PD-0836-15
PD-0836-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/6/2015 2:02:07 PM
Accepted 7/7/2015 3:39:48 PM
ABEL ACOSTA
No. 14-13-00208-CR CLERK
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
JONATHAN ALBERT LEAL, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Galveston County
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
July 7, 2015
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,
Jonathan Albert Leal.
* The trial Judge was Hon. John Ellisor.
* Counsel for the State at trial were Daniel Eugene Lazarine, Jennifer Stabe, and
Jared Robinson, Galveston County Justice Center, 600 59th Street, Suite 1001,
Galveston, Texas 77511.
* Counsel for the State before the Court of Appeals was Allison Lindblade, 600
59th Street, Suite 1001, P.O. Box 17254, Galveston, Texas 77551.
* 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 and before the Court of Appeals was Hon. Mark
W. Stevens, P.O. Box 8118, Galveston, Texas 77553.
TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . 2-3
GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Is a challenge to a warrantless blood draw under T EX. T RANS. C ODE §
724.012(b)(3)(B) preserved for review when Appellant did not explain the
impact of Missouri v. McNeely in his suppression motion or at trial but did
so later on rehearing?
2. Is a warrantless, mandatory blood draw conducted pursuant to T EX.
T RANS. C ODE § 724.012(b)(3)(B)—the repeat offender 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?
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-11
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
APPENDIX A (Opinion of the Court of Appeals After Remand)
i
APPENDIX B (Opinion of the Court of Appeals on Original Submission)
APPENDIX C (Amended Motion to Suppress)
ii
INDEX OF AUTHORITIES
Cases
Aliff v. State, 627 S.W.2d 166 (Tex, Crim. App. 1982). . . . . . . . . . . . . . . . . . . . 9 n.7
Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . 7 n.4
Bishop v. State, 85 S.W.3d 819 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . . . . 8 n.6
Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App. 2006). . . . . . . . . . . . . . 10 n.9
Cole v. State, PD-0077-15 (granted Apr. 22, 2015).. . . . . . . . . . . . . . . . . 11, 11 n.12
Douds v. State, PD-0857-14 (granted Sept. 17, 2014; argued and submitted Mar. 18,
2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Eisenhauer v. State, 754 S.W.2d 159 (Tex. Crim. App. 1988). . . . . . . . . . . . . . 8 n.6
Heidelberg v. State, 144 S.W.3d 535 (Tex. Crim. App. 2004). . . . . . . . . . . . . 10 n.9
Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan.
14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . 7 n.4
Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . 9 n.8
Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992). . . . . . . . . . . . . . . . . . . 7
Leal v. State, 456 S.W. 567 (Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . 2, 6 n.3, 10
Leal v. State, 452 S.W.3d 14 (Tex. App.—Houston [14th] 2014).. . . . . 2, 5 n.5, 5-6
Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App. LEXIS 6460 (Tex.
App.—Houston [14th] 2015) (op. on remand). . . . . . . . . . . . . . . . . . . . . . . . 2-3, 10
Lovill v. State, 319 S.W.3d 687 (Tex. Crim. App. 2009).. . . . . . . . . . . . . . . . 8 n.5, 9
iii
Missouri v. McNeely, 133 S. Ct. 1552 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7
Pena v. State, 285 S.W.3d 459 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . 8 n.5
Pesina v. State, 676 S.W.2d 122 (Tex. Crim. App. 1984). . . . . . . . . . . . . . . . . . 9 n.7
Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan.
15, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim.
App. Nov. 26, 2014, reh’g granted). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 10 n.11
Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov.
17, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 n.12
Williams v. State, 773 S.W.2d 525 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . 9 n.8
Statutes
T EX. C ODE C RIM. P ROC. art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
T EX. T RANS. C ODE § 724.012(b)(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Rule
T EX. R. A PP. P. 33.1(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Act
Acts 2009, 81st Leg., ch. 1348, § 18, eff. Sept. 1, 2009. . . . . . . . . . . . . . . . . . . . . . 7
iv
No. 14-13-00208-CR
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
JONATHAN ALBERT LEAL, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Galveston 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
Appellant’s blood was drawn pursuant to the repeat offender mandatory draw
provision. See T EX. T RANS. C ODE § 724.012(b)(3)(B). Before trial, he filed an
amended motion to suppress, arguing that the repeat-offender provision is
1
unconstitutional and that the then-pending case of Missouri v. McNeely, 133 S. Ct.
1552 (2013), may impact the legality of the warrantless draw. Appendix C; 1 CR 79.
After a hearing, during which only the validity of the stop was litigated, the trial court
denied Appellant’s motion. See, generally, 3 RR 59-119. Appellant objected at trial
to the admission of the blood test results citing his prior objections. 4 RR 92. A jury
subsequently found Appellant guilty of felony DWI, and the trial court sentenced him
to eight years’ imprisonment but suspended the sentence and granted community
supervision. The Supreme Court then rendered its decision in McNeely, and Appellant
moved for a new trial, again challenging the statutorily compelled blood draw. 7 RR
4-26; 1 CR 145. The trial court denied the motion after a hearing. 7 RR 4-26; 1 CR
47.
STATEMENT OF PROCEDURAL HISTORY
The majority of the court of appeals reversed the trial court’s denial of
Appellant’s motion for new trial. Leal v. State, 452 S.W.3d 14 (Tex. App.—Houston
[14th] 2014). This Court refused the State’s PDR but granted review on its own
motion and remanded for the court of appeals to decide whether Appellant properly
preserved review. Leal v. State, 456 S.W. 567 (Tex. Crim. App. 2015). The court of
appeals held that Appellant’s claim was preserved and reversed again based on its
previous decision. Leal v. State, __ S.W.3d __, No. 14-13-00208-CR, 2015 Tex. App.
2
LEXIS 6460 (Tex. App.—Houston [14th] 2015) (op. on remand).
GROUNDS FOR REVIEW
1. Is a challenge to a warrantless blood draw under T EX. T RANS. C ODE §
724.012(b)(3)(B) preserved for review when Appellant did not explain the
impact of Missouri v. McNeely in his suppression motion or at trial but did
so later on rehearing?
2. Is a warrantless, mandatory blood draw conducted pursuant to T EX.
T RANS. C ODE § 724.012(b)(3)(B)—the repeat offender 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?
ARGUMENT
1. Appellant failed to properly preserve his challenge to the mandatary blood
draw.
A. Suppression Motion
Before trial, Appellant filed an amended motion to suppress challenging the
mandatory blood draw.1 Appendix C; 1 CR 79. He argued, “Sec. 724.011 is
unconstitutional on its face and as applied, as a violation of U.S. Constitution, Amend.
VIII, which prevents unreasonable searches and seizures.” Appendix C; 1 CR 79.
Immediately following, he asserted:
1
It also reasserted the grounds presented in his first motion to suppress, which
challenged the validity of the stop. 1 CR 27-28.
3
The matter is presently under review before the U.S. Supreme Court.
Missouri v. McNeely, USSC Docket No. 11-1425, was argued on January
9, 2013. Briefly, the Supreme Court of Missouri apparently ruled that a
warrantless blood draw violated the Eighth Amendment, and the United
States Supreme Court granted cert. The publicly available recording of
the arguments before the U.S. Supreme Court . . . suggest that a
significant number of justices were openly concerned about the prospect
of a government official approaching an unwilling citizen with a needle.
Such information is not of course binding or in many instances predictive
of the ultimate ruling, but they do suggest that the issue is a close one and
should be carefully reviewed before this court commits resources to a trial
which may be fatally flawed from the beginning.
Appendix C; 1 CR 79. The trial court held a hearing, during which only the validity
of the stop was actively litigated. See, generally, 3 RR 59-119. The trial court denied
Appellant’s motion. 3 RR 119; 4 RR 161.
Appellant also objected at trial, citing “all prior objections,” when the State
proffered the test results. 4 RR 92. The trial court ruled that the evidence was
admissible. 4 RR 92.
Finally, before addressing the jury charge, the judge noted his earlier rulings:
“I think I’ve made this ruling on the record. But just in case I didn’t, we had a Motion
to Suppress Evidence in this case. And there was an amended Motion to Suppress.
And after hearing and consideration of the facts and case law, that motion is denied.
Thank you.” 4 RR 161.
B. Supplemental New Trial Motion
Relying on the then-new decision in McNeely, Appellant filed a supplemental
4
motion for new trial, claiming for the first time that that there was no consideration
by law enforcement as to whether a warrant could have been obtained or the existence
of exigent circumstances. 1 CR 145. He also maintained that the mandatory draw
provision “unconstitutionally substitutes two prior convictions for any constitutional
basis for intrusion into the body.”2 1 CR 145. Appellant’s claims were addressed at
a hearing, 7 RR 4-26, and the trial court later denied Appellant’s motion. 1 CR 147.
C. Court of Appeals
A majority of the court of appeals held that Appellant’s Fourth Amendment
challenge to the blood draw was both timely and specific. Leal, 2015 Tex. App.
LEXIS 6460, at *5-6. It concluded that the trial court implicitly overruled Appellant’s
amended motion to suppress when it admitted the blood test results over Appellant’s
trial objection. Id. at *4. The majority also held that the trial court’s denial of
Appellant’s supplemental motion for rehearing, filed five days after McNeely was
decided, also preserved his claim. Id. at *5.
Justice Frost concurred. Id. at *7 (Frost, J., concurring). Regarding timeliness,
he concluded that the Appellant’s amended suppression motion, denied in toto,
preserved the claim. Id. at *8. In Justice Frost’s view, it was the only suppression
2
As noted by the court of appeals, Appellant’s amended motion was untimely;
however, the trial court granted Appellant leave to file, and the State did not object.
Leal, 2015 Tex. App. LEXIS 6460, at *5; 7 RR 8.
5
motion before the court because it superceded Appellant’s first motion; therefore,
when remanding this case, this Court erred to state that the suppression hearing
pertained to the first motion.3 Id. at *9-10, *10-11 n.9. Further, Justice Frost
maintained that Appellant’s failure to address the issue at the hearing is of no
consequence because not all grounds need to be discussed at a hearing to preserve
error. Id. *9-10. And there was no express or implied waiver. Id. *12-13. He also
observed that Appellant’s challenge was specific. Id. at *8. The amended motion
asserted that the blood was drawn pursuant to a statute that violates the Fourth
Amendment; it is apparent that Appellant’s mention of the Eighth Amendment was
a mistake. Id. at *8-9.
D. Analysis
First, Appellant’s stark mention of the constitutionality of the statute and
McNeely in his amended suppression motion were not sufficient to put the trial court
on notice of the precise claim he later raised on appeal. 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
3
This Court stated:
“Appellant also filed an amended motion to suppress evidence, challenging the
warrantless blood draw on Fourth Amendment grounds. A hearing was held on the
motion to suppress complaining of an illegal stop, and the trial court denied the
motion. That hearing did not pertain to appellant’s amended motion to suppress.”
Leal, 456 S.W.3d at 568.
6
“sufficient specificity” to make the trial court aware of it). Though Appellant claimed
that the statute is unconstitutional, he never made any connection between McNeely
and the validity of the statute. McNeely’s sole issue was exigency. By design, it had
nothing to with Missouri’s implied consent statute (let alone Texas’). McNeely, 133
S. Ct. at 1567-68. It would have been difficult for even a seasoned trial judge to
conclude, on the basis of Appellant’s motion alone, that he was challenging the
validity of the statute because, in the absence of exigent circumstances or a warrant,
a non-consensual blood draw violates the Fourth Amendment.
Beyond connectivity, the novelty of the controversy increased the need for
Appellant to detail, in plain language, why suppression was warranted. See Lankston
v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). The repeat offender provision
has been in effect since September 1, 2009, Acts 2009, 81st Leg., ch. 1348, § 18, eff.
Sept. 1, 2009. Until McNeely no one mounted a serious challenge to it under the
theory it violates the Fourth Amendment in the absence of exigency or a warrant.4
The novelty of the issue would have made it nearly impossible for the trial court to
frame the issue, as currently understood, for Appellant. Thus, it was crucial for
4
This Court recognized that the statute implicitly dispenses with the warrant
requirement. See State v. Johnston, 336 S.W.3d 649, 660 (Tex. Crim. App. 2011)
(“Chapter 724 of the Texas Transportation Code, which contains Texas’ implied
consent statutes, governs the State’s ability to obtain a breath or blood sample from
a DWI suspect when there is no warrant.”) (citing Beeman v. State, 86 S.W.3d 613,
616 (Tex. Crim. App. 2002)).
7
Appellant to have explained his then-unheard of McNeely claim, misnomer
notwithstanding.5 Appellant’s broad and seemingly unrelated statements should not
be regarded as preserving the claim raised on appeal.6
Appellant’s supplemental motion for new trial did not preserve review either.
This Court has held that an unobjected-to complaint that was apparent during trial is
not preserved for appeal when it is raised for the first time in a motion for new trial.
5
See Lovill v. State, 319 S.W.3d 687, 692 (Tex. Crim. App. 2009) (when a legal
claim is rarely urged, like a selective prosecution claim, the objecting party should
invoke the proper federal and state constitutional provisions or use key legal phrases);
Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (novel argument of
greater rights under Texas’ due course of law provision was not sufficiently
distinguished from the federal Due Process Clause in the trial court).
6
Even if Appellant’s amended motion had been sufficiently specific, contrary to
Justice Frost’s opinion, the record could be construed as Appellant having abandoned
or waived the issue. Because he never argued the issue at the suppression hearing,
the judge never explicitly ruled on it. Therefore, the trial judge’s statements that he
overruled Appellant’s motions to suppress could be limited to the validity of the stop
issue the trial judge did explicitly resolve. 3 RR 119; 4 RR 161. Depending on how
the trial court’s statements are construed, there is authority from this Court that may
support a contrary determination, however. In Bishop v. State, 85 S.W.3d 819, 821-22
(Tex. Crim. App. 2002), this Court stated the trial courts have the authority to dispose
of a motion based on the motion alone. See also Eisenhauer v. State, 754 S.W.2d 159,
161 (Tex. Crim. App. 1988) (stating that a motion to suppress that raised both federal
and state search and seizure provisions was sufficient to preserve state constitutional
claim when oral argument covered only the federal constitutional claim).
There is also a question as to whether Appellant’s objection to the admission to the
blood test results during trial even included his non-specific amended motion to
suppress ground. As the State noted in its brief below, State’s Brief on Remand at 7-
8, his objections immediately preceding the final “all prior objections” statement did
not pertain to the validity of the statutory draw itself. 4 RR 73-92.
8
Lovill, 319 S.W.3d at 693. Here, there is no reason why Appellant could not have
formulated his Fourth Amendment challenge to the statutory blood draw during trial.
As explained above, McNeely did not purport to address any implied consent
mandatory draw statute; therefore, on its face, it had no applicability to the statutory
draw of Appellant’s blood. Further, the Supreme Court adopted McNeely’s argument,
of which Appellant was aware before trial.
It could be argued that the basis for Appellant’s claim did not become available
until McNeely was decided because, until then, Texas law appeared to endorse the per
se exigency rule.7 So until per se exigency was not longer available, a defendant
moving to suppress BAC results had no reason to challenge the legality of a draw
under the statute. Before McNeely, any challenge would have been deemed harmless
with exigency as the sole legal basis. However, because McNeely’s issue was clear-
cut, Appellant should have anticipated the need to make the comprehensive argument
he ultimately raised in his new trial motion.8 But even assuming it was not
7
Aliff v. State, 627 S.W.2d 166, 169-70 (Tex, Crim. App. 1982); see also Pesina
v. State, 676 S.W.2d 122, 123-27 (Tex. Crim. App. 1984) (same).
8
See Williams v. State, 773 S.W.2d 525, 534-35 (Tex. Crim. App. 1988), aff’d on
reh’g (Batson claim could not be raised for the first time on appeal even though
Batson was decided after Appellant’s trial; the legal basis was not so novel that it
could not have been reasonably anticipated); see also Karenev v. State, 281 S.W.3d
428, 434 (Tex. Crim. App. 2009) (facial challenge to a presumptively constitutional
statute cannot be raised for the first time on appeal).
9
foreseeable, Appellant should have challenged each legal basis on its own terms.9
The court of appeals erred to hold that Appellant’s blood draw challenge was
preserved.
2. Even assuming error was preserved, the draw was reasonable under the
Fourth Amendment.
The majority of the court of appeals reversed the trial court’s denial of
Appellant’s motion for new trial.10 Leal, 452 S.W.3d at 23. It stated, “We are
persuaded by the reasoning of our sister courts of appeal and join them in concluding
that the repeat-offender provision of the implied-consent statute . . . is not one of the
recognized exceptions to the warrant requirement.” Id. The court then concluded
that the draw was not justified by exigent circumstances or valid consent. Id. at 23-32.
Justice Frost dissented and, in doing so, adopted a similar rationale as Presiding Judge
Keller in State v. Villarreal.11 Id. at 32-40 (Frost, J., dissenting).
The warrantless blood draw, conducted under Texas Transportation Code
9
See, e.g., Buchanan v. State, 207 S.W.3d 772, 776-79 (Tex. Crim. App. 2006)
(an objection under the Fourth Amendment does not preserve a challenge to an arrest
under Chapter 14 of the Code of Criminal Procedure); Heidelberg v. State, 144
S.W.3d 535, 539-43 (Tex. Crim. App. 2004) (an objection under the Fifth Amendment
does not preserve a Texas constitutional challenge).
10
The court of appeals incorporated its first opinion by reference on remand. Leal,
2015 Tex. App. LEXIS 6460, at *1.
11
No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898 (Tex. Crim. App. Nov.
26, 2014, reh’g granted).
10
Section 724.012(b)(3)(B), was reasonable under Fourth Amendment jurisprudence.
Review should be granted because the same issue 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), Reeder v. State, No. PD-0601-14 (granted Aug. 20,
2014; argued and submitted Jan. 15, 2015), and Douds v. State, PD-0857-14 (granted
Sept. 17, 2014; argued and submitted Mar. 18, 2015).12
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 (granted Apr. 22, 2015), 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, if the other issues
are resolved in Appellant’s favor, this Court should remand to the court of appeals to
decide, in the first instance, whether suppression is warranted. Alternatively, for the
reasons asserted in Cole, this Court should hold that the remedy of suppression is not
warranted.
12
Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted
Nov. 17, 2014), and Cole v. State, PD-0077-15 (granted Apr. 22, 2015), do not
implicate the repeat-offender provision.
11
PRAYER FOR RELIEF
WHEREFORE, the State of Texas prays that the Court of Criminal Appeals
grant review and reverse the decision of the court of appeals.
Respectfully submitted,
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No.13803300
/s/ 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)
12
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count tool this
document contains 2,372 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 July 6, 2015, via certified electronic service provider to:
Hon. Allison Lindblade
600 59th Street, Suite 1001
P.O. Box 17254
Galveston, Texas 77551
allison.lindblade@co.galveston.tx.us
Hon. Mark W. Stevens
P.O. Box 8118
Galveston, Texas 77553
markwandstec@sbcglobal.net
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
14
APPENDIX A
6 of 100 DOCUMENTS
JONATHAN ALBERT LEAL, Appellant v. THE STATE OF TEXAS, Appellee
NO. 14-13-00208-CR
COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON
2014 Tex. App. LEXIS 12286
November 13, 2014, Dissenting Opinion Filed
NOTICE: PUBLISH -- TEX. R. APP. P. 47.2(b). the officer in this case had sufficient evidence to justify
the warrantless temporary detention of appellant. W ith
PRIO R HISTORY: [*1] On Appeal from the 122nd regard to appellant's second issue, we hold that the
District Court, Galveston County, Texas. Trial Court intrusion [*2] into appellant's veins was an unreasonable
Cause No. 12CR0947. warrantless search in violation of the Fourth Amendment.
W e therefore reverse the trial court's judgment and
remand to the trial court for a new trial consistent with
CO UNSEL: For Appellant: M ark W. Stevens, this opinion.
GALVESTON, TX.
I. F A C TS A ND P RO CED U R A L B A CKGROUN D
For Appellee: Allison Lindblade, GALVESTON, TX.
Early in the morning of April 2, 2012, Jacob Hodges 1
was on patrol driving east in the right lane of W est M ain
JUDGES: Panel consists of Chief Justice Frost and
Street in League City, Galveston County, Texas. Hodges
Justices Donovan and Brown. (Frost, C.J., dissenting).
observed appellant approaching W est Main Street from
an apartment complex parking lot. Appellant was driving
OPINION BY: Marc W . Brown
a white sport utility vehicle (SUV) approaching from the
south at a high rate of speed. Immediately prior to turning
OPINION
onto W est Main Street, appellant applied his brakes. This
caused the SUV to visibly rock forward, compressing the
M AJORITY OPINION
front suspension. The front end of appellant's SUV
Appellant Jonathan Albert Leal was stopped for entered W est Main Street. Hodges had to slam on his
failing to yield the right of way. Appellant was arrested brakes in order to avoid a collision.
on suspicion of driving while intoxicated (DW I) and,
over his explicit refusal, compelled by the arresting 1 At the time of the events at issue, Hodges was
officer to submit to a warrantless intrusion into his veins. a police officer with the League City Police
Appellant was convicted of felony DW I. See Tex. Penal Department. At the time of trial, Hodges was a
Code Ann. §§ 49.04, 49.09(b) (W est 2011 & Supp. special agent with the Drug Enforcement
2014). Administration.
Appellant presents this court with two issues for As a result of this near collision, Hodges initiated a
review. The first issue is whether the traffic stop was traffic stop. During the course of the traffic stop, Hodges
supported by reasonable suspicion. The second issue is saw a [*3] bottle of rum behind the passenger's seat of
whether, under Missouri v. McNeely, U.S. , 133 S. appellant's SUV. Hodges noticed that appellant's eyes
Ct. 1552, 185 L. Ed. 2d 696 (2013), and based solely on were red and watery. He also noticed the faint odor of
the arresting officer's application of the repeat-offender alcohol on appellant's breath. In response to Hodges's
provision of the implied-consent statute, see Tex. Transp. questioning, appellant admitted to drinking three mixed
Code Ann. § 724.012(b)(3)(B) (W est 2011), the State was drinks. Hodges administered a battery of standardized
justified in obtaining a blood sample from appellant's field sobriety tests. Based on appellant's performance on
veins without a warrant. the sobriety tests and Hodges's personal observations,
Hodges concluded that appellant was under the influence
W ith regard to appellant's first issue, we hold that
of alcohol. Hodges arrested appellant and transported him
to the League City jail. II. S TA N DA R D OF R EVIEW
At the jail, Hodges gave appellant the requisite A trial court's denial of a motion to suppress and a
statutory warning regarding the implied-consent statute trial court's denial of a motion for new trial are both
and the consequences of refusing to submit to the taking reviewed under the abuse of discretion standard.
of a blood or breath specimen. See Tex. Transp. Code Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App.
Ann. § 724.015 (W est Supp. 2014). The warning was 2013); Ex parte Moore, 395 S.W.3d 152, 158 (Tex. Crim.
given orally and in writing. After receiving the statutory App. 2013). A trial court abuses its discretion if no
warning, appellant refused to submit to the taking of both reasonable view of the record could support its ruling.
a blood and a breath specimen.2 Hodges then reviewed Okonkwo, 398 S.W.3d at 694. W e view the evidence in
appellant's criminal history and discovered that appellant the light most favorable to the trial court's ruling. Id.;
had two prior DW I convictions. Per the implied-consent Moore, 395 S.W.3d at 158. At a hearing on the motion,
statute, Hodges was required to obtain a specimen of the trial court is the sole judge of witness credibility and
appellant's blood. See Tex. Transp. Code Ann. § the weight given to witness testimony. Okonkwo, 398
724.012(b)(3)(B). Hodges transported appellant to Clear S.W.3d at 694; Moore, 395 S.W.3d at 158. W e must
[*4] Lake Regional Hospital where a nurse drew afford [*6] almost total deference to the trial court's
appellant's blood. According to Hodges's offense report, findings of historical facts as well as mixed questions of
appellant was "very uncooperative" at the hospital; three law and fact that turn on an evaluation of credibility and
people had to hold appellant down while the nurse took demeanor. Okonkwo, 398 S.W.3d at 694; Abney v. State,
his blood. Hodges did not obtain a search warrant to 394 S.W.3d 542, 547 (Tex. Crim. App. 2013). W hen the
draw appellant's blood. trial court does not make explicit findings of fact, we
assume the trial court made implicit findings of fact
2 W hile the written refusal in the record denotes supported by the record. Okonkwo, 398 S.W.3d at 694;
only a refusal to submit a breath specimen, the Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App.
testimony at trial in response to the State's 2005).
questioning clearly demonstrates that appellant
W e review de novo (1) questions of law based on
refused to submit samples of both breath and
undisputed facts and (2) mixed questions of law and fact
blood.
that do not turn on an evaluation of credibility and
Appellant was indicted for operating a motor vehicle demeanor. Jones v. State, 437 S.W.3d 536, 538 (Tex.
in a public place while intoxicated. See Tex. Penal Code App.--Texarkana 2014, pet. filed); see Oles v. State, 993
Ann. § 49.04(a). The indictment alleged two prior DW I S.W.2d 103, 106 (Tex. Crim. App. 1999); Guzman v.
convictions. Appellant stipulated to the validity of the State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
two prior convictions. Appellant filed a motion to Additionally, we review de novo the trial court's
suppress challenging the legality of the traffic stop. After application of the law of search and seizure to the trial
conducting a hearing, the trial court denied the motion to court's express or implied determination of historical
suppress. facts. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim.
App. 2008). Finally, we review de novo indisputable
The case was tried before a jury. Appellant's blood
evidence contained in a video recording. State v. Duran,
alcohol content, which was nearly three times the legal
396 S.W.3d 563, 570-71 (Tex. Crim. App. 2013); see
limit, was admitted into evidence. The jury found
Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App.
appellant guilty of the charged offense, and the trial court
2000).
assessed punishment at eight years' confinement. The
sentence was suspended and appellant [*5] was placed
III. D ISC U SSIO N
on community supervision.
W e begin our discussion with a general overview of
The trial court's judgment was signed on February
the Fourth Amendment. W e then analyze whether Hodges
15, 2013. Appellant filed his notice of appeal on the
had reasonable suspicion that appellant committed the
same day. On March 8, 2013, appellant filed a motion for
traffic violation of failing to yield the right of way.
new trial, asserting various grounds not pertinent to this
Finally, we analyze whether the warrantless intrusion into
appeal. On April 22, 2013, five days after the Supreme
appellant's veins was justified under an exception to the
Court decided McNeely, appellant filed a supplemental
Fourth Amendment's warrant requirement.
motion for new trial in which he challenged the validity
of the warrantless blood draw under McNeely. The trial
A. The Fourth Amendment
court held a hearing on appellant's motion for new trial
and ultimately denied the motion. On appeal, appellant The Fourth Amendment provides: "The right of the
challenges (1) the legality of the traffic stop and (2) the people to be secure in their persons, houses, papers, [*7]
legality of the warrantless blood draw. and effects, against unreasonable searches and seizures,
shall not be violated, and no W arrants shall issue, but
upon probable cause, supported by Oath or affirmation, private road or driveway shall yield the right-of-way to a
and particularly describing the place to be searched, and vehicle approaching on the highway to be entered." Tex.
the persons or things to be seized." U.S. Const. amend. Transp. Code Ann. § 545.155 (W est 2011). The
IV. The ultimate touchstone of the Fourth Amendment is undisputed evidence showed the following: o Hodges was
reasonableness. Riley v. California, U.S. , , 134 S. driving eastbound in the right lane of W est Main Street.
Ct. 2473, 2482, 189 L. Ed. 2d 430 (2014).
Reasonableness generally requires the obtaining of a o Appellant was driving through a
judicial warrant. Id. A warrantless search is reasonable parking lot at a high rate of speed.
only if it falls within a specific exception to the Fourth
o A p p e l l a n t 's t r a j e c t o r y was
Amendment's warrant requirement. Id.
perpendicular to that of Hodges.
A defendant who alleges a search or seizure in
o Appellant was approaching W est
violation of the Fourth Amendment must produce some
Main Street from the south.
evidence that rebuts the presumption of proper police
conduct. Amador v. State, 275 S.W.3d 872, 878 (Tex. o Appellant's SUV stopped suddenly,
Crim. App. 2009). To satisfy this burden, the defendant causing its weight to visibly shift forward
must establish that the search or seizure occurred without and its front suspension to compress.
a warrant. Id. Once the defendant makes this showing,
o The front end of appellant's SUV
the State must prove that the search or seizure was
entered Hodges's lane.
conducted pursuant to a warrant or was reasonable. Id.
Here, the State seized and searched appellant without a o Hodges had to slam on his brakes in
warrant. Therefore, we must determine whether the order to avoid colliding with the SUV.
warrantless temporary detention of appellant was
reasonable and, if so, whether the warrantless intrusion
into appellant's veins was reasonable.
Based on the totality of these circumstances, we
B. The traffic stop was reasonable. conclude that Hodges had reasonable suspicion that
appellant committed the traffic violation of failing to
The [*8] warrantless temporary detention of yield the right of way. The record indicates that appellant
appellant was reasonable. A warrantless temporary did not yield the right of way to Hodges. Specifically,
detention, such as the traffic stop in this case, is lawful appellant allowed the front end of his SUV to enter the
when the officer has reasonable suspicion to believe that highway from the apartment complex's driveway when
an individual is violating the law. Ford, 158 S.W.3d at Hodges was approaching on the highway to be entered,
492. Reasonable suspicion exists if the officer has namely W est Main Street. See id.; see, e.g., Thomas v.
specific articulable facts that, when combined with State, 336 S.W.3d 703, 708-09 (Tex. App.--Houston [1st
rational inferences from those facts, would lead him to Dist.] 2010, pet. ref'd) (traffic stop for failing to yield
reasonably suspect that a person has engaged, is right [*10] of way was justified when defendant's abrupt
engaging, or soon will be engaging in criminal activity. turn forced officer to apply brakes in order to avoid a
Abney, 394 S.W.3d at 548. This objective standard collision).
disregards the officer's subjective intent and looks solely
at whether an objective basis for the detention exists. The trial court did not err in denying appellant's
Ford, 158 S.W.3d at 492. A reasonable-suspicion motion to suppress. Appellant's first issue is overruled.
determination is made by considering the totality of the
circumstances at the time of the detention and must be C. The State's drawing of appellant's blood without a
based on commonsense judgments and inferences about warrant was not reasonable because the State failed to
human behavior. Illinois v. Wardlow, 528 U.S. 119, 125, establish a recognized exception to the Fourth
120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); State v. Amendment's warrant requirement.
Woodard, 341 S.W.3d 404, 412 (Tex. Crim. App. 2011). The State's drawing of appellant's blood without a
In this case, Hodges testified that he stopped warrant was not reasonable. The State failed to establish a
appellant for failing to yield the right of way. In order to recognized exception to the Fourth Amendment's warrant
satisfy its burden, the State was required to show that requirement.3 A blood draw conducted at the direction of
Hodges had a reasonable suspicion that appellant the police is a search subject to the reasonableness
violated section 545.155 of the Texas Transportation requirement of the Fourth Amendment. Schmerber v.
Code by failing to yield the right of way. See Abney, 394 California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed.
S.W.3d at 548. 2d 908 (1966). A warrantless search of the person is
unreasonable unless it falls within a recognized exception
Section 545.155 provides that "[a]n operator about to to the warrant requirement. McNeely, 133 S. Ct. at 1558.
enter or cross a highway from an alley, building, [*9] or
Voluntary consent to search and exigent circumstances new trial, the State acknowledged that, under McNeely,
are among the recognized exceptions. McGee v. State, "it is not a per se exception to the general warrant
105 S.W.3d 609, 615 (Tex. Crim. App. 2003). W e are requirement . . . that alcohol naturally dissipates in the
persuaded by the reasoning of our sister courts of appeal blood stream." The State argues, however, that exigent
and join them in concluding that the repeat-offender circumstances did justify the warrantless blood draw in
provision of the implied-consent statute, see Tex. Transp. this case. The State avers that two hours elapsed from the
Code Ann. § 724.012(b)(3)(B), is not one of the time of the traffic stop to the time that appellant's blood
recognized exceptions to the warrant requirement. State was drawn. The State contends that the additional time
v. Anderson, S.W.3d , , No. 09-13-00400-CR, 2014 needed to acquire a warrant threatened the destruction of
Tex. App. LEXIS 11151, 2014 WL 5033262, at *15 (Tex. the evidence of appellant's blood alcohol content. The
App.--Beaumont Oct. 8, 2014, no pet. h.); Aviles v. State, State's position is untenable because it is not supported by
S.W.3d , , No. 04-11-00877-CR, 2014 Tex. App. evidence in the record.
LEXIS 8508, 2014 WL 3843756, at *3 (Tex. App.--San
The exigent circumstances exception applies "when
Antonio Aug. 6, 2014, pet. filed) [*11] ; Forsyth v. State,
the exigencies of the situation make the needs of law
438 S.W.3d 216, 223 (Tex. App.--Eastland 2014, pet.
enforcement so compelling that a warrantless search is
filed); Sutherland v. State, 436 S.W.3d 28, 41 (Tex. App.-
objectively reasonable under the Fourth Amendment."
-Amarillo 2014, pet. filed); Weems v. State, 434 S.W.3d
McNeely, 133 S. Ct. at 1558 (quoting Kentucky v. King,
655, 665 (Tex. App.--San Antonio 2014, pet. granted);
U.S. , , 131 S. Ct. 1849, 1856, 179 L. Ed. 2d 865
Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.--
(2011)). The State has a compelling need to prevent the
Texarkana 2014, pet. granted); State v. Villarreal,
imminent destruction of evidence. Id. A law enforcement
S.W.3d , , No. 13-13-00253-CR, 2014 Tex. App.
officer may conduct a search without a warrant if, under
LEXIS 645, 2014 WL 1257150, at *11 (Tex. App.--
the circumstances, the delay necessary to obtain a warrant
Corpus Christi Jan. 23, 2014, pet. granted).
threatens the destruction of evidence. Schmerber, 384
U.S. at 770.
3 To the extent appellant asks us to decide the
constitutionality of the implied-consent statute, W e must look to [*13] the totality of the
we decline his invitation. "The constitutionality circumstances as set forth in the record to determine
of a statute is not to be determined in any case whether the officer faced an exigency that justified acting
unless such a determination is absolutely without a warrant. McNeely, 133 S. Ct. at 1559. However,
necessary to decide the case in which the issue is "in order to establish a plausible justification for an
raised." State ex rel. Lykos v. Fine, 330 S.W.3d exigent circumstances exception to the warrant
904, 909 (Tex. Crim. App. 2011) (quoting Briggs requirement, the State ha[s] the burden to show facts and
v. State, 740 S.W.2d 803, 806-07 (Tex. Crim. App. circumstances beyond the passage of time and the
1987)). Because section 724.012(b)(3)(B) is not a resulting dissipation of alcohol in the bloodstream."
recognized exception to the Fourth Amendment's Douds v. State, 434 S.W.3d 842, 851 (Tex. App.--Houston
warrant requirement and because the State did not [14th Dist.] 2014, pet. granted) (en banc, op. on reh'g).
satisfy its burden to establish a recognized
Here, the State has not shown or articulated any facts
exception to the warrant requirement, we
supporting the existence of an exigency beyond the
conclude that appellant's Fourth Amendment
passage of time and the resulting dissipation of alcohol in
rights were violated. Therefore, it is not
the bloodstream. The record shows that Hodges initiated
"absolutely necessary" for us to decide whether
the traffic stop just after 2:00 a.m. on April 2, 2012.
section 724.012(b)(3)(B) is unconstitutional,
Hodges arrested appellant at 2:46 a.m. The nurse drew
either facially or as applied to appellant.
appellant's blood at 4:20 a.m. Although Hodges testified
Therefore, the State was required to prove that the that he was aware that he could obtain a blood-draw
warrantless intrusion into appellant's veins was justified warrant, the record contains no evidence that he
by exigent circumstances or valid consent.4 attempted to acquire such a warrant. Additionally, the
record contains no evidence regarding what Hodges knew
4 The State has not argued that any other about the time needed to obtain a warrant. The State
recognized exception to the warrant requirement presented no evidence that further delay to obtain a
applies to this case. warrant threatened the destruction of evidence. [*14] The
only evidence of an exigency in this case is the two hours
1. The drawing of appellant's blood without a warrant that elapsed from the time of the traffic stop to the time of
was not justified by exigent circum stances. the warrantless blood draw and the resulting dissipation
of alcohol in appellant's blood stream.
The State has not met its burden to establish the
exigent circumstances exception [*12] to the warrant Even though findings of historical fact supported by
requirement. At the hearing on appellant's motion for the record must be implied in favor of the trial court's
ruling, whether those facts meet the legal standard of se rule of irrevocable consent by comparing a
exigent circumstances is a legal question we review de warrantless blood draw to an administrative
novo. Douds, 434 S.W.3d at 855. The findings that can search at an airport is unconvincing.
be implied on this record do not support the conclusion
The State has not met its burden to establish that
that the delay necessary to obtain a warrant threatened
exigent circumstances justified the warrantless search into
the imminent destruction of the evidence of appellant's
appellant's veins.
blood alcohol content.
Nor does the record support the dissent's position 2. The drawing of appellant's blood without a warrant
that appellant posed a risk similar to that of a suspected was not justified by valid consent.
terrorist in a highly crowded airport. Here, appellant was
The State next contends, "It is well settled that one of
in police custody and no longer a threat to anyone on the
the established exceptions to a warrant requirement is a
public roadways. This is in marked contrast to the would-
search pursuant to consent." The State equates statutory
be "air pirate" in the "zone of danger." The warrantless
implied consent with the recognized consent exception to
search in this case was for evidence of intoxication, not
the Fourth Amendment's warrant requirement. The State's
for weapons or implements of mass destruction that
position is that a suspect with two prior DW I convictions
could still be used. Further, the dissent advances an
has irrevocably consented to a mandatory warrantless
argument that was not advanced by the [*15] State at
blood draw. W e disagree and conclude that, under the
trial or on appeal. 5
totality of the circumstances in the record, the State has
not met its burden to establish that the warrantless search
5 W e also note that courts deciding the validity
into appellant's veins was justified by valid consent.6
of searches at airports after the 9/11 terrorist
attacks have eschewed the notion that searches at
6 Like the First Court of Appeals in Perez v.
airports are justified by consent. See United
State, we do not consider the constitutionality of
States v. Aukai, 497 F.3d 955, 960-61 (9th Cir.
the implied-consent statute. See S.W.3d , ,
2007) (en banc) (overruling prior cases that
No. 01-12-01001-CR, 2014 Tex. App. LEXIS
predicated the reasonableness of airport screening
2681, *16, 2014 WL 943126, at *7 (Tex. App.--
on ongoing consent or irrevocable implied
Houston [1st Dist.] Mar. 11, 2014, no pet.); supra
consent; "[G]iven that consent is not required, it
note 3. Rather, we must decide an issue not
makes little sense to predicate the reasonableness
addressed in Perez--whether [*17] such implied
of an administrative airport screening search on
consent can be revoked.
an irrevocable implied consent theory."); see also
Corbett v. Transp. Sec. Admin., 767 F.3d 1171,
a. Consent under the Fourth Am endm ent
1180 (11th Cir. 2014) (describing airport search
as administrative search rather than consent Under the Fourth Amendment, a warrantless search
search); George v. Rehiel, 738 F.3d 562, 575 (3d authorized by consent is wholly valid. Schneckloth v.
Cir. 2013) (noting that airport screening was Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed.
permissible under administrative search doctrine); 2d 854 (1973). Like searches justified by consent in other
Elec. Privacy Info. Ctr. v. Dep't of Homeland contexts, "consent to a blood test must be free and
Sec., 653 F.3d 1, 10, 397 U.S. App. D.C. 313 voluntary, and it must not be the result of physical or
(D.C. Cir. 2011) (screening passengers at an psychological pressures brought to bear by law
airport is an administrative search). In fact, Texas enforcement." Fienen v. State, 390 S.W.3d 328, 333 (Tex.
courts have held that travelers who attempt to Crim. App. 2012). A person's consent is not voluntary if
board a commercial aircraft or check their his will was overborne and his capacity for self-
baggage lack standing to challenge the search determination was critically impaired. See Schneckloth,
because they do not have a reasonable 412 U.S. at 225-26; Fienen, 390 S.W.3d at 333.
expectation of privacy. E.g., Kjolhede v. State,
Moreover, a person is free to limit the scope of or
333 S.W.3d 631, 633-34 (Tex. App.--Dallas 2009,
even revoke the consent that was given. Florida v.
pet. ref'd); Turner v. State, 132 S.W.3d 504, 507-
Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801, 114 L. Ed. 2d
08 (Tex. App.--Houston [1st Dist.] 2004, pet.
297 (1991); Valtierra v. State, 310 S.W.3d 442, 450 (Tex.
ref'd); see also Florida v. J.L., 529 U.S. 266, 274,
Crim. App. 2010). If a person withdraws his or her
120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000)
consent before the search is completed, the police cannot
(reasonable expectation of privacy is diminished
continue searching based on the prior consent. See, e.g.,
at airports). In a post-9/11 world, a person's
Mason v. Pulliam, 557 F.2d 426, 429 (5th Cir. 1977)
submission to administrative airport screening has
(citizen's withdrawal of consent and reinvocation of
little to do with his or her consent, implied [*16]
Fourth Amendment rights did not affect validity of IRS
or otherwise. The dissent's effort to justify a per
agent's actions prior to receiving notice of citizen's
withdrawal of consent). A suspect's ability to withdraw within the state, to consent to blood alcohol content
his or her consent is particularly important in cases like testing if they are arrested or detained on suspicion of
this one that involve a compelled intrusion into the drunk driving. McNeely, 133 S. Ct. at 1566. Implied-
human body. See McNeely, 133 S. Ct. at 1565 ("W e have consent statutes do not generally authorize searches;
never retreated . . . from our recognition that any instead, they authorize [*20] the police to require
compelled intrusion into the human body implicates motorists to choose between giving actual consent or
significant, constitutionally [*18] protected privacy withdrawing their "implied consent" and suffering the
interests."). consequences. State v. Padley, 2014 WI App 65, 354 Wis.
2d 545, 849 N.W.2d 867, 880 (Wis. Ct. App. 2014); see
It is the State's burden to show valid consent by clear
McNeely, 133 S. Ct. at 1566. A suspect who consents
and convincing evidence. Fienen, 390 S.W.3d at 333.
when presented with the choice has given actual consent,
The question of whether a person's consent was valid is
but a suspect who refuses to consent withdraws the
one of fact to be determined from the totality of the
statutorily "im plied consent" and accep ts the
circumstances and from the point of view of the
consequences of that choice. Padley, 849 N.W.2d at 879.
objectively reasonable person. Id. "The standard for
In this respect, choosing to submit a breath or blood
measuring the scope of a suspect's consent under the
specimen rather than accepting the consequences of
Fourth Amendment is that of 'objective' reasonableness--
refusal is valid consent under the Fourth Amendment. See
what would the typical reasonable person have
McGautha v. California, 402 U.S. 183, 213, 91 S. Ct.
understood by the exchange between the officer and the
1454, 28 L. Ed. 2d 711 (1971) ("The criminal process . . .
suspect?" Jimeno, 500 U.S. at 251. One of the factors in
is replete with situations requiring 'the making of difficult
determining the validity of a search based on consent is
judgments' as to which course to follow. Although a
whether the suspect had the option to withdraw his or her
defendant may have a right . . . to follow whichever
consent. Flores v. State, 172 S.W.3d 742, 749 (Tex. App.-
course he chooses, the Constitution does not . . . always
-Houston [14th Dist.] 2005, no pet.).
forbid him to choose." (citations omitted)), vacated on
An officer's invocation of section 724.012(b)(3)(B) other grounds sub nom, Crampton v. Ohio, 408 U.S. 941,
is not alone sufficient to establish the existence of valid 92 S. Ct. 2873, 33 L. Ed. 2d 765 (1972); Cantu v. State,
consent justifying a warrantless blood draw. In McNeely, 738 S.W.2d 249, 256 (Tex. Crim. App. 1987) ("No
the Supreme Court rejected the state's argument that constitutional violation is presented by the fact of a
"whenever an officer has probable cause to believe an difficult decision for a defendant.").
individual has been driving under the influence of
The Texas implied-consent statutory scheme is
alcohol, exigent circumstances will necessarily exist
similar to the general model. In Texas, "implied consent"
because [blood alcohol content] evidence is inherently
means that a person arrested for DW I is deemed to have
evanescent." McNeely, 133 S. Ct. at 1560. The Court
consented to the taking of one or more specimens of the
held that the dissipation of alcohol in the blood does not
person's breath or blood for analysis to determine [*21]
categorically support a finding [*19] of exigency and
alcohol concentration. Tex. Transp. Code Ann. § 724.011
reiterated that "[w]hether a warrantless blood test of a
(W est 2011). A specimen can only be taken if the person
drunk-driving suspect is reasonable must be determined
agrees to an officer's request for one, unless the
case by case based on the totality of the circumstances."
provisions of 724.012(b) apply. Id. § 724.013 (W est
Id. at 1563. Here, the State's position is similar to that of
2011). If a person refuses an officer's request to submit a
the state in McNeely: whenever a person has been
specimen, the Department of Public Safety must
arrested for DW I and is a repeat offender, consent will
immediately suspend the person's driver's license. Id. §
necessarily exist because section 724.012(b)(3)(B) says it
724.035 (W est 2011). At issue in this case is section
does. Like the McNeely Court, we reject the State's
724.012(b)(3)(B) of the Transportation Code, the repeat-
argument in favor of a categorical rule supporting a
offender provision of the implied-consent statute. This
finding of irrevocable consent and instead reiterate that
provision requires an officer to take a specimen of a
whether a warrantless blood test of a drunk-driving
person's breath or blood if (1) the officer arrests the
suspect is reasonable under the Fourth Amendment must
person for DW I, (2) the person refuses the officer's
be determined case by case based on the totality of the
request to submit a specimen voluntarily, and (3) at the
circumstances. Therefore, in this case, we must look at
time of arrest, the officer possesses or receives reliable
the facts and circumstances beyond application of section
information from a credible source that the person has
724.012(b)(3)(B) to determine whether the search into
been previously convicted of DW I on two or more prior
appellant's veins was justified by valid consent.
occasions. Id. § 724.012(b)(3)(B).
b. Im plied Consent
c. Analysis
G enerally, im p lied -c o n se n t sta tu te s re q uire
Applying the Fourth Amendment standards, the
motorists, as a condition of operating a motor vehicle
applicable provisions of Texas's implied-consent statute,
and the appropriate standard of review, we conclude the physical force to compel submission." Id. at 333 (quoting
State has not carried its burden to prove the existence of Forte v. State, 759 S.W.2d 128, 138 (Tex. Crim. App.
valid consent in this case. W e acknowledge that the 1988), overruled on other grounds, McCambridge v.
record supports a finding that the statutory requirements State, 778 S.W.2d 70 (Tex. Crim. App. 1989) (internal
for a mandatory blood draw were [*22] met. Appellant quotations omitted)). Although the repeat-offender
was arrested for DW I and was deemed by the implied- provision of the implied-consent statute was not at issue
consent statute to have consented to submitting a in the Fienen court's analysis, see 390 S.W.3d at 333, the
specimen of his breath or blood. Because appellant had Supreme Court's recent abolition of categorical rules
been convicted of DW I on two prior occasions and justifying exceptions to the warrant requirement
refused to submit a blood specimen voluntarily, Hodges persuades us that the use of physical force to compel
was required by the mandatory blood draw provision of submission, particularly in the face of physical resistance,
the implied-consent statute to obtain a specimen of is equally forbidden when the repeat-offender provision is
appellant's breath or blood. Furthermore, appellant at issue in the court's analysis, as it is in this case. See
stipulated to the prior convictions at trial and does not McNeely, 133 S. Ct. at 1563; see also Aviles v. Texas,
contest that Hodges complied with the statute by U.S. , , 134 S. Ct. 902, 902, 187 L. Ed. 2d 767 (2014)
requiring him to submit to the taking of a blood (remanding, for consideration in light of McNeely,
specimen. factually similar case involving repeat-offender provision
of implied-consent law); Tex. Dept. of Pub. Safety v.
The record supports a finding that appellant
Watson, 945 S.W.2d 262, 266 (Tex. App.--Houston [1st
effectively withdrew his implied consent. Hodges
Dist.] 1997, no pet.) ("[A] person cannot be forced to
testified that appellant refused consent to the blood draw.
breathe into a breathalyzer or have a needle with syringe
After discovering appellant's two prior DW I convictions,
forcibly poked into his arm."). W ere it otherwise, we
Hodges took appellant to the hospital for the mandatory
would be creating a per se exception to the warrant
blood draw. At this point, the record indicates that
requirement for DW I repeat offenders. As the United
appellant physically resisted to the taking of his blood.
States Supreme Court made clear in M cNeely, this we
Specifically, three people had to hold appellant down so
cannot do.7
the nurse could complete the blood-draw procedure. The
explicit refusal coupled with the physical refusal to
7 W e acknowledge, as does the dissent, that "the
submit to the taking of a blood specimen effectively
permissibility of a [*25] particular practice 'is
withdrew [*23] appellant's prior implied consent. See
judged by balancing its intrusion on the
Jimeno, 500 U.S. at 251 (scope of consent is determined
individual's Fourth Amendment interests against
by what a reasonable person would have understood by
its promotion of legitimate governmental
the exchange between the officer and the suspect).
interests.'" Skinner v. Ry. Labor Execs. Ass'n, 489
Despite this withdrawal of consent and without obtaining
U.S. 602, 619, 109 S. Ct. 1402, 103 L. Ed. 2d 639
a warrant, Hodges forced appellant to submit a blood
(1989) (quoting Delaware v. Prouse, 440 U.S.
specimen. Hodges's only justification for mandating the
648, 654, 99 S. Ct. 1391, 59 L. Ed. 2d 660
warrantless blood draw was his application of section
(1979)). However, in this case, the balance of the
724.012(b)(3)(B).
State's interests in eradicating the drunken driving
The totality of the circumstances in this case problem against the individual's constitutionally-
demonstrates that appellant withdrew his consent prior to protected interest in his or her bodily integrity
the warrantless blood draw. In light of appellant's undermines the dissent's position in favor of
withdrawal of consent and because the State's only irrevocable consent based solely on the
j u s t i f i c a t i o n f o r c o n d u c t i n g th e w a r r a n tle s s individual's status as a repeat offender.
nonconsensual blood draw was the repeat-offender
The drunken driving problem is a national
provision of the implied-consent statute, we conclude the
epidemic, and the State has an important interest
State has not met its burden to establish the existence of
in eradicating it. See McNeely, 133 S. Ct. at 1565.
valid consent justifying the warrantless blood draw.
The State also has an interest in protecting law-
In reaching this conclusion, we recognize the abiding drivers from drunk drivers. But when
apparent inconsistency between deemed consent under balanced against the serious bodily intrusion
the implied-consent statute and a person's absolute right necessitated by a warrantless mandatory blood
to refuse a test. See Fienen, 390 S.W.3d at 332-33. The draw, we conclude that the State's interests are
Court of Criminal Appeals has explained this sufficiently served by the provision in the
inconsistency: "[C]onsent being implied by law, a driver T ransportation Code mandating immediate
may not legally refuse. A driver, however, can physically suspension of a person's driver's license when the
refuse [*24] to submit, and the implied-consent law, person refuses to submit to a blood draw, or, in
recognizing that practical reality, forbids the use of the case of a person without a license, issuance of
an order denying the issuance of a license to that precludes an officer from first obtaining a warrant.
person. See Tex. Transp. Code Ann. § 724.035(a) See, e.g., Ala. Code §§ 32-5-192, 32-5-200
(W est 2011). Furthermore, in this case, appellant (W estlaw); Alaska Stat. Ann. § 28.35.032
was in custody. [*26] He no longer posed a (W estlaw); Ariz. Rev. Stat. Ann. §§ 28-1321, 28-
threat to public safety. And nothing in the record 1388 (W estlaw); Ark. Code Ann. §§ 5-65-202, 5-
suggests that Hodges was prevented from 65-205 (W estlaw); [*28] Cal. Veh. Code §§
obtaining a warrant. 13353, 23612 (W estlaw); Colo. Rev. Stat. Ann. §§
42-4-1301, 42-4-1301.1 (W estlaw); Conn. Gen.
W e are not persuaded by the State's argument that,
Stat. Ann. §§ 14-227b, 14-227c (W estlaw)
by citing favorably to implied-consent statutes
(amended 2014); Del. Code Ann. tit. 21, §§ 2740,
throughout the country, the McNeely Court endorsed the
2741 (W estlaw); Fla. Stat. Ann. § 316.1932
use of implied-consent statutes as a means to justify the
(W estlaw); Ga. Code Ann. § 40-5-67.1 (W estlaw);
warrantless intrusion into a nonconsenting suspect's
Haw. Rev. Stat. §§ 291E-15, 291E-21 (W estlaw);
veins. The Court's statement that implied-consent laws
Idaho Code Ann. § 18-8002 (W estlaw); 625 Ill.
"impose significant consequences when a motorist
Com p. Stat. Ann. 5/11-501.1, 5/11-501.6
withdraws consent" presupposes that a motorist has the
(W estlaw); Ind. Code Ann. §§ 9-30-6-1, 9-30-6-3,
right to withdraw his or her consent. McNeely, 133 S. Ct.
9-30-6-7 (W estlaw); Iowa Code Ann. §§ 321J.6,
at 1566; see Forsyth, 438 S.W.3d at 222 ("The Court's
321J.9, 321J.10A (W estlaw); Kan. Stat. Ann. §§
language does suggest . . . that an accused can withdraw
8-1001, 8-1002 (W estlaw); Ky. Rev. Stat. Ann. §§
his or her consent to submit a specimen for testing in
189A.103, 189A.105, 189A.107 (W estlaw); La.
direct contradiction to the State's argument that implied
Rev. Stat. Ann. §§ 32:661, 32:666 (W estlaw); Me.
consent is irrevocable."); see also Tex. Transp. Code
Rev. Stat. Ann. tit. 29-A, § 2521 (W estlaw); Md.
Ann. § 724.035(a) (W est 2011) (providing for immediate
Code Transp. Ann. § 16-205.1 (W estlaw); Mass.
suspension of license upon a person's refusal to submit to
Gen. Laws ch. 90, § 24 (W estlaw); M ich. Comp.
the taking of a specimen).8 Furthermore, while "a
Laws. Ann. §§ 257.625c, 257.625d (W estlaw);
majority of States either place significant restrictions on
Minn. Stat. Ann. §§ 169A.51, 169A.52 (W estlaw);
when the police officers may obtain a blood sample
Miss. Code Ann. §§ 63-11-5, 63-11-8, 63-11-21
despite a suspect's refusal (often limiting testing to cases
(W estlaw); M o. Rev. Stat. §§ 577.033, 577.041
involving an accident resulting in death or serious bodily
(W estlaw) (amended 2014); Mont. Code Ann. §
injury) [*27] or prohibit nonconsensual blood tests
61-8-402 (W estlaw); Neb. Rev. Stat. Ann. §§ 60-
altogether," McNeely, 133 S. Ct. at 1566, Texas is the
6,197, 60-6,210, 60-498.01 (W estlaw); Nev. Rev.
only state that purports to allow police officers to
Stat. Ann. §§ 484C.150, 484C.160 (W estlaw)
forcibly draw a DW I suspect's blood without a warrant
(permitting use of "reasonable force" under
based solely on the suspect's status as a repeat offender. 9
certain circumstances when a person refuses);
Lastly, the State's position fails to acknowledge that an
N.H. Rev. Stat. Ann. § 265-A:14 (W estlaw); N.J.
officer who obtains a blood-draw warrant can still
Stat. Ann. §§ 39:4-50.2, 39:4-50.4a (W estlaw);
comply with the "shall require" language of section
N.M. Stat. Ann. § 66-8-111 (W estlaw); N.Y. Veh.
724.012(b) while at the same time not running afoul of
& Traf. Laws § 1194 (W estlaw); N.C. Gen.
the Fourth Amendment. See McGruder v. State,
Stat. Ann. § 20-16.2 (W estlaw); N.D. Cent. Code
S.W.3d , , No. 10-13-00109-CR, 2014 Tex. App.
Ann. §§ 39:20-01, 39:20-01.1, 39:20-04
LEXIS 9022, *8, 2014 WL 3973089, at *3 (Tex. App.--
(W estlaw); Ohio Rev. Code Ann. § 4511.191
Waco Aug. 14, 2014, pet. filed) ("[S]ection 724.012(b)
(W estlaw) (allowing officer to employ "whatever
does not require a blood or breath specimen be taken
reasonable means are necessary" to ensure
contrary to the Fourth Amendment; that is, without a
submission; providing officers with criminal and
warrant or without a recognized exception to the warrant
civil immunity); Okla. Stat. Ann. tit. 47, § 753
requirement.")
(W estlaw); Or. Rev. Stat. Ann. §§ 813.095,
813.100 (W estlaw); 75 Pa. Cons. Stat. Ann. §
8 Justice Sotomayor's discussion of implied-
1547 (W estlaw); R.I. Gen. Laws Ann. § 31-27-2.1
consent laws, which the State is using as the basis
(W estlaw) (amended 2014); S.C. Code Ann. §§
for its argument, was not joined by a majority of
56-5-2950, 56-5-2951 (W estlaw) (amended by
the Court. See Forsyth, 438 S.W.3d at 222 n.3.
2014 S.C. Act 158); S.D. Codified Laws §§ 32-23-
9 W e do note that Nevada's and Ohio's implied-
1, 32-23-10 (W estlaw) (officer can "require"
consent schemes seem to allow officers to use
suspect arrested for DW I to submit); Tenn. Code
"reasonable force" or "whatever reasonable
Ann. § 55-10-406 (W estlaw); Utah Code Ann. §§
means are necessary" to obtain samples from a
41-6a-520, 41-6a-524 (W estlaw); Vt. Stat. Ann.
person who refuses. Like the Texas statute,
tit. 23, § 1202 (W estlaw); Va. Code Ann. §§ 18.2-
however, neither the Nevada nor the Ohio statute
268.2, 18.2-268.3 (W estlaw) (refusal is a separate
crime); Wash. Rev. Code Ann. § 46.20.308 CR, 2014 Tex. App. LEXIS 8054, 2014 WL
(W estlaw); W. Va. Code Ann. § 17C-5-7 3697917, at *2 (Tex. App.--Houston [1st Dist.]
(W estlaw); Wis. Stat. Ann. § 343.305 (W estlaw); July 24, 2014, no pet.) (mem. op., not designated
Wyo. Stat. Ann. § 31-6-102 (W estlaw). for publication) (same).
Nor are we persuaded by the State's reliance on Additionally, Beeman is distinguishable. The officer
dictum in Beeman v. State describing the implied-consent in Beeman arrested the defendant for DW I and obtained a
statute as "ano ther metho d o f co nd uc ting a warrant to draw his blood. 86 S.W.3d at 614. The
constitutionally valid [warrantless] [*29] search." 86 defendant, who refused a breath test and objected to the
S.W.3d 613, 615 (Tex. Crim. App. 2002). First, a statute blood draw, argued that the search was invalid because it
cannot authorize what the Constitution forbids. State v. violated the implied-consent statute--i.e., he revoked his
Mosely, 348 S.W.3d 435, 442 (Tex. App.--Austin 2011, consent. Id. at 615. The court held that "once a valid
pet. ref'd). search warrant is obtained[,] . . . consent, implied or
explicit, becomes moot." Id. at 616. Here, in contrast,
Second, the San Antonio Court of Appeals relied on
Hodges never obtained a warrant and relied solely on the
the Beeman dictum in Aviles v. State, 385 S.W.3d 110
repeat-offender provision of the implied-consent statute
(Tex. App.--San Antonio 2012), vacated, 134 S. Ct. 902,
to justify the forced blood draw. The totality of the
187 L. Ed. 2d 767 (2014), a factually similar case
circumstances surrounding appellant's consent, and his
involving section 724.012(b)(3)(B). There, the San
effective withdrawal of consent, is therefore not moot; to
Antonio court held that section 724.012(b)(3)(B) permits
the contrary, it is of utmost [*31] importance in assessing
an officer to take a blood specimen from a DW I suspect
the reasonableness of the search under the Fourth
without a warrant if the officer has information that the
Amendment. For these reasons, we conclude that the
suspect has been previously convicted of DW I on at least
State's reliance on Beeman for the proposition that section
two prior occasions. Aviles, 385 S.W.3d at 116. The
724.012(b)(3)(B) permits the warrantless blood draw
Supreme Court vacated the San Antonio court's judgment
from a DW I suspect who has effectively withdrawn his
and remanded the case for consideration in light of
implied consent is not persuasive.
McNeely. Aviles, 134 S. Ct. at 902. The San Antonio
court recently issued a new opinion in Aviles, rejecting Finally, the dissent suggests that appellant is similar
its earlier reliance on the Beeman dictum and holding to the defendant in United States v. Knights, 534 U.S.
that section 724.012(b)(3)(B) is not a permissible 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001). The facts
exception to the warrant requirement. 2014 Tex. App. of this case, however, are distinguishable. In Knights, the
LEXIS 8508, 2014 WL 3843756, at *3. 1 0 The Supreme defendant was on probation and agreed in writing to
Court's remand of Aviles suggests that section submit his person, property, place of residence, vehicle,
724.012(b)(3)(B) cannot serve as the sole basis for and personal effects to search at any time, with or without
mandating a warrantless blood draw when the totality of a search warrant, warrant of arrest, or reasonable cause by
the circumstances surrounding the blood draw indicate a any probation officer or law enforcement officer. 534
lack of valid consent. U.S. at 114. Here, in contrast, the record contains no
evidence to suggest that appellant was on probation when
10 See also Forsyth, 438 S.W.3d at 221 the offense occurred, or that he agreed in writing to
(declining to rely on Beeman for proposition that submit to a warrantless search by probation officials or
implied consent is a valid exception to the anyone else. Appellant was not searched as a condition of
warrant requirement); Sutherland, 436 S.W.3d at probation. Furthermore, searches such as the one in
35-36 (discussing Beeman in the context of the Knights are viewed in a different context because
remand of Aviles); Weems, 434 S.W.3d at 660-61 probation (and parole) is considered an extension of
(same); Reeder, 428 S.W.3d at 928 (noting the incarceration. See id. at 119 ("Inherent in the very nature
Supreme Court's remand [*30] of Aviles casts of probation [*32] is that probationers do not enjoy the
"grave doubt" on the reasoning of Beeman); absolute liberty to which every citizen is entitled."
Villarreal, S.W.3d at , 2014 Tex. App. LEXIS (internal quotations omitted)). Nothing in the record
645 at *20 2014 WL 1257150, at *11 (noting the before us suggests that appellant was subject to some sort
Beeman court recognized that implied-consent of "conditional liberty" as contemplated in Knights. Nor
laws do not give police officers anything more did the State assert at trial or on appeal that the search of
than what the Constitution already gives them). appellant was based on such an exception.
But see Perez, 2014 Tex. App. LEXIS 2681, 2014
In sum, appellant withdrew his implied consent when
WL 943126, at *6-*7 (relying solely on Beeman
he refused to submit to the blood draw, and the State, in
dictum in a section 724.012(b)(3)(B) case to
spite of appellant's physical resistance, forcibly poked a
justify warrantless blood draw; providing no
syringe into his arm and drew his blood anyway. Given
discussion of or citation to cases rejecting
the absence of a warrant, the absence of exigent
Beeman dictum); Kay v. State, No. 01-13-00595-
circumstances, and the absence of valid consent, we DISSENT
conclude the State did not establish that the
nonconsensual warrantless intrusion into appellant's DISSENTING OPINION
veins was reasonable under the Fourth Amendment or
The Fourth Amendment to the United States
that a recognized exception to the Fourth Amendment's
Constitution provides that "[t]he right of the people to be
warrant requirement applied to this case. The trial court
secure in their persons ... against unreasonable searches
erred when it overruled appellant's motion for new trial.
and seizures, shall not be violated, and no warrants shall
issue" unless the warrants meet certain requirements.1 The
3. The trial court's error in overruling appellant's
Supreme Court of the United States has determined that,
m otion for new trial was harm ful.
where a search is undertaken by law-enforcement
Having concluded that the trial court erred, we next officials to discover evidence of criminal wrongdoing, the
determine whether the trial court's error resulted in harm. Fourth Amendment generally requires the obtaining of a
In the face of constitutional [*33] error, we must reverse judicial warrant.2 In the absence of a warrant, a search is
the judgment of conviction unless we determine beyond reasonable under the Fourth Amendment only if it falls
a reasonable doubt that the error did not contribute to the within a specific exception to this general warrant
conviction or punishment. Tex. R. App. P. 44.2(a); requirement.3 One such exception is a search conducted
Holmes v. State, 323 S.W.3d 163, 173-74 (Tex. Crim. pursuant to consent.4
App. 2010) (op. on reh'g). In this case, the blood
evidence seized from appellant was inculpatory and was 1 U.S. Const. amend. IV; [*35] see also Tex.
used against appellant at trial. Specifically, evidence of Const. art. I, § 9.
appellant's blood alcohol content, which exceeded the 2 See Riley v. California, U.S. , , 134 S. Ct.
legal limit by nearly a factor of three, was presented at 2473, 2482, 189 L.Ed.2d 430 (2014).
trial. W e cannot determine beyond a reasonable doubt 3 See id.
that the State's use of the evidence of appellant's blood 4 See Schneckloth v. Bustamonte, 412 U.S. 218,
alcohol content did not contribute to appellant's 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854
conviction. See Holmes, 323 S.W.3d at 174. This (1973).
indicates that the trial court's erroneous ruling was indeed
Today, this court faces as issues of first impression
a contributing factor in appellant's conviction and
(1) whether section 724.012(b)(3)(B) of Texas's implied-
punishment. Therefore, the error was harmful.
consent statute falls within the consent exception to the
Appellant's second issue is sustained. warrant requirement and (2) whether consent under this
particular provision is revocable. More specifically, we
IV. C O N C LU SIO N must decide whether this subsection of the statute
provides a basis for concluding that appellant Jonathan
Because the traffic stop in this case was reasonable,
Albert Leal irrevocably consented to the blood draw. If
the trial court did not err when it denied appellant's
the trial court's ruling is supported by the record, we are
motion to suppress. W e overrule appellant's first issue.
to affirm that ruling if there is any valid theory of law that
W ith regard to appellant's second issue, the State did not
supports the ruling, even if the theory was not presented
carry its burden to prove a recognized exception to the
to the trial court and even if the theory is not advanced by
Fourth Amendment's warrant requirement. W e sustain
the prevailing party on appeal.5
appellant's second issue and hold that the drawing of
appellant's [*34] blood without a search warrant violated
5 Alford v. State, 400 S.W.3d 924, 928 n.2 (Tex.
the Fourth Amendment. The trial court erred in denying
Crim. App. 2013); Miller v. State, 393 S.W.3d
appellant's motion for new trial. Because the evidence of
255, 263 (Tex. Crim. App. 2012).
appellant's blood alcohol content was inculpatory, we
conclude it contributed to his guilt. See id. W e therefore The ultimate touchstone of the Fourth Amendment is
reverse the trial court's judgment and remand to the trial reasonableness.6 W e are to examine the totality of the
court for a new trial consistent with this opinion. circumstances to determine whether a search is
reasonable.7 The Fourth Amendment's protection against
/s/ Marc W . Brown
unreasonable searches and seizures requires courts
Justice reviewing searches to balance opposing interests and
determine the reasonableness of a particular search in a
Panel consists of Chief Justice Frost and Justices
particular context.8 W hether a search is reasonable
Donovan and Brown. (Frost, C.J., dissenting).
depends upon the degree to which it intrudes upon an
Publish -- T EX . R. A PP . P. 47.2(b).
individual's privacy and the degree to which [*36] it is
needed to promote legitimate government interests.9
DISSENT BY: Kem Thompson Frost
Thus, context is crucial in assessing reasonableness.
696 (2013).
6 Riley, U.S. at , 134 S. Ct. at 2482. 14 Maj. op. at .
7 Samson v. California, 547 U.S. 843, 848, 126
Consent exists because individuals are deemed to
S.Ct. 2193, 2197, 165 L.Ed.2d 250 (2006).
know the law.1 5 This is especially true for recidivists. By
8 See Scott v. Harris, 550 U.S. 372, 383, 127
nature, they are reoffenders who, after being convicted,
S.Ct. 1769, 1778, 167 L.Ed.2d 686 (2007).
break the same law again. In crafting many of our state's
9 Samson, 547 U.S. at 848, 126 S.Ct. at 2197.
statutory schemes, Texas lawmakers recognize the
distinct risk posed by recidivists and identify specific
Validity of Implied Consent to Blood Draw by DW I
consequences for reoffenders.1 6 Section 724.012(b)(3)(B)
Repeat Offenders
provides that, for a particular class of DW I reoffenders,
In assessing the validity of the implied consent in taking the action of driving on public [*38] roadways is
today's case, the issue is whether police reasonably could consent to a blood draw.1 7 Accordingly, police reasonably
assume that appellant, who twice before had been can assume that a DW I Repeat Offender who uses public
convicted of driving while intoxicated (D W I), roadways and is charged with knowledge of laws
irrevocably consented to a blood draw 10 through his governing such use, consents to a blood draw in the event
conduct in operating a motor vehicle on Texas's public a police officer has reasonable grounds to believe that the
roadways. Texas Transporta tion C o d e sections DW I Repeat Offender is driving while intoxicated. Just as
724.012(b)(3)(B) and 724.011 effectively advise it is reasonable for police officers to assume that the
individuals with two or more prior DW I convictions category of individuals who speak the words, "Yes, I give
("DW I Repeat Offenders") that police will interpret a you consent to search," in fact, have consented, a police
DW I Repeat Offender's conduct in operating a motor officer reasonably can interpret the conduct of a DW I
vehicle as giving consent to a blood draw in the event of Repeat Offender in driving a vehicle on the public street
a new DW I arrest. 1 1 as giving consent for the blood draw.1 8
10 Transportation Code Section 724.012 15 See Tex. Penal Code Ann. § 8.03 (W est
provides that a police officer "shall require the 2014); Johnson v. State, 423 S.W.3d 385, 388 n.2
taking of a specimen of breath or blood." Tex. (Tex. Crim. App. 2014).
Transp. Code Ann. § 724.012(b) (W est 2014). 16 See, e.g. Tex. Penal Code § 12.42 (W est
Under this statute, an officer may take a breath 2014).
sample rather than a blood sample. 17 Tex. Transp. Code Ann. § 724.012(b)(3)(B).
11 Tex. Transp. Code Ann. §§ 724.011, This opinion does not address whether an
724.012(b)(3)(B) (W est 2014). individual who drives on a public street has
consented to a search based of any other section
Implied consent, if otherwise valid, is sufficient to
of Texas Transportation Code Section 724.012.
support the consent exception.1 2 The majority, however,
18 As the majority acknowledges, the reality that
rejects implied consent and suggests that despite the
a driver must make a tough choice, between
statute's plain statement of the consequences flowing
driving and knowing that his conduct in driving
from a DW I arrest for [*37] a DW I Repeat Offender, a
will be interpreted as consent, does not render the
police officer cannot interpret a DW I Repeat Offender's
consent invalid.
conduct in operating a motor vehicle as consent to a
blood draw because such an interpretation would
Irrevocability of Consent
establish a categorical rule and categorical rules are
prohibited by the Supreme Court's opinion in Missouri v. The majority suggests that, in any event, appellant
McNeely.1 3 The majority says that "whenever a person effectively revoked any consent for the blood draw. But,
has been arrested for DW I and is a repeat offender, under Texas's [*39] statutory scheme, consent by a DW I
co nsent will necessarily exist because section Repeat Offender cannot be revoked.1 9 The majority states
724.012(b)(3)(B) says it does." 1 4 This oversimplification that there is a categorical rule that an individual's consent
of how this provision of the implied-consent statute to a search is limited in scope and that such consent is
operates skews the focus away from the important always subject to the right of withdrawal.2 0 The Supreme
contextual considerations that should drive the court's Court has found otherwise. Revocation is not always an
analysis. Analyzing consent in context leads to the option. In various contexts, the "right of withdrawal" has
opposite conclusion. been found unreasonable and unavailable.21 Drawing from
this body of jurisprudence and the intent and purpose of
12 M cGee v. State, 105 S.W.3d 609, 615 (Tex. the Texas Legislature in creating this particular provision
Crim. App. 2003). of the implied-consent statute, it makes more sense to
13 See maj. op. at ; Missouri v. McNeely, conclude that revocation of implied consent is not an
U.S. , , 133 S. Ct. 1552, 1561, 185 L. Ed. 2d option for a DW I Repeat Offender.
extend parole only because it is able to condition it upon
19 See Tex. Transp. Code Ann. § 724.011, et compliance with certain requirements.2 7 " 2 8 Significantly,
seq. the high court reasoned that the State is not required to
20 See Mason v. Pulliam, 557 F.2d 426, 428 "ignore the reality of recidivism or suppress its interests
(5th Cir. 1977). in 'protecting potential victims of criminal enterprise' for
21 See U.S. v. Spriggs, 30 F.3d 132, 132 (4th fear of running afoul of the Fourth Amendment." 2 9
Cir. 1994), cert. denied, 513 U.S. 1159, 115 S. Ct.
1120, 130 L. Ed. 2d 1083 (1995) (holding that 22 See U.S. v. Knights, 534 U.S. at 116, 122
visitor to prison could not revoke consent to S.Ct. at 590.
search); U.S. v. Knights, 534 U.S. 112, 116, 122 23 The Supreme Court of the United States also
S.Ct. 587, 590, 151 L.Ed.2d 497 (2001) (holding has upheld searches of parolees based on statutory
that probationers may not revoke consent to scheme as opposed to the parolee's signature on a
searches); U.S. v. Herzbrun, 723 F.2d 773, 775 form. See Samson v. California, 547 U.S. 843,
(11th Cir. 1984) (holding that airline passengers 857, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006).
may not revoke consent to search); U.S. v. 24 Knights, 534 U.S. at 116, 122 S.Ct. at 590.
Haynie, 637 F.2d 227, 230 (4th Cir. 1980) The Court of Criminal Appeals of Texas has held
(same). that consent given by a probationer in accepting a
probation condition is invalid under the Fourth
Consent affects the balance of interests between an
Amendment and Article 1, Section 9 of the Texas
individual and the government.2 2 The balance can tip for
Constitution. See Tamez v. State, 534 S.W.2d 686,
or against revocation of consent, depending on the
690-92 (Tex. Crim. App. 1976). U.S. v. Knights
circumstances. For example, in the context of searches of
overruled Tamez with respect to the Fourth
probationers' homes, the Supreme Court, in United [*40]
Amendment. See Townes v. State, 293 S.W.3d 227,
States v. Knights, relied on a probationer's signed form 2 3
230-31 (Tex. App.--San Antonio 2009, no pet.).
to enforce the probationer's agreement to "submit to a
The Court of Criminal Appeals has held that
search 'by any probation officer or law enforcement
Article 1, Section 9 of the Texas Constitution does
officer.'" 2 4 In concluding that the probationer's motion to
not provide any greater right than the Fourth
suppress evidence from such a search should be denied,
Amendment. See Hulit v. State, 982 S.W.2d 431,
the Supreme Court reasoned that:
437 (Tex. Crim. App. 1998). Even if the Texas
Constitution did provide a greater right, the DW I
The judge who sentenced Knights to
search is based upon probable cause unlike the
probation determined that it was necessary
search probation condition determined to be too
to condition the probation on Knights'
broad in Tamez. See Tamez, 534 S.W.2d at 692.
acceptance of the search provision. It was
25 See id [*42] .
reasonable to conclude that the search
26 See id.
condition would further the two primary
27 Similarly, for DW I Repeat Offenders the
goals of probation--rehabilitation and
State of Texas has conditioned the privilege of
protecting society from future criminal
driving upon implied consent to a blood draw. See
violations. The probation order clearly
T e x . T ra n s p . C o d e A n n . § § 7 2 4 .0 1 1 ,
expressed the search condition and
724.012(b)(3)(B).
Knights was unambiguously informed of
28 See Samson, 547 U.S. at 850, 126 S.Ct. at
it. T he p ro b a tio n co nd itio n th us
2198.
significantly d im inish e d K n ights'
29 Id. at 849, 2198.
reasonable expectation of privacy. 534
U.S. at 119-20, 122 S.Ct. at 591-92. The Supreme Court's consideration of the "reality of
recidivism" as key to the government's interest in
protecting potential victims of crime has obvious
In weighing the government's interest in Knights, the application in the context of the DW I Repeat Offender,
high court, recognizing the context, noted that the who poses a grave risk to public safety on roadways.
probationer is more likely than the ordinary citizen to Courts have observed that "an automobile in the hands of
violate the law.25 In light of this reality, the Supreme a drunk driver can be just as lethal a weapon as a gun" 3 0
Court essentially determined that the State, to further its and have "repeatedly lamented" the "increasing slaughter
goal of protecting the public from past offenders, may on our highways. . . now reach[ing] the astounding
condition the granting of [*41] a privilege upon the past figures only heard of on the battlefield." 3 1 The high court's
offender's irrevocable consent to a search.2 6 And, in the determination that the State is not required to suppress its
context of parolees, the Supreme Court found it interests in protecting potential victims of crime out of
significant that "in most cases, the State is willing to concern of stepping on the Fourth Amendment is
particularly relevant and compelling in the repeat- majority cites cases holding that today airport searches
offender drunk-driving context. are administrative and no consent is needed at all. 3 9 The
majority argues that it is unpersuasive to attempt to
30 U.S. v. Tristan-Madrigal, 601 F.3d 629, 633- justify a rule of irrevocable consent by comparing a
34 (6th Cir. 2010) (internal quotations omitted). warrantless blood draw to an administrative search. But,
31 Michigan Dept. of State Police v. Sitz, 496 the danger factor that has driven courts to conclude
U.S. 444, 451, 110 S. Ct. 2481, 2486, 110 L. Ed. administrative searches are reasonable in the context of
2d 412 (1990) (internal quotations omitted). perilous and high-risk circumstances only further
supports the position that preventing a DW I Repeat
Similar public-safety concerns have prompted courts
Offender from revoking [*45] consent to a blood draw is
to fashion special exceptions to the warrant requirement
also reasonable under the Fourth Amendment. Though
and to disallow revocation of implied consent given in
administrative searches have no requirement of consent
exchange for a privilege. For example, in considering
or individualized suspicion, section 724.012(b)(3)(B)
consent [*43] given in exchange for the benefit of air
requires an officer to have made a valid arrest of a DW I
travel, courts have disallowed revocation, holding that
Repeat Offender before the officer obtains a blood draw.
officials are not required to ignore the attendant dangers
If administrative searches at airports are reasonable under
of air piracy. The Eleventh Circuit concluded, even
the Fourth Amendment, then it is also reasonable to
before the increased concern following the infamous
enforce this particular provision of the implied-consent
terrorist attacks on America on September 11, 2001, that
statute in the narrow context of DW I Repeat Offenders
to keep the airways safe from "the intense danger of air
exercising the privilege of driving on public roadways.
piracy," airports are "critical zones" in which special
Fourth Amendment considerations apply.32 Courts have
38 See maj. op. at .
determined that an individual who begins the process of
39 See George v. Rehiel, 738 F.3d 562, 575 (3d
airport screening may not avoid the search by asking to
Cir. 2013); Elec. Privacy Info. Ctr. v. U.S. Dep't
leave.3 3 Noting that air travel is a privilege, the Fourth
of Homeland Sec., 653 F.3d 1, 10, 397 U.S. App.
Circuit has reasoned that it may be conditioned upon
D.C. 313 (D.C. Cir. 2011); United States v. Aukai,
irrevocable consent to a search.3 4 In balancing the
497 F.3d 955, 960-61 (9th Cir. 2007) (en banc).
government's interest in disallowing revocation of
consent, courts have placed special focus on the statutory Today's case is similar to the special cases involving
scheme and purpose, noting that allowing an individual criminal recidivism and zones of danger. Yet, it presents
to leave after the individual has reached the point of a unique circumstance requiring review of a search in the
embarkation "greatly damages the prophylactic purpose multi-faceted context of (1) a recidivist (2) who has
of the search procedure." 3 5 Importantly, "the very fact engaged in dangerous conduct on the roadways, (3)
that a safe exit is available ... would, by diminishing the consented to a narrow search (blood draw or breath
risks, encourage attempts." 3 6 Courts have recognized the specimen in the event of another DW I arrest) in exchange
necessity for restricting [*44] the right to revoke consent for the privilege of being allowed to drive in spite of that
after this crucial point, noting that the problem with past dangerous conduct, (4) accepted the benefits of the
allowing a "safe exit" is that "established search conditioned privilege by driving on a public roadway, and
procedures are perhaps more valuable by what they (5) is arrested for engaging in the same highly dangerous
discourage than what they discover." 3 7 conduct again. Confronted [*46] with this extraordinary
public endangerment and the critical need to deter the
32 See Herzbrun, 723 F.2d at 775. fatal activity, the Texas Legislature enacted a series of
33 See id. laws,4 0 specifically focusing its efforts on the severe threat
34 Haynie, 637 F.2d at 230. posed by recidivists who fail to observe the prohibition
35 See United States v. Skipwith, 482 F.2d 1272, against drunk driving even after being convicted of the
1277, 1281 (5th Cir. 1973) (Aldrich, dissenting) offense at least twice before. Because this class of
(the majority agreed with this part of the offenders represents a particular, known, and heightened
dissenting opinion, holding Skipwith's "right-to- threat to public safety, the Texas Legislature sought to
leave" argument lacked merit). deter DW I Repeat Offenders from getting behind the
36 Id. wheel and again endangering the public by driving in an
37 See id. impaired state. The legislative solution to the recidivist
threat was to provide a framework that conditioned the
The majority notes that since the events of
driving privilege on consent to police officers obtaining
September 11, federal circuit courts have overruled prior
blood or breath samples from DW I Repeat Offenders who
cases that predicated the reasonableness of airport
are suspected of driving while intoxicated and to obtain
screening on irrevocable implied consent and determined
the samples in the absence of a search warrant.4 1 This
that the Fourth Amendment requires even less protection
provision of the statute is narrowly tailored, specific to
of the individual in dangerous contexts.3 8 Indeed, the
the search, and is limited in scope, effectively serving the revoke consent at that point, then the prophylactic
purpose and meeting the requirements of a warrant.4 2 purpose of the search procedure prescribed by the Texas
statute would be frustrated.4 8 Likewise, the deterrent
40 See Tex. Transp. Code Section 724.001, et effect of the statutory scheme would be thwarted as the
seq. (W est 2014). DW I Repeat Offender would be able to revoke consent
41 See Beeman v. State, 86 S.W.3d 613, 616 for the blood draw even after accepting the conditioned
(Tex. Crim. App. 2002). privilege of driving. The State of Texas is not required to
42 See New York v. Burger, 482 U.S. 691, 703, ignore either the grave public danger of drunk driving or
107 S. Ct. 2636, 2644, 96 L. Ed. 2d 601 (1987). the reality of recidivism in DW I Repeat Offenders.
Section 724.012(b)(3)(B) of Texas's implied-consent
48 See Skipwith, 482 F.2d at 1281.
law creates a compact that is akin to the compact [*47]
enforced against probationers and parolees. The majority The majority concludes that the DW I Repeat [*49]
argues that, unlike probationers and parolees, DW I Offender can revoke consent after being arrested for
Repeat Offenders do not have conditional liberty another DW I offense. According to the majority,
interests. But, driving is a privilege, not a right.43 Just as reasonableness requires the State to allow the DW I
it is reasonable to enforce the agreements of parolees and Repeat Offender's revocation. Rather than examine the
probationers that diminish their liberty interests, it is search in the context of the State's keen interest in
reasonable to enforce agreements of DW I Repeat curbing fatal recidivist activity and regulating that
Offenders to consent to blood draws on condition of activity within a recognized danger zone for the purpose
exercising driving privileges. of protecting the public from threat of death or injury, the
majority relies on cases in home-search contexts that
43 See Tex. Transp. Code Ann. § 724.035 (W est have little application to the circumstances presented by
2014). today's case.4 9
In exchange for the privilege of driving on public
49 See maj. op. at .
roads in Texas, the DW I Repeat Offender irrevocably
consents to have blood drawn in the event that the DW I In the context of drunk driving and DW I Repeat
Repeat Offender is arrested yet again for driving while Offenders, reasonableness does not dictate that revocation
intoxicated.4 4 Under this compact, the DW I Repeat of consent is always an option, as the majority concludes.
Offender faces a difficult choice:4 5 forego driving a motor It is not an option in the context of air piracy, where the
vehicle on Texas roadways or consent to a blood draw in State has an interest in thwarting and deterring activity
the event of another DW I arrest.4 6 The latter choice does that endangers the public. Is drunk driving by DWI
not include the option of revocation.4 7 It is significant that Repeat Offenders any less risky or dangerous to human
the Texas Legislature did not outright deny the driving life? Does a DWI Repeat Offender on a public roadway
privilege to DW I Repeat Offenders, but instead gave create any less of a "zone of danger" than one suspected
these individuals the option of enjoying the privilege of air piracy?
subject to the condition. Appellant's acceptance of the
Just as the need to protect the public in the airways
benefits [*48] of this conditioned privilege supports the
makes it reasonable to prevent individuals from revoking
irrevocability of his consent. Once appellant, a DW I
[*50] their consent to a search before boarding a plane,
Repeat Offender, elected the condition attached to the
the need to protect the public on roadways makes it
driving privilege by turning the key to start the vehicle's
reasonable to prevent DW I Repeat Offenders from
ignition, it was too late to revoke consent. At that point,
revoking consent to a search after being arrested for a
as a DW I Repeat Offender, appellant had accepted the
new DW I offense. Allowing a DW I Repeat Offender who
risk of a blood draw should he be arrested for driving
embarks on a public roadway to revoke consent to a
while intoxicated.
search once arrested for DW I provides the "safe exit" the
Supreme Court condemned in the air piracy context. 5 0 Just
44 See Tex. Transp. Code Ann. §§ 724.011;
as allowing revocation in the airways context would
724.012.
frustrate the federal scheme, the "safe exit" the majority
45 See McGautha v. California, 402 U.S. 183,
creates today undermines Texas's ability to prosecute
213, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971).
DW I Repeat Offenders who choose to drive drunk again.
46 Tex. Transp. Code § 724.011.
47 See generally, id. at § 724.011, et seq.
50 See Skipwith, 482 F.2d at 1281.
If a police officer suspects a DW I Repeat Offender
The Texas Legislature has recognized the serious and
of driving while intoxicated, the officer shall arrange for
pervasive threat posed by recidivists and has taken
a statutory blood draw or the collection of a breath
focused action to address it in our state by imposing
specimen. W ere the DW I Repeat Offender entitled to
conditions on DW I Repeat Offenders who, despite their
prior DW I convictions, are granted and accept the based upon the DW I Repeat Offender's
privilege of driving on Texas roadways. Both this voluntary choice to exercise, and accept
deterrence interest and the reality of recidivism among the benefits of, a privilege (driving)
DW I Repeat Offenders are important factors in granted by the State on condition of
determining whether a search is reasonable under the consent to the search.
Fourth Amendment. 51
51 See Knights, 534 U.S. at 116, 122 S.Ct. at These limiting principles, coupled with the government's
590, Samson, 547 U.S. at 850, 126 S.Ct. at 2198; compelling interests in protecting the public from the
See Skipwith, 482 F.2d at 1277, 1281. heightened risk of death or injury from recidivist drunk
drivers, make it reasonable to prevent a DW I Repeat
In holding that the State may not rely upon the DW I
Offender arrested for drunk driving from revoking
Repeat Offender's statutory [*51] consent or enforce
consent to a statutory blood draw.5 3
section 724.012(b)(3)(B) of the implied-consent statute,
the majority does not properly account for the crucial
52 See Maryland v. King, 133 S.Ct. 1958, 1970,
public-safety interest at stake in deterring DW I Repeat
186 L.Ed.2d 1 (2013) (noting that limits of police
Offenders from drunk driving as a means of thwarting
o ffic e r's d isc re tio n w e igh in fa v o r o f
the extraordinary threat resulting from this deadly
constitutionality [*53] of search); Skinner v.
recidivist activity. These interests make it reasonable to
Railway Labor Executives' Ass'n, 489 U.S. 602,
prevent a DW I Repeat Offender from withdrawing
622-25, 109 S. Ct. 1402, 1416-17, 103 L. Ed. 2d
consent to a blood draw upon arrest for another DW I
639 (1989) (noting that imposing a warrant
offense.
requirement would add little assurance of
certainty and regularity not already afforded by
Conclusion
regulations).
Today's case presents a combination of factors, 53 See Bailey v. U.S., U.S. , 133 S.Ct. 1031,
compelling interests as well as limiting principles, that 1040, 185 L.Ed.2d 19 (2013) (noting the
make the irrevocability of consent to a blood draw under importance of limiting principles).
section 724.012(b)(3)(B) reasonable in the context of a
Notably, the First Court of Appeals has concluded
DW I Repeat Offender's arrest for a new DW I offense.
that "the warrantless taking of appellant's blood sample in
Though the state's public-safety interest is compelling,
compliance with Transportation Code section 724.012(b)
even that does not provide the government with a free
did not violate [the defendant's] Fourth Amendment rights
pass to conduct indiscriminate blood draws. There must
by requiring him to submit to a warrantless blood test
be limiting principles for the irrevocable statutory
without his consent."5 4 Though several other sister courts
consent to be reasonable and thus pass muster under the
of appeals have determined that consent under the
Fourth Amendment. The rationale for the rule of
implied-consent statute is either invalid or revocable, 5 5
irrevocability in this limited circumstance is grounded on
none of them addressed the public dangers associated
built-in statutory boundaries and restrictions that operate
with allowing revocation. None of them considered the
as a check on police power and a strong safeguard
State's strong deterrence interest or the conditional nature
against unwarranted government intrusion. [*52]
of the driving privilege granted to DW I Repeat
Summarized below, these boundaries, sewn into the
Offenders. None of them accounted for the reality of
fabric of the statute, provide the necessary measure of
recidivism among DW I Repeat Offenders. And, none of
protection that makes the irrevocability of consent under
them considered the built-in statutory checks and other
subsection (b)(3)(B) reasonable in this narrow context.
important limiting principles at work in this special
circumstance.
o The search is authorized only after
police have made a valid arrest based on
54 Perez v. State, No. S.W.3d , 2014 Tex.
probable cause of a repeat offender in
App. LEXIS 2681, 2014 WL 943126, at *7 (Tex.
the danger zone.
App.--Houston [1st Dist.] Mar. 11, 2014, no pet.).
o The statutory provision implying 55 See Weems v. State, 434 S.W.3d 655, 659-64
consent and authorizing the search (Tex. App.--San Antonio 2014 pet. granted);
effectively functions like a warrant, Reeder v. State, 428 S.W.3d 924, 929 (Tex. App.--
tightly restricting the scope of the search Texarkana 2014, pet. granted); State v. Villarreal,
by naming the single place to be searched S.W.3d , No. 13-13-00253-CR, 2014 Tex. App.
and specifically identifying the single LEXIS 645, 2014 WL 1257150, at *10 (Tex. App.-
thing to be seized. 5 2 -Corpus Christi Jan. 23, 2014, pet. granted); State
v. Sutherland, 436 S.W.3d 28, 39-41 (Tex. App.--
o The irrevocability of consent is
Amarillo 2014, pet. filed); State v. Anderson,
/s/ Kem Thompson Frost
S.W.3d , No. 09-13-00400-CR, 2014 Tex. App.
LEXIS 11151, 2014 WL 5033262, at *8-11 (Tex. Chief Justice
App.--Beaumont Oct. 8, 2014, no pet. h.).
Panel consists of Chief Justice Frost, Justices
This court should affirm rather than reverse the trial Donovan and Brown. (Brown, J., majority).
[*54] court's judgment denying appellant's motion to
Publish--T EX . R. A PP . P. 47.2(b)
suppress the evidence obtained as a result of the blood
draw. Because it does not, I respectfully dissent.
APPENDIX B
1 of 5 DOCUMENTS
JONATHAN ALBERT LEAL, Appellant v. THE STATE OF TEXAS, Appellee
NO. 14-13-00208-CR
COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON
2015 Tex. App. LEXIS 6460
June 25, 2015, M ajority and Concurring Opinions on Remand Filed
NOTICE: Publish -- TEX. R. APP. P. 47.2(b). arguments, we do not address them again here. See
Keehn v. State, 245 S.W.3d 614, 614 n.1 (Tex. App.--Fort
PRIO R HISTORY: [*1] On Appeal from the 122nd Worth 2007), aff'd, 279 S.W.3d 330 (Tex. Crim. App.
District Court, Galveston County, Texas. Trial Court 2009); see, e.g., Weatherford v. State, 840 S.W.2d 727,
Cause No. 12CR0947. 728-29 (Tex. App.--Eastland 1992, pet. ref'd)
Leal v. State, 452 S.W.3d 14, 2014 Tex. App. LEXIS (considering on remand only the issues explicitly raised
12286 (Tex. App. Houston 14th Dist., 2014) by Court of Criminal Appeals). W e therefore incorporate
our original opinion by reference.
In order [*2] for a complaint to be presented on
C O U N SEL: For Appellant: M ark W. Stevens,
appeal, a timely request, objection, or motion must have
GALVESTON, TX.
been made to the trial court stating the grounds for the
ruling with sufficient specificity to make the trial court
For State: Allison Lindblade, GALVESTON, TX.
aware of the complaint, and the trial court must have
expressly or implicitly ruled on the request, objection, or
JUDGES: Panel consists of Chief Justice Frost and
motion. Tex. R. App. P. 33.1(a)(1)(A). The complaining
Justices Donovan and Brown. (Frost, C.J., concurring).
party must have clearly conveyed to the trial court the
particular complaint raised on appeal, including the
OPINION BY: Marc W . Brown
precise and proper application of law as well as the
underlying rationale. Pena v. State, 285 S.W.3d 459, 463-
OPINION
64 (Tex. Crim. App. 2009). Error preservation does not
involve a hyper-technical or formalistic use of words or
M AJORITY OPINION ON REM AND
phrases; rather, straightforward communication in plain
Appellant Jonathan Albert Leal appealed the trial English is sufficient. Id. at 464. The party must let the
court's denial of his motion to suppress and motion for trial judge know (1) what he wants; (2) why he thinks he
new trial. In our original opinion reversing the trial is entitled to it; and (3) do so clearly enough for the judge
court's judgment, we held that the warrantless blood draw to understand him at a time when the judge is in the
violated Leal's Fourth Amendment rights. Leal v. State, proper position to do something about it. Id. W e consider
452 S.W.3d 14, 32 (Tex. App.--Houston [14th Dist.] the context in which the complaint was made and the
2014), vacated and remanded, 456 S.W.3d 567 (Tex. parties' shared understanding at that time. Id. A
Crim. App. 2015). On its own motion, the Court of defendant who presents an argument to the trial judge in
Criminal Appeals granted review of our decision, time for the judge to rule on it has preserved the issue for
vacated our judgment, and remanded the case to us to appellate review. See Clarke v. State, 270 S.W.3d 573,
address only "whether appellant preserved his claim that 580 (Tex. Crim. App. 2008). [*3] "A trial court's ruling
the warrantless blood draw violated his Fourth on a matter need not be expressly stated if its actions or
Amendment rights." Leal, 456 S.W.3d at 568. Although other statements otherwise unquestionably indicate a
we implicitly held in our original opinion that Leal ruling." Rey v. State, 897 S.W.2d 333, 336 (Tex. Crim.
preserved his claim, we now explicitly conclude and App. 1995).
explain that he did so.
Leal's claim was preserved when the trial court
As a preliminary matter, because our original implicitly overruled his amended motion to suppress.
opinion disposed of the merits of Leal's primary Leal timely filed an amended motion to suppress
objecting to the warrantless blood draw on Fourth filed. See Tex. R. App. P. 21.4(b). On April 26, 2013, at
Amendment grounds. See Porath v. State, 148 S.W.3d the new-trial hearing, Leal asked for and was given leave
402, 409 (Tex. App.--Houston [14th Dist.] 2004, no pet.) to supplement his original motion for new trial. The State
(motion to suppress is a specialized objection to the did not object. See State v. Moore, 225 S.W.3d 556, 569
admission of evidence). Specifically, citing Missouri v. (Tex. Crim. App. 2007) (trial court retains authority to
McNeely, U.S. , 133 S. Ct. 1552, 185 L. Ed. 2d 696 allow untimely amendment to original motion for new
(2013), which had not yet been decided, Leal claimed trial within seventy-five-day period, so long as the State
that the repeat-offender provision of the implied-consent does not object). At the hearing, Leal's counsel argued,
statute violated the Fourth Amendment. The record based on the Supreme Court's holding in McNeely, that
shows that the trial court was aware of Leal's objection; the warrantless blood draw violated Leal's Fourth
however, the trial court did not explicitly rule on the Amendment rights. The State presented counter-
amended motion at the suppression hearing. Leal arguments on the merits of Leal's claim, demonstrating
renewed his objection at trial when the State offered a the p a rties' shared unde rsta nd ing tha t L e a l's
report containing an analysis of Leal's blood.1 The trial constitutional rights were at stake. See Pena, 285 S.W.3d
court then admitted the report and allowed the analyst to at 464. The trial court denied Leal's motion for new trial
testify regarding Leal's blood alcohol content. Based on in an order dated May 21, 2013.
the trial court's action in allowing the State to present
In sum, Leal timely presented his complaint to the
evidence of Leal's blood alcohol content to the jury, the
trial court in both his amended motion to suppress and
court implicitly overruled Leal's amended motion to
his supplemental motion for new trial. See Pena v. State,
suppress, and Leal preserved his claim that the
353 S.W.3d 797, 807 (Tex. Crim. App. 2011) (complaint
warrantless [*4] blood draw violated his Fourth
is timely if made as soon as ground of objection becomes
Amendment rights. See Rey, 897 S.W.2d at 336-37; see,
[*6] apparent). Leal's complaint was adequately specific
e.g., Cantu v. State, 994 S.W.2d 721, 730-31 (Tex. App.--
to put the trial court on notice of his Fourth Amendment
Austin 1999, pet. dism'd) (error was preserved when trial
challenge to the warrantless blood draw. See, e.g.,
court did not expressly rule on defendant's objection to
Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim.
expert witness's qualifications, but permitted expert to
App. 2006) (although motion for new trial did not
answer the question if he knew); Riddle v. State, No. 02-
mention "vague" or "vagueness," defendant's complaint
02-00231-CR, 2003 Tex. App. LEXIS 7154, 2003 WL
was adequately specific when he claimed on several
21983252, at *3 (Tex. App.--Fort W orth Aug. 21, 2003,
o c c a sio ns d uring tria l th a t the sta tu te w as
pet. ref'd) (mem. op.; not designated for publication)
"unconstitutionally vague"). The trial court ruled on
(error was preserved when trial court did not expressly
Leal's complaint when it admitted, over objection,
rule on portion of defendant's motion to suppress dealing
evidence obtained as a result of the warrantless blood
with inventory search, but allowed officer to testify
draw and denied Leal's supplemental motion for new
before the jury about the inventory search).
trial. See Tex. R. App. P. 33.1; Rey, 897 S.W.2d at 336.
W e therefore conclude that Leal preserved his claim that
1 W hen the State offered the report, Leal's
the warrantless blood draw violated his Fourth
counsel stated, "Subject to all prior objections, no
Amendment rights. Accordingly, we reverse the trial
specific objection at this time." Leal's "prior
court's judgment and remand to the trial court for a new
objections" included his amended motion to
trial consistent with our original opinion. See Leal, 452
suppress. See Porath, 148 S.W.3d at 409; cf.
S.W.3d at 32.
Bhola v. State, No. 14-09-00154-CR, 2010 Tex.
App. LEXIS 4681, 2010 WL 2501116, at *4 (Tex. /s/ Marc W . Brown
App.--Houston [14th Dist.] June 22, 2010, no
Justice
pet.) (mem. op.; not designated for publication)
(concluding defendant did not abandon his Panel consists of Chief Justice Frost and Justices
motion to suppress when he stated at trial, Donovan and Brown. (Frost, C.J., concurring)
"Subject to the previous objections, no
objections.") Publish -- T EX . R. A PP . P. 47.2(b).
Furthermore, Leal presented his claim to the trial CONCUR BY: Kem Thompson Frost
court in his supplemental motion for new trial. Leal was
sentenced on February 14, 2013. He timely filed a CONCUR
motion for new trial on March 8, 2013. See Tex. R. App.
P. 21.4(a). The original motion did not challenge the CONCURRING OPINION ON REM AND
legality of the warrantless blood [*5] draw. The
Supreme Court decided McNeely on April 17, 2013. On Appellant moved to suppress evidence of his blood-
April 22, 2013, Leal filed a supplemental motion for new alcohol concentration by challenging the legality of a
trial citing McNeely and claiming that the warrantless traffic stop that eventually led to his arrest for driving
blood draw violated his Fourth Amendment rights. Under while intoxicated (DW I). Appellant [*7] later amended
rule 21.4(b), the supplemental motion was not timely his motion to suppress to challenge the warrantless blood
draw on Fourth Amendment grounds. On original
submission and over my dissent, this court reversed identified in the amended motion is appellant's assertion
appellant's DW I conviction and remanded for a new that the warrantless blood draw was taken pursuant to a
trial.1 Addressing an issue of first impression in this Texas statute that, as applied, violated the Fourth
court, the majority concluded that the trial court should Amendment.6 The Court of Criminal Appeals recognized
have suppressed evidence of appellant's blood-alcohol that appellant's amended motion contains a challenge to
content because law enforcement officers obtained the the warrantless blood draw on Fourth Amendment
evidence by means of a warrantless blood draw, which grounds.7 By including this ground in his amended
violated appellant's Fourth Amendment right to be free motion to suppress, appellant identified his Fourth
from unreasonable searches and seizures.2 Amendment complaint with sufficient specificity to
preserve error on the claim.8
1 See Leal v. State, 452 S.W.3d 14, 32 (Tex.
App.--Houston [14th Dist.] 2014), vacated, 456 6 Appellant's amended motion states:
S.W.3d 567 (Tex. Crim. App. 2015).
2 Id.
Challenge to Mandatory Blood
On its own motion, the Court of Criminal Appeals
Draw The State is apparently
granted review of this court's decision, vacated the
relying on a blood [*9] draw
judgment, and remanded with instructions for this court
taken without a warrant under
to address whether appellant preserved error on his claim
Texas Transportation Code Sec.
that the warrantless blood draw violated his Fourth
724.011, as amended in 2009. The
Amendment rights.3 On remand, the majority concludes
Amendment purports to provide
that appellant preserved error, that the trial court's
that a mandatory blood draw may
judgment should be reversed, and that the case should be
be taken where an officer has
remanded for a new trial. I agree, but for different
credible evidenc e tha t an
reasons.
individual has been previously
convicted twice of DW I.
3 Leal v. State, 456 S.W.3d 567, 568 (Tex. Crim.
App. 2015). The subject amendment to
Sec. 724.011 is unconstitutional on
Preservation-of-Error Analysis its face and as applied, as a
violation of the U.S. Constitution,
Appellant preserved error by making a timely,
A m d . V II I , w h ic h p reve nts
specific complaint in the trial court and securing an
unreasonable searches and
adverse ruling.4 [*8] Specifically, appellant moved the
seizures.
trial court to suppress evidence of his blood-alcohol
content, identifying grounds for this relief in a written
motion to suppress. Before the suppression hearing,
Appellant's curious reference to the Eighth
appellant amended the motion to include additional
Amendment does not impact the preservation-of-
grounds for relief. Though the parties' arguments at the
error analysis because it is apparent from the
hearing focused on another ground in the motion, to
context that appellant meant the Fourth
preserve error a movant need not discuss all the grounds
Amendment. Although appellant stated that
at the hearing.5 All that is required is specificity,
Section 724.011 violated the Eighth Amendment,
timeliness, and an adverse ruling. The record establishes
appellant's argument was that taking a warrantless
all three.
blood draw as required by the statute violated his
right under the United States Constitution to be
4 Thomas v. State, 408 S.W.3d 877, 882 (Tex.
free from unreasonable searches and seizures, and
Crim. App. 2013); Fuller v. State, 827 S.W.2d
this right is set forth in the Fourth Amendment to
919, 928 (Tex. Crim. App. 1992).
the United States Constitution. See U.S. Const.
5 Eisenhauer v. State, 754 S.W.2d 159, 160-61
amend. IV. The motion contains no Eighth
(Tex. Crim. App. 1988), overruled on other
Amendment arguments, and the odd reference
grounds by Heitman v. State, 815 S.W.2d 681,
appears to be a typographical error.
690 (Tex. Crim. App. 1991); Cisneros v. State,
7 See Leal, 456 S.W.3d at 568.
290 S.W.3d 457, 462-63 (Tex. App.--Houston
8 See Thomas, 408 S.W.3d at 882.
[14th Dist.] 2009, pet. dism'd); Vicknair v. State,
670 S.W.2d 286, 288 (Tex. App.--Houston [1st
Tim eliness
Dist.] 1983), aff'd, 751 S.W.2d 180, 187-90 (Tex.
Crim. App. 1988). The record shows the following chronology of
events relevant to the preservation-of-error analysis:
Specificity
At the time of the hearing, the only live motion
Among the grounds for suppression appellant pending before the trial court was the amended motion to
suppress.9 The moment appellant filed the amended Corpus Christi 1997, no pet.).
motion, the original motion [*10] ceased to exist. In the 12 Steere, 445 S.W.2d at 253.
context of legal pleadings and motions, an amended 13 See id.
instrument is a substitute for the original; the old and
new instruments do not co-exist--the latter takes the Adverse Ruling
place of the former. This defining feature of an amended
At the end of the [*12] suppression hearing, the trial
motion distinguishes it from a supplemental motion,
court denied the pending motion to suppress, which was
which is an addition rather than a replacement.1 0 Because
the amended motion, thus rejecting all grounds contained
the amended motion superseded and supplanted the
in that motion. Even though arguments at the hearing
original motion,1 1 the original motion could no longer be
focused on another ground for suppression of the blood-
considered.1 2 Thus, when the trial court denied the motion
alcohol evidence, appellant preserved error on all
to suppress, the trial court denied the only pending
grounds contained in the amended motion, including the
motion--appellant's First Amended Motion to Suppress.1 3
Fourth Amendment ground he now asserts on appeal. To
In that motion appellant raised the claim this court
preserve error, it was not necessary for appellant to argue
adjudicated on original submission. The trial court
that ground at the hearing.1 4 At the conclusion of the
denied the motion at the suppression hearing during trial,
hearing, the trial court refused to suppress the evidence
before admitting the blood-alcohol evidence. Thus,
and denied the pending motion (First Amended Motion
appellant's objection was timely.
to Suppress) in its entirety. Thus, appellant secured the
requisite adverse ruling to preserve error.
9 In its opinion, the Court of Criminal Appeals
stated that the suppression hearing pertained to
14 See Eisenhauer, 754 S.W.2d at 160-61;
the original motion to suppress rather than the
Cisneros, 290 S.W.3d at 462-63; Vicknair, 670
amended motion to suppress. Leal, 456 S.W.3d at
S.W.2d at 288.
568. Nothing in the record suggests that appellant
withdrew the amended motion or that appellant
Absence of Waiver
refiled the original motion, or that appellant took
any other action [*11] that might arguably have Though a party moving to suppress evidence may
brought the superseded motion back to life. The waive a ground contained in the motion at the hearing on
amended motion contained all of the grounds the motion, no such waiver occurred. At the suppression
asserted in the original motion as well as hearing, appellant did not state or otherwise indicate that
additional grounds. The suppression hearing he was waiving or withdrawing his constitutional
focused on a ground contained in the original challenge to the blood-draw statute. Nor did appellant
motion, but at the time of the hearing the original state that he was urging only the grounds that he argued
motion was a nullity, having been replaced by or mentioned at the suppression hearing. The State did
operation of law upon the filing of the amended not object to appellant's [*13] amendment of the motion
motion, which also contained the ground that was to suppress, nor did the State argue that the trial court
the focus of the hearing. See Steere v. State, 445 should not consider appellant's constitutional challenge
S.W.2d 253, 253 (Tex. App.--Houston [1st Dist.] to the blood-draw statute. Nor did the trial court refuse to
1969, writ dism'd). consider it.
10 A supplemental motion is an addendum to
Though appellant did not devote argument to his
the original motion. Cf. Tex. R. Civ. P. 62-65. See
constitutional challenge to the blood-draw statute in his
also B LACK 'S L AW D IC TIO N ARY 1438, 1439 (6th
oral presentation to the trial court, the evidence adduced
ed. 1990) (defining "supplemental" as "That
at the suppression hearing included the following:
which is added to a thing to complete it," and
noting that supplemental affidavits, answers,
1. when asked to voluntarily provide a
complaints, and pleadings, add to the original).
blood sample, appellant refused to do so;
But, an amended motion is a substitute--a
replacement--for the original. See Riney v. 2. Officer Hodges was required by
State,28 S.W.3d 561, 565-66 (Tex. Crim. App. the blood-draw statute to have a blood
2000) (noting that once indictment was amended sample taken from appellant;
it became the "official" indictment in the case);
see also Eastep v. State, 941 S.W.2d 130, 132-33 3. appellant was taken to a hospital
(Tex. Crim. App. 1997)(holding that, in the emergency room where a blood sample
context of indictment, an amendment is an was taken;
alteration to the face of the charging instrument 4. just before the blood draw,
which affects the substance of the charging appellant stated that he wanted his
instrument), overruled on other grounds by attorney present during the blood draw;
Riney, 28 S.W.3d at 561. and
11 Steere, 445 S.W.2d at 253; cf. Herrera v.
State, 951 S.W.2d 197, 198-99 (Tex. App.-- 5. appellant was "uncooperative
during the blood draw." 1 5 the Court of Criminal Appeals issued its opinion in State
v. Villarreal.1 8 In Villarreal, the high court held that
implied consent under Texas Transportation Code
section 724.012(b) "cannot substitute for the free and
voluntary consent that the Fourth Amendment requires." 1 9
15 At one point, appellant's counsel asked Since then, the Court of Criminal Appeals has granted
Officer Hodges how many people held appellant the State's motion for rehearing in Villarreal, and ordered
down during the blood draw, and Officer Hodges the case resubmitted so that the high court could consider
answered "three." W ithout striking the testimony, the arguments presented by the State in [*16] its
the trial court then stated "Let's not go there right rehearing motion. To date, the Court of Criminal Appeals
now. I want to hear just Motion to Suppress has not withdrawn or changed its opinion or judgment in
issues." Appellant's counsel did not respond to Villarreal, nor has the court issued a new opinion or
this statement [*14] and continued his judgment. In this context, the Fourteenth Court of
examination of the witness. It is not clear what Appeals still is bound by the majority opinion in
the trial court meant by this comment. The trial Villareal. Under that standing precedent, the trial court's
court may have meant that the number of people judgment in the case under review must be reversed and
who held appellant down while his blood was the case remanded for a new trial.2 0
drawn over appellant's objection was not relevant
to any issue in the amended motion to suppress, 17 See Leal v. State, 452 S.W.3d 14, 32-40 (Tex.
including the challenge to the mandatory blood- App.--Houston [14th Dist.] 2014), vacated, 456
draw statute. Even presuming that the trial court S.W.3d 567 (Tex. Crim. App. 2015).
was expressing a belief that there was no issue in 18 See S.W.3d , 2014 Tex. Crim. App. LEXIS
the amended motion to suppress regarding the 1898, No. PD-0306-14, 2014 WL 6734178 (Tex.
blood-draw statute, appellant's counsel never Crim. App. Nov. 26, 2014) (reh'g granted).
expressed any agreement with this belief. 19 2014 Tex. Crim. App. LEXIS 1898, [WL] at
*11.
During the suppression hearing, appellant's counsel
20 See Villarreal, S.W.3d at , 2014 Tex.
stated that the prosecutor and he had agreed to first
Crim. App. LEXIS 1898, 2014 WL 6734178 at *8-
present evidence regarding the validity of the stop and
21; State v. Tercero, S.W.3d , , 2015 Tex.
then present evidence regarding other issues. After the
App. LEXIS 3284, *5, 2015 WL 1544519, at *2-6
parties each presented the validity-of-the-stop evidence,
(Tex. App.--Houston [1st Dist.] Apr. 2, 2015, no
each side presented additional evidence, and appellant
pet. h.) (applying Villarreal as binding precedent
argued that one or more of his statements that the State
after rehearing motion was granted by the Court
wanted to use against him at trial were made after he
of Criminal Appeals in Villarreal).
requested a lawyer. No further evidence was presented.
Near the end of the hearing, as the lunch break drew
Conclusion
near, the trial court asked counsel if there was anything
else "we [*15] need to talk about right now." Appellant's The record shows that appellant made a timely,
counsel responded "No, not here." To preserve error, specific complaint that the warrantless drawing of his
however, appellant was not required to talk about his blood violated his Fourth Amendment right to be free
constitutional challenge to the blood-draw statute at the from unreasonable searches and seizures, and secured an
suppression hearing when appellant had presented the adverse ruling. Appellant preserved error as to this
ground by means of his written motion to suppress.1 6 complaint. Under binding precedent from the Court of
Appellant's counsel did nothing at the suppression Criminal Appeals, this court must conclude that appellant
hearing sufficient to waive the challenge to the blood- did not impliedly consent for Fourth Amendment
draw statute contained in the amended motion. purposes to the blood draw under Texas Transportation
Code section 724.012(b)(3)(B) and that the warrantless
16 See Eisenhauer, 754 S.W.2d at 160-61; blood draw violated appellant's Fourth Amendment
Cisneros, 290 S.W.3d at 462-63; Vicknair, 670 rights. Thus, I respectfully concur in the court's judgment
S.W.2d at 288. on remand.
/s/ Kem Thompson Frost
Disposition of the Appeal
Chief Justice [*17]
On original submission, I concluded in a dissenting
opinion that the warrantless blood draw did not violate Panel consists of Chief Justice Frost and Justices
appellant's right to be free from unreasonable searches Donovan and Brown (Brown, J., majority).
and seizures because appellant impliedly consented to the
Publish -- T EX . R. A PP . P. 47.2(b).
blood draw under Texas Transportation Code section
724.012(b)(3)(B).1 7 After this court issued its judgment,
APPENDIX C