Gene Allen Burks v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00560-CR
GENE ALLEN BURKS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1302810D
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OPINION
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I. INTRODUCTION
Appellant Gene Allen Burks appeals his conviction for driving while
intoxicated (DWI)–felony repetition. See Tex. Penal Code Ann. §§ 49.04, .09
(West Supp. 2014). In a single point, he argues that the trial court erred by
denying his motion to suppress blood alcohol test results obtained using the
mandatory-blood-draw procedure of the Texas Transportation Code and without
his consent or a valid search warrant. See Tex. Transp. Code Ann. §§
724.011(a), 724.012(b), 724.013 (West 2011). Following the court of criminal
appeals’s recent opinion in State v. Villarreal, No. PD-0306-14, 2014 WL
6734178 (Tex. Crim. App. Nov. 26, 2014), in which the court held that such a
warrantless, nonconsensual draw of a DWI suspect’s blood does not
categorically fall within any recognized exception to the Fourth Amendment’s
warrant requirement, nor can it be justified under a general Fourth Amendment
balancing test, we will reverse the trial court’s suppression order and judgment
and remand the case to the trial court.
II. FACTUAL AND PROCEDURAL BACKGROUND
Burks was indicted for felony DWI. He filed a “Motion to Suppress Blood
Alcohol Test Results Obtained Without Consent or Valid Search Warrant.” Prior
to a hearing on Burks’s motion, the parties agreed to stipulate to the evidence for
purposes of the hearing as follows:
1. On October 31, 2012, around 8:59 p.m., North Richland Hills Police
Officer Kevin Croft #767 possessed reasonable suspicion and
probable cause to initiate a traffic stop of the Defendant’s motor
vehicle which was being operated by the Defendant in Tarrant
County, Texas in a public place. Officer Croft executed this stop
based upon information relayed to North Richland Hills PD dispatch
by a credible 911 caller, Philip Hare. Officer Croft also based the
stop upon his personal observation of the Defendant’s vehicle
changing lanes without signaling as required under Section 545.104
of the Texas Transportation Code.
2. On October 31, 2012, Officer Kevin Croft had probable cause to
arrest the Defendant for Driving While Intoxicated [DWI] under
Chapter 49, Texas Penal Code. The officer reasonably believed that
the Defendant committed the offense of DWI based upon: the
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information gleaned from the 911 caller; the Defendant’s physical
appearance which was consistent with having imbibed alcohol; the
Defendant’s admission to drinking alcohol; and the Defendant’s poor
performance on field sobriety tests. Officer Croft arrested the
Defendant, without warrant, at approximately 9:19 p.m.
3. Prior to the Defendant’s arrest, the Defendant told Officer Croft he
had consumed two beers; after the Defendant’s arrest, at
approximately 10:35 p.m. and after having been properly Mirandized
and agreeing to waive his Miranda rights and answer questions, the
Defendant told Officer Croft that he drank four or five beers. The
Defendant exclaimed to Officer Croft that he had not been that
intoxicated in a long, long time.
4. Officer Croft read the Defendant the DIC-24 Statutory Warning at
approximately 10:09 p.m. and requested a specimen of the
Defendant’s blood. The Defendant refused to provide a specimen of
his blood voluntarily.
5. The requirements set forth in Texas Transportation Code Section
724.012 to obtain a mandatory blood sample from the Defendant
were met. Specifically, (1) that Officer Croft had reasonable grounds
to believe that the Defendant operated a motor vehicle in a public
place while intoxicated, (2) the Defendant refused Officer Croft’s
request to submit to the taking of a specimen voluntarily, and (3) at
the time of the arrest, Officer Croft possessed or received reliable
information from a credible source that the Defendant on two or
more occasions had been previously convicted or placed on
community supervision for an offense under Section 49.04, 49.05,
49.06, or 49.06 [sic].
6. The Defendant’s blood draw was conducted around 10:10 p.m.
using medically-accepted procedures. Philip Fabian, a registered
professional nurse, drew the Defendant’s blood at the North Hills
Hospital emergency room, a sanitary place.
7. The date of arrest, October 31, 2012, was not during a “No-refusal”
period where magistrates are available in a streamlined manner to
review and sign search warrants.
8. North Richland Hills PD officers are trained and experienced
regarding obtaining search warrants.
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9. North Richland Hills PD has magistrates available to review and sign
search warrants. However, this process is not as streamlined as it is
during “No-Refusal” periods.
10. Officer Croft obtained the Defendant’s compelled blood sample
pursuant to the mandatory provisions of Texas Transportation Code
Section 724.012(b). Other than the ever-present exigency-related
factors that exist in the cases enumerated in Section 724.012(b),
that is, the constant dissipation of alcohol from the bloodstream and
the severity of the offense committed, here, by a DWI recidivist, no
other exigencies arose from the circumstances of the offense.
Officer Croft relied on the mandatory terms of Texas’[s] implied-
consent statute.
11. The Defendant was in possession of a valid Texas driver’s license
at the time of this offense.
After a hearing, the trial court denied Burks’s motion to suppress. Burks
pleaded guilty pursuant to a plea bargain, and in accordance with the plea
bargain, the trial court sentenced Burks to ten years’ confinement and a $1,500
fine, suspended imposition of the confinement portion of the sentence, and
placed Burks on community supervision for five years.
III. BLOOD DRAW VIOLATED FOURTH AMENDMENT
In Missouri v. McNeely, the United States Supreme Court held that the
natural dissipation of alcohol in the bloodstream does not present a per se
exigent circumstance justifying a blood test without a warrant in all DWI cases.
133 S. Ct. 1552, 1563 (2013). Exigency in this context must be determined case
by case based on the totality of the circumstances. Id.
Texas’s implied-consent and mandatory-blood-draw statutes provide a
statutory scheme whereby the taking of blood samples is premised on “implied
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consent” and is required in certain DWI investigations, including felony DWI,
even if the suspect refuses consent. See Tex. Transp. Code Ann. §§ 724.011(a),
724.012(b), 724.013. Our sister courts have grappled with the import of McNeely
upon our mandatory-blood-draw and implied-consent statutes. The court of
criminal appeals recently resolved the issue:
We hold that the provisions in the Transportation Code do not, taken
by themselves, form a constitutionally valid alternative to the Fourth
Amendment warrant requirement. We thus reject the State’s
assertion that a warrantless, nonconsensual blood draw conducted
pursuant to those provisions can fall under one of the established
exceptions to the warrant requirement described above, and we
further reject the State’s suggestion that such a search may be
upheld under a general Fourth Amendment balancing test.
Villarreal, 2014 WL 6734178, at *10–16. Specifically, the court in Villarreal
rejected the State’s arguments that (1) a warrantless, nonconsensual blood test
under the transportation code should be upheld as categorically reasonable
under the consent exception—applicable in the form of a prior waiver through
implied consent, the automobile exception, the special-needs exception, or the
search-incident-to-arrest exception, (2) a blood draw should be treated as a
seizure instead of a search, and (3) such a search may be upheld on the basis
that it is reasonable under a general Fourth Amendment balancing test. Id. at
*10–17. The State raises these same arguments in this appeal.
In this case, Burks did not consent to a blood draw, and a warrant to draw
his blood was not obtained. The State does not rely on the exigent
circumstances exception to the warrant requirement. There was no accident or
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injury; as stated in the stipulated facts, the only “exigency” was “the constant
dissipation of alcohol from the bloodstream and the severity of the offense
committed, here, by a DWI recidivist.” Officer Croft relied exclusively on the
“mandatory provisions” of transportation code section 724.012(b)(3)(B) for the
warrantless blood draw. See Tex. Transp. Code Ann. § 724.012(b)(3)(B).
Following Villarreal, we hold that this warrantless, nonconsensual blood draw
conducted pursuant to the mandatory-blood-draw and implied-consent provisions
of the Texas Transportation Code violated the Fourth Amendment. See 2014
WL 6734178, at *21.
The State alternatively argues that because the officer in this case was
following the mandatory terms of the transportation code, the exclusionary rule
should not apply here. See Tex. Code Crim. Proc. Ann. art. 38.23(a) (West
2005) (providing that “[n]o evidence obtained by an officer . . . in violation of any
provisions of the Constitution or laws of the State of Texas, or of the Constitution
or laws of the United States of America, shall be admitted in evidence against the
accused on the trial of any criminal case”). But there is no exception to our
statutory exclusionary rule for an officer’s good faith reliance on a statute. See
id. art. 38.23(b) (providing the only exception for officers acting in good-faith
reliance upon a warrant); State v. Anderson, No. 09-13-00400-CR, 2014 WL
5033262, at *14 (Tex. App.—Beaumont Oct. 8, 2014, no. pet. h.) (explaining that
the federal exclusionary rule, unlike Texas’s, has at least three good faith
exceptions) (citing Davis v. United States, 131 S. Ct. 2419, 2427–28 (2011));
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Polk v. State, 704 S.W.2d 929, 934 (Tex. App.—Dallas 1986), aff’d, 738 S.W.2d
274 (Tex. Crim. App. 1987). Because there was no warrant in this case, the
statutory exception in article 38.23(b) does not apply. See Anderson, 2014 WL
5033262, at *14; Douds v. State, 434 S.W.3d 842, 861 (Tex. App.—Houston
[14th Dist.] 2014, pet. granted) (en banc).
We hold that the trial court erred by denying Burks’s motion to suppress
the blood alcohol test results, and we sustain Burks’s sole point.
IV. CONCLUSION
Having sustained Burks’s sole point and having held that the blood alcohol
test results should have been suppressed, we reverse the trial court’s order
denying Burks’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.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
PUBLISH
DELIVERED: January 8, 2015
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