PD-0662-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/29/2015 3:27:44 PM
June 1, 2015
Accepted 6/1/2015 3:10:26 PM
ABEL ACOSTA
No. 04-13-00826-CR CLERK
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
TAYLOR M. MOSER, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Gillespie County
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No. 13803300
STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
Bar I.D. No. 24031632
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512-463-1660 (Telephone)
512-463-5724 (Fax)
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
* The parties to the trial court’s judgment are the State of Texas and Appellant,
Taylor M. Moser.
* The trial Judge was the Hon. N. Keith Williams.
* Counsel for the State at trial and before the Court of Appeals was Steven
Wadsworth, Assistant District Attorney, 200 Earl Garrett Street, Suite 202,
Kerrville, Texas 78028.
* Counsel for the State before the Court of Criminal Appeals is Stacey M.
Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,
Texas 78711.
* Counsel for Appellant at trial was Harold Danford, 813 Barnett Street,
Kerrville, Texas 78028.
* Counsel for Appellant before the Court of Appeals were Harold Danford and
Jennifer R. Yeager, 813 Barnett Street, Kerrville, Texas 78028.
TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3
1. Is a challenge to a warrantless, mandatory blood draw based on Missouri
v. McNeely preserved for appellate review when Appellant did not raise it
in a motion to suppress or at the suppression hearing?
2. Is a warrantless, mandatory blood draw conducted pursuant to T EX.
T RANS. C ODE § 724.012(b)(1)(A)—the resulting death provision—
reasonable under the Fourth Amendment?
3. Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary
rules require suppression when, at the time of the search, the warrantless
blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(1)(A) and
binding caselaw?
4. Did exigency justify the warrantless draw when the trooper knew the fatal
accident occurred more than two hours before he met with Appellant and
he had first investigated the scene, and did the lower court err in failing to
consider exigency a basis to uphold the trial court’s refusal to suppress?
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-10
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
i
APPENDIX (Opinion of the Court of Appeals)
ii
INDEX OF AUTHORITIES
Cases
Cole v. State, PD-0077-15 (granted April 22, 2015). . . . . . . . . . . . . . . . . . 7, 7 n.6, 8
Douds v. State, PD-0857-14 (submitted March 18, 2015).. . . . . . . . . . . . . 7 n.7, n.8
State v. Esparza, 413 S.W.3d 81 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . 6 n.4
Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . 10 n.10
Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005). . . . . . . . . . . . . . 6 n.5
Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan.
14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.8
Leal v. State, PD-1638-14 (Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . . . . . . . 7 n.7
State v. Mercado, 972 S.W.2d 75 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . 10 n.10
Missouri v. McNeely, 133 S. Ct 1552 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . 5, 9-10
Moser v. State, No. 04-13-00826-CR, 2015 Tex. App. LEXIS 4318 (Tex. App.—San
Antonio April 29, 2015) (not designated for publication). . . . . . . . . . . . . . . . passim
Pham v. State, 175 S.W.3d 767 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . 6 n.4
Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan.
15, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.8
Schmerber v. California, 384 U.S. 757 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . 9-10
Villarreal v. State, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim.
App. Nov. 26, 2014, reh’g granted). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.6
Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov.
17, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 n.8
iii
Statutes and Rules
T EX. C ODE C RIM. P ROC. art. 28.01 § 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
T EX. C ODE C RIM. P ROC. art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
T EX. T RANS. C ODE § 724.012(b)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . 2 n.1, 3 n.2
T EX. R. A PP. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
T EX. R. A PP. P. 44.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
iv
No. 04-13-00826-CR
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
TAYLOR M. MOSER, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Gillespie County
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State Prosecuting Attorney respectfully urges this Court to grant review.
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
After a hearing, the trial denied Appellant’s motions to suppress challenging the
legality of his arrest and compliance with the mandatory blood draw statute.
Appellant pled guilty to intoxication manslaughter and was sentenced to ten years’
1
imprisonment and fined $500. The court of appeals reversed the suppression ruling,
holding that the warrantless blood draw1 violated the Fourth Amendment. The court
then rejected the State’s argument that the remedy of suppression should not be
applied.
STATEMENT OF PROCEDURAL HISTORY
The court of appeals reversed the trial court’s denial of Appellant’s motion to
suppress. Moser v. State, No. 04-13-00826-CR, 2015 Tex. App. LEXIS 4318 (Tex.
App.—San Antonio April 29, 2015) (not designated for publication). The State did
not seek rehearing.
GROUNDS FOR REVIEW
1. Is a challenge to a warrantless, mandatory blood draw based on Missouri
v. McNeely preserved for appellate review when Appellant did not raise it
in a motion to suppress or at the suppression hearing?
2. Is a warrantless, mandatory blood draw conducted pursuant to T EX.
T RANS. C ODE § 724.012(b)(1)(A)—the resulting death provision—
reasonable under the Fourth Amendment?
3. Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary
rules require suppression when, at the time of the search, the warrantless
blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(1)(A) and
binding caselaw?
4. Did exigency justify the warrantless draw when the trooper knew the fatal
accident occurred more than two hours before he met with Appellant and
1
Appellant’s blood was drawn under T EX. T RANS. C ODE § 724.012(b)(1)(A)
because his friend (and backseat passenger) died as a result of the rollover accident.
2
he had first investigated the scene, and did the lower court err in failing to
consider exigency a basis to uphold the trial court’s refusal to suppress?
ARGUMENT
1. Appellant’s challenge to the warrantless mandatory blood draw was not
preserved.
Appellant filed three suppression motions. 1 CR 52-62. The first challenged
his arrest. The second challenged the mandatory blood draw pursuant to Texas
Transportation Code Section 724.012(b)(1)(A).2 And the third challenged the
admissibility of the blood drawn for purposes of medical care.
In his motion to suppress based on the mandatory blood draw, Appellant argued,
in part: (1) he was arrested without warrant, reasonable suspicion, or probable cause
in violation of the Fourth Amendment; (2) because he was unlawfully arrested, there
is no “deemed consent” under Transportation Code Section 724.011; (3) the Trooper
failed to give the statutory warnings required by Transportation Code Section
724.015; (4) the Appellant did not voluntarily, knowingly, and intelligently consent;
(5) the blood was not drawn within a reasonable amount of time; (6) the Trooper did
not have a reasonable belief that Appellant caused the accident; (7) the Trooper did
not specify any facts showing that Appellant was intoxicated; and (8) the blood was
not drawn from a qualified technician or in a sanitary place as required by Section
2
Section 724.012(b)(1)(A) requires a police officer to obtain a specimen when the
officer reasonably believes that an individual has died.
3
724.017. 1 CR 56-58.
At the suppression hearing, the trial court asked Appellant which of three
motions he wished to have heard. 2 RR 4. Appellant stated that the motions based
on the arrest and mandatory blood draw. 2 RR 4. He explained that he narrowed the
issues raised in his motions:
That’s the gist, and it’s kind of a combination of the motion to suppress
the arrest of the Defendant and the motion to suppress the blood taken by
DPS. I’ve kind of combined those two and narrowed it down, but that’s
what we’re here for, probable cause to arrest. If he didn’t have probable
cause to arrest, then it’s our position the blood test should be suppressed.
2 RR 5.
Further, in closing, Appellant argued that the offense was not committed in the
Trooper’s presence, as required for an arrest according to Texas Code of Criminal
Procedure Article 14.01. 2 RR 71-72. Appellant also stated that the facts known to
the Trooper were insufficient to provide probable cause of DWI or that the accident
was caused by Appellant’s intoxication. 2 RR 72-75. Appellant then argued that he
was never arrested, which is a necessary predicate for a mandatory draw. 2 RR 75-76.
The trial court denied Appellant’s suppression requests. 2 RR 78. He
concluded that there was probable cause to arrest, that Appellant had been advised he
was under arrest for purposes of the blood draw, and therefore was deemed to have
impliedly consented. 2 RR 78. The trial court then asked Appellant’s attorney
4
whether any further hearings were needed because “there are two others.”3 2 RR 78.
Counsel answered, “No.” 2 RR 78.
On appeal, for the first time, Appellant challenged the legality of the draw based
on Missouri v. McNeely, 133 S. Ct 1552 (2013). Appellant’s Brief, at 6-7. The court
of appeals ruled in his favor, holding that the draw was not reasonable. Moser, 2015
Tex. App. LEXIS 4318, at *10.
The court of appeals erred by not considering preservation before addressing the
merits because Appellant failed to lodge a specific and timely objection. See T EX. R.
A PP. P. 33.1(a)(1)(A) (requiring a complaint to be timely and the reason to be made
with “sufficient specificity” to make the trial court aware of it). Appellant’s motions
and suppression hearing arguments never challenged the validity of the draw
mandated by Section 724.012(b)(1)(A) based on McNeely. Contrary to Appellant’s
assertion in the court of appeals, Appellant’s Brief, at 6, citation to the Fourth
Amendment alone is insufficient to raise a claim that Section 724.012(b) violates the
Fourth Amendment by not requiring a warrant or that an officer who complies with
the statute must obtain a warrant.
Additionally, Appellant was responsible for timely designating any suppression
3
This statement belies Appellant’s and the court of appeals’ belief that the trial
court ruled on all the motions and issues included in the motions. See Appellant’s
Brief in the Court of Appeals, at 3; Moser, 2015 Tex. App. LEXIS 4318, at *2.
5
issue(s) under Texas Code of Criminal Procedure Article 28.01, Section 2. That
provision states that pretrial hearing matters not raised or filed seven days before the
hearing cannot thereafter be raised or filed, except with the court’s permission and
good cause shown. T EX. C ODE C RIM. P ROC. art. 28.01 § 2. Unless challenged by a
specific objection or motion, the State need not present evidence to satisfy its ultimate
burden with respect to any viable, potential issue that could be raised by the
defendant.4 If no rule preventing unfair surprise existed, then the State would be
saddled with the burden of securing all the necessary witnesses to address each and
every possible legal issue a defendant could decide to raise at a scheduled hearing.5
This Court should grant review and summarily remand for the court of appeals
4
See Pham v. State, 175 S.W.3d 767, 773-74 (Tex. Crim. App. 2005) (“We have
long held that the burden of persuasion is properly and permanently placed upon the
shoulders of the moving party. When a criminal defendant claims the right to
protection under an exclusionary rule of evidence, it is his task to prove his case.”)
(internal quotes deleted); cf. State v. Esparza, 413 S.W.3d 81, 86 (Tex. Crim. App.
2013) (while the proponent of scientific evidence carries the burden of proving
reliability at a pretrial hearing or at trial, the proponent is not obligated to satisfy the
burden until the opponent objects on the basis of reliability). Nor should such
hearings be treated as a mechanism for discovery.
5
Cf. Hernandez v. State, 176 S.W.3d 821, 825-26 (Tex. Crim. App. 2005) (State’s
failure to provide T EX. R. E VID. 404(b) notice indicates that it does not think an
extraneous offense is relevant, thereby relieving the defendant of having to prepare
to defend against it).
6
to consider whether Appellant preserved his claim.6 Alternatively, this Court should
hold that Appellant failed to preserve error. Recent action by the Court indicates that
it has become interested in setting firmer guidelines with respect to pretrial
suppression issue preservation requirements.7
2. Alternatively, the draw was reasonable under the Fourth Amendment.
The warrantless blood draw, conducted under Texas Transportation Code
Section 724.012(b)(1)(A), was reasonable under Fourth Amendment jurisprudence.
Review should be granted because the same issue is pending in Cole v. State, PD-
0077-15 (granted April 22, 2015).8
6
Because of this threshold issue and the viable exigency claim, it may not be
necessary for the Court to hold this petition until Villarreal v. State, No. PD-0306-14,
2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov. 26, 2014, reh’g granted),
and Cole v. State, PD-0077-15 (granted April 22, 2015), are resolved.
7
This Court remanded Leal v. State, PD-1638-14 (Tex. Crim. App. 2015) (not
designated for publication), in March for the court of appeals to determine whether
Appellant’s motion for new trial, which was considered at a live hearing, preserved
a challenge to the legality of a warrantless blood draw. And in September 2014, the
Court granted review in Douds v. State, PD-0857-14 (submitted March 18, 2015), to
consider, in part, whether Appellant’s challenge to a warrantless blood draw was
preserved when he filed a boilerplate motion to suppress.
8
The same issue, as it relates to the repeat offender provision, is pending on
rehearing in Villarreal, and in Holidy v. State, No. PD-0622-14 (granted Aug. 20,
2014; argued and submitted Jan. 14, 2015), and Reeder v. State, No. PD-0601-14
(granted Aug. 20, 2014; argued and submitted Jan. 15, 2015). Two other granted
cases deal with accidents involving non-fatal injuries. Douds, PD-0857-14 (granted
Sept. 17, 2014 and submitted March 18, 2015); Weems v. State, No. PD-0635-14
(granted Aug. 20, 2014; argued and submitted Nov. 17, 2014).
7
3. Even if foregoing issues are resolved in Appellant’s favor, the federal and
state exclusionary rules do not require suppression because police relied on
binding law authorizing the search at the time it was conducted.
In Cole, PD-0077-15, this Court also granted review to decide whether the
remedy of suppression under the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23)
exclusionary rules, which are intended to deter police misconduct, is appropriate when
the blood draw was conducted pursuant to a presumptively valid statute and case law
interpreting it. Therefore, the Court should grant review here to determine the
propriety of the court of appeals’ determination that the federal and state exclusionary
rules are applicable. See Moser, 2015 Tex. App. LEXIS 4318, at *10.
4. Exigent Circumstances Justified the Draw.
Dispatch called Trooper Bacon about the rollover accident at 4:00 a.m.9 2 RR
8. He arrived on the scene around 4:16 and discussed the investigation with other
officers already on site. 2 RR 8-21, 30. He learned that Appellant had been
transported to the hospital and that the backseat occupant—Jesus Martinez—had died.
2 RR 14. The passenger-seat occupant told him that the three had shared a bottle of
vodka earlier in the day. 2 RR 15. Bacon observed a partially filled beer can that had
been found in the car. 2 RR 12, 42. When Bacon was informed that Appellant was
going to be discharged from the hospital, he stopped investigating and headed to the
9
The accident occurred at approximately 2:30 a.m. but Bacon did not know the
approximate time until he investigated further after leaving the hospital. 2 RR 25.
8
hospital. 2 RR 20. Bacon visited with Appellant at 5:40 for five to ten minutes. 2
RR 24. He gave the statutory warnings at 5:47, 2 RR 25, and placed him under arrest
at 5:57. 2 RR 43.
In McNeely, the Supreme Court held that the natural dissipation of alcohol from
the blood stream does not establish exigency per se but is a factor to consider in a
totality of the circumstances analysis. Id. at 1558-63. The Court observed that in
Schmerber v. California, 384 U.S. 757, 771-72 (1966), exigency was present because
of the dissipation of alcohol from the blood stream combined with the fact that the
officer had to transport the accused to the hospital and investigate the accident scene.
McNeely, 133 S. Ct. at 1560.
Here, the objective facts support Bacon’s decision to act without a warrant.
Bacon knew that the accident occurred before 4:00 a.m., when he was called by
dispatch. Having arrived at the scene first to investigate, it took him another hour and
forty minutes to meet with Appellant at the hospital. Appellant was arrested
seventeen minutes later. So nearly two hours passed from the time dispatch called
until the time he arrested Appellant. Bacon knew Appellant had shared a bottle of
vodka at some unspecified time earlier in the day, and he knew an open can of beer
had been found in the car. From these facts and circumstances, Bacon could have
reasonably concluded that any further delay to obtain a warrant would likely thwart
9
the State’s ability to obtain evidence of intoxication. See McNeely, 133 S. Ct. at 1561
(“a significant delay in testing will negatively affect the probative value of the
results”); Schmerber, 384 U.S. at 769 (two-hour delay in drawing blood after the
accident).
The court of appeals never considered exigency as a basis to uphold the trial
court’s ruling.10 Therefore, in the event the Court rules in Appellant’s favor on the
issues above, the Court should remand and order the court of appeal to consider
whether exigent circumstances justified the warrantless draw. Alternatively, the Court
should reverse the lower court’s decision on this basis.
10
Exigency is not procedurally defaulted since the State was the winning party in
the trial court. Hailey v. State, 87 S.W.3d 118, 121-22 (Tex. Crim. App. 2002)
(“‘Ordinary notions of procedural default’ do not require a prevailing party to list or
verbalize ‘in the trial court every possible basis for upholding’ its decision.”) (quoting
State v. Mercado, 972 S.W.2d 75, 77-78 (Tex. Crim. App. 1998)).
10
PRAYER FOR RELIEF
The State prays that the Court of Criminal Appeals grant review and summarily
reverse the decision of the court of appeals and remand the case for the court to
consider whether Appellant’s challenge to the warrantless draw was preserved.
Alternatively, the Court should grant review and reverse the court of appeals
because (1) Appellant’s blood draw claim was not preserved or, alternatively, (2) it
erred to hold that the warrantless draw was unreasonable.
Also in the alternative, the court should grant review and reverse the court of
appeals and (1) remand for it to consider exigency or, alternatively, (2) hold that
exigent circumstances justified the warrantless draw.
Finally, should the Court reject the foregoing arguments, the case should be
remanded for the court of appeals to consider whether the erroneous admission was
harmful. See T EX. R. A PP. P. 44.2.
Respectfully submitted,
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No.13803300
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
11
Bar I.D. No. 24031632
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512-463-1660 (Telephone)
512-463-5724 (Fax)
12
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count tool this
document contains 2,196 words, exclusive of the items excepted by T EX. R. A PP. P.
9.4(i)(1).
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
13
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the State’s Petition for Discretionary
Review has been served on May 29, 2015, via certified electronic service provider to:
Hon. Steven Wadsworth
200 Earl Garrett Street
Suite 202
Kerrville, Texas 78028
Hon. Harold Danford
Hon. Jennifer R. Yeager
813 Barnett Street
Kerrville, Texas 78028
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
14
APPENDIX
2 of 100 DOCUMENTS
Taylor M . M OSER, Appellant v. The STATE of Texas, Appellee
No. 04-13-00826-CR
COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO
2015 Tex. App. LEXIS 4318
April 29, 2015, Delivered
April 29, 2015, Filed
NOTICE: PLEASE CONSULT THE TEXAS RULES trial court. The first motion sought suppression of his
OF APPELLATE PROCEDURE FOR CITATION OF arrest. The second motion sought suppression of the
UNPUBLISHED OPINIONS. results of a blood test taken at the direction of the Texas
Department of Public [*2] Safety. The third motion
PRIOR HISTORY: [*1] From the 216th Judicial sought suppression of results of any blood tests
District Court, Gillespie County, Texas. Trial Court No. performed by the hospital. The trial court heard all three
4960. Honorable N. Keith W illiams, Judge Presiding. motions at an evidentiary hearing. The State stipulated
that Moser was arrested without a warrant and his blood
DISPOSITION: REVERSED AND REMANDED. was taken without a warrant.
At the hearing, Trooper Mike Bacon, an officer with
COUNSEL: FOR APPELLANT: Harold J. Danford,
the Department of Public Safety in Fredericksburg,
Danford Law Firm, Kerrville, TX.
Texas, testified that on September 14, 2009, he was the
on-call trooper for Gillespie County. At about 4:00 a.m.,
FOR APPELLEE: Steven A. W adsworth, Assistant
he was at home when he received a call from
District Attorney, Kerrville, TX.
Fredericksburg dispatch regarding a one-car rollover
accident on Highway 16. He then met with Sergeant
JUDGES: Opinion by: Karen Angelini, Justice. Sitting:
W alter Todd at the Gillespie County Sheriff's Office.
Sandee Bryan Marion, Chief Justice, Karen Angelini,
According to Trooper Bacon, Sergeant Todd was
Justice, Marialyn Barnard, Justice.
searching for one of the occupants of the vehicle who
had left the scene of the accident. Sergeant Todd told
OPINION BY: Karen Angelini
Trooper Bacon the location of the accident. W hen
Trooper Bacon arrived at the scene, he was informed by
OPINION
Deputy Moellering and Deputy Robinson that the person
who had identified himself as the driver of the vehicle
M EM ORANDUM OPINION
had been transported to the hospital; that another
REVERSED AND REMANDED occupant of the vehicle had left the scene; that Sergeant
Todd was searching for him; and [*3] that they had
Taylor M. Moser appeals the trial court's denial of
secured the scene. According to Trooper Bacon, the
his motions to suppress evidence. W e conclude the trial
person who identified himself as the driver was
court did not err in denying Moser's motion to suppress
Appellant Moser.
his arrest. However, because Moser's rights under the
Fourth Amendment were violated by the taking of a Trooper Bacon testified that he investigated the
warrantless, nonconsensual blood draw, the trial court crash scene. He saw an open twelve-ounce can of beer
erred in denying his motions to suppress the results of the wedged between the driver's seat and the driver's
blood tests. W e therefore reverse the trial court's floorboard area. The justice of peace on site, Justice
judgment and remand the cause for a new trial. Rech, told Trooper Bacon that there had been a fatality as
a result of the accident. Trooper Bacon testified that he
BACKGROUND determined the vehicle had been traveling northbound on
State Highway 16. The car had crossed the bridge going
Moser filed three separate motions to suppress in the
over the Pedernales River. It then drifted across the
double yellow line into the southbound lane, at which touch. Trooper Bacon testified that the car had
time it made a hard right, side-skidded into the overturned at least two times and that a person could
northbound ditch, and then began to overturn several have alcohol on his person as a result of the car rolling
times. over. Trooper Bacon also admitted that while Johnson
had said the four individuals had consumed a full bottle
Trooper Bacon then heard over the radio that
of vodka, Trooper Bacon did not know how much each
Sergeant Todd had located the other occupant and was
person drank. Trooper Bacon also said that Johnson had
returning him to the scene of the accident. W hen they
told him he, Moser, and Martinez had been stopped by a
arrived, Trooper Bacon talked to the other occupant,
Kerrville police officer before the accident, had been
Jesse Johnson. Johnson said that Moser had picked him
giving a warning, and were then allowed to leave.
up earlier in the day, along with a female friend, and they
Trooper Bacon also testified that although he arrested
had driven to another friend's house in Fredericksburg
Moser at the hospital, he left Moser at the hospital
where they consumed a bottle of vodka between [*4] the
because he had broken his leg. Thus, Trooper Bacon did
four of them. Johnson told Trooper Bacon that the
not physically take M oser into custody. Trooper Bacon
deceased, Jesus Martinez, then called Moser and told
also testified that he had not seen the dash cam footage at
Moser he could get more alcohol. Johnson and Moser left
the time he made the arrest. He did not perform a
and drove to Kerrville where they picked up Martinez.
horizontal gaze nystagmus test because Moser said he
Johnson said that they then drove to another residence in
had bumped his head during the accident. According to
Kerrville where they obtained some beer. They were all
Trooper Bacon, a person with a head injury is not a good
returning to the first residence in Fredericksburg when
candidate for the HGN test. Further, Trooper Bacon said
the crash occurred. Johnson, Moser, and Martinez were
the hospital had given Moser pain medication.
all under the age of 21.
Thus, at the evidentiary hearing, the State elicited
Johnson said Moser was the driver of the vehicle.
[*7] testimony that Trooper Bacon ordered the
Johnson told Trooper Bacon that when Moser drifted
w arra ntle ss b lo o d d r a w p u r s u a n t to sec tio n
across the double yellow line, Johnson reached over and
724.012(b)(1)(A) of the Texas Transportation Code.
helped him pull the wheel back to correct the car back
Section 724.012(b)(1)(A) requires the taking of a
into the northbound lane. Johnson said M oser
nonconsensual blood specimen of a person if the person
overcorrected and the accident occurred. Trooper Bacon
is arrested for driving while intoxicated, was the operator
then asked Johnson to remove his shirt so that he could
of a motor vehicle involved in an accident that the officer
verify through the seatbelt marking of Johnson's skin
reasonably believes occurred as a result of the offense
where Johnson had been seated. Trooper Bacon testified
and, at the time of the arrest, the officer reasonably
that Johnson had an abrasion from his right shoulder
believes that as a direct result of the accident an
across to his left hip, which indicated Johnson was sitting
individual has died. See T EX . T RANSP . C O D E A NN . §
in the passenger seat. Trooper Bacon testified that he was
724.012(b)(1)(A). After hearing all the evidence, the trial
then informed Moser was about to be released from the
court denied the motions to suppress. The record does
hospital, so he stopped his interview [*5] with Johnson
not reflect that Moser requested the trial court to make
and went to the hospital.
findings of fact and conclusions of law, and no such
W hen Trooper Bacon arrived at the hospital, Moser findings are included in the appellate record. See State v.
was in the ER treatment room with a leg injury. Moser's Elias, 339 S.W.3d 667, 676-77 (Tex. Crim. App. 2011)
parents and grandparents were present. Trooper Bacon (requiring trial court to make essential findings when
identified himself to Moser, and M oser invoked his right requested). Moser appeals.
to counsel. Trooper Bacon testified that he did not
perform any field sobriety tests on M oser because Moser S TAN D A R D OF R EVIEW
was obviously injured and had received some kind of
The trial court is the sole trier of fact at a
pain medication. Trooper Bacon testified that he detected
suppression hearing and thus evaluates witness testimony
the odor of alcohol, but said that hospital rooms typically
and credibility. Torres v. State, 182 S.W.3d 899, 902
have an alcohol smell. Trooper Bacon's best estimate was
(Tex. Crim. App. 2005). W hen we review a trial court's
that the accident occurred at 2:35 a.m. He requested a
ruling on a motion to suppress, we give great deference
blood specimen from Moser at 5:47 a.m. Moser refused
to the trial court's determination of historical facts while
to provide one. Trooper Bacon testified that he then
reviewing the trial court's application of the law de novo.
obtained an involuntary blood specimen, relying on the
Id. W hen, as here, the [*8] trial court does not make
Texas Transportation Code for authority.
findings of fact, we view the evidence in the light most
On cross-examination, Trooper Bacon testified that favorable to the trial court's ruling and assume the trial
Officer Moellering had said he had not smelled alcohol court made implicit findings of fact that support its
on Moser because he was not close enough to M oser to ruling, as long as such implicit findings are supported by
be able to detect any smell. Trooper Bacon testified that the record. Id.
Officer Robinson said he had smelled alcohol on Moser's
The initial burden of proof on a motion to suppress
person. According to Trooper Bacon, the beer can found
rests with the defendant, who meets this burden by
in the car still had alcohol [*6] in it and was cool to the
showing that the search or seizure occurred without a requirement applies in this case. Instead, it argues that
warrant. Id. Then, the burden shifts to the State to prove the Texas exclusionary rule and federal exclusionary rule
the reasonableness of the warrantless search or arrest. Id. should not apply because the officer relied on section
724.012 in good faith. W e, however, have already
D ISC U SSIO N rejected this argument. See McNeil, 443 S.W.3d at 303;
Weems, 434 S.W.3d at 666-67; Fitzgerald v. State, No.
A. Motions to Suppress Blood Test Results 04-13-00662-CR, 2014 Tex. App. LEXIS 8208, 2014 WL
3747270, at * 2 (Tex. App.--San Antonio July 30, 2014,
In his first issue, Moser argues the trial court erred in
pet. filed).
denying his motions to suppress the results of the
warrantless, nonconsensual blood tests because the Because the State did not show that the warrantless
admission of such results violates his rights under the blood draw was reasonable under the Fourth
Fourth Amendment to the Constitution. For support, Amendment, Moser's motions to suppress the blood test
Moser relies on the Supreme Court's decision in Missouri results should have been granted. After the trial court
v. McNeely, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013), denied Moser's motions to suppress, he decided to plead
and this court's decision in Weems v. State, 434 S.W.3d guilty. W e cannot determine beyond a reasonable doubt
655 (Tex. App.--San Antonio 2014, pet. granted). In that the trial court's failure to grant his motions to
Weems, 434 S.W.3d at 665, we analyzed McNeely and suppress the blood test results did not contribute in some
concluded that section 724.012(b)(3)(B) does not measure to the State's leverage in obtaining his guilty
constitute a valid exception to the Fourth Amendment's plea and thus to his conviction. See T EX . R. A PP . P.
warrant requirement. See also McNeil v. State, 443 44.2(a); Kennedy v. State, 338 S.W.3d 84, 102-03 (Tex.
S.W.3d 295, 299-300 (Tex. App.--San Antonio 2014, pet. App.--Austin 2011, no pet.). Therefore, we hold the trial
filed). Similarly, the Texas Court of Criminal Appeals court erred in denying Moser's motions to suppress the
recently held in State v. Villarreal, No. PD-0306-14, results of the blood tests.1
2014 Tex. Crim. App. LEXIS 1898, 2014 WL 6734178, at
*20 (Tex. Crim. App. Nov. 26, 2014), that "the provisions 1 In a third issue, Moser also argues that the
in the Transportation Code [*9] do not, taken by blood test results should have [*11] been
themselves, form a constitutionally valid alternative to suppressed because the arresting officer had no
the Fourth Amendment warrant requirement." The court reasonable belief as required by section
of criminal appeals explained that "the Supreme Court's 724.012(b) that the accident resulting in death
holding in McNeely makes clear that drawing the blood was caused by intoxication. Having determined
of an individual suspected of DW I falls under the that the trial court should have suppressed the
category of cases holding that 'a warrantless search of a blood test results, we need not reach this issue.
person is reasonable only if it falls within a recognized
exception' to the warrant requirement." Villarreal, 2014 B. Motion to Suppress Arrest
Tex. Crim. App. LEXIS 1898, 2014 WL 6734178, at *20
In his second issue, Moser argues that the trial court
(quoting McNeely, 133 S. Ct. at 1558) (emphasis added).
erred in denying his motion to suppress his arrest because
The court of criminal appeals emphasized that the
the arresting officer lacked probable cause to arrest
McNeely Court "explained that such an intrusion
Moser for intoxication manslaughter. "Generally, a
implicates an individual's 'most personal and deep-rooted
warrantless arrest is, pursuant to the Fourth Amendment,
expectations of privacy.'" Villarreal, 2014 Tex. Crim.
unreasonable per se unless the arrest fits into one of a
App. LEXIS 1898, 2014 WL 6734178, at *20 (quoting
'few specifically defined and well delineated
McNeely, 133 S. Ct. at 1558). According to the court of
exceptions.'" Torres v. State, 182 S.W.3d 899, 901 (Tex.
criminal appeals, "[t]hese principles from McNeely--the
Crim. App. 2005) (quoting M innesota v. Dickerson, 508
recognition of the substantial privacy interests at stake
U.S. 366, 372, 113 S. Ct. 2130, 124 L. Ed. 2d 334
and the applicability of the traditional Fourth Amendment
(1993)). "A peace officer may arrest an individual
framework that requires either a warrant or an applicable
without a warrant only if probable cause exists with
exception--apply with equal force to this case."
respect to the individual in question and the arrest falls
Villarreal, 2014 Tex. Crim. App. LEXIS 1898, 2014 WL
within one of the exceptions set out in T EX . C O D E C RIM .
6734178, at *20. Thus, the court of criminal appeals
P RO C . art. 14.01-14.04." Torres, 182 S.W.3d at 901.
"reject[ed] the State's assertion that a warrantless,
Article 14.03 of the Texas Code of Criminal Procedure
nonconsensual blood draw conducted pursuant to those
provides that a peace officer may arrest without a warrant
provisions [of the Transportation Code] can fall under
"persons found in suspicious places and under
one of the established exceptions to the warrant
circumstances which reasonably show that such persons
requirement." Id. The court [*10] of criminal appeals
have been guilty of some felony, violation of Title 9,
further "reject[ed] the State's suggestion that such a
Chapter 42, Penal Code, breach of the peace, or offense
search may be upheld under a general Fourth
under Section 49.02, Penal Code . . . ." 2 T EX . C O D E [*12]
Amendment balancing test." Id.
C RIM . P ROC . A NN . art. 14.03 (W est Supp. 2014).
The State has not argued that any other recognized
exception to the Fourth Am endment's warrant 2 Moser argues only that the officer did not have
probable cause for the warrantless arrest. Moser, and two others had consumed a bottle of vodka
earlier. Johnson told him that "[a]t some point during the
"Probable cause for a warrantless arrest requires that
consumption of the bottle of vodka," the deceased called
an officer have a reasonable belief that, based on facts
Moser and said that he could obtain more alcohol. Moser
and circumstances within the arresting officer's personal
and Johnson drove from Fredericksburg to Kerrville to
knowledge, or of which the officer has reasonably
pick up the deceased, obtained beer, and were returning
tru stwo rth y in fo rm atio n, an offense has been
to Fredericksburg when the accident occurred. Johnson
committed." Torres, 182 S.W.3d at 902 (emphasis added)
said that Moser was driving the vehicle and had "drifted
(citations omitted). Thus, the arresting officer need not
over into the oncoming lane of traffic." "Johnson reached
personally observe all the facts relating to probable cause
over and grabbed the steering wheel to kind of pull them
but may rely on reasonably trustworthy information. See
back into the right lane of traffic." Moser overcorrected
id.
and the vehicle rolled. Trooper Bacon then asked
"The test for probable cause is an objective one, Johnson to lift his shirt to confirm that Johnson was
unrelated to the subjective beliefs of the arresting officer, indeed the passenger of the vehicle. Trooper Bacon
and it requires a consideration of the totality of testified Johnson had an abrasion mark from the seatbelt
circumstances facing the arresting officer." Amador v. confirming he had been the passenger. Under these facts
State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) and the totality of circumstances known to Trooper
(citations omitted). "A finding of probable cause requires Bacon, he had probable cause to arrest Moser for
'more than bare suspicion' but 'less than . . . would justify intoxication manslaughter.
. . . conviction.'" Id. (quoting Brinegar v. United States,
Moser emphasizes that Trooper [*15] Bacon did not
338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879
conduct any field sobriety tests and did not testify that
(1949)) (alteration in original). "[P]robable cause must be
Moser had slurred speech or blood shot eyes. Moser
based on facts, not opinions." Torres, 182 S.W.3d at 902.
further emphasizes that he had been stopped by another
In support of his argument that Trooper Bacon had officer for speeding before the accident and had only
no probable cause to arrest him in this case, Moser relies been given a warning ticket and that the open can of beer
on Torres v. State, 182 S.W.3d at 902-03, a case in which in the car during the roll-over accident "could account for
the court of criminal appeals held [*13] no probable the odor on [his] person." W hile Moser emphasizes these
cause existed to arrest the appellant for driving while facts in favor of a finding that he was not intoxicated, a
intoxicated because the arresting officer relied on other finding of probable cause can be supported by "less than
officers' opinions that appellant was intoxicated and not . . . would justify . . [a] conviction" and need only be
on specific, articulable facts. Here, however, Trooper "more than bare suspicion." Brinegar v. United States,
Bacon did not rely on opinions from the other officers, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).
but instead relied on specific facts and circumstances he Further, under our standard of review, we must defer to
learned from reasonably trustworthy sources. W hen he factual findings implicitly made by the trial court. See
arrived at the scene of the one-car accident, Trooper Torres, 182 S.W.3d at 902. W e therefore hold that
Bacon was informed by other law enforcement officers Trooper Bacon had probable cause to arrest Moser.
that M oser identified himself as the driver of the vehicle
and had been transported to the hospital. Trooper Bacon C O N C LU SION
was also informed by an officer that the officer had
Because Trooper Bacon had probable cause to arrest
smelled alcohol on Moser. W hen Trooper Bacon
Moser, the trial court did not err in denying Moser's
inspected the vehicle involved in the accident, he saw an
motion to suppress his arrest. However, because Moser's
open, cool, and partially full can of beer "wedged
rights under the Fourth Amendment were violated by the
between the driver's seat and the driver's floorboard
warrantless, nonconsensual blood draw, the trial court
area." Trooper Bacon then spoke with a justice of the
erred in denying Moser's motions to suppress the blood
peace, who confirmed that one of the passengers had
test results. And, Moser was harmed as a result of the
died as a result of the accident. In examining the scene,
trial court's error. W e therefore [*16] reverse the trial
Trooper Bacon determined that the vehicle involved in
court's judgment and remand this cause for a new trial.
the accident had drifted into the on-coming lane of
traffic, crossed the centerline, turned hard [*14] back Karen Angelini, Justice
into its own lane of travel, went off the roadway, and
Do not publish
then rolled over. Trooper Bacon then interviewed a
passenger of the vehicle, Johnson, who said that he,