McClendon, Mitchell ( 2015 )

PD-0999-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/3/2015 10:45:41 AM
Accepted 8/6/2015 11:39:01 AM
ABEL ACOSTA
CLERK
#15-____________
Court of Criminal Appeals of Texas
THE STATE OF TEXAS,
Petitioner
v.
MITCHELL McCLENDON,
Respondent
State’s Petition from the 13th District Court of Appeals
(Cause #13-13-00357-CR), on State’s Appeal from the 28th District Court of
Nueces County (Cause #12-CR-1886-A)
STATE’S PETITION FOR DISCRETIONARY REVIEW
A. Cliff Gordon
Tex. Bar #00793838
Asst. Dist. Atty., 105th Dist.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
361.888.0410 phone
361.888.0399 fax
cliff.gordon@nuecesco.com
Attorney for Petitioner
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
Trial Court Judge: Honorable Nanette Hasette, Presiding Judge of the 28th
District Court of Nueces County
Petitioner: The State of Texas, District Attorney for the 105th Judicial
District, represented by
Appellate counsel:
A. Cliff Gordon, Asst. Dist. Atty.
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
Trial and appellate counsel:
Mark Skurka, District Attorney
Crystal Mathis, Asst. Dist. Atty.
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
Respondent: Mitchell McClendon, represented by
Trial and Appellate Counsel:
Alex J. Scharff
Campion & Campion
222 E. Main Plaza
San Antonio, TX 78205
Fred Jimenez
Law Offices of Fred Jimenez
509 Lawrence St. Ste. 301
Corpus Christi, TX 78401
i
TABLE OF CONTENTS
IDENTITY OF JUDGE, PARTIES, AND COUNSEL ......................................... i
INDEX OF AUTHORITIES .................................................................................. iii
STATEMENT REGARDING ORAL ARGUMENT .......................................... iv
STATEMENT OF THE CASE .............................................................................. iv
STATEMENT OF PROCEDURAL HISTORY ................................................... iv
QUESTION PRESENTED FOR REVIEW ........................................................... v
1. Whether the implied consent and mandatory blood draw
provisions of the Texas Transportation Code are a
constitutionally valid alternative to the warrant requirement ........... v
ARGUMENT ............................................................................................................1
PRAYER ....................................................................................................................1
CERTIFICATE OF COMPLIANCE ......................................................................2
CERTIFICATE OF SERVICE .................................................................................3
APPENDIX ...............................................................................................................4
1. Opinion of the 13th Court of Appeals .....................................................4
ii
INDEX OF AUTHORITIES
Cases
State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App.
Nov. 26, 2014), reh’g granted (Feb. 25, 2015) ............................................1
Rules
Tex. R. App. P. 66.3 .................................................................................................1
iii
STATEMENT REGARDING ORAL ARGUMENT
The State does not believe that oral argument would be helpful to
determine this appeal because the issue has already been argued in State v.
Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,
2014), reh’g granted (Feb. 25, 2015).
STATEMENT OF THE CASE
A grand jury indicted Mitchell McClendon for Felony Driving While
Intoxicated. CR 3. The trial court granted his motion to suppress evidence
relating to the warrantless draw of his blood pursuant to TEX. TRANSP.
CODE § 724.012(b). CR 63. The State timely appealed. CR 65. The 13th
Court of Appeals affirmed, holding that § 724.012 is not a constitutionally
recognized alternative to the warrant requirement. Opinion at 5.
STATEMENT OF PROCEDURAL HISTORY
Date court of appeals’ Opinion handed down July 2, 2015
Date State filed Motion for Rehearing n/a
Date Motion for Rehearing overruled n/a
iv
QUESTION PRESENTED FOR REVIEW
1. Whether the implied consent and mandatory blood draw provisions
of the Texas Transportation Code are a constitutionally valid
alternative to the warrant requirement. CR 63; RR 33-34, 37-39.
v
ARGUMENT
Although this issue was initially decided against the State in State v.
Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26,
2014), reh’g granted (Feb. 25, 2015), the Court has yet to issue a final
decision. Thus, the State respectfully requests that cases like the present
one, with similar or identical issues, be held under consideration until
Villarreal does become final and binding.
The State continues to argue that the implied consent and mandatory
blood draw provisions of the Texas Transportation Code are a
constitutionally valid alternative to the warrant requirement, and that the
decision of the Thirteenth Court of Appeals to the contrary decides an
important question of federal law that has not been, but should be, settled
by the Court of Criminal Appeals. See Tex. R. App. P. 66.3(b).
PRAYER
For these reasons, the State requests that the Court grant this petition
for discretionary review, reverse the court of appeals’ judgment, and grant
the State all other proper relief.
1
Respectfully Submitted,
/s/ A. Cliff Gordon
A. Cliff Gordon
Tex. Bar #00793838
Asst. Dist. Atty., 105th Dist.
Nueces County Courthouse
901 Leopard St., Rm. 206
Corpus Christi, TX 78401
361.888.0410 phone
361.888.0399 fax
cliff.gordon@nuecesco.com
CERTIFICATE OF COMPLIANCE
According to the word count of the computer program used to
prepare this document, it contains 770 words.
2
CERTIFICATE OF SERVICE
On August 3, 2015, a true copy of the foregoing was served via
eServe on the following:
Alex J. Scharff
Campion & Campion
222 E. Main Plaza
San Antonio, TX 78205
Fred Jimenez
Law Offices of Fred Jimenez
509 Lawrence St. Ste. 301
Corpus Christi, TX 78401
Appellate Counsel for Appellee
/s/ A. Cliff Gordon_______________
A. Cliff Gordon
3
APPENDIX
1. Opinion of the 13th Court of Appeals
4
NUMBER 13-13-00357-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
THE STATE OF TEXAS, Appellant,
v.
MITCHELL McCLENDON, Appellee.
On appeal from the 28th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Longoria
Memorandum Opinion by Chief Justice Valdez
By one issue, the State appeals the trial court’s granting of appellee Mitchell
McClendon’s motion to suppress. We affirm.
I. BACKGROUND
Officer Brett Boyer arrested McClendon for suspicion of driving while intoxicated.
After McClendon refused to provide a blood sample, without first obtaining a warrant,
Officer Boyer ordered a phlebotomist to acquire a sample of McClendon’s blood pursuant
to section 724.012(b)(3) of the Texas Transportation Code. See TEX. TRANSP. CODE ANN.
§ 724.012 (West, Westlaw through Ch. 46 2015 R.S.) (setting out when a police officer is
required to obtain a blood sample from a person suspected of driving under the influence).
At the motion to suppress hearing, McClendon’s trial counsel argued that Boyer failed to
obtain a warrant prior to the blood draw as required under Missouri v. McNeely. See
Missouri v. McNeely, __ U.S. __, 133 S. Ct. 1552 (2013). The State responded that the
blood draw statute supported Officer Boyer’s ordering of the blood draw and that Officer
Boyer relied on the statute in good faith. The State conceded that there were no exigent
circumstances in this case, and it did not argue that any other exception to the warrant
requirement applied.1
The trial court granted McClendon’s motion to suppress and entered findings of
fact and conclusions of law. This appeal followed.
II. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s decision on a motion to suppress for an abuse of
discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). Under our abuse
of discretion analysis, we use a bifurcated standard. State v. Ross, 32 S.W.3d 853, 856
1 Specifically, the prosecutor said,
And in this case, the case against [McClendon], the State isn’t arguing that it wasn’t a
standard DWI, or that there were any exigent circumstances. We heard from the officers
that there were none. We are only arguing that the purpose of, or the reason behind the
blood draw was the statute that required him to get the blood sample. And for that reason,
we ask that the defendant’s motion to suppress is denied.
2
(Tex. Crim. App. 2000) (en banc) (citing Guzman v. State, 955 S.W.2d 85, 88 (Tex. Crim.
App. 1997) (en banc)); see also Urbina v. State, No. 13–08–00562–CR, 2010 WL
3279390, at *1 (Tex. App.—Corpus Christi Aug. 19, 2010, pet. ref’d) (mem. op., not
designated for publication). We give almost total deference to the trial court’s findings of
historical fact that are supported by the record and to its resolution of mixed questions of
law and fact that turn on an evaluation of credibility and demeanor. Amador v. State, 221
S.W.3d 666, 673 (Tex. Crim. App. 2007) (citing Guzman, 995 S.W.2d at 89). We “review
de novo ‘mixed questions of law and fact’ that do not depend upon credibility and
demeanor.” Id. (quoting Montanez v. State, 195 S.W.3d 101, 107 (Tex. Crim. App. 2006));
Guzman, 995 S.W.2d at 89.
“When a trial court makes explicit fact findings, the appellate court determines
whether the evidence (viewed in the light most favorable to the trial court’s ruling) supports
these fact findings.” State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006). We will
uphold the trial court’s ruling under any applicable theory of law supported by the facts of
the case whether we infer the fact findings or whether we consider express findings.
Alford v. State, 400 S.W.3d 924, 929 (Tex. Crim. App. 2013). “Similarly, regardless of
whether the trial court has made express conclusions of law, we uphold the trial court’s
ruling under any theory supported by the facts because an appellate court reviews
conclusions of law de novo.” Id. Under our de novo review, we are not required to defer
to a trial court’s particular theory. Id. This “rule holds true even if the trial court gave the
wrong reason for its ruling.” Armendariz v. State, 123 S.W.3d 401, 403 (Tex. Crim. App.
2003).
3
“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.” Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). “A defendant
satisfies this burden by establishing that a search or seizure occurred without a warrant.”
Id. Once a defendant establishes there was no warrant, the burden shifts to the State to
prove the warrantless search was reasonable under the totality of the circumstances.
Amador, 221 S.W.3d at 672–73. The State satisfies this burden if it proves an exception
to the warrant requirement. See Gutierrez, 221 S.W.3d at 685.
III. DISCUSSION
The State appears to argue that section 724.012(b) is a valid exception to the
warrant requirement.2 McClendon first responds that the State’s brief is multifarious and
then argues that the trial court properly concluded that Officer Boyer was required to
obtain a warrant and there were no exigent circumstances shown to allow the blood draw.
This Court has already determined that the Legislature did not mean to circumvent
the Fourth Amendment’s requirement that the police officer acquire a warrant prior to
acquiring a blood sample after the suspect refuses to provide a specimen regarding
subsection (b)(3) of the mandatory blood draw statute. See State v. Villarreal, No. 13–
2 In its brief, the State claims that the “trial court abused its discretion by granting [McClendon’s]
motion to suppress blood test based solely on [McClendon’s] argument that the mandatory draw statute is
unconstitutional.” We disagree that the trial court concluded that the mandatory draw statute is
unconstitutional or that the constitutionality of the statute was at issue at the hearing. Instead, at the
hearing, all parties agreed that the only issue before the trial court was whether Officer Boyer was required
to obtain a warrant prior to the blood draw. The prosecutor stated, “And, Your Honor, prior to the beginning
of this we discussed that the only issue that would be discussed today would be the warrantless blood
draw.” And, McClendon’s trial counsel said, “I don’t want to take on the entire state of Texas to say the
statute is unconstitutional in general, just say as applied in this case, because it does violate the warrant
requirement of the [Fourth] Amendment and the United States Constitution, Texas Constitution, and Code
of Criminal Procedure.” Therefore, to the extent that the State argues on appeal that the statute is
constitutional, we need not address that issue as it is not dispositive of the appeal. See TEX. R. APP. P.
47.1.
4
13–00253–CR, __ S.W.3d __, __, 2014 WL 1257150, at *11 (Tex. App.—Corpus Christi
Jan. 23, 2014) aff’d, No. PD–0306–14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014)
reh’g granted, (Feb. 25, 2015). In addition, the court of criminal appeals affirmed our
decision, stating that “the provisions in the Transportation Code do not, taken by
themselves, form a constitutionally valid alternative to the Fourth Amendment warrant
requirement” and “a nonconsensual search of a DWI suspect’s blood conducted pursuant
to the mandatory-blood-draw and implied-consent provisions in the Transportation Code,
when undertaken in the absence of a warrant or any applicable exception to the warrant
requirement, violates the Fourth Amendment.” Villarreal, __ S.W.3d __, __, 2014 WL
6734178, at **20–21.3
The State conceded to the trial court that there were no exigent circumstances and
did not argue that any other exceptions to the warrant requirement applied in this case.4
The trial court concluded that Officer Boyer was required to obtain a warrant for the blood
draw absent exigent circumstances. Accordingly, because section 724.012 of the
transportation code does not by itself form a constitutionally recognized alternative to the
warrant requirement, we conclude that the trial court did not abuse its discretion by
granting McClendon’s motion to suppress. See id. We overrule the State’s sole issue.5
3 After affirming our decision, the Court of Criminal Appeals granted the State’s motion for
rehearing. However, it has not vacated its decision affirming our ruling or withdrawn its opinion.
4 Although the State argued to the trial court that Officer Boyer relied on the statute in good faith, it
does not make this argument on appeal.
5 The State also argues that other exceptions to the warrant requirement apply such as the
automobile exception and voluntary consent and waiver. The State asserts that we must consider other
things in our analysis such as “the underlying expectation of privacy as a factor” and “the nature of the
privacy interest in blood” that “will be sufficient to sustain the constitutionality of [mandatory blood draw
statutes], especially the Texas statute, which is narrowly drawn to include only the most egregious offenders
and situations.” However, although the State argued to the trial court that the McNeely decision is very
narrow, the State did not make any of the above-mentioned arguments to the trial court. Accordingly, we
may not reverse the trial court on any of these grounds. See State v. Rhinehart, 333 S.W.3d 154, 162 (Tex.
5
IV. CONCLUSION
We affirm the trial court’s judgment.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
2nd day of July, 2015.
Crim. App. 2011) (stating that the “ordinary rules of procedural default” apply to the “losing party” in trial
court); Hailey v. State, 87 S.W.3d 118, 121–22 (Tex. Crim. App. 2002) (“It is well-settled that . . . it violates
ordinary notions of procedural default for a Court of Appeals to reverse a trial court’s decision on a legal
theory not presented to the trial court by the complaining party.”) (quotations omitted); State v. Mercado,
972 S.W.2d 75, 78 (Tex. Crim. App. 1998) (en banc) (“[I]n cases in which the State is the party appealing,
the basic principle of appellate jurisprudence that points not argued at trial are deemed to be waived applies
equally to the State and the defense.”); see also Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App.
2002) (“And so it is that appellate courts may uphold a trial court’s ruling on any legal theory or basis
applicable to the case, but usually may not reverse a trial court’s ruling on any theory or basis that might
have been applicable to the case, but was not raised.”).
6