood specimen, also testified for
the State. According to Silva, Howard’s blood sample contained 0.198 grams of
ethanol per 100 milliliters, which was over twice the legal limit in Texas.
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Warrantless Blood Draw
Howard contends that the trial court erred in denying his motion to suppress
the blood analysis results because the evidence resulted from a warrantless,
non-consensual blood draw that violated the Fourth Amendment.
A. Standard of Review and Applicable Law
We review a trial court’s denial of a motion to suppress evidence under a
bifurcated standard of review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.
Crim. App. 2013). We give almost total deference to a trial court’s determination
of historical facts, especially if those determinations turn on witness credibility or
demeanor, and we review de novo the trial court’s application of the law to facts
not based on an evaluation of credibility and demeanor. Gonzales v. State, 369
S.W.3d 851, 854 (Tex. Crim. App. 2012). At a suppression hearing, the trial court
is the sole and exclusive trier of fact and judge of the witnesses’ credibility, and it
may choose to believe or disbelieve all or any part of the witnesses’ testimony.
Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002); State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000).
When the trial court enters findings of fact, the appellate court considers all
of the evidence in the record and “must determine whether the evidence supports
those facts by viewing the evidence in favor of the trial court’s ruling.” Castro v.
State, 373 S.W.3d 159, 164 (Tex. App—San Antonio 2012, no pet.) (citing Keehn
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v. State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009)). Additionally, an appellate
court must “uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case.” State v. Iduarte, 268
S.W.3d 544, 548 (Tex. Crim. App. 2008).
A blood draw conducted at the direction of a law enforcement officer is a
search subject to the reasonableness requirement of the Fourth Amendment.
Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834 (1966); State v.
Villarreal, No. PD–0306–14, 2014 WL 6734178, at *9 (Tex. Crim. App. Nov. 26,
2014) (reh’g granted). A warrantless search of a person is unreasonable unless it
falls within a recognized exception to the warrant requirement. Villarreal, 2014
WL 6734178, at *8 (citing Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013));
see also Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)
(holding that warrantless search or seizure is per se unreasonable unless it falls
under recognized exception to warrant requirement). Voluntary consent to search
and the existence of exigent circumstances are two of the recognized exceptions.
See McNeely, 133 S. Ct. at 1558; Villarreal, 2014 WL 6734178, at *8.
B. Mandatory Blood Draw/Implied Consent Statutes
The State argues that the trial court did not abuse its discretion in admitting
the blood analysis results because the warrantless blood draw was mandated by
Transportation Code section 724.012(b)(3)(B), and alternatively, that Howard is
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deemed to have consented to the blood draw pursuant to Transportation Code
section 724.011(a). See TEX. TRANSP. CODE ANN. § 724.011(a) (West 2011)
(providing that person arrested for DWI “is deemed to have consented, subject to
this chapter, to submit to the taking of one or more specimens of the person’s
breath or blood for analysis to determine the alcohol concentration”); id.
§ 724.012(b)(3)(B) (providing for mandatory-blood-specimen collection for person
twice before convicted of DWI). We construe these arguments as asserting that the
mandatory blood draw statute and the implied consent statute each constitute an
exception to the Fourth Amendment’s warrant requirement.
While this case has been pending on appeal, the Court of Criminal Appeals
considered the question of whether a warrantless search of a DWI suspect’s blood
conducted pursuant to section 724.012(b) complied with the Fourth Amendment.
See Villarreal, 2014 WL 6734178, at *6–8. In doing so, the court rejected both
arguments advanced by the State. Specifically, the court held that the mandatory
blood draw statute (§ 724.012(b)) does not constitute a recognized exception to the
warrant requirement. See id. at *8, 17–18; see also Perez v. State, No. 01-12-
01001-CR, 2015 WL 1245469, at *8 (Tex. App.—Houston [1st Dist.] Mar. 17,
2015, pet. filed). The Court of Appeals also rejected the argument that the implied
consent statute (§ 724.011(a)) constitutes an exception to the warrant requirement
and held that “in the context of a nonconsensual, warrantless bodily search of a
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person suspected of criminal activity, a statute providing for irrevocable implied
consent cannot supply the type of voluntary consent necessary to establish an
exception to the Fourth Amendment warrant requirement.” Villarreal, 2014 WL
6734178, at *14. The court concluded that “implied consent that has been
withdrawn or revoked by a suspect cannot serve as a substitute for the free and
voluntary consent that the Fourth Amendment requires.” Id. at *11. In this case, the
State conceded at the suppression hearing that Howard revoked his consent to the
blood draw at the hospital.
C. Exclusionary Rule
The State further contends that even if the blood draw violated Howard’s
Fourth Amendment rights, the trial court was nevertheless correct in admitting the
evidence because the state and federal exclusionary rules are inapplicable.
Specifically, the State argues that there are applicable good-faith exceptions to the
federal exclusionary rule and the Texas exclusionary rule does not apply because
the police did not obtain the evidence in violation of the law, as the law existed at
the time of the blood draw.
The State argues that the federal exclusionary rule does not bar admission of
the evidence in this case because the officer relied in good faith on the mandatory
blood draw statute and on binding judicial precedent. See Davis v. United States,
131 S. Ct. 2419, 2423–24, 2434 (2011) (stating that officer’s good-faith reliance on
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binding case law is exception to federal exclusionary rule); Illinois v. Krull, 480
U.S. 340, 360, 107 S. Ct. 1160, 1172 (1987) (stating that officer’s good-faith
reliance on statute is exception to federal exclusionary rule).
The Texas exclusionary rule provides that “[n]o evidence obtained . . . in
violation of any provisions of the Constitution or laws of the State of Texas, or of
the Constitution or laws of the United States of America, shall be admitted in
evidence against the accused on the trial of any criminal case.” TEX. CODE CRIM.
PROC. art. 38.23 (West 2005). The Court of Criminal Appeals has previously held
that “exceptions to the federal exclusionary rule only apply to the Texas statutory
exclusionary rule if they are consistent with the plain language of the statute.”
Douds v. State, 434 S.W.3d 842, 861 (Tex. App.—Houston [14th Dist.] 2014, pet.
granted). Unlike the federal rule, the plain language of Texas’s statutory
exclusionary rule only expressly recognizes one good-faith exception and that is
for “a law enforcement officer acting in objective good faith reliance upon a
warrant issued by a neutral magistrate based on probable cause.” TEX. CODE CRIM.
PROC. art. 38.23(b) (emphasis added). Accordingly, we decline to apply the federal
good-faith exceptions urged by the State to the Texas exclusionary rule set forth in
Article 38.23 because the federal exceptions are not “consistent with the plain
language of the [Texas] statute,” which only recognizes one exception based on an
officer’s good-faith reliance upon a warrant. See State v. Tercero, No. 01-14-
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00120-CR, 2015 WL 1544519, at *7 (Tex. App.—Houston [1st Dist.] Apr. 2,
2015, pet. filed) (declining to apply another federal good-faith exception to Texas
exclusionary rule because federal exception was “inconsistent with the text of
article 38.23”); see also Weems v. State, 434 S.W.3d 655, 666 (Tex. App.—San
Antonio 2014, pet. granted) (rejecting argument that officer’s good-faith reliance
on mandatory blood draw and implied consent statutes constituted good-faith
exception to article 38.23).
The State also argues that the Texas exclusionary rule is inapplicable
because “[a]t the time of the blood draw, Texas case law clearly held that alcohol
dissipation alone constituted exigent circumstances in DWI cases.” According to
the State, “McNeely changed the law when it rejected a per se exigency in DWl
cases, but McNeely was issued after the search in this case.” This court recently
addressed a similar argument and concluded that McNeely did not set out a new
constitutional rule, but rather clarified Schmerber and reaffirmed the Supreme
Court’s prior rulings regarding the admissibility of blood evidence acquired
without a warrant. See Tercero, 2015 WL 1544519, at *7.
D. Harm Analysis
We review the harm resulting from a trial court’s erroneous denial of a
motion to suppress and subsequent admission of evidence obtained in violation of
the Fourth Amendment under the constitutional harmless-error standard. TEX. R.
10
APP. P. 44.2(a); see Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App.
2001) (mandating application of rule 44.2(a) to harm analysis of trial court’s
erroneous denial of motion to suppress under Fourth Amendment). This standard
requires us to reverse the trial court’s judgment of conviction unless we determine
“beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.” TEX. R. APP. P. 44.2(a).
Here, the jury charge instructed the jurors that “[a] person is deemed to be
intoxicated within the meaning of the law when he does not have the normal use of
his mental or physical faculties by reason of the introduction of alcohol in his
body, or having an alcohol concentration of 0.08 or more.” The State presented the
testimony of Officers Miller and Anderson regarding Howard’s conduct leading up
to and following his arrest as evidence of intoxication. The State also presented the
testimony of the medical technologist who took Howard’s blood sample on the
night he was arrested. Finally, the State presented the testimony of a forensic
scientist who testified that Howard’s blood sample contained 0.198 grams of
ethanol per 100 milliliters and that this amount of alcohol was over twice the legal
limit in Texas.
Given the testimony regarding the taking of Howard’s blood sample and his
toxicology results and the jury’s instruction that intoxication means, in part,
“having an alcohol concentration of 0.08 or more,” we cannot determine beyond a
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reasonable doubt that the error did not contribute to Howard’s conviction. See
Perez, 2015 WL 1245469, at *9–10; Weems, 434 S.W.3d at 667.
We conclude that the warrantless taking of Howard’s blood sample in this
case violated his Fourth Amendment rights by requiring him to submit to a blood
test without a warrant or a recognized exception to the warrant requirement and
that this error was harmful.
We sustain Howard’s complaint that the trial court erred in denying his
motion to suppress evidence relating to the warrantless blood draw.
Conclusion
We reverse the trial court’s judgment and remand for a new trial consistent
with this opinion.
Russell Lloyd
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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