COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00019-CR
THE STATE OF TEXAS APPELLANT
V.
RAYMOND MCCLENDON STATE
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FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
TRIAL COURT NO. 1318695D
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MEMORANDUM OPINION1
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I. INTRODUCTION
The State appeals the trial court’s order suppressing results from a blood
draw performed on Appellee Raymond McClendon pursuant to the mandatory
blood draw provision of the transportation code. See Tex. Transp. Code Ann.
§ 724.012(b) (West 2011). We affirm.
1
See Tex. R. App. P. 47.4.
II. BACKGROUND
At approximately 2:29 p.m. on March 14, 2013, River Oaks Police Officer
Nathan Wilson came upon a traffic accident that had just occurred at the
intersection of Jacksboro Highway and River Oaks Boulevard. Because traffic
was heavy due to ongoing construction on that particular stretch of the roadway,
Officer Wilson immediately blocked oncoming traffic and began an investigation.
River Oaks Police Sergeant Moseley, who was also working patrol that
afternoon, arrived on the scene shortly after Officer Wilson began his
investigation.2
Officer Wilson first identified the drivers involved and ascertained whether
they needed medical attention. McClendon was identified as the driver of the
vehicle that, according to eye-witnesses, rear-ended Arturo Hernandez’s vehicle
while stopped at a red light. Although he complained of neck and back pain,
Hernandez initially advised Officer Wilson that he did not require medical
attention. Nevertheless, he later decided to transport himself to the hospital to be
examined.
One of the eyewitnesses Officer Wilson interviewed reported that
McClendon was stumbling around as he exited his vehicle after the collision.
Officer Wilson also personally observed that McClendon displayed signs of
2
According to Officer Wilson, two officers typically work an accident scene
and DWI investigation. Although both officers on duty were occupied, they did
not call on an outside agency to assist in patrolling River Oaks.
2
possible drug or alcohol intoxication, i.e., slurred speech and difficulty staying in
one place.
When Officer Wilson asked him if he had taken any narcotics, McClendon
responded by pulling a bottle of Xanax out of his pocket. Although the label
indicated that only six days earlier the bottle had been filled with 90 pills, Officer
Wilson testified that the bottle contained only half that amount.
Consequently, Officer Wilson performed a standardized field sobriety test
on McClendon. On the Horizontal Gaze Nystagmus (HGN) test—a test that
provides clues associated with alcohol, not drugs—McClendon exhibited no
clues. However, on the walk-and-turn and one-legged-stand tests, McClendon
scored six clues and three clues, respectively.
Based on this information, Officer Wilson read McClendon his statutory
warnings and requested a sample of his blood. After McClendon refused the
request, Officer Wilson placed him under arrest for driving while intoxicated
(DWI). Officer Wilson testified that by this time, approximately 40 minutes had
elapsed since the accident had occurred.
While McClendon waited in the back seat of the patrol car, Sergeant
Moseley and Officer Wilson inventoried McClendon’s vehicle,3 where they found
a full prescription bottle of Olanzapine and a small marijuana cigarette. After a
3
Officer Wilson testified that he did not require Sergeant Moseley’s
assistance to perform this task and that Sergeant Moseley could have returned to
his patrol duties instead of assisting with the inventory.
3
tow truck arrived at approximately 3:10 p.m., Officer Wilson drove McClendon to
the River Oaks Police Department, where Officer Wilson learned that McClendon
had two prior convictions for DWI and a prior conviction for intoxication assault.
While Officer Wilson acknowledged that he could have obtained a search warrant
for a blood draw, he was advised by his sergeant that because of McClendon’s
prior convictions and the fact that the accident had resulted in an injury, a warrant
was not required to authorize the draw. See Tex. Transp. Code Ann. § 724.012.
So, relying on section 724.012 for a warrantless blood draw, Officer Wilson
transported McClendon to John Peter Smith Hospital (JPS), where a nurse drew
his blood at 4:02 p.m.
In his testimony, Officer Wilson provided several reasons why obtaining a
search warrant to authorize the blood draw would have delayed the process by at
least two—and as much as four—hours. First, Officer Wilson testified that he
was not permitted to fax a request for search warrants to a magistrate because
his sergeant preferred that officers appear in person in front of the magistrate in
such circumstances. The process of completing the paperwork for the warrant
and taking it to the Fort Worth jail, where the magistrate was located, would have
taken 25–30 minutes. During that process McClendon would have had to stay at
the River Oaks Police Station with Sergeant Moseley, who was the only other
patrol officer on duty in the River Oaks municipality that evening.4 However,
4
River Oaks does not have a jailer. Of the 17 police officers employed by
the River Oaks Police Department, 12 work in the patrol division. Ideally, three
4
Officer Wilson also testified that the River Oaks Police Department could have
contacted an outside agency, Sansom Park or Westworth Village, in the event
anything requiring police response occurred in River Oaks while Sergeant
Moseley was at the station and Officer Wilson was obtaining a warrant.
Additionally, Officer Wilson testified that because warrants do not have
priority over the ongoing arraignment proceedings at the jail, once he arrived
there he would have experienced between a 45-minute to two-hour delay while
awaiting the magistrate’s availability to review and sign the warrant. And once he
had the warrant in hand, Officer Wilson would have had to return to the River
Oaks police station, pick up McClendon, and transport him to JPS to have his
blood drawn. Finally, upon arrival at JPS, they would likely have been required
to wait until a nurse was available to draw the blood, because trauma patients
had priority.
The trial court granted McClendon’s motion to suppress the blood test
results and entered findings of fact and conclusions of law. This appeal followed.
III. DISCUSSION
The State argues that the trial court erred by suppressing the blood test
results for three reasons: (i) exigent circumstances support the warrantless
seizure; (ii) the totality of the circumstances and legal constructs reveal the
reasonableness of the mandatory draw of McClendon’s blood pursuant to section
patrol officers work on each eight-hour shift, but occasionally only two officers
work on a particular shift. This was one such occasion.
5
724.012(b) of the transportation code; and (3) Officer Wilson relied in good faith
on section 724.012(b), which had not yet been held unconstitutional at the time.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). We give
almost total deference to a trial court’s rulings on questions of historical fact and
application-of-law-to-fact questions that turn on an evaluation of credibility and
demeanor, but we review de novo application-of-law-to-fact questions that do not
turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State,
154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68 S.W.3d 644,
652–53 (Tex. Crim. App. 2002).
When the trial court grants a motion to suppress and files accompanying
findings of fact and conclusions of law, and the sole witness at the motion to
suppress hearing is the arresting officer, the only question before us is whether
the trial court properly applied the law to the facts it found. See State v. Gray,
158 S.W.3d 465, 467, 469 (Tex. Crim. App. 2005); Guzman, 955 S.W.2d at 86–
87, 89. This is especially true in a case in which the State has not contested the
trial court’s findings of fact and the trial court’s findings show that the court
6
believed the arresting officer but concluded that the officer’s testimony was
insufficient as a matter of law. See State v. Ross, 32 S.W.3d 853, 856–58 (Tex.
Crim. App. 2000); Guzman, 955 S.W.2d at 89. In this case, we review the trial
court’s ruling de novo. Gray, 158 S.W.3d at 467, 469.
B. Application
1. Exigent Circumstances
The Fourth Amendment protects citizens against “unreasonable searches
and seizures” and provides that this right “shall not be violated, and no warrants
shall issue” unless they meet certain requirements. U.S. Const. amend. IV; Tex.
Const. art. I, § 9. Exceptions to the warrant requirement include “voluntary
consent to search, search under exigent circumstances, and search incident to
arrest.” McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003), cert.
denied, 540 U.S. 1004 (2003). It is the State’s burden to show that a warrantless
search falls within one of these exceptions. Id.
The State argues that exigent circumstances existed due to the accident
scene’s condition and Officer Wilson and Sergeant Moseley’s duties there and
because obtaining a warrant would have added “significantly” to the time it took
to get a blood sample; River Oaks has a limited amount of law enforcement
resources; and McClendon was under the influence of drugs, not alcohol, and
drugs have an “unknown” dissipation rate. The State also argues that exigent
circumstances existed because the underlying crime was severe—McClendon
had been convicted twice before of DWI and once before of intoxication assault.
7
The trial court found that Officer Wilson was “able to obtain a search
warrant from a magistrate via fax but [did] not do so because his sergeant prefers
that he obtain warrants in person,” that obtaining a warrant in person from a
magistrate typically takes between one and two hours, and that Sergeant
Moseley could have returned to patrol instead of accompanying Officer Wilson
throughout the process. We are to defer to the trial court’s findings of fact and
determine only if the trial judge correctly applied the law to the facts it found,
especially where, as here, only the arresting officer testified. See Ross, 32
S.W.3d at 856–58; Guzman, 955 S.W.2d at 89.
Officer Wilson’s failure to obtain a warrant because his sergeant prefers
that officers obtain “face-time” with the judge does not to create an exigent
circumstance. See, e.g., Parker v. State, 206 S.W.3d 593, 598 n.21 (Tex. Crim.
App. 2006) (stating that exigent circumstances do not meet Fourth Amendment
standards if the government deliberately creates them). Nor does the deliberate
scheduling of only two patrol officers on that evening shift constitute an exigent
circumstance, for the same reason. See id. Furthermore, Officer Wilson
acknowledged that they could call upon nearby police agencies for assistance
when necessary, and as the trial court noted, Sergeant Moseley could have
returned to patrol.5
5
Even if Sergeant Moseley had been required to act as the jailer, thereby
leaving no officer on patrol, Officer Wilson testified that it was their general
practice for both officers on duty to work an accident scene, even if they were the
only two officers on duty at the time.
8
The State further argues that “drug impairment appears to defy precise
quantification regarding absorption/metabolization/elimination” and so it would
have been “impossible” for Officer Wilson to consider the dissipation of Xanax
during the investigatory phase and the reasonableness of the impact of additional
delay. There was no evidence offered at the suppression hearing regarding the
dissipation rate of Xanax, except for the testimony of Officer Wilson that he
personally did not know the rate of dissipation of Xanax—or of alcohol, for that
matter. Instead, the State now relies upon other cases in which experts testified
as to its dissipation rate. The State carried the burden of showing an exigent
circumstance. It had the opportunity to present evidence that the rate of
dissipation of Xanax cannot be quantified, or that it dissipates so quickly as to
create an exigent circumstance, but it chose not do so. See McGee, 105 S.W.3d
at 615. Consequently, this argument is not persuasive.
Finally, the State argues that the severity of the underlying crime—felony
DWI—supports finding that exigent circumstances existed. It refers us to Welsh
v. Wisconsin, 466 U.S. 740, 753, 104 S. Ct. 2091, 2099 (1984), which held that
an important factor in determining whether an exigency exists is “the gravity of
the underlying offense for which the arrest is being made.” But Welsh specifically
reasoned that while the “nature of the underlying offense” is an important factor,
it is not a sufficient factor in and of itself to create exigency. Id. at 751–53, 104 S.
Ct. at 2098–99; see also State v. Taylor, No. 02-14-00456-CR, 2015 WL
9
4504806, at *2–3 (Tex. App.—Fort Worth July 23, 2015, pet. ref’d) (mem. op., not
designated for publication) (discussing Welsh).
We cannot conclude that the trial court erred in its application of the law to
the facts by finding that exigent circumstances did not exist to support the
warrantless, nonconsensual seizure of McClendon’s blood. We therefore
overrule the State’s first point.
2. Section 724.012 of the Transportation Code
In its remaining three points, the State relies upon section 724.012 of the
transportation code to justify the warrantless and nonconsensual blood draw.
But the court of criminal appeals recently held that warrantless blood or breath
samples taken without consent solely in reliance on transportation code
provisions such as section 724.012 violate the warrant requirement of the Fourth
Amendment. State v. Villarreal, 475 S.W.3d 784, 787, 804 (Tex. Crim. App.
2014).6 Officer Wilson’s good-faith belief that the statute authorized the
warrantless search does not overcome the exclusionary rule. See Lewis v.
State, No. 02-13-00416-CR, 2015 WL 1119966, at *2 (Tex. App.—Fort Worth
Mar. 12, 2015, pet. ref’d) (mem. op., not designated for publication) (citing Burks
v. State, 454 S.W.3d 705, 709 (Tex. App.—Fort Worth 2015, pet. ref’d)). We
therefore overrule the State’s second, third, and fourth points.
6
At the time this case was submitted, the court of criminal appeals had
granted rehearing of the Villarreal decision. But on December 16, 2015, the
court of criminal appeals concluded that rehearing was improvidently granted and
denied the State’s motion for rehearing.
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IV. CONCLUSION
We hold that the trial court did not err by granting McClendon’s motion to
suppress the results of the warrantless blood draw, and we affirm the trial court’s
order.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: DAUPHINOT, GARDNER, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 25, 2016
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