Lewis, Robert Othella James ( 2015 )


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  •                                                                              PD-0410-15
    PD-0410-15                         COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 5/13/2015 6:10:58 PM
    Accepted 5/15/2015 11:22:21 AM
    ABEL ACOSTA
    IN THE COURT                                                 CLERK
    OF CRIMINAL APPEALS OF TEXAS
    ROBERT OTHELLA LEWIS             §
    a/k/a ROBERT LEWIS,              §
    APPELLANT                  §
    V.                               §     NO.     PD-0410-15
    §
    THE STATE OF TEXAS,              §
    APPELLEE                     §
    §§§
    STATE'S PETITION FOR DISCRETIONARY REVIEW
    §§§
    SHAREN WILSON
    Criminal District Attorney
    Tarrant County, Texas
    DEBRA WINDSOR, Assistant
    Criminal District Attorney
    Chief, Post-Conviction
    May 15, 2015
    DANIELLE A. KENNEDY, Assistant
    Criminal District Attorney
    Tim Curry Criminal Justice Center
    401 W. Belknap
    Fort Worth, Texas 76196-0201
    (817) 884-1687 FAX (817) 884-1672
    State Bar No. 02760900
    CCAappellatealerts@tarrantcountytx.gov
    LISA C. MCMINN
    State Prosecuting Attorney
    ORAL ARGUMENT IS REQUESTED
    IDENTITY OF THE JUDGE, PARTIES,
    AND COUNSEL
    The Hon. Sharen Wilson, Tarrant County Criminal District Attorney,
    represents the State of Texas in this appeal. Additionally, representing the State on
    appeal is the Hon. Danielle A. Kennedy, Assistant Criminal District Attorney and
    Hon. Debra Windsor, Post-Conviction Chief. At trial, the Hon. Samuel Williams
    and Hon. Graham Norris represented the prosecution.          The State’s attorneys’
    address is Office of the Criminal District Attorney of Tarrant County, Tim Curry
    Criminal Justice Center, 401 W. Belknap, Fort Worth, Texas 76196-0201.
    The Hon. Lisa C. McMinn is the State’s Prosecuting Attorney. Mail for the
    Office of the State Prosecuting Attorney, located in the Price Daniel Sr. Building,
    may be sent to P.O. Box 13046, Austin, Texas, 78711.      Appellant,      Defendant
    below, is Robert Othella James Lewis. Hon. Abe Factor and Hon. Kimberly
    Knapp represented Appellant at the trial court and Hon. Abe Factor continues now
    to represent Appellant on appeal. Mr. Factor offices at 5719 Airport Freeway, Fort
    Worth, Texas 76117.
    The State tried Appellant’s case in the Criminal District Court No. 1 of
    Tarrant County, Texas, also located in the Tim Curry Criminal Justice Center. The
    Hon. Jerry Woodlock presided over the case.
    ii
    SUBJECT INDEX
    IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL ................................... ii
    SUBJECT INDEX ................................................................................................... iii
    INDEX OF AUTHORITIES......................................................................................v
    STATEMENT REGARDING ORAL ARGUMENT ...............................................1
    STATEMENT OF THE CASE ..................................................................................2
    STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ....................2
    STATEMENT OF FACTS ........................................................................................3
    QUESTIONS PRESENTED FOR REVIEW ............................................................5
    FIRST QUESTION FOR REVIEW
    Does a warrantless, nonconsensual blood draw conducted
    pursuant to TEX. TRANSP. CODE § 724.012(b) violate
    the Fourth Amendment? RR. II Supp. 107-08.
    SECOND QUESTION FOR REVIEW
    Do exclusionary rule principles mandate suppression of
    blood evidence seized via a warrantless, nonconsensual,
    valid-at-the-time mandatory blood draw? TEX. CODE
    CRIM. PROC. art. 38.23(b). RR. II Supp. 107-08.
    THIRD QUESTION FOR REVIEW
    Did the Fort Worth Court correctly apply the proper
    standard of review in a case where the error is of
    constitutional dimension? See TEX. R. APP. P. 44.2(a).
    Lewis, 
    2015 WL 1119966
    at *3. RR. III 38-97.
    ARGUMENT AND AUTHORITIES ........................................................................6
    FIRST QUESTION FOR REVIEW ................................................................ 8
    iii
    Codification of Fourth Amendment principles ............................................ 8
    Texas' special needs framework adds to the
    reasonableness calculation .........................................................................10
    Erroneous consideration of the "Less Intrusive Means" test .....................11
    Implied-consent draws are reasonable.......................................................13
    SECOND QUESTION FOR REVIEW .........................................................14
    THIRD QUESTION FOR REVIEW.............................................................17
    CONCLUSION AND PRAYER .............................................................................20
    CERTIFICATE OF COMPLIANCE .......................................................................21
    CERTIFICATE OF SERVICE ................................................................................22
    COURT OF CRIMINAL APPEALS’ OPINION ................................ APPENDIX A
    iv
    INDEX OF AUTHORITIES
    Cases
    Beeman v. State,
    
    86 S.W.3d 613
    (Tex. Crim. App. 2002) ................................................................15n
    Breithaupt v. Abram,
    
    352 U.S. 432
    (1957) .................................................................................................14
    Burks v. State,
    
    454 S.W.3d 705
    (Tex. App. – Fort Worth, pet. filed) ...............................................4
    Clay v. State,
    
    240 S.W.3d 895
    (Tex. Crim. App. 2007) ................................................................20
    Cole v. State,
    
    454 S.W.3d 89
    (Tex. App.—Texarkana 2014, pet. granted) .....................................7
    Davis v. United States,
    ___ U.S. ___, 
    131 S. Ct. 2419
    (2011) ......................................................................15
    Douds v. State,
    
    434 S.W.3d 842
    (Tex. App.—Houston [14th Dist.] June 5, 2014, pet. granted) .................................6
    Heien v. North Carolina,
    
    135 S. Ct. 530
    (2014) ...............................................................................................16
    Holidy v. State,
    No. 06-13-00261-CR, 
    2014 WL 1722171
    (Tex. App.—Texarkana Apr. 30, 2014, pet. granted)
    (mem. op., not designated for publication) ................................................................7
    Hulit v. State,
    
    982 S.W.2d 431
    (Tex. Crim. App. 1998) ................................................................13
    Illinois v. Krull,
    
    480 U.S. 342
    (1987) ........................................................................................ 15, 16n
    v
    Jones v. State,
    
    119 S.W.3d 766
    (Tex. Crim. App. 2003) ................................................................18
    Karev v. State,
    
    281 S.W.3d 428
    (Tex. Crim. App 2009) ...............................................................15n
    Lewis v. State,
    No. 02-13-00416-CR, ___ S.W.3d ___, 
    2015 WL 1119966
    (Tex. App.—Fort Worth March 12, 2015, pet. pending) ................................ passim
    Mapp v. Ohio,
    
    367 U.S. 643
    (1961) ...............................................................................................16n
    Maryland v. King,
    569 U.S. ___, 
    133 S. Ct. 1958
    (2013) ......................................................................13
    McGee v. State,
    
    105 S.W.3d 609
    (Tex. Crim. App. 2003) ................................................................13
    McGruder v. State,
    No. 10-13-00109-CR, ___ S.W.3d ___, 
    2014 WL 3973089
    .....................................7
    McQuarters v. State,
    
    58 S.W.3d 250
    (Tex. App. – Fort Worth 2001, pet. ref’d) ......................................19
    Michigan Dept. of State Police v. Sitz,
    
    496 U.S. 444
    (1990) .................................................................................................13
    Michigan v. DeFillippo,
    
    443 U.S. 31
    (1979) ...................................................................................................16
    Miles v. State,
    
    241 S.W.3d 28
    (Tex. Crim. App. 2007) ....................................................................9
    Missouri v. McNeely,
    569 U.S. ___, 
    133 S. Ct. 1552
    (2013) .............................................................. passim
    Motilla v. State,
    
    78 S.W.3d 352
    (Tex. Crim. App. 2002) ..................................................................19
    vi
    Reeder v. State,
    
    428 S.W.3d 930
    (Tex. App.—Texarkana 2014, pet. granted) ...................................7
    Segundo v. State,
    
    270 S.W.3d 79
    (Tex. Crim. App. 2008),
    cert. denied, 
    558 U.S. 828
    (2009) ............................................................................13
    Skinner v. Railway Labor Executives' Ass'n,
    
    489 U.S. 602
    (1989) .................................................................................... 10, 11, 12
    Smith v. State,
    No. 13-11-00694-CR, ___ S.W.3d ___, 
    2014 WL 5901759
    (Tex. App.—Corpus Christi 2014, pet. granted) .......................................................7
    Snowden v. State,
    
    353 S.W.3d 815
    (Tex. Crim. App. 2011) ......................................................... 17, 18
    State v. Reese,
    
    353 Wis. 2d 266
    , 
    844 N.W.2d 396
    (Wis. App. 2014) ............................................16n
    State v. Villarreal,
    PD-0306-14, ___ S.W.3d ___,
    
    2014 WL 6734178
    (Tex. Crim. App. 2014) .................................................... passim
    Tharp v. State,
    
    935 S.W.2d 157
    (Tex. Crim. App. 1996) ................................................................11
    Thornton v. State,
    
    145 S.W.3d 228
    (Tex. Crim. App. 2004) ..............................................................16n
    United States v. Peltier,
    
    422 U.S. 531
    (1975) ...............................................................................................16n
    United States v. Polanco,
    
    93 F.3d 555
    (9th Cir. 1996) .....................................................................................18
    Vernonia School Dist. 47J v. Acton,
    
    515 U.S. 646
    (1995) .................................................................................................12
    vii
    Weems v. State,
    
    434 S.W.3d 655
    (Tex. App.—San Antonio 2014, pet. granted) ..............................6
    Welsh v. Wisconsin,
    
    466 U.S. 740
    (1984) ...................................................................................................9
    Statutes, Rules, Constitutions
    TEX. CODE CRIM. PROC. art. 14.04 ...........................................................................10
    TEX. CODE CRIM. PROC. art. 18.16 .............................................................................9
    TEX. CODE CRIM. PROC. art. 38.23 ................................................................ 6, 14, 15
    TEX. PENAL CODE § 1.07 ..........................................................................................15
    TEX. PENAL CODE § 49.045........................................................................................8
    TEX. TRANS. CODE § 524.012 ................................................................................. 10
    TEX. TRANS. CODE § 724.012 .......................................................................... passim
    TEX. R. APP. P. 9.4 ...................................................................................................18
    TEX. R. APP. P. 44.2(a) .........................................................................................6, 17
    TEX. R. APP. P. 66.3 ...................................................................................................8
    U.S. CONST. amend. IV .................................................................................... passim
    viii
    IN THE COURT
    OF CRIMINAL APPEALS OF TEXAS
    ROBERT OTHELLA LEWIS                      §
    a/k/a ROBERT LEWIS,                       §
    APPELLANT                           §
    V.                                        §      NO.     PD-0410-15
    §
    THE STATE OF TEXAS,                       §
    APPELLEE                              §
    STATE'S PETITION FOR DISCRETIONARY REVIEW
    TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
    APPEALS:
    Comes now the State of Texas, by and through her Tarrant County Criminal
    District Attorney, and respectfully urges this Court to grant discretionary review of
    this cause in accordance with the rules of appellate procedure.
    STATEMENT REGARDING ORAL ARGUMENT
    Argument should be granted based on the importance of this issue to the
    jurisprudence of the State. There are literally hundreds of cases winding their way
    through the Texas criminal justice system in the wake of the Supreme Court’s
    decision in Missouri v. McNeely, 569 U.S. ___, 
    133 S. Ct. 1552
    (2013). More are
    waiting in appellate limbo for this Court’s opinion on rehearing in State v.
    Villarreal, ___ S.W.3d ___, 
    2014 WL 6734178
    (Tex. Crim. App. 2014)
    (resubmitted on reh’g     March 18, 2015).        Very few cases, however, have
    1
    addressed the issue raised in this petition: Has the Fort Worth Court of Appeals
    properly applied the correct standard of review for harmless error in this case?
    STATEMENT OF THE CASE
    Appellant sought suppression of his blood draw results based on the
    Supreme Court’s decision in McNeely, 
    133 S. Ct. 1552
    . (Tr. I 13-15). The trial
    judge rejected the defense argument attacking the validity of blood seized pursuant
    to the Texas implied-consent statute. (RR. II Supp. 107-08). She specifically
    found that McNeely did not render the Texas implied consent laws
    unconstitutional, and that the officer was permitted to rely on the statutes in
    existence at the time of the arrest. 
    Id. Subsequently, a
    jury convicted Appellant of
    felony driving while intoxicated. RR. IV 59. He was then sentenced by that jury
    to five years’ incarceration. RR. IV 134.
    STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
    The Fort Worth Court of Appeals reversed the trial court in a published
    opinion authored by Justice Lee Gabriel. Lewis v. State, No. 02-13-00416-CR, ___
    S.W.3d ___, 
    2015 WL 1119966
    (Tex. App.—Fort Worth March 12, 2015, pet.
    2
    pending)1. Rehearing was not sought. The State files this petition, due on May 13,
    2015, following one extension.
    STATEMENT OF FACTS
    In July of 2012, Appellant was stopped by a Bedford police officer for
    erratic driving. RR. III 38-40. Appellant refused to give his name or produce an
    ID, and the officer saw that Appellant had red, watery eyes, slurred speech, and
    smelled of alcohol. RR. III 52-55. Appellant refused to exit his vehicle upon
    request. RR. III 57. The officer pointed his Tazer at Appellant, but did not “taze”
    him at this time, as Appellant finally got out of his vehicle. RR. III 60. When
    asked to perform field sobriety tests, Appellant flat refused, saying he “didn’t have
    to.” RR. III 60. When told he was under arrest, Appellant had to be asked five
    times to turn around and put his hands behind his back before the officers warned
    him that further refusal would result in him being tasered. RR. III 64. He
    continued to refuse, and was tasered as a result. RR. III 64-65. Appellant fell and
    hit his head on the ground when tasered. RR. III 65-66. Out of concern for his
    health, the officer called for an ambulance. RR. III 66-67. EMS arrived and
    removed the Tazer probes from Appellant. RR. III 76.
    1
    Attached hereto as Exhibit A.
    3
    The police called for a tow truck to impound Appellant’s vehicle, and, after
    Appellant refused ambulance transport, the officers learned that Appellant had two
    prior DWI convictions.      The police then drove him to HEB hospital for the
    mandatory blood draw. RR. III 78-80. Upon arrival, Appellant refused to get out
    of the police car. RR. III 80.   Appellant told the officers that he had a right not to
    go to the hospital. RR. III 81-82. Appellant made himself (at 6’4” and about 240
    pounds) dead weight, and it took two officers to push and pull him out of the police
    car. RR. III 82-84. Once inside the emergency room, Appellant began cursing. As
    a result, the officers asked if they could be quickly moved to the room where the
    blood would be taken. RR. III 86. Appellant refused to sign any paperwork at the
    hospital. RR. III 87. When Appellant was being read his rights, he began cursing
    very loudly. RR. III 90-91. He threatened the hospital staff that he would kick
    them in the face if they attempted to draw his blood. It took two officers and
    several hospital staff to hold him down. RR. III 92. He would not even let the
    nurse check the scrape on his head. RR. III 97. The blood sample later showed that
    he had 0.027 parts alcohol in his blood – more than triple the legal limit. RR. III
    199.
    On appeal, the Fort Worth Court rejected the trial court’s ruling. Lewis,
    
    2015 WL 1119966
    at *2-3. The court relied on this Court’s original decision in
    Villarreal, Villarreal 
    2014 WL 6734178
    , and on its own opinion in Burks v. State,
    4
    
    454 S.W.3d 705
    , 707-08 (Tex. App. – Fort Worth, pet. filed) that the Texas
    exclusionary rule did not apply to a warrantless seizure. Lewis, 
    2015 WL 1119966
    at *3.
    In discussing the State’s harm argument, the Court focused on the testimony
    of the forensic toxicologists and the fact that the State argued his blood alcohol
    content in addition to arguing that he had lost the normal use of his faculties.
    Lewis, 
    2015 WL 1119966
    at *3. Specifically, the Court held:
    Although there was other evidence of Lewis’s intoxication –
    bloodshot eyes, slurred speech, and his refusal to perform field
    sobriety tests – we cannot conclude beyond a reasonable doubt that
    the blood alcohol evidence did not contribute to the jury’s verdict.
    The evidence that Lewis’s blood-alcohol content was three times the
    legal limit had a probable impact on the verdict even in light of other
    evidence indicating intoxication, and there is a reasonable possibility
    that the error might have contributed to Lewis’s conviction or
    punishment.
    
    Id. QUESTIONS FOR
    REVIEW
    FIRST QUESTION FOR REVIEW
    Does a warrantless, nonconsensual blood draw conducted pursuant to TEX.
    TRANSP. CODE § 724.012(b) violate the Fourth Amendment? RR. II Supp. 107-08.
    5
    SECOND QUESTION FOR REVIEW
    Do exclusionary rule principles mandate suppression of blood evidence
    seized via a warrantless, nonconsensual, valid-at-the-time mandatory blood draw?
    See TEX. CODE CRIM. PROC. art. 38.23(b). RR. II Supp. 107-08.
    THIRD QUESTION FOR REVIEW
    Did the Fort Worth Court correctly apply the proper standard of review in a
    case where the error is of constitutional dimension? See TEX. R. APP. P. 44.2(a).
    Lewis, 
    2015 WL 1119966
    at *3. RR. III 38-97.
    ARGUMENTS AND AUTHORITIES
    The law at the time of trial was – and still is – in flux regarding Texas’
    mandatory blood draw provisions. Texas courts of appeals have grappled with the
    import of Missouri v. McNeely, 
    133 S. Ct. 98
    (2013). Indeed, this Court is in the
    midst of deciding some of the issues presented herein. Whilst a November 2014
    decision addressed the merits of the Fourth Amendment, the case is in flux since
    this Court recently granted rehearing. Villarreal, 
    2014 WL 6734178
    . Additionally,
    this Court has under submission six other McNeely-related cases, with yet another
    case granted and waiting for submission. Douds v. State, 
    434 S.W.3d 842
    (Tex.
    App.—Houston [14th Dist.] June 5, 2014, pet. granted) (submitted on arguments
    Mar. 13, 2015, PD-0857-14); Weems v. State, 
    434 S.W.3d 655
    (Tex. App.—San
    Antonio 2014, pet. granted) (submitted on arguments Nov. 19, 2014, PD-0635-
    6
    14); Reeder v. State, 
    428 S.W.3d 930
    (Tex. App.—Texarkana 2014, pet. granted)
    (submitted on arguments Jan. 14, 2015, PD-0601-14); Smith v. State, No. 13-11-
    00694-CR, ___ S.W.3d ___, 
    2014 WL 5901759
    (Tex. App.—Corpus Christi 2014,
    pet. granted) (submitted Apr. 29, 2015, PD-1615-CR); McGruder v. State, No. 10-
    13-00109-CR, ___ S.W.3d ___, 
    2014 WL 3973089
    (Tex. App.—Waco 2014, pet.
    granted) (submitted Apr. 15, 2015, PD-1263-14); Holidy v. State, No. 06-13-
    00261-CR, 
    2014 WL 1722171
    (Tex. App.—Texarkana Apr. 30, 2014, pet. granted)
    (mem. op., not designated for publication) (submitted on arguments Jan. 14, 2015,
    PD-0622-14); see also Cole v. State, 
    454 S.W.3d 89
    (Tex. App.—Texarkana 2014,
    pet. granted) (briefing in progress).
    In sum, the import of McNeely on Texas's mandatory-blood-draw and
    implied-consent statutes was unsettled at the time of Appellant’s trial and remains
    unsettled today. Perhaps with this uncertainty in mind, the trial court had the
    presence of mind to charge the jury that they could find Appellant guilty of DWI if
    they found either that his blood alcohol content was above 0.08 or that he lost the
    normal use of his mental or physical faculties by reason of the introduction of
    alcohol into his body. Tr. I 98. The jury returned a general verdict of guilty. RR.
    IV 59.
    Review should be granted in this case as well because this case involves
    important questions of law that have not been finally addressed by this Court. In
    7
    addition, this case presents questions that need resolution from this Court in light
    of the conflicts in the interim appellate courts. TEX. R. APP. P. 66.3(a)(b)(c)(d)(f).
    FIRST QUESTION FOR REVIEW
    Does a warrantless, nonconsensual blood draw conducted pursuant to TEX.
    TRANSP. CODE § 724.012(b) violate the Fourth Amendment? RR. II Supp. 107-08.
    There is nothing new in this first question for review: the State merely re-
    iterates the position of prosecutors from other counties across Texas whose cases
    are already under consideration by this Court on a McNeely-related issue. Hence,
    the State respectfully asks this Court to dispose of the instant case in a manner
    consistent with the petitions in Villarreal, Douds, Weems, Reeder, Smith,
    McGruder, Holidy, and Cole. Here, the officer reasonably relied on an existing,
    narrowly-focused, reasonable statute to obtain a compelled blood draw.             The
    seizure occurred when the officer—at the time of the offense—possessed probable
    cause that Appellant’s impaired and intoxicated conduct constituted felony DWI.
    TEX. PENAL CODE § 49.045; TEX. TRANSP. CODE § 724.012(b)(2).
    Codification of Fourth Amendment principles
    The State contends that this Court’s original opinion in Villarreal failed to
    consider that the implied-consent statute codified Fourth Amendment principles.
    8
    For instance, this Court has previously recognized a statutory codification of
    the exigency exception. See Miles v. State, 
    241 S.W.3d 28
    , 39–40 n.54 (Tex.
    Crim. App. 2007) (citing TEX. CODE CRIM. PROC. art. 18.16). McNeely recognized
    that every case involving the dissipation of alcohol included some exigency.
    
    McNeely, 133 S. Ct. at 1561
    , 1568. This ever-present exigency must be considered
    when assessing the reasonableness of statutory draws.
    Combine the static alcohol-evaporation-exigency consideration with the
    Legislature’s clear codification of the gravity-of-the-offense exigency.          The
    implied-consent statute extinguished a defendant’s right to refuse where an officer
    possesses probable cause to believe that certain enumerated, egregious
    circumstances exist. TEX. TRANSP. CODE § 724.012(b). Defendants only lose their
    refusal right under carefully circumscribed scenarios involving felonious
    intoxication-related offenses and/or resultant injuries necessitating hospitalization.
    
    Id. The statute
    only applies to the most serious categories of DWI offenders. This
    statutory limitation amounts to a codification of an additional recognized exigency
    unrelated to blood-alcohol dissipation. Welsh v. Wisconsin held that the Fourth
    Amendment authorizes common-sense consideration of the underlying offense’s
    gravity when weighing the existence of an exigency. Welsh v. Wisconsin, 
    466 U.S. 740
    , 751–52 (1984) (exigency calculations include consideration of a crime’s
    severity). Consideration of a crime’s gravity is the essence of reasonableness
    9
    because the State’s interest is greater in a more serious case. Cf. TEX. CODE CRIM.
    PROC. art. 14.04 (authorizing warrantless arrests for felonies where an officer did
    not observe the offense).
    Texas’ implied-consent legislation codified Fourth Amendment probable
    cause requirements. U.S. CONST. amend. IV. Elements of the implied consent
    statute act to codify this well-known quantum-of-evidence as a requirement for a
    compelled search.     TEX. TRANSP. CODE § 724.012(b).        The probable cause
    requirement and the factual exigencies of felonious conduct and the dissipation of
    alcohol together create a neutral, non-arbitrary framework authorizing a seizure
    from an already-in-custody arrestee. These refinements in the implied-consent
    statutes structure embrace the essence of Fourth Amendment “reasonableness.”
    Texas’ special needs framework adds to the reasonableness calculation
    The now-withdrawn Villarreal decision rejected application of the Supreme
    Court’s special needs doctrine to the mandatory blood draw framework.
    Villarreal, 
    2014 WL 6734178
    at *14–15; see Skinner v. Railway Labor Executives’
    Ass’n, 
    489 U.S. 602
    , 619 (1989). However, this Court did not consider that blood
    drawn pursuant to Chapter 724’s mandate also implicates administrative license
    revocation [ALR] procedures, a separate regulatory process that focuses on
    protecting the traveling public by removing offenders from the road. See TEX.
    10
    TRANSP. CODE § 524.012(b)(1) (mandating license suspension based upon BAC).
    “The primary purpose of the administrative license suspension statute is not to
    deter the licensee or to seek retribution, but to protect the public from the carnage
    on the public roads of Texas caused by drunk drivers.” Tharp v. State, 
    935 S.W.2d 157
    , 159 (Tex. Crim. App. 1996). Such regulation focuses on the government’s
    strong interest in removing intoxicated drivers from the road, just as railroad
    regulation in Skinner sought to increase railway safety by detecting intoxicated
    employees. Compare 
    Skinner, 489 U.S. at 620
    –21 with 
    Tharp, 935 S.W.2d at 159
    .
    Special needs principles recognize the statute’s provision of a neutral,
    detached vehicle for protecting citizens from impaired drivers and defendants from
    unfettered discretion. The special-needs exception constitutes another factor to
    consider in analyzing Texas’ compelled-draw framework.
    Erroneous consideration of the “Less Intrusive Means” test
    The original Villarreal decision considered the ready availability of warrants
    when rejecting the validity of Texas’ mandatory draw statute. Villarreal, 
    2014 WL 6734178
    , at *18 (finding no compelling need to uphold warrantless, nonconsensual
    blood searches where warrants are “often readily available”). However, factors
    such as electronic warrants and the availability of a magistrate shift the focus away
    from an officer’s conduct and, instead, weigh considerations of alternative means.
    11
    But see 
    McNeely, 133 S. Ct. at 1560
    –64 (Part IIB’s alternative means analysis
    applied when determining whether per se exigency existed). The Supreme Court
    resoundingly rejected applying less-intrusive-alternative-practices arguments to
    Fourth Amendment cases not resolved under the exigency exception. Vernonia
    School Dist. 47J v. Acton, 
    515 U.S. 646
    , 663–64 n.3 (1995) (upholding
    warrantless, random urine screening of athletes after considering diminished
    privacy, unobtrusiveness, and severity of need, spurning arguments relying on less
    intrusive alternatives); 
    Skinner, 489 U.S. at 629
    n.9 (upholding random,
    suspicionless drug screening of railway employees under special needs exception
    and discarding less-drastic-and-equally-effective-means arguments). One footnote
    in Skinner flatly debunks the propriety of considering less-drastic alternatives in
    scenarios that include warrantless and even suspicionless seizures for toxicological
    testing, similar to Appellant’s facts. 
    Id. The State
    maintains that the “less-restrictive-alternatives” paradigm only
    logically applies when a seizure’s validity rests solely on the temporal factors
    presenting an exigency. However, less-drastic, post-hoc what-ifs do not apply to
    reasonableness calculations factoring in other warrantless exceptions. Hence, the
    State contends Villarreal’s analysis mistakenly applied this construct.
    12
    Implied-consent draws are reasonable
    Reasonableness has always been the linchpin of the Fourth Amendment,
    venerated in the provision’s plain language. U.S. CONST.       AMEND.   IV; Hulit v.
    State, 
    982 S.W.2d 431
    , 435–36, 438 (Tex. Crim. App. 1998). Discernment of what
    is “reasonable” requires courts to consider the balance between an individual’s
    privacy and legitimate governmental interests, especially when public safety is of
    utmost concern. See Maryland v. King, 569 U.S. ___, 
    133 S. Ct. 1958
    , 1979
    (2013); Michigan Dept. of State Police v. Sitz, 
    496 U.S. 444
    , 455 (1990); Segundo
    v. State, 
    270 S.W.3d 79
    (Tex. Crim. App. 2008), cert. denied, 
    558 U.S. 828
    (2009).
    Villarreal viewed the choice between applying a Fourth Amendment exception and
    consideration of a reasonableness balancing approach as mutually exclusive
    analytical constructs. The State respectfully believes that this black-white
    consideration of these two concepts is mistaken, especially in light of the fact that
    this Court has relied upon the balancing approach to assay reasonableness on
    similar issues. See 
    Segundo, 270 S.W.3d at 96
    –99; McGee v. State, 
    105 S.W.3d 609
    (Tex. Crim. App. 2003); 
    Hulit, 982 S.W.2d at 434
    n.1, 436.
    Years ago, the Supreme Court recognized that a framework requiring a
    driver’s consent was anything but nonsensical. The Breithaupt court pointed to
    recently adopted implied-consent provisions and wrote:
    It might be a fair assumption that a driver on the highways in
    obedience to a policy of the State, would consent to have a blood test
    13
    made as part of a sensible and civilized system protecting himself as
    well as other citizens not only from the hazards of the road due to
    drunken driving, but also from some use of dubious lay testimony.
    Breithaupt v. Abram, 
    352 U.S. 432
    , 435 n.2 (1957). The State contends that
    compelled draws under implied-consent provisions are inherently reasonable when
    weighing the needs of all involved. Indeed, Fourth Amendment reasonableness
    underpins the statute. The well-known exceptions—as argued in the myriad cases
    already before this Court—considered individually and in concert with each other,
    alongside a balancing of the competing interests, all support the continued viability
    of Texas’ implied-consent framework.
    SECOND QUESTION FOR REVIEW
    Do exclusionary rule principles mandate suppression of blood evidence
    seized via a warrantless, nonconsensual, valid-at-the-time mandatory blood draw?
    See TEX. CODE CRIM. PROC. art. 38.23(b). RR. III 38-97.
    Simply put: the rules requiring the exclusion of evidence should not apply to
    mandatory blood-draw scenarios that occurred under the auspices of TEX. TRANSP.
    CODE § 724.012(b)(2) and which were performed prior to the Supreme Court’s
    April 2013 pronouncement.
    Federally, the good-faith exception to the Fourth Amendment’s exclusionary
    rule applies when law enforcement, at the time of the search, acted objectively
    14
    reasonably by relying on (1) a statute, later declared unconstitutional, or (2)
    binding judicial precedent, subsequently overruled. Illinois v. Krull, 
    480 U.S. 342
    ,
    349-57 (1987) (statutes); Davis v. United States, ___ U.S. ___, 
    131 S. Ct. 2419
    ,
    2428-34 (2011) (caselaw).
    Under state law, the Texas exclusionary rule is not invoked because—at the
    time of the offense—no violation occurred. The State recognizes that article
    38.23(b)—Texas’ limited good faith exception—requires a warrant. TEX. CODE
    CRIM. APP. PROC. art. 38.23(b). Notwithstanding, invocation of exclusionary rule
    principles relies on article 38.23(a). That subsection’s plain language requires a
    violation for exclusion to be triggered. When Appellant’s blood was drawn, no
    one credibly questioned the validity of the officer’s statutory authority. 2 Both the
    trial court and the Fort Worth Court made it clear in their rulings that the officer
    was following the law as it existed at the time of the blood draw herein. RR. II
    Supp. II 107-08. See Lewis, 
    2015 WL 1119966
    at *2-3. In other words, at the
    time of the seizure, the officer followed then-existing law. See TEX. CODE CRIM.
    PROC. art. 38.23(a); see also TEX. PENAL CODE §1.07(a)(30) (defining “law” as
    meaning the state and federal constitution and statutes, in addition to the written
    opinions of a court of record); see also 
    Davis, 131 S. Ct. at 2427-28
    (“obtained”
    2
    See Beeman v. State, 
    86 S.W.3d 613
    , 615 (Tex. Crim. App. 2002); TEX. TRANSP. CODE
    §724.012(b); see also Karev v. State, 
    281 S.W.3d 428
    , 434 (Tex. Crim. App 2009) (statutes
    presumed constitutional until held otherwise).
    15
    applies to unlawfulness at the time of the seizure; exclusion not triggered in an
    absence of police culpability). Simply put, these circumstances should not require
    exclusion. 3
    The Supreme Court mentioned, in dictum, the application of the
    exclusionary rule versus Fourth Amendment violations in a non-blood-draw
    scenario decided recently. In Heien, the Court weighed the validity of an
    investigatory stop where the officer misunderstood the traffic code provision he
    relied on to support the stop. See Heien v. North Carolina, 
    135 S. Ct. 530
    , 534-36
    (2014). The Supreme Court considered the reasonableness of the officer’s mistake
    that lead to the stop and arrest when considering remedies. In so doing, the Court
    pointed    out    the     myriad    decisions     finding    exclusionary-rule      invocation
    inappropriate where the officer’s conduct—valid at the time—was later declared
    unconstitutional.       
    Id. With only
    one justice dissenting, the Supreme Court’s
    decision pondered the exclusionary rule’s limits which had been briefly considered
    in Michigan v. DeFillippo, 
    443 U.S. 31
    , 33, 37-38 (1979) (suggesting that
    exclusion might have been appropriate had the provision been “grossly and
    3
    See also United States v. Peltier, 
    422 U.S. 531
    , 541-42 (1975) (upholding suspicionless,
    warrantless seizure of person by roving border patrol agents based upon constitutional-at-time
    statute); 
    Krull, 480 U.S. at 349
    –50 (exclusionary rule inapplicable when police rely on statute
    later found unconstitutional); Mapp v. Ohio, 
    367 U.S. 643
    , 656 (1961) (exclusionary rule seeks
    to deter officers from violating law to obtain evidence); Thornton v. State, 
    145 S.W.3d 228
    , 233-
    34 (Tex. Crim. App. 2004) (exclusion not justified where marginal or nonexistent deterrent
    benefits); accord State v. Reese, 
    353 Wis. 2d 266
    , 
    844 N.W.2d 396
    , 402 (Wis. App. 2014) (no
    exclusion in McNeely case since no time-of-seizure misconduct).
    16
    flagrantly unconstitutional”) (citation omitted). Although the Heien discussion is
    merely dicta, it reiterates the importance of focusing on the fact that the instant
    officer’s conduct fully complied with mandatory, settled law at the time of
    Appellant’s arrest. McNeely and subsequent caselaw questioning implied-consent
    blood draws came later. Since no violation occurred at the time of the Appellant’s
    2012 blood draw, article 38.23’s exclusionary provision does not apply. Thus, this
    Court should reverse and remand this case to the Fort Worth Court for application
    of the correct standards of review.
    THIRD QUESTION FOR REVIEW
    Did the Fort Worth Court correctly apply the proper standard of review in a
    case where the error is of constitutional dimension? See TEX. R. APP. P. 44.2(a).
    Lewis, 
    2015 WL 1119966
    at *3. RR. III 38-97.
    It is well settled that there is no set formula for conducting a harm analysis
    that necessarily applies across the board, to every case and every type of
    constitutional error. Snowden v. State, 
    353 S.W.3d 815
    , 822 (Tex. Crim. App.
    2011). However, this Court has prescribed several nonexclusive factors to be
    considered when conducting a harm analysis under Rule 44.2(a), including: (1) the
    nature of the error, (2) the extent the error was emphasized by the State, (3) the
    weight a juror would probably place on the error, and (4) the error's probable
    17
    collateral consequences. 
    Snowden, 353 S.W.3d at 822
    n. 31. When conducting a
    harm analysis in the context of a constitutional violation, appellate courts are to
    “‘judge the magnitude of the error in light of the evidence as a whole to determine
    the degree of prejudice to the defendant resulting from that error.’” Jones v. State,
    
    119 S.W.3d 766
    , 777 (Tex. Crim. App. 2003) (quoting United States v. Polanco,
    
    93 F.3d 555
    , 562–63 (9th Cir. 1996)).
    If the foregoing test had been applied properly, one would see the error in
    the Fort Worth Court’s holding. First, the State was clear during voir dire about all
    three ways the defendant could have been found guilty: loss of normal use of
    physical faculties, loss of normal use of mental faculties, and blood alcohol content
    greater than .08.   RR. II 46-53. At trial, there was ample evidence of each. See
    generally State’s petition at 3-4.   Again, if the State’s argument was considered in
    its entirety, this Court would see that the State referenced each definition of
    intoxication and how it applied to Lewis in approximately equal proportion. RR.
    IV 40; 53-54; 57-58. Both prosecutors made frequent reference to the videotape of
    the stop and arrest and his appearance and behavior on the tape. RR. IV 41-42; 53-
    54; 58. Defense counsels’ argument, on the other hand was limited to suggesting
    the arresting officer was racist (“rogue racist policeman”) and that there was an
    unspecified impropriety in the taking and testing of the blood. RR. IV 43; 44-46.
    18
    It is also telling that the jury took less than 30 minutes to return with their guilty
    verdict. RR. IV 58-59.
    In regard to the third factor, appellate courts are to consider whether the
    other evidence showed culpability overwhelmingly as well as the character of the
    error and how the evidence gleaned from the search might be considered in
    connection with other evidence in the case. Motilla v. State, 
    78 S.W.3d 352
    , 359
    (Tex. Crim. App. 2002). There was overwhelming evidence aside from the blood
    test that Lewis was driving while intoxicated, including bloodshot eyes, slurred
    speech, heavy smell of alcohol on his person, extreme belligerence, refusal to
    comply with police requests, use of obscenities, and threats of violence toward
    police and medical personnel. RR. III 38-92.
    Indeed, taken to its logical conclusion, the Fort Worth Court’s opinion
    would eviscerate the constitutional harmless error argument. This DWI is not the
    factual equivalent of a drug case, wherein without the introduction of the drugs,
    there is no evidence to convict. See McQuarters v. State, 
    58 S.W.3d 250
    , 258
    (Tex. App. – Fort Worth 2001, pet. ref’d). Instead, there was overwhelming
    evidence of Lewis’s guilt without the blood draw: bloodshot eyes, slurred speech,
    extreme belligerence, refusal to comply with police requests, use of obscenities and
    threats of violence toward medical personnel. RR. III 38-92. There was the
    arresting officer’s in car recording which corroborated much of the behavior
    19
    indicative of the loss of normal use of Lewis’s faculties. See State’s Ex. 3. The
    State contends that the Fort Worth Court’s opinion does not give appropriate
    weight to this evidence in their harmless error analysis. Instead, the opinion seems
    to hold that any tainted evidence of a blood draw is so overwhelming that no
    amount of other incriminating evidence can overcome the error. This is simply not
    the law in Texas. Clay v. State, 
    240 S.W.3d 895
    , 904 (Tex. Crim. App. 2007).
    In summary, the State believes that Villareal was wrongly decided for a
    number of reasons. Instead, the State urges this Court to conclude that the Texas
    statutes are sufficiently protective of defendants’ Fourth Amendment rights to pass
    constitutional muster.   Also, the State contends that a proper harmless error
    analysis in the case at hand, on these facts, would lead to the conclusion that any
    error is harmless.
    CONCLUSION AND PRAYER
    Review should be granted and the decision of the Court of Appeals should
    be reversed. The State prays that Appellant’s felony DWI conviction should be
    upheld.
    Respectfully submitted,
    SHAREN WILSON
    Criminal District Attorney
    Tarrant County, Texas
    20
    DEBRA WINDSOR, Assistant
    Criminal District Attorney
    Chief, Post-Conviction
    /s/ Danielle A. Kennedy
    DANIELLE A. KENNEDY
    Assistant Criminal District Attorney
    Tim Curry Criminal Justice Center
    401 W. Belknap
    Fort Worth, Texas 76196-0201
    (817) 884-1687
    FAX (817) 884-1672
    State Bar No. 12166650
    CCAappellatealerts@tarrantcountytx.gov
    CERTIFICATE OF COMPLIANCE
    This document complies with the typeface requirements of Tex. R. App. P.
    9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
    point for text and 12-point for footnotes. This document also complies with the
    word-count limitations of Tex. R. App. P. 9.4 (i) because it contains less than 3400
    words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1), as computed by
    Microsoft Word 10, the computer software used to prepare the document.
    /s/ Danielle A. Kennedy
    DANIELLE A. KENNEDY
    21
    CERTIFICATE OF SERVICE
    A true copy of the State's petition for discretionary review has been e-served
    to opposing counsel, Hon. Abe Factor, lawfactor@yahoo.com, 5719 Airport
    Freeway,   Fort   Worth,    Texas    76117,     and   to   Hon.    Lisa   McMinn,
    information@spa.texas.gov, State’s Prosecuting Attorney’s Office, P. O. Box
    13046, Austin, Texas 78711, on this, the 13th day of May 2015.
    /s/ Danielle A. Kennedy
    DANIELLE A. KENNEDY
    22
    APPENDIX
    A
    Page 1
    Not Reported in S.W.3d, 
    2015 WL 1119966
    (Tex.App.-Fort Worth)
    (Cite as: 
    2015 WL 1119966
    (Tex.App.-Fort Worth))
    ated (DWI) and from his five-year sentence. We re-
    Only the Westlaw citation is currently available.         verse the trial court's order denying Lewis's pretrial
    motion to suppress and judgment and remand the
    SEE TX R RAP RULE 47.2 FOR DESIGNATION
    case to the trial court for further proceedings.
    AND SIGNING OF OPINIONS.
    I. BACKGROUND
    MEMORANDUM OPINIONDO NOT PUBLISH
    Late at night on July 17, 2012, Officer Jose
    TEX.R.APP. P. 47.2(B)
    Lopez saw a car speeding, and then it failed to stop
    Court of Appeals of Texas,                      at a stop sign. Lopez began following the car and
    Fort Worth.                            saw the car “fail to maintain a single lane of travel
    Robert Othella James Lewis a/k/a Robert Lewis,           ... straddl[ing] some of the lines.” Lopez pulled
    Appellant                             over the car. Lewis was the driver and sole occu-
    v.                                pant of the car and informed Lopez that he did not
    The State of Texas, State                      have any identification. Lewis was uncooperative
    and exhibited slurred speech and “watery, red
    NO. 02–13–00416–CR                            eyes.” Lopez smelled a “strong smell of an alcohol-
    DELIVERED: March 12, 2015                       ic beverage” on Lewis's breath. After initially re-
    fusing to get out of his car, Lewis eventually got
    FROM THE CRIMINAL DISTRICT COURT NO.                      out after Lopez pointed his Taser at him. Lewis also
    1 OF TARRANT COUNTY, TRIAL COURT NO.                      refused to perform any field-sobriety tests.
    1299359D, HON. SHAREN WILSON, TRIAL
    COURT JUDGE                                                    Lopez then arrested Lewis, but Lewis would
    ABE FACTOR, DANIEL COLLINS FACTOR,                        not put his hands behind his back as requested.
    CAMPBELL & COLLINS FORT WORTH,                            Lewis refused five times to put his hands behind his
    TEXAS, ATTORNEY FOR APPELLANT                             back, and Lopez eventually fired his Taser at Lewis
    after warning him that he would do so if Lewis
    SHAREN WILSON, CRIMINAL DISTRICT AT-                      would not comply. After being hit by the Taser,
    TORNEY; DEBRA WINSOR, CHIEF OF POST                       Lewis fell and hit his head on the ground. Lopez
    CONVICTIONS; DANIELLE A. KENNEDY,                         called for an ambulance, but Lewis refused medical
    SAMUEL WILLIAMS AND GRAHAM NORRIS,                        attention at the scene. Lopez handcuffed Lewis. At
    ASSISTANT CRIMINAL DISTRICT ATTOR-                        this point, Lopez found Lewis's identification in his
    NEY(S) FOR TARRANT COUNTY FORT                            wallet and subsequently discovered that Lewis had
    WORTH, TEXAS, ATTORNEY FOR STATE                          two prior DWI convictions. As statutorily author-
    ized, Lopez then took Lewis to the hospital for a
    PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.                  mandatory blood draw without first obtaining a
    warrant. See Tex. Transp. Code Ann. §
    724.012(b)(3) (West 2011). At the hospital, Lewis
    FN1
    MEMORANDUM OPINION                                began cursing very loudly, threatened to kick hos-
    pital staff members in the face if they drew his
    FN1. See Tex. R. App. P. 47.4.
    blood, and had to be held down by two officers and
    LEE GABRIEL JUSTICE                                       several hospital staff members. The blood test re-
    *1 Appellant Robert Othella James Lewis ap-           vealed that Lewis had a blood-alcohol content of
    peals from his conviction for driving while intoxic-      .27, which is more than three times above the legal
    limit. See Tex. Penal Code Ann. § 49.01(2)(B)
    © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
    Page 2
    Not Reported in S.W.3d, 
    2015 WL 1119966
    (Tex.App.-Fort Worth)
    (Cite as: 
    2015 WL 1119966
    (Tex.App.-Fort Worth))
    (West 2011).                                             v.      State,    
    273 S.W.3d 681
    ,       684
    (Tex.Crim.App.2008). Therefore, we view the facts
    A grand jury indicted Lewis for DWI and in-         in the light most favorable to the trial court's de-
    cluded a felony-repetition paragraph alleging that       cision, giving almost total deference to the trial
    Lewis had twice previously been convicted of DWI.        court's express or implied determination of historic-
    See 
    id. §§ 49.04(a),
    49.09(b) (West Supp. 2014).         al facts, and review de novo the court's application
    Before trial, Lewis filed a motion to suppress the       of the law of search and seizure to those facts. 
    Id. blood-alcohol results
    because there were no exigent
    circumstances or any other exception to the consti-           Lopez did nothing wrong at the time he had
    tutional warrant requirement; thus, Lewis argued         Lewis's blood drawn without a warrant based on the
    that the blood-alcohol results, which were obtained      authority of section 724.012. Similarly, the trial
    without a warrant, were inadmissible. See generally      court understandably held that the statute specific-
    McGee v. State, 
    105 S.W.3d 609
    , 615                      ally authorized the blood draw and was, in effect,
    (Tex.Crim.App.) (delineating three exceptions to         an exception to the warrant requirement. However,
    search-warrant requirement), cert. denied, 540 U.S.      the court of criminal appeals recently held that the
    1004 (2003).                                             provisions in the transportation code allowing war-
    rantless blood or breath samples to be taken without
    The trial court held an evidentiary hearing on      consent, including section 724.012, are alone not “a
    the motion at which Lopez testified that he did not      constitutionally valid alternative to the Fourth
    consider obtaining a warrant to draw Lewis's blood,      Amendment warrant requirement.” State v. Villar-
    although he knew how to do so, and that he had           real, No PD–0306–14, 
    2014 WL 6734178
    , at *20
    Lewis's blood drawn under the authority of section       (Tex.Crim.App. Nov. 26, 2014) (5–4 opinion),
    724.012. The trial court concluded that no exigent       reh'g granted, No. PD–0306–14 (Feb. 25, 2015).
    circumstances justified the warrantless blood draw       Here, the State did not argue any exception to the
    but that the blood draw nevertheless was authorized      warrant requirement justified the warrantless search
    by section 724.012; thus, the trial court held the       and relied solely on section 724.012. Indeed, the
    blood-alcohol results admissible even in the ab-         trial court recognized there were no exigent circum-
    FN2
    sence of a warrant and denied the motion.       The      stances dispensing with the warrant requirement.
    blood-alcohol results were admitted at trial, and a      See Missouri v. McNeely, 
    133 S. Ct. 1552
    , 1563,
    jury found Lewis guilty of DWI. After a punish-          1568 (2013) (holding natural metabolization of al-
    ment hearing, the jury assessed his punishment at        cohol in the bloodstream does not present a per se
    five years' confinement.                                 exigency justifying exception to warrant require-
    ment for nonconsensual blood testing in DWI
    FN2. Although the trial court stated at the
    cases). Further, Lopez's good-faith belief that the
    hearing that it would be entering findings
    statute authorized the warrantless search does not
    of fact and conclusions of law, the clerk's
    overcome the exclusionary rule. See Burks v. State,
    record does not include findings or conclu-
    No. 02–13–00560–CR, 
    2015 WL 115964
    , at *3
    sions. In recounting the trial court's rul-
    (Tex.App.–Fort Worth Jan. 8, 2015, no pet.). Based
    ings, we are relying on the trial court's
    on Villarreal, the trial court erred in its application
    statements in the reporter's record from the
    of the law to the facts and, thus, by denying Lewis's
    motion-to-suppress hearing.
    motion to suppress.
    II. DISCUSSION
    B. HARM ANALYSIS
    A. ABUSE OF DISCRETION
    We review the harm resulting from a trial
    *2 We review the denial of a motion to sup-
    court's erroneous denial of a motion to suppress and
    press evidence for an abuse of discretion. Shepherd
    © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
    Page 3
    Not Reported in S.W.3d, 
    2015 WL 1119966
    (Tex.App.-Fort Worth)
    (Cite as: 
    2015 WL 1119966
    (Tex.App.-Fort Worth))
    subsequent admission of evidence obtained in viol-           content of over .08 percent. Well, in this case he
    ation of the Fourth Amendment under the constitu-            had a blood-alcohol content of .27 percent....
    tional harmless-error standard. Tex. R. App. P.
    44.2(a); see Hernandez v. State, 
    60 S.W.3d 106
    ,                ....
    108 (Tex.Crim.App.2001) (mandating application
    That's three times the legal limit. Three times.
    of rule 44.2(a) to harm analysis of trial court's erro-
    We know he was intoxicated.
    neous denial of motion to suppress under the Fourth
    Amendment). This standard requires us to reverse                Although there was other evidence of Lewis's
    the trial court's judgment of conviction unless we         intoxication—bloodshot eyes, an odor of alcohol,
    “determine beyond a reasonable doubt that the error        slurred speech, and his refusal to perform field-
    did not contribute to the conviction or punishment.”       sobriety tests—we cannot conclude beyond a reas-
    Tex. R. App. P. 44.2(a). Our primary question is           onable doubt that the blood-alcohol evidence did
    whether there is a reasonable possibility that the er-     not contribute to the jury's verdict. The evidence
    ror might have contributed to the conviction or pun-       that Lewis's blood-alcohol content was three times
    ishment. Mosley v. State, 
    983 S.W.2d 249
    , 259              the legal limit had a probable impact on the verdict
    (Tex.Crim. App.1998), cert. denied, 
    526 U.S. 1070
             even in light of the other evidence indicating intox-
    (1999). In other words, we calculate the probable          ication, and there is a reasonable possibility that the
    impact the evidence had on the verdict in light of         error might have contributed to Lewis's conviction
    the other evidence. McCarthy v. State, 65 S.W.3d           or punishment. See, e.g., Cole v. State, No.
    47, 55 (Tex.Crim.App.2001, cert. denied, 
    536 U.S. 06
    –13–00179–CR, 
    2014 WL 7183859
    , at *10
    972 (2002).                                                (Tex.App.–Texarkana Dec. 18, 2014, pet. filed); cf.
    Gentry v. State, No. 12–13–00168–CR, 2014 WL
    Here, the blood-alcohol results were introduced
    4215544, at *4 (Tex.App.–Tyler Aug. 27, 2014,
    through the testimony of a forensic toxicologist,
    FN3                                             pet. filed) (mem. op., not designated for publica-
    Joyce Ho.       She testified that Lewis's blood-al-
    tion) (holding admission of blood-alcohol evidence
    cohol content was .27. The chief toxicologist,
    harmed defendant because court could not conclude
    Robert Johnson, testified that .27 was over the legal
    erroneous denial of motion to suppress did not in-
    limit of .08 and that such a blood-alcohol level
    fluence defendant's decision to plead guilty). In-
    could result in unconsciousness or abnormal
    deed, the State stressed that Lewis's blood-alcohol
    “walking and talking.” Johnson also stated that it
    content was the “clearest” indicator that Lewis was
    was possible Lewis's blood-alcohol content was
    legally intoxicated. We sustain Lewis's first issue.
    higher than .27 at the time Lopez stopped him              FN4
    based on retrograde extrapolation. During closing
    jury arguments, the State recognized that Lewis's                     FN3. The State does not argue that Lewis's
    demeanor and odor of alcohol were “signs that he                      failure to object to the admission of the
    was intoxicated.” But the State continued that the                    blood-alcohol results on the basis of the
    “clearest” sign of intoxication was his blood-alco-                   Fourth Amendment at trial resulted in a
    hol content:                                                          waiver of his motion-to-suppress argu-
    ments, and we do not construe it to be so in
    *3 [Lewis's impaired physical and mental condi-
    the context of this case. See Thomas v.
    tion is] not the clearest reason why we know
    State,    
    408 S.W.3d 877
    ,     885–86
    [Lewis was legally intoxicated]. Because remem-
    (Tex.Crim.App.2013).
    ber there's three ways in which you can find that
    the defendant was intoxicated that night.... And                    FN4. Because our conclusion regarding
    the third way is that he had ... a blood alcohol                    Lewis's first issue results in reversal of the
    © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
    Page 4
    Not Reported in S.W.3d, 
    2015 WL 1119966
    (Tex.App.-Fort Worth)
    (Cite as: 
    2015 WL 1119966
    (Tex.App.-Fort Worth))
    trial court's judgment, we need not address
    Lewis's second issue raising jury-selection
    error. See Tex. R. App. P. 44.2(a), 47.1.
    III. CONCLUSION
    Because we hold that the trial court erred by
    denying Lewis's motion to suppress and that there
    is a reasonable possibility that this constitutional er-
    ror might have contributed to Lewis's conviction or
    punishment, we reverse the trial court's order deny-
    ing Lewis's motion to suppress and the trial court's
    judgment and remand this case to the trial court for
    further proceedings consistent with this opinion.
    See Tex. R. App. P. 43.2(d).
    Tex.App.-Fort Worth, 2015
    Lewis v. State
    Not Reported in S.W.3d, 
    2015 WL 1119966
    (Tex.App.-Fort Worth)
    END OF DOCUMENT
    © 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.