COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00077-CR
NO. 02-14-00078-CR
WALTER TENDAI CHIDYAUSIKU APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NOS. 1264242R, 1264243R
----------
CONCURRING OPINION
----------
I agree that the trial court’s judgments must be reversed and remanded for
further, consistent proceedings. I write separately to clarify the parameters of
this court’s holdings.
This case involves a mandatory blood draw under transportation code
section 724.012(b)(1), which implies consent for a breath or blood sample if a
suspected impaired driver is in an accident and someone other than the impaired
driver “has suffered bodily injury and been transported to a hospital . . . for
medical treatment.” Tex. Transp. Code Ann. § 724.012(b)(1)(C) (West 2011).
The court of criminal appeals, in a case involving section 724.012(b)(3), recently
held that “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.” State v. Villarreal, No. PD-0306-14, 2014 WL 6734178, at *21
(Tex. Crim. App. Nov. 26, 2014) (5–4 opinion). Thus, the warrantless blood draw
under section 724.012(b)(1) in this case violated the Fourth Amendment and
must be suppressed in the absence of any exception to the warrant requirement.
I agree that there are no exceptions to the warrant requirement in this case
because the record reveals (1) no exigency; 1 (2) that Appellant did not consent to
the search; and (3) that the automobile, search-incident-to-arrest, and special-
needs exceptions are inapplicable. See id. at *10–16; Lloyd v. State, No. 05-13-
01004-CR, 2014 WL 7249747, at *3 (Tex. App.—Dallas Dec. 22, 2014, no pet.
h.). However, the police officers at the time of the blood draw did nothing wrong
by relying on a then-valid statute to compel a blood specimen without a warrant
1
The opinion states that the “only possible exigency suggested by the
record is the natural dissipation of alcohol in Appellant’s body.” I disagree to the
extent this statement could be construed as a holding that dissipation is the only
arguable exigency in this type of case. I agree, however, that the record in this
case shows no exigency sufficient to justify a warrantless search.
2
when faced with two people who were severely injured after Appellant was in a
wreck with them, one of whom—a ten-year-old boy—later died. Similarly, the
trial court understandably held that section 724.012(b)(1) specifically authorized
the blood draw and was, in effect, an exception to the warrant requirement.
Whether or not the police had a “commendable . . . protocol” in place to secure a
warrant as stated by the opinion, the police justifiably relied on an authorizing
statute to compel the warrantless search. I recognize that there is no good-faith
exception to the exclusionary rule, see Burks v. State, No. 02-13-00560-CR,
2015 WL 115964, at *3 (Tex. App.—Fort Worth Jan. 8, 2015, no pet. h.), but I
believe it imperative to avoid any implication that the police officers or the trial
court in this case were willfully or knowingly disregarding constitutional
requirements. In any event, the State failed to prove under the totality of the
circumstances that the warrantless search was nevertheless reasonable based
on an established exception to the warrant requirement. See Amador v. State,
221 S.W.3d 666, 672–73 (Tex. Crim. App. 2006) (holding once defendant
establishes a search or seizure occurred without a warrant and rebuts the
presumption of proper police conduct, the burden shifts to the State to prove the
reasonableness of the search or seizure).
Having found error, the opinion correctly proceeds to a harm analysis
under rule 44.2(a). Tex. R. App. P. 44.2(a). Neither Appellant nor the State
briefed whether any harm flowed from the constitutional error; thus, it is unclear
whether Appellant argues that the error contributed to his decision to plead guilty,
3
to his punishment as assessed by the jury, or both. But the court of criminal
appeals has indicated that even though the blood-test results were admitted only
during punishment, the harm from the trial court’s denial of appellant’s motion to
suppress, if any, is deeply connected to Appellant’s decision to plead guilty. See
Holmes v. State, 323 S.W.3d 163, 172–73 (Tex. Crim. App. 2009); see also
Sanchez v. State, 98 S.W.3d 349, 357–58 (Tex. App.—Houston [1st Dist.] 2003,
pet. ref’d). Thus, any harm arising from the trial court’s denial should be looked
at relative to Appellant’s decision to plead guilty. See Gentry v. State, No. 12-13-
00168-CR, 2014 WL 4215544, at *4 (Tex. App.—Tyler Aug. 27, 2014, pet. filed)
(mem. op., not designated for publication) (in an appeal from DWI conviction
where defendant pleaded guilty and jury assessed punishment and after
concluding warrantless blood draw violated Fourth Amendment, appellate court
considered “whether the trial court’s admission of the blood test evidence
contributed to Appellant’s decision to plead ‘guilty’”); Forsyth v. State, 438
S.W.3d 216, 225 (Tex. App.—Eastland 2014, pet. ref’d) (same holding in case
where defendant pleaded guilty and trial court assessed punishment);
Jaganathan v. State, 438 S.W.3d 823, 828–29 (Tex. App.—Houston [14th Dist.]
2014, pet. granted) (same). But see Noriega v. State, No. 04-13-00744-CR,
2014 WL 7339735, at *2 (Tex. App.—San Antonio Dec. 23, 2014, no pet. h.)
(mem. op., not designated for publication) (concluding defendant who pleaded
guilty to DWI and had jury assess punishment was not harmed by admission at
punishment of blood-test results obtained without a warrant because “the jury
4
would [not] have assigned much weight to the statutory blood draw evidence in
view of the other evidence of the extent of defendant’s intoxication”).
Under rule 44.2(a), we must reverse the trial court’s judgments unless we
can determine beyond a reasonable doubt that the error did not contribute to
Appellant’s decision to plead guilty. In other words, we must conclude beyond a
reasonable doubt that the trial court’s failure to suppress the blood-test results
did not influence Appellant’s decision to plead guilty. Forsyth, 438 S.W.3d at
225. The record shows that after the trial court announced that it was denying
the motions to suppress, Appellant’s counsel stated that it was Appellant’s
“intention . . . to enter pleas of guilty” and that he specifically intended to preserve
his right to appeal the trial court’s suppression rulings. Counsel further stated
that Appellant would “enter a plea to this now” to “not fuss about things that aren’t
in dispute” and would take up the “legal issue” later on appeal. I believe these
statements by counsel preclude a finding that Appellant’s decision to plead guilty
was not influenced by the trial court’s denials of his motions to suppress. See
Gentry, 2014 WL 4215544, at *4; Jaganathan, 438 S.W.3d at 829.
With these comments, I concur in the court’s reversal of the trial court’s
judgments and remand for further, consistent proceedings.
5
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
LIVINGSTON, C.J., joins.
PUBLISH
DELIVERED: February 19, 2015
6