Jeffrey Lynn Aday v. State ( 2015 )

ACCEPTED
05-14-01593-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/4/2015 6:49:31 PM
LISA MATZ
CLERK
5th Court of Appeals
FILED: 5/6/2015
Lisa Matz, Clerk
FIFTH COURT OF APPEALS
__________________________________________________________
05-14-01593-CR
__________________________________________________________
Jeffrey Lynn Aday, v. State of Texas
____________________________________
On Appeal from Trial Court No. 2012-1-0206
County Court At Law No. 1, Grayson County
Hon. James C. Henderson, Presiding
Appellant’s Brief
John Hunter Smith
707 W. Washington
Sherman, Texas 75092
Tel. (903)-893-8177
Fax (903)-892-0916
jsmith@wynnesmithlaw.com
Texas Bar No. 24028393
Kristin R. Brown
18208 Preston Road, Suite D9375
Dallas, Texas 75252
Phone: 214.446.3909
Fax: 214.481.4868
kbrown@idefenddfw.com Oral
Argument
is
Requested
Texas Bar No. 24081458
Attorneys for Appellant
I. Identities of the Parties and Counsel
Appellant: Jeffery Lynn Aday
Attorney for Appellant: On Appeal And At Trial
Mr. John Hunter Smith
Wynne & Smith
707 W. Washington
Sherman, Texas 75092
On Appeal
Ms. Kristin R. Brown
Law Office of Kristin R. Brown, PLLC
18208 Preston Road, Suite D9375
Dallas, Texas 75252
Attorneys for the State: Ms. Karla Baugh-Hackett
Mr. Matthew Rolston
Grayson County District Attorney’s Office
200 S. Crockett
Sherman, Texas 75090
Trial Court: County Court At Law No. 1
Grayson County, Texas
Honorable James C. Henderson, Presiding
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II. Table of Contents
I. Identities of the Parties and Counsel......................................................... 2
II. Table of Contents .................................................................................... 3
III. Statement of the Case and Jurisdiction .................................................. 6
IV. Statement Regarding Oral Argument..................................................... 7
V. Issues Presented: ...................................................................................... 8
VI. Statement of Facts .................................................................................. 9
1. Appellant files a motion to suppress evidence ..................................... 9
2. Evidence presented at the hearing on Appellant’s Motion
to Suppress ....................................................................................... 9
3. The trial court denied the motion based on implied
consent and exigent circumstances, and then reversed
itself, in part, upon Appellant’s filing of a Motion to
Reconsider after the Texas Court of Criminal Appeals
decided Villarreal. .......................................................................... 12
VII. Summary of the Arguments ............................................................... 13
VIII. Argument .......................................................................................... 15
1. Issue One: Under the Fourth Amendment of the United States
Constitution, the holding in Missouri v. McNeely, and the holdings of other
Texas courts of appeal, the trial court erred when it denied Appellant’s
motion to suppress the blood test results because: (1) Thomas admitted he
did not even try to obtain a warrant for Appellant’s blood; (2) there were no
exigent circumstances justifying the warrantless blood draw under Texas
Transportation Code § 724.012; (3) Thomas had no probable cause to arrest
Appellant; (4) the trial court’s decision is not correct on any theory of law
applicable to the case; (5) the good-faith exception does not apply in this
case; (6) the holding in McNeely apply to this case because this case was
pending when McNeely was handed down; and (7) Appellant was harmed
by the trial court’s error of denying the motion to suppress. ........................ 15
i. Introduction ......................................................................................... 15
ii. Standard of review is bifurcated based upon the abuse
of discretion standard. .................................................................... 17
iii. McNeely ............................................................................................ 19
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iv. Statutes implicated by McNeely: Texas Transportation
Code §724.012 (2012)(mandatory draw statute) and
Texas Transportation Code § 724.011 (2012) (implied
consent statute) ............................................................................... 24
v. As held in Villarreal, Texas Transportation Code §§
724.011 and 724.012 violate the Fourth Amendment
because these statutes dispense with the Fourth
Amendment’s warrant requirement and none of the
exceptions to the warrant requirement apply. ................................. 28
vi. Significance of the granting of rehearing by the Court of
Criminal Appeals in Villarreal ....................................................... 35
vii. Opinions of other courts of appeal confirm McNeely
and Villarreal, and support Appellant’s arguments. ....................... 36
viii. Under the holdings in McNeely, Villarreal, and other
Texas courts of appeal, the trial court erred when it
denied Appellant’s motion to suppress because: (1)
the officer admitted he did not even try to obtain a
warrant for Appellant’s blood; (2) there were no
exigent circumstances justifying the warrantless
blood draw under Texas Transportation Code §
724.012; (3) Thomas had no probable cause to arrest
Appellant; (4) and the trial court’s decision is not
correct on any theory of law applicable to the case. ....................... 49
ix. Even if Chapter 724.012(b) was constitutional, its
requirements cannot be met. ........................................................... 58
x. The good-faith exception does not apply in this case. ........................ 59
xi. The holding in McNeely applies to this case because
this case was pending when McNeely was handed
down. .............................................................................................. 62
xii. Appellant was harmed by the trial court’s error of
denying the motion to suppress. .................................................... 63
xiii. Conclusion ...................................................................................... 64
2. Issue Two: The trial court erred and Appellant was harmed when the
trial court denied Appellant the right to present the totality of the legal
evidence raising an issue of material fact, which was an element of the
offense, and, which—in turn—allowed the State to admit evidence, obtained
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in violation of the Constitutions and laws of the United States of America
and the State of Texas, against Appellant at trial. ........................................ 65
i. Statement of Facts ............................................................................... 65
ii. Introduction ........................................................................................ 67
iii. Standard of Review is Abuse of Discretion ...................................... 67
iv. Applicable Law ................................................................................. 68
v. The trial court abused their discretion in not allowing
material evidence—which was both relevant and
probative to be introduced to the jury. ........................................... 68
vi. Conclusion......................................................................................... 69
IX. Conclusion and Prayer ......................................................................... 70
X. Certificate of Service ............................................................................. 71
XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4 ................... 72
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To the Honorable Justices of the Court of Appeals:
In support of his appeal, Appellant Jeffrey Lynn Aday submits this Brief:
III. Statement of the Case and Jurisdiction
This case is an appeal of a Judgment of Conviction by Jury entered and
sentence imposed by County Court at Law No. 1 of Grayson County, Texas. (CR,
334-335).1 On February 9, 2012 the State filed an Information alleging that
Appellant committed the criminal offense of Driving While Intoxicated 2nd under
Texas Penal Code § 49.04 and 49.09(a) as follows: on or about September 8, 2012,
in Grayson County, Texas, Appellant did then and there operate a motor vehicle in
a public place while intoxicated, and it is further presented in and to said Court
that, prior to the commission of the aforesaid offense on the 18th day of November,
2008, in cause number 2009-1-309 in County Court at Law Number 1 of Grayson
County, Texas, the Appellant was convicted of an offense relating to the operation
of a motor vehicle while intoxicated (CR, 16).
Appellant filed a motion to suppress evidence, which was denied. (CR, 236).
Appellant pleaded “not guilty,” and a trial was had before a jury. (RR6, 27). On
December 18, 2014, Appellant was convicted of Driving While Intoxicated under
Texas Penal Code § 49.04. (CR, 333; RR8, 6). On the same day, Appellant plead
true to the enhancement provision of the Information, and was sentenced to 365
1
The Record on Appeal consists of the Clerk’s Record, which is one volume, and the Reporter’s
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days in the County Jail, probated for a period of 18 months; a $500.00 fine; and
$449.10 in court costs. (CR, 334-339; RR8, 20-21).
On December 19, 2014, Appellant filed a timely notice of appeal from the
Judgment of Conviction. (CR, 342-343); See Tex. Rule App. Proc. 26.2(a) (2015).
An amended notice of appeal was timely filed on December 23, 2014. (CR, 345-
346); See Tex. Rule App. Proc. 26.2(a) (2015). The trial court signed a
certification of Appellant’s right to an appeal, certifying that this is not a plea-
bargain case, and that Appellant has the right of appeal. (CR, 340); See Tex. Rule
App. Proc. 25.2(a)(2) (2015). As a result, this Court has jurisdiction over this
appeal.
IV. Statement Regarding Oral Argument
Appellant requests oral argument. See Tex. Rule App. Proc. 39 (2015).
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V. Issues Presented:
Issue One: Under the Fourth Amendment, the holdings in McNeely,
Villarreal, and other Texas courts of appeal, the trial court erred when it
denied Appellant’s motion to suppress the blood test results because: (1)
Thomas admitted he did not even try to obtain a warrant for Appellant’s
blood; (2) there were no exigent circumstances justifying the warrantless
blood draw under Texas Transportation Code § 724.012; (3) Thomas had no
probable cause to arrest Appellant; (4) the trial court’s decision is not correct
on any theory of law applicable to the case; (5) the good-faith exception does
not apply in this case; (6) the holding in McNeely apply to this case because
this case was pending when McNeely was handed down; and; (7) Appellant
was harmed by the trial court’s error of denying the motion to suppress.
Issue Two: The trial court erred and Appellant was harmed when the trial
court denied Appellant the right to present the totality of the legal evidence
raising an issue of material fact, which was an element of the offense, and,
which—in turn—allowed the State to admit evidence, obtained in violation of
the Constitutions and laws of the United States of America and the State of
Texas, against Appellant at trial.
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VI. Statement of Facts
1. Appellant files a motion to suppress evidence
On June 10, 2013, Appellant filed a motion to suppress evidence. (CR, 101–
105). Appellant argued that his arrest and apprehension was made without a
warrant or probable cause, in violation of the Fourth and Fourteenth Amendments
of the United States Constitution, and of Article 1, § 9 of the Texas Constitution.
(CR, 101–105). Appellant also argued that the search of Appellant’s person was
without probable cause, without a warrant, and without exigent circumstances.
(CR 101–105). An amended motion was filed on September 13, 2013. (CR, 139–
44).
2. Evidence presented at the hearing on Appellant’s Motion to Suppress
The following evidence was presented at the hearing on the motion to
suppress evidence on August 5, 2014: this was a warrantless arrest. (RR2, 4). On
September 8, 2011, at 9:54 p.m., Denison Fire Department (“DFD”) was
dispatched to FM 691 and Pool Road in response to a Motorcycle accident. (RR2,
24, 31). Trooper Shannon Thomas (“Thomas”) of the Texas Department of Public
Safety arrived on scene at 10:12 p.m. (RR2, 66). When Thomas arrived Appellant
had left the scene by ambulance for Texoma Medical Center (“TMC”). (RR2, 42).
Trooper Jim Bob Walters arrived on scene shortly thereafter and assisted Thomas
with the situation on scene. (RR2, 66–67). There were no bottles, cans, or
alcoholic beverages found at the scene. (RR2, 67). No person at the scene reported
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suspected alcohol use or the odor of alcohol on Appellant. (RR2, 67–68). Upon
arrival to the scene, DFD emergency personnel informed Thomas that Appellant
would probably be care-flighted, as he had sustained a traumatic head injury.
(RR2, 68). Thomas did not immediately go to the hospital, but rather stayed at the
scene until it was clear. (RR2, 46). Thomas arrived at the hospital at
approximately 11:00 p.m. (RR2, 62, 69). Upon arrival, TMC emergency room
staff informed Thomas that Appellant would be care-flighted. (RR2, 49). Thomas
did not immediately go into Appellant’s room, but rather waited approximately
20–25 minutes in the waiting area until family cleared Appellant’s room. (RR2,
73, 74). Thomas did not request family be cleared from the room. (RR2, 74).
Thomas enters Appellant’s room at approximately 11:25 p.m. (RR2, 73, 74).
Appellant is unconscious and non-responsive, unable to communicate with
Thomas. (RR2, 50, 57, 60). Thomas inspects Appellant for the “smell of any
alcoholic beverage, marijuana, anything like that” because these are “a very
common contributor to crashes.” (RR2, 53). Thomas believes he smells an odor
of alcohol. (RR2, 53). Thomas leaves the room, and the hospital, and goes out to
his car. (RR2, 76). Thomas retrieves a DIC-24 form, a blood kit, and other
paperwork. (RR2, 76–77). Thomas goes back to Appellant’s ER room at TMC.
(RR2, 78). Somewhere between 11:27 and 11:32 p.m., Thomas reads Appellant
the DIC 24. (RR2, 79). Appellant does not respond. (RR2, 60). Trooper Thomas
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directs hospital personnel to draw Appellant’s blood. (RR2, 84). Approximately
five minutes later, at 11:37 p.m., Appellant’s blood is drawn. (RR2, 84).
Appellant did not consent to the blood draw, nor did he refuse the blood draw.
(RR2, 57, 60). Thomas made absolutely no effort to get a warrant for appellant’s
blood. (RR2, 81–83). Thomas did not even consider getting a warrant. (RR2, 82).
Thomas believed that he did not need a warrant because Texas Transportation
Code 724.011 and 724.014 provided for the taking of a blood specimen under
“Implied Consent” (RR2, 81). Implied consent was Thomas’s sole reliance for the
warrantless taking of Appellant’s blood. (RR2, 81). The Defense attorney and
Thomas had the following exchange:
Q. And your reliance in getting the blood on this night was implied consent?
A. Yes sir, just under the implied consent.
Q. Implied consent, period?
A. When they are unconscious, yes sir.
(RR2, 81). As to exigent circumstances, Thomas stated that when “[he] was
notified that care flight would be - - [he] felt like my time was very limited at that
point.” (RR 2, 83, 86). Thomas was notified of care flight at 10:12 p.m. and at
11:00 p.m. (RR2, 49, 68).
Thomas has investigated over 600 DWI arrests. (RR2, 36). But, Thomas
has only sought blood warrants in 10-12 instances. (RR2, 36–37). Warrants are
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gained through fax or hand-delivery of a probable cause affidavit to the judge.
(RR2, 37). The judge will typically sign the warrant and return it to the officer.
(RR2, 37). A warrant can be gained in as little as 30-45 minutes, calculated from
the time of the refusal to the time of the draw. (RR2, 38). Thomas made no
effort—zero—to gain a warrant for Appellant’s blood, because he did not believe
he needed one. (RR2, 81–83).
3. The trial court denied the motion based on implied consent and
exigent circumstances, and then reversed itself, in part, upon
Appellant’s filing of a Motion to Reconsider after the Texas Court of
Criminal Appeals decided Villarreal.
The trial court concluded that based upon the law that the court
believes existed at the time of the hearing and rulings of the Texas Court of
Criminal Appeals, the Appellant’s motion to suppress the blood evidence should
be denied based on exigent circumstances and implied consent under Tex. Trans.
Code §§ 724.011, 724.014, and in fact denied the motion to suppress. (CR, 236).
After the decision was handed down by the Court of Criminal Appeals in
Villarreal, Appellant filed a Motion to Reconsider the previously denied Motion
to Suppress. (CR, 245–251). The trial court, at the December 12, 2014, pre-trial
hearing, announced that the Motion to Reconsider would be granted in part and
denied in part. (RR4, 5–8). The court went on to rule that, based on the Court of
Criminal Appeals ruling in Villarreal, the “alternative grounds” upon which the
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court had previously denied the motion to suppress [Implied Consent under Tex.
Trans. Code §§724.011, 724.014] could no longer be relied on and, therefore, the
court granted the motion to suppress—but only as to implied consent. (RR4, 7–8).
However, the court held, the Motion to Reconsider would be denied as to the
“previous ruling that the warrantless blood draw did not violate [Appellant’s]
constitutional right [sic] under the Fourth Amendment due to exigent
circumstances. (RR4, 7). Appellant requested the court clarify on what grounds
the court based its finding of exigent circumstances. (RR4, 8). The court stated
“it was covered in the previous hearing [what those grounds were] and “I’ll put it
in Findings of Fact and Conclusions of Law if that becomes necessary after the
trial.” Id. (see CR 354 at ¶ 28).
VII. Summary of the Arguments
Appellant presents the following arguments in this Brief:
Issue 1: under the Fourth Amendment of the United States Constitution, the
holdings in McNeely, Villarreal, and other Texas courts of appeal, the trial
court erred when it denied Appellant’s motion to suppress the blood test results
because: (1) Thomas admitted he did not even try to obtain a warrant for Appellant’s
blood; (2) there were no exigent circumstances justifying the warrantless blood draw
under Texas Transportation Code § 724.012; (3) Thomas had no probable cause to
arrest Appellant; (4) the trial court’s decision is not correct on any theory of law
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applicable to the case; (5) the good-faith exception does not apply in this case; (6) the
holding in McNeely apply to this case because this case was pending when McNeely
was handed down; and; (7) Appellant was harmed by the trial court’s error of denying
the motion to suppress.
Issue Two: The trial court erred and Appellant was harmed when the trial court denied
Appellant the right to present the totality of the legal evidence raising an issue of
material fact, which was an element of the offense, and, which—in turn—allowed the
State to admit evidence, obtained in violation of the Constitutions and laws of the
United States of America and the State of Texas, against Appellant at trial.
Appellant will ask this Court to reverse the Judgment of Conviction and
Sentence—(Jury Trial), suppress all the evidence seized from Appellant, including
the blood results and all evidence due to the illegal arrest, and remand this case
back to the trial court for a new trial.
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VIII. Argument
1. Issue One: Under the Fourth Amendment of the United
States Constitution, the holding in Missouri v. McNeely, and
the holdings of other Texas courts of appeal, the trial court
erred when it denied Appellant’s motion to suppress the
blood test results because: (1) Thomas admitted he did not
even try to obtain a warrant for Appellant’s blood; (2) there
were no exigent circumstances justifying the warrantless
blood draw under Texas Transportation Code § 724.012; (3)
Thomas had no probable cause to arrest Appellant; (4) the
trial court’s decision is not correct on any theory of law
applicable to the case; (5) the good-faith exception does not
apply in this case; (6) the holding in McNeely apply to this
case because this case was pending when McNeely was handed
down; and (7) Appellant was harmed by the trial court’s
error of denying the motion to suppress.
i. Introduction
This case is a “textbook” McNeely/Villarreal case that should be
reversed and remanded for a new trial. Although the evidence presented
at the hearing on Appellant’s motion to suppress clearly showed that the
only reason why Thomas failed to obtain a warrant for Appellant’s blood
is because: (1) Thomas believed that implied consent allowed for him to
take a sample without a warrant, (2) Thomas reasoned that the BAC of
Appellant’s blood was dissipating, and (3) Thomas admitted that he did not
even bother to try to obtain a warrant for the blood draw. In its FFCL,
the trial court clearly erred by concluding that Trooper Thomas did not
even need to attempt to secure a warrant because he could not have
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reasonably expected to obtain one without impeding the defendant’s
medical treatment.
Appellant will argue that the rulings in McNeely, Villarreal, and
the other Texas courts of appeal should cause this Court to conclude that
the trial court erred when it denied Appellant’s motion to suppress.
Appellant will begin by analyzing McNeely, Villarreal, and the opinions
of several other Texas courts of appeal. Appellant will then apply the
relevant law to the facts of this case.
Appellant also represents that he groups several closely-related
arguments under one point of error. Listing several distinctly different
arguments under one point of error, rather than separately listing them,
may be considered multifarious. Burton v. State, 471 S.W.2d 817, 820-
821 (Tex. Crim. App. 1971); Woodard v. State, 696 S.W.2d 622, 625
(Tex. App. Dallas 1985, no pet.) (A multifarious argument is a ground
of error complaining of more than one incident of improper argument).
However, the holdings in Burton and Woodard do not mean that an
appellant is unable to make more than one similarly-related argument in
a single point of error concerning the same overall issue. In Yuhl v. State,
784 S.W.2d 714, 716 (Tex. App. Houston [14th Dist.] 1990, pet. ref.), the
court of appeals expressed doubt the rule that prohibits multifarious points
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of error prevents an appellant from making more than one similarly-related
argument in a single point of error. In fact, an appellate court may
consider several closely-related issues, even if “multifarious,” if it is able
adequately to distinguish the separate contentions from each other. Bright
v. State, 556 S.W.2d 317, 319 (Tex. Crim. App. 1977). Thus, the rule
prohibiting multifarious arguments merely frowns upon combining more
than one legal theory in a single point of error. See Thomas v. State, 723
S.W.2d 696, 697 n.2 (Tex. Crim. App. 1986).
Because all of the following arguments pertain to Appellant’s
assertion that the trial court erred and abused its discretion when it denied
Appellant’s motion to suppress, rather than break down this issue into
numerous points of error, which will cause this Brief to spill over the
word-limit and will require repetitive arguments on the same
contentions, Appellant presents his arguments under a single issue.
ii. Standard of review is bifurcated based upon the abuse of
discretion standard.
In reviewing the trial court’s ruling on Appellant’s motion to
suppress, this court should apply a bifurcated standard of review: almost
total deference is given to a trial court’s determination of historical facts,
but an appellate court reviews de novo the trial court’s application of the
law to those facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim.
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App. 2000); Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App.
2007). This review is based upon the abuse of discretion standard.
Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002);
Montanez v. State, 195 S.W.3d 101, 108-109 (Tex. Crim. App. 2006).
When the trial court’s ruling is an application of the law to undisputed
facts that do not turn on a question of credibility, this Court’s review is de
novo. See Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010);
St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007)
(Almost total deference is given to a trial court’s determination of the
historical facts that the record supports especially when the trial court’s
factual findings are based on an evaluation of credibility and
demeanor); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
Further, this court should give deference to the historical facts
contained in the FFCL of the trial court if the findings are supported by
the record. See Ervin v. State, 333 S.W.3d 187, 212 (Tex. App. Houston
[1st Dist.] 2010); State v. Cullen, 195 S.W.3d 696, 698 (Tex. Crim. App.
2006) (Court rejected de novo review of historical facts because trial
court in best position to judge credibility and demeanor of witnesses at
suppression hearing).
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iii. McNeely
In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Supreme
Court mandated that when the state seeks to extract a blood or breath
specimen from a DWI suspect, a warrant is generally required. The
Court ruled that the natural metabolization of alcohol in the bloodstream
does not represent a per se exigency that justifies an exception to the
Fourth Amendment’s warrant requirement for nonconsensual blood
testing in all DWI cases. Id. at 1568.
The facts of McNeely are as follows: the defendant is stopped by
the police for speeding and crossing the centerline. Id. at 1553-1554.
After refusing to take a breath test to measure his blood alcohol
concentration (BAC), the defendant is arrested and taken to a nearby
hospital for a blood draw. Id. at 1554. The officer never attempts to
secure a search warrant. Id. The defendant refuses to consent to the blood
test, but the officer nonetheless orders a lab technician to take a sample
of the defendant’s blood. Id. The defendant’s BAC tests well above the
legal limit, and he is charged with DWI. Id.
The defendant files a motion to suppress the blood evidence,
which is granted. Id. at 1554. The trial court held that the exigency
exception to the warrant requirement did not apply because, other
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than the fact that McNeely’s blood alcohol was dissipating, there was
no emergency. Id. (emphasis added). Relying upon Schmerber v.
California, 384 U.S. 757, 770 (1966), in which the Supreme Court
upheld a DWI suspect’s warrantless blood test where the officer “might
reasonably have believed that he was confronted with an emergency, and
in which under the circumstances, the delay necessary to obtain a warrant
threatened the destruction of evidence,” the Missouri Supreme Court
affirms. Id.; see State v. McNeely, 358 S.W.3d 65, 74-75 (Mo. 2012).
The Supreme Court affirmed the ruling of the Missouri Supreme
Court. In describing the exigent circumstances exception to the Fourth
Amendment warrant requirement, the Supreme Court held that the
exigent circumstances exception applies where “the exigencies of the
situation make the needs of law enforcement so compelling that a
warrantless search is objectively reasonable under the Fourth
Amendment.” McNeely, id. at 1558, quoting Kentucky v. King, 131 S.
Ct. 1849, 1856 (2011). While acknowledging its holding in
Schmerber that “[E]xigent circumstances justifying a warrantless blood
draw may arise in the regular course of law enforcement due to delays
from the warrant application process” (emphasis added), the Court
held that “[T]he natural dissipation of alcohol in the bloodstream does
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not constitute an exigency in every case sufficient to justify
conducting a blood test without a warrant.” Id. at 1563, 1568.
McNeely is in part based upon the fundamental principle that
under the Fourth Amendment, a warrantless search of the person is
reasonable only if it falls within a recognized exception, and the
involuntary taking of blood samples, which involve a “compelled
physical intrusion beneath the subject’s skin and into his veins” to
obtain a sample of his blood for use as evidence in a criminal
investigation amounts to an invasion of “bodily integrity” that
“implicates an individual’s most personal and deep-rooted expectations
of privacy. Id. at 1558. The Court further held that the mere fact that
motorists are allowed less privacy because of the compelling
governmental need for regulation does not diminish a motorist’s privacy
interest in preventing an agent of the government from piercing his skin.
Id. at 1565
In placing a limitation on the common fallback argument of
“exigent circumstances” that the state often uses to justify warrantless
searches, the Court not only clarified what constitutes “exigent
circumstances,” but also concluded that a per se rule of exigency based
on the natural dissipation of alcohol is inappropriate because it would
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apply the exception in circumstances that are inconsistent with the policy
justifications that make a warrantless search based on an exigency
reasonable. Id. at 1560-1563. And to determine whether the police face
an emergency that justifies acting without a warrant, a court must look at
the totality of circumstances based upon each case’s own facts and
circumstances. Id. at 1559. This includes determining whether the
warrantless blood test of a DWI suspect is reasonable. Id. at 1563.
The Court held that in DWI cases where officers can reasonably
obtain a warrant before a blood draw is done, the Fourth
Amendment mandates that they do so. Id. at 1561 (emphasis added).
Although exigent circumstances justifying a warrantless blood draw may
arise in the regular course of law enforcement due to delays from the
warrant application process, the mere “the natural dissipation of alcohol
in the bloodstream does not constitute an exigency in every case sufficient
to justify conducting a blood test without a warrant.” Id. at 1563, 1568.
This language differentiates the situation in McNeely, where “BAC
evidence from a DWI suspect naturally dissipates over time in a
gradual and relatively predictable manner,” from the situation where a
suspect “has control over easily disposable evidence.” The language
also makes clear that there is a difference between a substantial delay in
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the warrant application process that may result in all the BAC in a
suspect’s blood from dissipating versus a short delay or no delay at all in
the warrant application process.
In other words, if an officer is unable to obtain a warrant for over
24 hours due to a delay in the warrant application process, and as a result,
all the alcohol in the suspect’s blood may dissipate during the delay, a
warrantless blood draw could be reasonable. But where there is little delay
in the warrant application process, or as in Appellant’s case, where
Thomas did not even try to obtain a warrant and less than ten to fifteen
minutes passed between the arrest and the warrantless blood draw, the
Fourth Amendment mandates that the officer obtain a warrant before
drawing blood.
As a result, the fact that alcohol rapidly dissipates from the
bloodstream does not create a per se exigent circumstance. Id. at 1562.
Instead, the dissipation of alcohol may be a factor, among others, in the
exigency analysis under the larger totality of the circumstances test. Id. A
trial court should conduct a “careful case- by-case assessment of
exigency and . . . [that i]n those drunk-driving investigations where
police officers can reasonably obtain a warrant before a blood sample can
be drawn without significantly undermining the efficacy of the search,
Page 23 of 72
the Fourth Amendment mandates that they do so.” Id. at 1561.
McNeely reinforces the basic principle that absent one of the
generally- accepted exceptions (i.e., consensual searches, certain brief
investigatory stops, searches incident to a valid arrest, plain-view
doctrine, exigent circumstances); the Fourth Amendment requires a
warrant. And, the natural dissipation of alcohol in the bloodstream is
not by itself one of the accepted exceptions to the warrant
requirement. This holding is logical because unless a DWI suspect has
immediate access to blood transfusion apparatus, enabling the suspect
(while under arrest) to lower his or her BAC by removing the tainted blood
from his or her system and replacing it with blood untainted with
alcohol, it is impossible for a DWI suspect to “dispose of the evidence” in
a DWI case (i.e., the blood flowing through his or her veins). Absent this
far-fetched scenario, McNeely holds that if the state wants a sample of the
suspect’s blood, and there is little to no delay in the warrant application
process, the state must obtain a warrant.
iv. Statutes implicated by McNeely: Texas Transportation
Code §724.012 (2012)(mandatory draw statute) and Texas
Transportation Code § 724.011 (2012) (implied consent
statute)
Although the implied consent statute (Texas Transportation Code §
724.011) was not directly implicated in this case, considering the trial
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courts decision on Appellant’s Motion to Reconsider Denial of
Defendant’s Motion to Suppress Evidence, Appellant will review its
possible applicability should this Court apply the so-called “Calloway
rule,” which allows this Court to affirm the trial court’s decision based on
any theory of law applicable to the case. See Calloway v. State, 743
S.W.2d 645, 651-652 (Tex. Crim. App. 1988) (An intermediate appellate
court should reject an appellant’s claim of reversible error on direct
appeal so long as the trial court correctly rejected it “on any theory of
law applicable to the case,” even if the trial court did not purport to rely
on that theory.). Under the “Calloway rule,” the prevailing party in the
trial court need not have explicitly raised that alternative theory in the
court below to justify the appellate court’s rejection of the appellant’s
claim. Id., see also State v. Esparza, 413 S.W.3d 81, 86-88 (Tex. Crim.
App. 2012). Texas Transportation Code § 724.011, the implied consent
statute, provides as follows:
(a) If a person is arrested for an offense arising out of acts
alleged to have been committed while the person was
operating a motor vehicle in a public place, or a
watercraft, while intoxicated, or an offense under Alco.
Bev. Code § 106.041 (DUI by minor), the person 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 or the presence in the person’s body of a
controlled substance, drug, dangerous drug, or other
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substance.
(b) A person arrested for an offense described by Subsection
(a) may consent to submit to the taking of any other type
of specimen to determine the person’s alcohol concentration.
Tex. Transp. Code § 724.011 (2012) (emphases added).
The statute directly implicated in this case, Texas Transportation
Code § 724.012, the “mandatory draw statute,” provides as follows
(emphases added):
(a) One or more specimens of a person’s breath or blood may be
taken if the person is arrested and at the request of a peace officer
having reasonable grounds to believe the person:
(1) while intoxicated was operating a motor vehicle in a
public place, or a watercraft; or
(2) was in violation of Alco. Bev. Code § 106.041 (DUI by
minor).
(b) A peace officer shall require the taking of a specimen of the
person’s breath or blood under any of the following
circumstances if the officer arrests the person for an offense
under Tex. Pen. Code Chapter 49 involving the operation of a
motor vehicle or a watercraft and the person refuses the
officer’s request to submit to the taking of a specimen
voluntarily:
(1) 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 and,
at the time of the arrest, the officer reasonably believes that
as a direct result of the accident:
(A) any individual has died or will die;
(B) an individual other than the person has suffered
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serious bodily injury; or
(C) an individual other than the person has suffered
bodily injury and been transported to a hospital
or other medical facility for medical treatment;
(2) the offense for which the officer arrests the person is an
offense under Tex. Pen. Code § 49.045 (DWI with child
passenger); or
(3) at the time of the arrest, the officer possesses or
receives reliable information from a credible source that the
person:
(A) has been previously convicted of or placed on
community supervision for an offense under Tex. Pen.
Code
§ 49.045 (DWI with child passenger), § 49.07
(Intoxication Assault), or § 49.08 (Intoxication
Manslaughter), or an offense under the laws of
another state containing elements substantially
similar to the elements of an offense under those
sections; or
(B) on two or more occasions has been previously
convicted of or placed on community supervision for
an offense under Tex. Pen. Code § 49.04 (DWI), §
49.05 (FWI), § 49.06 (BWI), or § 49.065
(Assembling/Operating Amusement Ride), or an
offense under the laws of another state containing
elements substantially similar to the elements of an
offense under those sections.
(c) The peace officer shall designate the type of specimen to be
taken.
(d) In this section, “bodily injury” and “serious bodily injury”
have the meanings assigned by Tex. Pen. Code § 1.07
Tex. Transp. Code § 724.012 (2012). “Bodily injury” means physical pain,
Page 27 of 72
illness, or any impairment of physical condition. Tex. Pen. Code §
1.07(a)(8) (2012). “Serious bodily injury” means bodily injury that
creates a substantial risk of death or that causes death, serious permanent
disfigurement, or protracted loss or impairment of the function of any
bodily member or organ. Tex. Pen. Code § 1.07(a)(46) (2012).
Regardless of whether an exception to the warrant requirement
described above exists, both Texas Transportation Code §§ 724.011 and
724.012 allow law enforcement to draw blood without a warrant. No
mention of the requirement of exigent circumstances exists in the statutes.
As the McNeely analysis above shows and the following analysis will
show, Texas Transportation Code §§ 724.011 and 724.012 violate the
Fourth Amendment and are unconstitutional.
v. As held in Villarreal, Texas Transportation Code §§
724.011 and 724.012 violate the Fourth Amendment because
these statutes dispense with the Fourth Amendment’s
warrant requirement and none of the exceptions to the
warrant requirement apply.
In this subsection, Appellant will analyze Villarreal, which
although is pending rehearing, settled this issue in Texas. See State v.
Villarreal, ___ S.W.3d ___ , 13-13-00253-CR, 2014 Tex. App. LEXIS
645 (Tex. App. Corpus Christi, January 23, 2014), affirmed, State v.
Villarreal, Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. 2014, reh.
Page 28 of 72
granted). In Villarreal, the defendant is arrested for DWI. Villarreal, 13-
13-00253-CR, id. at *2. The defendant had three prior DWI convictions, so
Texas Transportation Code § 724.012(b)(3)(B) was implicated, which
allows a mandatory blood draw if “[O]n two or more occasions, [the
defendant] has been previously convicted of or placed on community
supervision for an offense under Tex. Pen. Code § 49.04 (DWI).... Tex.
Transp. Code § 724.012(b)(3)(B) (2012). The defendant refuses all
SFSTs and the requested blood draw. Id. at *2-3. The state concedes that
there were no exigent circumstances. Id. at *3. The defendant is forced to
submit to a warrantless blood draw. Id. The BAC of the defendant’s blood
was over the legal limit, so the defendant is charged with felony DWI. Id.
The trial court grants Appellant’s motion to suppress, finding that the
officer’s own testimony shows that that he “could have gotten a warrant
for the blood draw and there were no exigent circumstances that would have
prevented him from getting a warrant.” Id. at *4.
The court of appeals cites McNeely, 133 S. Ct. 1552, and affirms that
in DWI cases where officers can reasonably obtain a warrant before a blood
sample can be drawn without significantly undermining the efficacy of
the search, “the Fourth Amendment mandates that they do so.” Id. at *33.
In Villarreal, the officer’s sole basis for not getting a warrant was that the
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repeat offender provision of the mandatory blood draw law required him
to take a blood sample without the defendant’s consent and without the
necessity of obtaining a search warrant. Id. The court of appeals held that
although Texas Transportation Code § 724.012(b)(3)(B) requires an
officer to obtain a breath or blood sample, it does not require the officer
to obtain a breath or blood sample without first obtaining a warrant. Id.
at *34 (emphases added); See Tex. Transp. Code § 724.012(b)(3)(B)
(2012). The court of appeals also found that Texas Transportation Code §
724.012(b)(3)(B) “. . . does not address or purport to dispense with the
Fourth Amendment’s warrant requirement for blood draws.” Id. at *34.
The court of appeals concludes, “[G]iven the absence of a
warrant, the absence of exigent circumstances, and the absence of
consent, we agree with the trial court’s conclusion that the State failed to
demonstrate that the involuntary blood draw was reasonable under the
Fourth Amendment or that an exception to the Fourth Amendment’s
warrant requirement is applicable to this case, as was its burden.” Id.,
citing U.S. Const. Amend. IV.
On November 26, 2014, the Court of Criminal Appeals settled the
issues before this Court and affirmed Villarreal. In State v. Villarreal, PD-
0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. 2014),
Page 30 of 72
the Court of Criminal Appeals held that a nonconsensual search of a
DWI suspect’s blood conducted under the mandatory-blood-draw and
implied-consent provisions in the Texas Transportation Code, when
undertaken in the absence of a warrant or any applicable exception to the
warrant requirement, violates the Fourth Amendment. Villarreal, PD-0306-
14, id. at *79. The majority opinion of the Court of Criminal Appeals is
lengthy, so Appellant will address the most relevant parts here.
The opinion centers on the Transportation Code’s implied-consent
provision, mandatory-blood-draw provision, and McNeely. As the Court
writes, and like in Appellant’s case, “the State relies upon (§§ 724.011 and
724.012) as constituting a valid substitute for a warrant...” Id. at *19. Of
particular importance to Appellant’s case, after the trial court’s
reconsideration of the Appellant’s Amended Motion to Suppress is §
724.012(b), which coerces a defendant to provide a specimen if “...the
officer arrests the persons for an offense under Chapter 49, Penal Code,
involving the operation of a motor vehicle or a watercraft and the person
officer’s request to submit to the taking of a specimen voluntarily; the
person was the operator of a motor vehicle . . . the officer reasonably
believes occurred as a result of the offense, and, at the time of the arrest, the
officer reasonably believes that as a direct result of the accident any
Page 31 of 72
individual has died or will die . . . . ” Id. at *22-23.
The Court begins with a review of basic Fourth Amendment law,
which provides that to comply with the Fourth Amendment, a search of a
person who is subject to a criminal investigation: (1) requires a search
warrant or a recognized exception to the warrant requirement, and (2) must
be reasonable under the totality of the circumstances. Id. at *24. And, “of
particular relevance to DWI cases... the Fourth Amendment is implicated
in that (3) the collection of a suspect’s blood invades a substantial privacy
interest, and (4) the exigent circumstances exception to the search-warrant
requirement is not established merely by the natural dissipation of
alcohol.” Id. The Court also emphasizes the requirement of search
warrants unless the “search of the person falls within a recognized
exception” to the warrant requirement.” Id. at *25-26, citing U.S. Const.
Amend. IV; Riley v. California, 134 S. Ct. 2473, 2482 (2014) and Brigham
City v. Stuart, 547 U.S. 398,
403 (2006); McNeely, 133 S. Ct. at 1558.
Next, the Court discusses that the reasonableness of a search must be
considered under the totality of the circumstances. Id. at *27; citing
Samson v. California, 547 U.S. 843, 848 (2006) and Brigham City, 547
U.S. at 406. And “[G]iven this totality-of-the-circumstances approach,
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for the most part, ‘per se rules are inappropriate in the Fourth
Amendment context.’” Id. at *27; citing United States v. Drayton, 536
U.S. 194, 201 (2002). The implied-consent and mandatory-blood-draw
provisions of the Texas Transportation Code are “per se rules” that
violate the Fourth Amendment.
The Court of Criminal Appeals continues by noting that the
collection of a person’s blood invades a substantial privacy interest
because it “plainly involves the broadly conceived reach of a search and
seizure under the Fourth Amendment...” due to “the interest in human
dignity and privacy which the Fourth Amendment protects.” Id. at *27-28;
citing Schmerber v. California, 384 U.S. 757, 767-770 (1966). And,
“...the need to secure a warrant from a “neutral and detached magistrate”
before permitting a law-enforcement officer to “invade another’s body in
search of evidence of guilt is indisputable and great.” Id. at *28, citing
Schmerber, id. at 770. Although the Supreme Court upheld the warrantless
search of Schmerber’s blood, it did so on the basis of exigent circumstances.
Id. at
*28, citing Schmerber, id. at 770-772.
The question thus is whether the mere natural dissipation of
alcohol in a defendant’s blood constitutes exigent circumstances. Based
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upon the Supreme Court’s ruling in McNeely, the Court of Criminal
Appeals held that it does not. Id. at *29-50. As the Court notes, the
Supreme Court held that “the natural dissipation of alcohol does not
constitute a per se exigency,” and “consistent with general Fourth
Amendment principles, exigency in this context must be determined case by
case based on the totality of the circumstances.” Id. at *29-30; citing
McNeely, id. at 1557. As Appellant argues in this Brief, under the totality
of the circumstances, the natural dissipation of alcohol combined with the
fact that Thomas admitted that he did not even bother to attempt to obtain a
warrant renders the blood draw in Appellant’s case unconstitutional under
the Fourth Amendment and McNeely.
The Court of Criminal Appeals rejects all of the State’s arguments
under: (1) the consent exception, applicable in the form of a prior waiver
through implied consent, (2) the automobile exception, (3) the special-
needs exception, (4) the search-incident-to-arrest exception, or,
alternatively, (5) by treating a blood draw as a seizure instead of a search.
Id. at *31-50. In rejecting the State’s arguments, the Court held that a
nonconsensual search of a DWI suspect’s blood conducted under the
mandatory-blood-draw and implied-consent provisions in the
Transportation Code, when undertaken in the absence of a warrant or any
Page 34 of 72
applicable exception to the warrant requirement, violates the Fourth
Amendment. Id. at *79.
vi. Significance of the granting of rehearing by the Court of
Criminal Appeals in Villarreal
Although the Court of Criminal Appeals granted rehearing in
Villarreal, it is clear that if the Court were to find Texas Transportation
Code § 724.012 (mandatory draw statute) or Texas Transportation Code §
724.011 (implied consent statute) to be exceptions to the warrant
requirement, the Court would clearly violate the Supreme Court’s
opinion in McNeely. McNeely held that the natural dissipation of alcohol
is not a per se exigent circumstance. And, it is unlikely the Supreme
Court would have granted certiorari if the majority did not believe the
warrant requirement to be critical. Further, because of the summary grant
and vacatur in Aviles, Appellant contemplates that the Court of Criminal
Appeals will again hold that both Texas Transportation Code § 724.012
(mandatory draw statute) and the Texas Transportation Code § 724.011
(implied consent statute) violate the Fourth Amendment.
It should also be noted that McNeely is the law until the Supreme
Court overrules it. In Thurston Motor Lines, Inc. v. Jordan K. Rand, Ltd.,
460 U.S. 533, 535 (1983), the United States Supreme Court ruled that
“...only this Court may overrule one of its precedents.” The issue in
Page 35 of 72
Thurston Motor Lines was that the 9th Circuit was unclear whether the
holding in a prior Supreme Court case in “…is still good law.” Id. The
Supreme Court held that until it overrules one of its precedents, any of
its prior holdings “…is the law.” Id. Thus, only the Supreme Court may
overrule McNeely.
vii. Opinions of other courts of appeal confirm
McNeely and Villarreal, and support Appellant’s arguments.
Next, in Weems v. State, 434 S.W.3d 655 (Tex. App. San Antonio
2014), at about 11:30 p.m., a car accident occurs. Id. at 658. The driver
(Weems), who had been drinking, flees the scene, and is found a quarter
mile from the crash site hiding underneath a vehicle. Id. Weems has
cuts, scrapes, and bruises consistent with the crash. A “strong odor of
alcohol emanated from his (Weems’s) breath.” Id. Weems has “bloodshot
eyes.” The passenger is transported to the hospital by ambulance. Id.
After being read the DIC-24 form, Weems refuses to provide a breath
or blood specimen. No SFSTs were performed because Weems was
involved in a car crash and complained of back and neck pains. Id.
Because of his medical complaints, Weems was transported to the
hospital, and about three hours after the crash, a warrantless “mandatory”
blood draw is taken at 2:30 a.m. Id. Weems’s BAC is measured to be
0.18, well above the legal limit of 0.08. Expert testimony shows that an
Page 36 of 72
average person eliminates alcohol at about 0.02 grams per deciliter per
hour. Id. Therefore, a person who had a BAC of 0.18 at 2:30 a.m. and did
not drink any additional alcohol would have had a BAC 0.24 at 11:30
p.m. Id. As a result, it was estimated that Weems probably consumed
about twelve drinks before he drove that evening immediately prior to the
accident. Id.
The officer testified that the reason he caused a warrantless blood
draw from Weems was because Weems drove a car involved in a crash that
injured a passenger, thus implicating Texas Transportation Code §
724.012(b)(1)(C). Id.; see Tex. Transp. Code § 724.012(b)(1)(C) (2012).
Weems is convicted of DWI.
Agreeing with the Thirteenth Court of Appeals in Villarreal, and
the Seventh Court of Appeals in Sutherland v. State, 436 S.W.3d 28, 29-
31 (Tex. App. Amarillo 2014, reh. overruled), the Fourth Court of
Appeals recognized that the implied consent statute [Tex. Transp.
Code § 724.011 (2012)] and the mandatory blood draw statute [Tex.
Transp. Code § 724.012 (2012)] are not exceptions to the warrant
requirement of the Fourth Amendment. Id. at 665 (emphases added).
The Fourth Court of Appeals also recognized that in Aviles, 385 S.W.3d
110, vacated, 134 S. Ct. 902 (2014), it incorrectly relied upon the dicta in
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Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002), in
which the Court of Criminal Appeals discussed that the implied consent
statute expanded the State’s authority to draw a DWI suspect’s blood in
the absence of a warrant, dicta that is incorrect in light of McNeely (Aviles
also implicated the implied consent and mandatory draw statutes). Id. at
660.
Like in Villarreal, Sutherland, and Aviles, in Weems, no exigent
circumstances existed because the officer admitted that: (1) he made no
effort to obtain a warrant; (2) there were other officers present at the
scene; (3) there was an accident, (4) the passenger was injured and taken
to the hospital, and (5) the driver also complained of being injured and
was taken to the hospital. Id. at 666. The Fourth Court of Appeals also
indicated that “[T]he record does not reflect other factors that would be
relevant under the totality of the circumstances, including ‘procedures
in place for obtaining a warrant or the availability of a magistrate
judge’ and ‘the practical problems of obtaining a warrant within a
timeframe that still preserves the opportunity to obtain reliable
evidence.’” Weems, id. at 666, citing McNeely, 133 S. Ct. at 1568.
Therefore, under the totality of the circumstances, the
warrantless blood draw was not justified by the exigency circumstances
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exception. Id. at 666. And, the Fourth Court of Appeals erroneously held
that a warrantless blood draw of a DWI suspect that was conducted
under the Transportation Code did not violate the suspect’s rights under
the Fourth Amendment, and whether the officer could have obtained a
warrant before authorizing the blood draw was “immaterial given the
mandate of section 724.012(b)(3)(B).” Weems, id. at 660.
In Aviles, the defendant was stopped for suspicion of DWI.
Aviles, 385 S.W.3d at 112. Upon learning that the defendant had two
prior DWI convictions, the officer requested a breath or blood specimen.
Id. The defendant refused, so the officer compelled a blood draw
under Texas Transportation Code § 724.012(b)(3)(B). After the Fourth
Court of Appeals affirmed his conviction and the Court of Criminal
Appeals denied discretionary review [See In re Aviles, PD-1508-12, 2013
Tex. Crim. App. LEXIS 770 (Tex. Crim. App., May 8, 2013)
(Meyers, J. would grant)], the defendant filed a petition for a writ of
certiorari with the Supreme Court. The Supreme Court granted
certiorari and issued a one- paragraph order, vacating the opinion of the
Fourth Court of Appeals, and remanded the case “for further
consideration in light of Missouri v. McNeely.” Aviles, 134 S. Ct. at 902.
Although the Supreme Court’s opinion in Aviles is short and at first
Page 39 of 72
glance does not appear to hold precedential value, the fact that the
Supreme Court issued the summary reversal and reversed the Fourth
Court of Appeals “for further consideration in light of Missouri v.
McNeely” should make it clear to all Texas courts how the Supreme
Court views warrantless blood draws merely because a defendant such
as Appellant has two or more prior convictions for DWI.
Then in Gentry v. State, 12-13-00168-CR, 2014 Tex. App.
LEXIS 9538 (Tex. App. Tyler, August 27, 2014) (not designated for
publication), the defendant is stopped for traffic violations. Id. at *1. The
officer observes a spilled cooler of beer in the rear seat. Id. When the
officer spoke to the defendant, the officer noticed that the defendant’s
“speech was slurred, his eyes were bloodshot, and his breath smelled of
alcohol.” Id. After performing SFSTs on the defendant, the officer
arrested the defendant. Id. The defendant refused to submit to a breath
test. Id. The officer discovered that the defendant had at least two prior
convictions for DWI, thus implicating Texas Transportation Code §
724.012(b)(3)(B), which allows a mandatory blood draw if “[O]n two or
more occasions, [the defendant] has been previously convicted of or
placed on community supervision for an offense under Tex. Pen. Code
§ 49.04 (DWI).... Tex. Transp. Code § 724.012(b)(3)(B) (2012). The
Page 40 of 72
defendant files a motion to suppress under McNeely, which is denied by
the trial court. Gentry, id. at *2. Appellant pleads guilty to the charge in
the indictment, elects to have a jury assess punishment, and receives life
in prison. Id.
Under the holding in McNeely, and also citing Aviles, Weems,
State v. Ballard, No. 11-13-00224-CR, 2014 Tex. App. LEXIS 8373,
2014 WL 3865815, at *3 (Tex. App. Eastland July 31, 2014, no pet.
h.) (not designated for publication); Sutherland; and Villarreal, in
Gentry, the Twelfth Court of Appeals held that the implied consent and
mandatory blood draw statutory schemes in the Texas Transportation
Code are not exceptions to the warrant requirement under the Fourth
Amendment. Gentry, id. at *9. The Twelfth Court of Appeals also
found that the State “relied solely on Texas Transportation Code § 724, and
offered no evidence of any other recognized exception to the Fourth
Amendment that would have permitted it to have Appellant’s blood
drawn without a warrant.” Id. As a result, the trial court abused its
discretion in denying Appellant’s motion to suppress. Id. at *11.
In State v. Baker, PD-1592-13 (Tex. Crim. App., October 15, 2014),
the Court of Criminal Appeals dismissed the State’s petition for
discretionary review as improvidently granted. The underlying case, State
Page 41 of 72
v. Baker, No. 12-12- 00092-CR, 2013 Tex. App. LEXIS 12818 (Tex.
App. Tyler, October 16, 2013) (not designated for publication), was one
of the first post-McNeely decisions by a Texas court of appeals. In
Baker, the officer told the defendant that he was required to provide a
mandatory blood specimen, which caused the defendant to “consent” to
the blood draw. Id. at *28. The trial court found that the State failed to
show by clear and convincing evidence that the defendant voluntarily
consented to the taking of his blood. Id. at *28-29 The Court of Appeals
affirmed, holding that because the defendant signed the consent form
only after the officer told him that a blood specimen was mandatory and
transported him to a hospital, “the trial court could have reasonably
concluded under the totality of the circumstances that (the defendant)
acquiesced to a claim of lawful authority at the time he signed the form.”
Id.
Although the Court of Criminal Appeals dismissed the State’s
petition for discretionary review as improvidently granted, and
precedential value is not added to the opinion of the court of appeals as a
result, the fact that the Court of Criminal Appeals did so may provide
insight to how the Court of Criminal Appeals will ultimately rule in the
McNeely line of cases, most probably with its rehearing in Villarreal.
Page 42 of 72
Appellant believes that the Court of Criminal Appeals will conclude
that Texas Transportation Code §§ 724.011 and 724.012 violate the
Fourth Amendment because these statutes dispense with the Fourth
Amendment’s warrant requirement and none of the exceptions to the
warrant requirement apply.
The Fourteenth Court of Appeals, in Douds v. State, while
recognizing that an accident—in some instances—may provide exigent
circumstances, held that “[e]ven if an officer’s investigation of a serious
accident lasts for an hour, the availability of another officer 15 minutes
into the investigation could significantly reduce the delay necessary to
obtain a warrant.” Douds v. State, 434 S.W.3d 842, 853 (Tex. App.—
Houston [14th District] (en banc), (pet. Granted). The court of appeals
also pointed out that courts are not responsible for grading the severity of
an accident. Id. “To ensure that the exigencies of the situation make
dispensing with the warrant requirement ‘imperative,’ courts must focus
on whether the State showed that the police could not reasonably obtain a
warrant, not on whether it showed how severe the accident was.” Id.
(internal cites omitted). Focusing on a delay attendant to investigation
“runs afoul of courts’ long held aversion to tests that allow law
enforcement officers to “create the exigency.” Id. at 854.
Page 43 of 72
In Douds, the record does not show what time was necessary to
obtain a warrant. Id. at 855. The record did show that between 2:36 a.m.
and 4:45 a.m.—when Douds’ blood was drawn—at least two officers and
EMS/Fire personnel were on the scene of Douds’ accident. Id. The court
of appeals found there were no facts on the record to support a reasonable
conclusion that it was somehow impractical to obtain a warrant during this
two-hour period. Id. Nor was there any evidence that a further delay to
obtain a warrant “would have threatened the destruction of evidence that is
lost gradually and relatively predictably.” Id. (citing McNeely, 133 S. Ct.
at 1561, 1563).
In McNeil v. State, the Fourth Court of Appeals faced circumstances
similar to the case at bar. McNeil v. State, 2014 Tex. App. LEXIS 8519,
No. 04-13-00415-CR (Tex. App.—San Antonio, Aug. 6, 2014, pet. filed).
In McNeil, the officer testified that he did not attempt to obtain a warrant,
but instead relied solely on §724.012 of the Texas Transportation Code.
Id. at *10-11. Upon questioning, the officer explained the procedures for
getting a warrant and that it would likely take 20-30 minutes to reach an
investigator, who would then reach out to a magistrate for a warrant.
Testimony further showed that an investigator could have been called to
begin the warrant process, but the officer did not call one. In holding that
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no exigency existed considering the totality of the circumstances, the San
Antonio court of appeals stated that the officer “never thought about
obtaining a warrant, though he knew he could, if he needed to” and never
“took a single step to get a warrant.” Id. at 14.
Finally, Appellant asks this Court to consider Bowman v. State,
2015 Tex. App. LEXIS 1285, No. 05-13-01349-CR (Ct. App.—Dallas,
Feb. 10, 2015) (pet. reh’g filed), not designated for publication. In
Bowman, Officer Hoya of the McKinney Police Department was working
patrol when he noticed a Volkswagen “off the street” with “heavy front-
end damage” from hitting a telephone pole. Id. at *3. Hoya saw
Bowman standing at the passenger door of the car and found a female in
the passenger seat, still buckled in, who was crying and appeared to be
suffering internal injuries. Id. at *4. Hoya believed, based on Bowman’s
appearance and a strong odor of alcohol coming from his breath, that
Bowman might be intoxicated, but no field sobriety tests were done. Id.
Both Bowman and the female were transported by ambulance to a
hospital in Frisco, about 30 miles away. Id. at *4–5. Hoya followed in
his patrol car. Id. at *5. At the hospital, Hoya placed Bowman under
arrest and read him the DIC-24 warning. Id. Bowman did not consent to
providing as blood sample, so Hoya “had the nurse take a mandatory
Page 45 of 72
specimen from him,” citing “two authorizations” within the Texas
Transportation Code: (1) an injured person, transported to the hospital;
and (2) Bowman had “previous DWI convictions.” Id. Hoya did not
make any effort to obtain a warrant, instead relying solely on the
“Transportation Code Statute.” Id.
Hoya did testify, however, that while was no “on-call judge” that
night; a municipal judge was available [who did not accept faxed
warrants]. Id. And, that had he attempted to get a warrant, it would have
taken “maybe an hour to an hour and a half to get the warrant plus a little
additional driving time.” Id.
“According to Hoya, the ‘exigency factors’ he considered when
making the decision to obtain a mandatory blood draw were: (1) ‘[j]ust the
time it would take to get the blood warrant would have been quite
sometime [sic]’ and (2) “plus, I had [the passenger], who I believe was
seriously injured.” Id. at 6–7. Hoya testified this was “not a routine DWI
investigation.” Id. at 7.
On cross-examination, however, the timeline was fully explored,
and it was revealed that (inter alia): (1) the paramedics were told to
transport Bowman and that it would be a “mandatory draw;” (2) Hoya
took time to search in Bowman’s car for keys and the passenger’s shoes;
Page 46 of 72
(3) Hoya “had time to ‘talk to’ and ‘make jokes with’ the back-up
officers at the scene;” (4) one of the other officers could have gone with
Hoya to the hospital; (5) warrants take “about an hour” following a
refusal; (6) Hoya can prepare the warrant remotely, on his laptop; and (7)
a typical roadside DWI investigation takes about 30 minutes. Id. at *6–8.
Though time-wise, the interaction with Bowman could be considered
standard, Hoya testified that this was not a standard DWI investigation,
because the occupants were [injured and] transported to the hospital. Id.
at *8. The trial court denied Bowman’s motion to suppress, based on
exigent circumstances and Texas Transportation Code §724.012. Id. at
*14.2 This Court, in reviewing the case on appeal, reversed. In holding
that exigent circumstances did not exist, this Court made two important
findings: (1) that the State is responsible for showing facts and
circumstances “beyond the passage of time and the resulting dissipation
of alcohol in the bloodstream.” Id. at *37, quoting Douds, 434 S.W.3d at
2
Interestingly, the trial court—in its Findings of Fact and Conclusions of Law—stated two things which
do not bear out under existing case law: (1) “At the time of the offense, a mandatory blood draw under
Texas Transportation Code §724.012 was not in conflict with the case law;” and (2) “Officer Hoya had a
good faith basis to request a mandatory blood draw. . . .” While (1) is true, the fact that the statute has
since been found unconstitutional (by the Court of Criminal Appeals in Villarreal) means that it makes
little difference that it once was believed constitutional. Regarding (2), as the Texas Court of Criminal
Appeals made clear in Villarreal, supra: Section 724 of the Texas Transportation code “...does not
address or purport to dispense with the Fourth Amendment’s warrant requirement for blood draws.”
Villarreal, 2014 Tex. Crim. App. LEXIS 1898 at *18; see also, McNeil, 2014 Tex. App. LEXIS 8519 at
*16, (“It cannot be said that [an officer] acted in good faith when he failed to obtain a warrant based on a
statute that does not dispense with the warrant requirement.”).
Page 47 of 72
851; and (2) “the State must show that the time necessary to obtain a
warrant under the circumstances threatened the destruction of the blood
evidence” Bowman, 2015 Tex. App. LEXIS 1285 at *37–38, quoting
Leal v. State, No. 14-13-00208-CV, 2014 Tex. App. LEXIS 12286 at *5
(Tex. App.—Houston [14th Dist.] Nov. 13, 2014, no pet.).
Appellant also notes that a fallacy in the implied consent statute (§
724.011) is that the “implied consent” is based solely on a driver’s
decision to drive on a Texas highway. In Florida v. Jimeno, 500 U.S.
248, 252 (1991), the Supreme Court of the United States held that
“[A] suspect may of course delimit as he chooses the scope of the
search to which he consents.” In other words, a necessary element of
consent is the ability to limit or revoke it. The fact that a person
implicitly consents to a blood draw merely because the person drives on
a Texas highway effectively makes the implied consent irrevocable, which
of course amounts to no consent at all. Consent must be freely given, but
the person giving the consent must also be allowed to withdraw it or
limit it. Jimeno, 500 U.S. at 252; Mason v. Pulliam, 557 F.2d 426, 429
(5th Cir. 1977) (“[S]ince [appellee’s] action was unilateral and contained
no agreement as to duration, it was implicitly limited by [appellee’s]
right to withdraw his consent and invoke his Fourth Amendment rights.”).
Page 48 of 72
viii. Under the holdings in McNeely, Villarreal, and other Texas
courts of appeal, the trial court erred when it denied
Appellant’s motion to suppress because: (1) the officer
admitted he did not even try to obtain a warrant for
Appellant’s blood; (2) there were no exigent circumstances
justifying the warrantless blood draw under Texas
Transportation Code § 724.012; (3) Thomas had no
probable cause to arrest Appellant; (4) and the trial court’s
decision is not correct on any theory of law applicable to the
case.
To suppress evidence on an alleged Fourth Amendment violation,
the defendant bears the initial burden of producing evidence that
rebuts the presumption of proper police conduct. Russell v. State, 717
S.W.2d 7, 9 (Tex. Crim. App. 1986). A defendant satisfies this burden
by establishing that a search or seizure occurred without a warrant.
Bishop v. State, 85 S.W.3d 819, 822 (Tex. Crim. App. 2002). Once the
defendant makes this showing, the burden of proof shifts to the State,
which must establish that the search or seizure was conducted pursuant
to a warrant or was reasonable. Id.
In the case before this Court, blood was seized from Appellant.
The blood was not seized pursuant to a warrant, but was instead seized
under Texas Transportation Code § 724.011 or 724.012. As a result,
Appellant established that the blood draw occurred without a warrant,
so the burden of proof shifted to the State. This was conceded by the
State at the motion to suppress. (RR2, 4). Appellant will now show that
Page 49 of 72
the State cannot meet its burden of proof that the blood draw was
reasonable under the Fourth Amendment.
First, in clear violation of McNeely and Villarreal, Thomas did not
even try to obtain a search warrant in this case, and there were no
exigent circumstances present. Thomas did not see Appellant driving, nor
encounter him at the scene. (RR2, 60–61). Thomas determined that
Appellant was intoxicated, and placed Appellant under arrest based solely
on the odor of alcohol and the fact that Appellant had been in a motorcycle
accident, (RR2, 54, 76–79). The exchange between the State’s attorney
and Thomas was as follows (RR2, 60–61):
Q: This situation is different that your normal DWI arrest
because there is no initial contact. The initial contact is when
you smelled the alcohol and then read them [sic] that (the DIC-
24), correct?
A. Yes.
After Thomas arrested Appellant, Thomas immediately determined a
warrantless blood-draw would be in order. (RR2, 76-78). Thomas never
even contemplated getting a warrant for Appellant’s blood. (RR2, 82). The
exchange between the Defense attorney and Thomas was as follows (RR,
82):
Q. When you’re in the room and you’re reading the DIC-24 . . .
You never even contemplated that search warrant?
Page 50 of 72
A. No sir.
Thomas thus did not obtain a warrant for the blood draw. (RR, 87).
Rather, Thomas just went to his car and got the paperwork and test kit,
read it to Appellant and ordered a legal blood draw be performed. (RR,
7 6 – 7 7 , 7 9 , 84). As a result, it is clear that Thomas’s sole basis for the
blood draw was § 724.011 (via 721.014), an unconstitutional statute.
And contrary to the trial court’s erroneous finding that “the facts
presented in this case establish the existence of the exigent circumstances
exception to the warrant requirement of the 4th Amendment” in that:
Trooper Thomas could not have reasonably expected to have
obtained a warrant without impeding the defendant’s medical
treatment. The defendant’s medical condition was severe, and
the treatment of his injuries required urgent, lifesaving care, and
the impending transportation by helicopter to Dallas. Whether
the defendant would survive the injuries sustained in the accident
was unknown. These circumstances were not variables
controlled by Trooper Thomas.
(CR, 354 ¶ 28). A review of the record, however, shows that there were in
fact no exigent circumstances, and Thomas acted unreasonably by
not even attempting to obtain a search warrant.
For the exigent circumstances exception to apply, there must be
both probable cause and exigent circumstances present. See Warden v.
Hayden, 387 U.S. 294, 298-299 (1967) and Vale v. Louisiana, 399
U.S. 30, 35-36 (1970).
Page 51 of 72
Exigent circumstances are those in which officers reasonably fear
for their safety, where firearms are present, where there is a risk of a
criminal suspect’s escaping, or fear of destruction of evidence. See
Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007) and
Parker v. State, 206 S.W.3d 593, 597 n.7 (Tex. Crim. App. 2006); see
also McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991)
(en banc) and United States v. Rico, 51 F.3d 495, 500 (5th Cir. 1995),
cert. denied, 116 S. Ct. 220 (1995). If the State seeks to rely on the
exigent circumstances exception, the State bears the burden of proving by
a preponderance of the evidence the existence of both probable cause and
exigent circumstances. Gutierrez, 221 S.W.3d at 685; see also United
States v. Morales, 171 F.3d 978, 981-982 (5th Cir. 1999). In the case
before this Court, there was neither probable cause nor exigent
circumstances present to justify the blood draw without a warrant.
Additionally, as the court held in Douds, “to ensure that the exigencies of
the situation make dispensing with the constitutional requirement of a
warrant ‘imperative,’ courts must focus on whether the State showed that
police could not reasonably obtain a warrant, not on whether it showed
how severe the accident was.” Douds, 434 S.W.3d at 853–54.
Page 52 of 72
Thus, the FFCL are not supported by the record. Appellant was
arrested at roughly 11:27–11:32 p.m. and the blood was drawn from
Appellant only five to ten later at 11:37 p.m. (RR, 79, 84). Though the
court found that attempting to obtain a warrant would have impeded
defendant’s medical treatment, this is simply not the case. See FFCL (CR
354 at ¶28). Additionally, that is not the relevant question—as this Court
pointed out in Bowman (the State must show that the time necessary to
obtain a warrant under the circumstances threatened the destruction of the
blood evidence, not that it could possibly have held up the treatment of
Appellant). Also, this would not have been a situation where—as the
State’s attorney put it—the Appellant was “taken out of the jurisdiction. . .
transported 60 miles away, and the evidence along with [him].” Trooper
Thomas was an officer with Texas Department of Public Safety. As such,
he had jurisdiction across the entire state of Texas. He could have gotten
the warrant and forwarded it to another trooper in the area of the hospital
to which Appellant was taken, or he could have driven there himself.
Either way, the warrant could have been obtained and executed in a timely
fashion. Instead, in clear reliance on implied consent, it simply wasn’t
sought.
Page 53 of 72
It is also clear that Trooper Thomas created any time constraints
that could reasonably be thought to exist. Though Trooper Walters was on
scene just after Thomas arrived, Thomas neither allowed Walters to clear
the scene so he could go to TMC to see Appellant, nor did he send
Walters. Additionally, though the State and the trial court claim that the
exigency is due to the pending care flight, Thomas knew Appellant would
likely be care-flighted 45 minutes before arriving at the hospital, was
clearly told that Appellant would be upon arrival at TMC, yet still waited
25 minutes before going into Appellant’s room. Thomas created any time
constraint that existed, and as the court explained in Douds, the courts
historically frown upon findings of exigency in situations like this.
Next, Thomas had no probable cause to arrest Appellant.
Thomas’s sole reason for arresting Appellant for driving while
intoxication was an odor of alcohol combined with a motorcycle accident.
(RR2, 53–54, 79). There are three types of police-citizen interactions:
(1) consensual encounters that do not implicate the Fourth Amendment;
(2) investigative detentions that are Fourth Amendment seizures of
limited scope and duration that must be supported by a reasonable
suspicion of criminal activity; and (3) arrests, which are reasonable only
if supported by probable cause. Florida v. Bostick, 501 U.S. 429, 434
Page 54 of 72
(1991); Terry v. Ohio, 392 U.S. 1, 30-31 (1968); Gerstein v. Pugh, 420
U.S. 103, 111-112 (1975).
Appellant was arrested in this case. Although the smell of
alcohol coming from Appellant’s person and the fact that Appellant
was involved in an accident may have justified further investigation,
these circumstances did not justify an arrest. But, Thomas simply
arrested Appellant and then proceeded to effect the warrantless blood-
draw. As a result, there was never any probable cause established for
Appellant’s arrest.
Further, the trial court’s decision is not correct on any theory of
law applicable to the case. The trial court erred and abused its discretion
because in violation of McNeely, the trial court ruled that a warrant
was not necessary in Appellant’s case for the blood draw. The only
reason for the warrantless blood draw in this case was the natural
metabolization of alcohol in Appellant’s blood. This fact did not
represent a per se exigency that justified an exception to the Fourth
Amendment’s warrant requirement for the nonconsensual blood draw.
Finally, the possible exception noted by the Supreme Court of the
United States that “[E]xigent circumstances justifying a warrantless blood
draw may arise in the regular course of law enforcement due to delays
Page 55 of 72
from the warrant application process” does not apply in the case before
this Court. This is because Trooper Thomas admitted that he could have
obtained a warrant for the blood draw, but—relying on the implied
consent statute, which he believed allowed the government to compel a
blood sample from Appellant without a warrant—did not even take a
single step to secure one. (RR2, 81). Thus, because the Trooper did not
make an attempt to get a warrant, there could be no delay at all in the
warrant application process.
Because the natural dissipation of alcohol in the bloodstream does
not constitute an exigency sufficient to justify conducting a blood test
without a warrant (McNeely, id. at 1563 and 1568), and there were no
other recognized exceptions to the warrant requirement present in
Appellant’s case (i.e., consensual search, brief investigatory stop, search
incident to a valid arrest, and the plain-view doctrine), the involuntary taking
of Appellant’s blood, which involved a “compelled physical intrusion
beneath (Appellant’s) skin and into his veins” to obtain a sample of his
blood for use as evidence in a criminal investigation amounted to an
invasion of “bodily integrity” that “implicates (Appellant’s) most personal
and deep-rooted expectations of privacy. McNeely, id. at 1558.
Page 56 of 72
Based upon the totality of circumstances in this case, the warrantless,
involuntary blood draw from Appellant was unreasonable and violated the
Fourth Amendment. McNeely, id. at 1559. Because Thomas could have
reasonably obtained a warrant before the blood draw was performed, the
Fourth Amendment mandates that he should have done so. Id. at 1561.
There were no delays in the warrant application process in this case.
Instead, Thomas simply chose to not attempt to obtain a warrant for
Appellant’s blood.
Though it is clear through Thomas’s testimony that Thomas’s sole
basis for not obtaining a warrant was implied consent. As is made clear in
Villarreal, although Texas Transportation Code § 724.012 (b) allows
Thomas to obtain a breath or blood sample, § 724.012 did not allow
Thomas to obtain a breath or blood sample without first obtaining a
warrant. Id. at *34; See Tex. Transp. Code § 724.012 (2012). Finally, this
Court should conclude that given the absence of a warrant, the absence of
exigent circumstances, and the absence of consent, the State clearly failed
to demonstrate that the involuntary blood draw was reasonable under the
Fourth Amendment or that an exception to the Fourth Amendment’s
warrant requirement is applicable in this case (as was the State’s burden).
Villarreal, id. at *34; U.S. Const. Amend. IV. See also Weems, 434
Page 57 of 72
S.W.3d at 665 (the implied consent statute [Tex. Transp. Code § 724.011
(2012)] and the mandatory blood draw statute [Tex. Transp. Code §
724.012 (2012)] are not exceptions to the warrant requirement of the Fourth
Amendment).
For the same reasons as in Villarreal, Sutherland, 436 S.W.3d at 29-
31, and in Weems, no exigent circumstances existed in the case before this
Court because Thomas made no effort to obtain a warrant. See also Gentry,
2014 Tex. App. LEXIS 9538, Id. at *9 (the implied consent and
mandatory blood draw statutory schemes found in the Texas Transportation
Code are not exceptions to the warrant requirement under the Fourth
Amendment).
ix. Even if Chapter 724.012(b) was constitutional, its
requirements cannot be met.
In McBride v. State, 946 S.W.2d 100, 101 (Tex. App.—Texarkana
1997, pet. ref’d), the court held that there are three essential elements that
must be met in order to require a specimen under §724.012(b): (1) there
must be an accident; (2) there must be a death or danger of death as a result
of Appellant’s actions; and (3) there must be a refusal of the request for the
specimen. If one of these elements cannot be found, then §724.012 is not
applicable. Id.
Page 58 of 72
In the case at bar, Appellant did not refuse to provide a specimen. As
a result, even if the mandatory draw provision was not unconstitutional,
§724.012(b) clearly cannot apply to Appellant’s case.
x. The good-faith exception does not apply in this case.
The good-faith exception to the Fourth Amendment provides that
if an officer relies in “good faith” on a statute authorizing his warrantless
search and the statute is later determined to be unconstitutional, the federal
exclusionary rule does not apply. See Illinois v. Krull, 480 U.S. 340, 342,
355 (1987). The federal good- faith exception is a federal judicially-created
exception that runs counter to Texas law. See Tex. Code Crim. Proc. Art.
38.23(b) (2012).
Three good-faith exceptions exist under federal law: (1) where an
officer relies in good faith on a statute authorizing a warrantless search, and
the statute is later found to be unconstitutional; (2) the search was
conducted in good- faith reliance upon binding appellate precedent which is
later overturned; and (3) where the search was conducted in good-faith
reliance upon a warrant which is later determined to be improperly
issued. See Davis v. United States, 131 S. Ct. 2419, 2427-2428 (2011);
Krull, 480 U.S. at 342; and United States v. Leon, 468 U.S. 897, 923-924
(1984).
Page 59 of 72
Unlike the federal exclusionary rule, in Texas, the exclusionary rule is
statutory. See Tex. Code Crim. Proc. Art. 38.23(b) (2012). The Texas
exclusionary rule already has an exception for “a law enforcement
officer acting in objective good faith reliance upon a warrant issued by a
neutral magistrate based on probable cause.” Id. Nowhere in the Texas
exclusionary rule does it provide that an officer may rely in good faith
when there was no warrant issued by a neutral magistrate based on
probable cause. Further, the exceptions to the federal exclusionary rule
apply to the Texas statutory exclusionary rule only if they are consistent
with the plain language of the statute. See Douds v. State, 434 S.W.3d 842,
861 (Tex. App. Houston [14th Dist.] 2014, pet. granted) (en banc). The
Court of Criminal Appeals has previously rejected an effort to broaden the
Texas good- faith exception using the federal rule. Douds, 434 S.W.3d at
861-862, citing Howard v. State, 617 S.W.2d 191, 193 (Tex. Crim. App.
1979) (op. on rehearing) (The federal good-faith exception does not
apply to the Texas statutory good-faith exception).
And since “the Texas good faith exception is more limited than the
scope of its federal counterpart... an officer’s good faith reliance on the
law or existing precedent is not recognized as an exception to the Texas
exclusionary rule.” See State v. Jackson, 435 S.W.3d 819, 831 (Tex. App.
Page 60 of 72
Eastland 2014, pet. granted). For instance, in Wehrenberg v. State, 416
S.W.3d 458, 473 (Tex. Crim. App. 2013), the Court of Criminal
Appeals adopted the federal independent source exception to the
exclusionary rule. But in State v. Daugherty, 931 S.W.2d 268, 270 (Tex.
Crim. App. 1996), the Court of Criminal Appeals refused to adopt the
federal inevitable-discovery exception to the exclusionary rule.
In the instant case, because no warrant was issued, the good- faith
exception does not apply. See Jackson, 435 S.W.3d at 831 and Douds, 434
S.W.3d at 862. This conclusion is consistent with the holding in Weems, in
which the Fourth Court of Appeals, in citing Krull, 480 U.S. at 342,
confirmed that “[A] statute cannot support objectively reasonable reliance
if, in passing the statute, the legislature wholly abandoned its responsibility
to enact constitutional laws...Nor can a law enforcement officer be said to
have acted in good-faith reliance upon a statute if its provisions are such
that a reasonable officer should have known that the statute was
unconstitutional.” Weems, id. at 666. The Fourth Court of Appeals
confirmed that other than where there is an actual warrant, there is no
good-faith exception in the Texas exclusionary rule under Article 38.23. Id.;
Page 61 of 72
Tex. Code Crim. Proc. Art. 38.23 (2012); Douds, 434 S.W.3d at 862 (Good-
faith exceptions of Davis and Krull do not apply to the Texas exclusionary
rule).
xi. The holding in McNeely applies to this case because this
case was pending when McNeely was handed down.
The holding in McNeely is applicable to Appellant’s case. In
Griffith v. Kentucky, 479 U.S. 314, 328 (1987), the Supreme Court held that
a newly- announced constitutional rule for conducting criminal prosecutions
must be applied retroactively to all cases pending on direct review or not
yet final when the rule was announced. By implication, a newly-
announced constitutional rule applies to any case that is pending before a
trial court when the rule is handed down. Only if a case becomes “final”
(i.e., conviction becomes final because the direct appeal fails) would the
holding in Teague v. Lane, 489 U.S. 288, 310 (1989) apply, where the
Supreme Court held that new federal constitutional rules do not apply
retroactively to those cases that became final before the new rule was created.
In the case before this Court, Appellant was charged by information
on February 7, 2012, and this case is now on direct appeal. (CR, 16).
McNeely was handed down on April 17, 2013. Thus, on April 17, 2013, the
case before this Court was pending before the trial court, so the holding
McNeely applies to this case.
Page 62 of 72
xii. Appellant was harmed by the trial court’s error of
denying the motion to suppress.
Under Texas Rule of Appellate Procedure 44.2(a), the admission of
evidence obtained in violation of the Fourth Amendment is subject to a
constitutional harm analysis. See Hernandez v. State, 60 S.W.3d 106, 106
(Tex. Crim. App. 2001); Tex. Rule App. Proc. 44.2(a) (2015). If the
appellate record reveals constitutional error that is subject to harmless error
review, a reviewing court must reverse the judgment of conviction or
punishment unless the court determines beyond a reasonable doubt that the
error did not contribute to the conviction or punishment. See Tex. Rule App.
Proc. 44.2(a) (2015). The harmless error inquiry “should adhere strictly to
the question of whether the error committed in a particular case contributed
to the verdict obtained in that case.” Snowden v. State, 353 S.W.3d 815,
821 (Tex. Crim. App. 2011). The trial court’s admission of the blood test
evidence and all the evidence after Appellant’s arrest clearly contributed to
Appellant’s conviction. See Holmes v. State, 323 S.W.3d 163, 173-174
(Tex. Crim. App. 2010). Thus, Appellant was harmed by the trial
court’s error of denying the motion to suppress.
Page 63 of 72
xiii. Conclusion
Under the Fourth Amendment, the holdings in McNeely,
Villarreal, and other Texas courts of appeal, the trial court erred when
it denied Appellant’s motion to suppress the blood test results because: (1)
Thomas admitted he did not even try to obtain a warrant for Appellant’s
blood; (2) there were no exigent circumstances justifying the warrantless
blood draw under Texas Transportation Code § 724.012; (3) Thomas had
no probable cause to arrest Appellant; (4) the trial court’s decision is not
correct on any theory of law applicable to the case; (5) the good-faith
exception does not apply in this case; (6) the holding in McNeely apply to
this case because this case was pending when McNeely was handed down;
and
(7) Appellant was harmed by the trial court’s error of denying the
motion to suppress. As a result, Appellant prays that this Court reverse
the Judgment and sentence for Driving While Intoxicated, suppress all
the evidence seized from Appellant, including the blood results and all
evidence due to the illegal arrest, and remand this case back to the trial
court for a new trial. See Tex. Code Crim. Proc. Art. 44.25 (2015) and Tex.
Rule App. Proc. 43.2(d) (2015).
Page 64 of 72
2. Issue Two: The trial court erred and Appellant was harmed
when the trial court denied Appellant the right to present the
totality of the legal evidence raising an issue of material fact,
which was an element of the offense, and, which—in turn—
allowed the State to admit evidence, obtained in violation of the
Constitutions and laws of the United States of America and the
State of Texas, against Appellant at trial.
i. Statement of Facts
The State made an oral motion in limine seeking to prevent the
defense from any mention of the issue of exigent circumstances or implied
consent during voir dire or trial. (RR6, 5). Appellant argued that this
prevented him from presenting a defense and from putting before the jury
facts relevant to a 38.23 determination by the jury. (RR6, 5–16). The trial
court granted this motion. (RR6, 9–16). During trial, counsel for the State
sought to introduce evidence of Appellant being unconscious, the DIC-24
being read, and such being proper under the protocol of DPS. (RR6, 95–97).
Counsel for Appellant objected and a discussion was had at the bench that
the State was violating the order on the Motion in Limine. (RR6, 96). This
discussion was later put on the record. (RR6, 118–120). Appellant’s
objections were overruled. Appellant called Thomas and made an offer of
proof as to the evidence sought to be put before the jury. (RR6, 120–125).
Appellant then made argument before the court that the denial of the right to
present the testimony given in the offer of proof violated Appellant’s right to
Page 65 of 72
present a defense, and denied Appellant due process of law under the federal
and state constitutions. (RR6, 126–128). The State then cross-examined
Thomas and the following exchange was had:
Q. You also testified that there was not sufficient time for you
to go through the process to get a blood warrant?
A. If I – if I had wanted to cite the search warrant issue, I
wouldn’t have had time. I wasn’t even—the search warrant
didn’t even come into play because I had implied consent
available to me through the way of the statute.
(RR6, 128–129, see also RR6, 130 at lines 10-20, RR6, 131). The State
argued that the admission of the evidence was “not an element of the
offense,” would be “overly confusing to the jury,” was a “waste of time,”
and was not relevant.” Further, the State argued that the “only
determination [the jury was] going to make at the end of their case [was if]
the State [had] proven that the defendant was intoxicated.” (RR6, 132).
Attorney for Appellant argued that Art. 38.23 provided for the jury to make
a decision as to the legality of the search and ultimate seizure of Appellant’s
blood. (RR6, 135, 140, 141-142). Though the court acknowledged that Art.
38.23 encompassed both probable cause and the constitutionality of the
seizure, the court denied Appellant the right to go into the matters (testified
to in the offer of proof) in front of the jury. The court acknowledged that a
38.23 instruction would be given. (RR6, 148). Yet, the court denied
Page 66 of 72
Appellant the right to do present said evidence to the jury, and denied
Appellant’s objection to that ruling. (RR6, 138, 142).
ii. Introduction
As is shown in Issue 1, the blood evidence was obtained illegally—
both under implied consent and under the mandatory blood draw provision.
Because the court denied Appellant’s motion to suppress, the results of the
unconstitutional blood draw were presented to the jury. Then the trial court
denied Appellant’s request during trial to present material evidence
regarding the circumstances of the blood draw, despite the fact that the
evidence was (1) probative of the issue at hand; (2) not likely to impress the
jury in an irrational, but indelible way; (3) not going to take an unreasonable
amount of time to develop; and (4) was necessary for Appellant’s defense.
iii. Standard of Review is Abuse of Discretion
An appellate court reviews a trial court's ruling on the admission of
evidence for an abuse of discretion. See Weatherred v. State, 15 S.W.3d 540,
542 (Tex. Crim. App. 2000). A trial court abuses its discretion when its
decision is so clearly wrong as to lie outside that zone within which
reasonable persons might disagree. Webb v. State, 36 S.W.3d 164, 176 (Tex.
App.--Houston [14th Dist.] 2000, pet. ref'd).
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iv. Applicable Law
In weighing the probative value of offered evidence under Rule 403, a
trial court considers (1) the evidence's inherent probative value; (2) its
potential to impress the jury in some irrational but indelible way; (3) the
amount of time the proponent needs to develop the evidence; and (4) the
proponent's need for the evidence. Peters v. State, 93 S.W.3d 347, 351 (Tex.
App. Houston 14th Dist. 2002, no pet.) (citing Wheeler v. State, 67 S.W.3d
879, 888 (Tex. Crim. App. 2002); Montgomery v. State, 810 S.W.2d 372,
389-90 (Tex. Crim. App. 1990) (opinion on reh'g)).
v. The trial court abused their discretion in not allowing
material evidence—which was both relevant and probative
to be introduced to the jury.
How the evidence was obtained in this case was a material fact—
which went directly to an element of the offense—namely the per se
intoxication of persons with a blood alcohol content of .08 or higher.
Denying admission of the facts related to the blood draw, namely the facts
regarding implied consent and exigent circumstances denied Appellant the
opportunity to present a defense, and the opportunity to squarely put in front
of the jury the issues to be decided in the Art. 38.23 instruction. First, this
evidence had inherent probative value, not only to the Art. 38.23 motion, but
to the issue of per se intoxication, which was used to convict Appellant.
Second, this evidence would not have impressed the jury in an irrational, but
Page 68 of 72
indelible way—and certainly would not have confused the jury as argued by
the State. As this Court is aware, prosecutors have long used both implied
consent and mandatory blood draw terminology in their presentation of the
case to convict. Third, very little time was needed to present this
information, and this same amount of time was used—outside of the
presence of the jury—to make an offer of proof. And finally, as stated
above, this evidence was material, going directly to the heart of one of the
elements of the offense. Defendant’s need for it was striking.
vi. Conclusion
Under the Fourteenth Amendment of the United States Constitution,
and under Art I, § 10, of the Texas Constitution, Appellant was denied the
right to present a defense and denied due process of law when The trial
court erred and Appellant was harmed when the trial court denied
Appellant the right to present the totality of the legal evidence raising an
issue of material fact, which was an element of the offense, and, which—in
turn—allowed the State to admit evidence, obtained in violation of the
Constitutions and laws of the United States of America and the State of
Texas, against Appellant at trial. As a result, Appellant prays that this
Court reverse the Judgment and Sentence for Driving While Intoxicated,
and remand this case back to the trial court for a new trial. See Tex. Code
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Crim. Proc. Art 44.25 (2015) and Tex. R. App. Proc. 43(d) (2015).
IX. Conclusion and Prayer
For the above reasons, Appellant prays that upon appellate
review, this Court of Appeals reverse the Judgment of Conviction and
Sentence (Jury Trial) entered and imposed by the trial court in cause
number 2012-1-0206, suppress all evidence seized in this case, including
the blood evidence, and remand the case back to the trial court for
further proceedings consistent with the opinion of this Court.
Respectfully submitted,
/s/ John Hunter Smith
John Hunter Smith
SBN: 24028393
Wynne & Smith
707 W. Washington
Sherman, Texas 75092
Tel. (903)-893-8177
Fax (903)-892-0916
_______________________
Kristin R. Brown
SBN: 24081458
Law Office Of Kristin R. Brown, PLLC
18208 Preston Road, Suite D9375
Dallas, Texas 75252
Tel. (214)-446-3909
Fax (214)-481-4868
Attorneys For Appellant
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X. Certificate of Service
This is to certify that a copy of this brief has been emailed to Ms.
Karla Baugh-Hackett, Grayson County District Attorney’s Office, 200 S.
Crockett, Sherman, Texas 75090 on the 4th day of May, 2015, by email to
baughk@co.grayson.tx.us.
__________________________
John Hunter Smith
Kristin R. Brown
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XI. Certificate of Compliance with Tex. Rule App. Proc. 9.4
Under Texas Rule of Appellate Procedure 9.4, this certifies that this
document complies with the type volume limitations because it is computer
generated and does not exceed 15,000 words. Using the word-count feature
of Microsoft Word, the undersigned certifies that this document contains
13,877 words in the entire document except in the following sections:
caption, identity of parties and counsel, statement regarding oral argument,
table of contents, index of authorities, statement of the case, statement of
issues presented, statement of jurisdiction, statement of procedural history,
signature, proof of service, certification, certificate of compliance, and
appendix. This document also complies with the typeface requirements
because it has been prepared in a proportionally-spaced typeface using
Microsoft Word in 14-point font.
/s/ Kristin R. Brown
________________________________
Kristin R. Brown
John Hunter Smith
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