Burks, Gene Allen

PD-0157-15 PD-0157-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/12/2015 4:13:40 PM
Accepted 3/13/2015 10:20:16 AM
ABEL ACOSTA
IN THE COURT CLERK
OF CRIMINAL APPEALS OF TEXAS

GENE ALLEN BURKS, §
APPELLANT §
§
V. § NO. PD-0157-15
§
THE STATE OF TEXAS, §
APPELLEE §

§§§

STATE'S PETITION FOR DISCRETIONARY REVIEW

§§§

SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas

DEBRA WINDSOR, Assistant
Criminal District Attorney
Chief, Post-Conviction

March 13, 2015 TANYA S. DOHONEY, Assistant
Criminal District Attorney
Tim Curry Criminal Justice Center
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687 FAX (817) 884-1672
State Bar No. 02760900
CCAAppellateAlerts@tarrantcountytx.gov

LISA C. MCMINN
State Prosecuting Attorney

ORAL ARGUMENT IS REQUESTED
 IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL

The State of Texas, represented by the Hon. Sharen Wilson, Tarrant

County Criminal District Attorney, prosecutes this appeal. Additionally,

representing the State on appeal is the Hon. Tanya S. Dohoney, Assistant

Criminal District Attorney and Hon. Debra Windsor, Post-Conviction Chief.

At trial, the Hon. Bryan P. Hoeller represented the prosecution. The State’s

attorneys’ address is Office of the Criminal District Attorney of Tarrant

County, Tim Curry Criminal Justice Center, 401 W. Belknap, Fort Worth,

Texas 76196-0201.

Appellant, Defendant below, is Gene Allen Burks. Hon. Abe Factor,

5719 Airport Freeway, Fort Worth, Texas, 76117, represented Appellee at

trial and now on appeal. On appeal, Hon. Tim Robinson, 210 N. Park Blvd.

#112, Grapevine, Texas 76051, also represents Appellant.

The trial court judge for Appellant’s cause was the Hon. Scott Wisch,

presiding judge of the 372nd Judicial District Court of Tarrant County.

ii
 SUBJECT INDEX

IDENTITY OF JUDGE, PARTIES, AND COUNSEL ................................... ii

INDEX OF AUTHORITIES .......................................................................... v

STATEMENT REGARDING ORAL ARGUMENT ........................................ 1

STATEMENT OF THE CASE ..................................................................... 2

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE ............. 2

STATEMENT OF FACTS ........................................................................... 3

QUESTIONS PRESENTED FOR REVIEW................................................. 4

FIRST QUESTION FOR REVIEW .............................................................. 4
Does a warrantless, nonconsensual blood draw conducted
pursuant to TEX. TRANSP. CODE §724.012(b)
violate the Fourth Amendment?

SECOND QUESTION FOR REVIEW ......................................................... 4
Are Fourth Amendment warrant-preference exceptions the
sole measure of Fourth Amendment reasonableness in
warrantless scenarios?

THIRD QUESTION FOR REVIEW .............................................................. 4
Do exclusionary rule principles mandate suppression of
blood evidence seized via a warrantless, nonconsensual,
valid-at-the-time mandatory blood draw?
TEX. CODE CRIM. PROC. art. 38.23(b).

ARGUMENTS AND AUTHORITIES............................................................ 5

I. Valid, compelled statutory blood draw ..................................................... 6

iii
 A. Codification of Fourth Amendment principles................................... 7

B. Special-needs framework adds to the
reasonableness calculation ............................................................. 9

C. Erroneous Consideration of the “Less Intrusive Means” Test ........ 11

II. Implied-Consent Draws Are Reasonable ............................................. 12

III. Exclusionary rule inapplicable and not invoked .................................... 14

CONCLUSION AND PRAYER .................................................................. 18

CERTIFICATE OF COMPLIANCE ............................................................ 19

CERTIFICATE OF SERVICE .................................................................... 19

COURT OF APPEALS’ OPINION ............................................... APPENDIX

iv
 INDEX OF AUTHORITIES

CASES

Beeman v. State,
86 S.W.3d 613 (Tex. Crim. App. 2002) ................................................. 15

Breithaupt v. Abram,
352 U.S. 432 (1957)............................................................................... 13

Burks v. State,
No. 02-13-00560-CR, ___ S.W.3d ___, 2015 WL 115964
(Tex. App.—Fort Worth January 8, 2015) ............................................. 2,3

Davis v. United States,
___ U.S. ___, 131 S. Ct. 2419 (2011) ............................................... 14,15

Douds v. State,
434 S.W.3d 842 (Tex. App.—Houston [14th] 2014, pet. granted) ....... 5,6n

Ex parte Tharpe,
935 S.W.2d 157 (Tex. Crim. App. 1996) ................................................ 10

Heien v. North Carolina,
___ S.Ct. ___, 2014 WL 7010684 (2014) ............................................... 16

Holidy v. State,
No. 06-13-00261-CR, 2014 WL 1722171
(Tex. App.—Texarkana 2014, pet. granted) ....................................... 6 & n

Hulit v. State,
982 S.W.2d 431 (Tex. Crim. App. 1998) ........................................... 12,13

Illinois v. Krull,
480 U.S. 342 (1987)........................................................................ 14,15n

v
Karev v. State,
281 S.W.3d 428 (Tex. Crim. App 2009) ............................................... 15n

Mapp v. Ohio,
367 U.S. 643 (1961)............................................................................... 15

Maryland v. King,
569 U.S. ___, 133 S.Ct. 1958 (2013) ..................................................... 12

McGee v. State,
105 S.W.3d 609 (Tex. Crim. App. 2003) ................................................ 13

Michigan Dept. of State Police v. Sitz,
496 U.S. 444 (1990)............................................................................... 12

Michigan v. DeFillippo,
443 U.S. 31 (1979)................................................................................. 16

McGruder v. State,
No. 10-13-109-CR, ___ S.W.3d ___, 2014 WL 3973089
(Tex. App.—Waco 2014, pet. granted) ............................................... 6 & n

Miles v. State,
241 S.W.3d 28 (Tex. Crim. App. 2007) .................................................... 7

Missouri v. McNeely,
569 U.S. ___, 133 S.Ct. 1552 (2013) .............................................. passim

Reeder v. State,
428 S.W.3d 924 (Tex. App.—Texarkana 2014, pet. granted)........... 6 & 6n

Schmerber v. California,
384 U.S. 757 (1966)............................................................................... 8n

Segundo v. State,
270 S.W.3d 79 (Tex. Crim. App. 2008), cert. denied,
558 U.S. 828 (2009).......................................................................... 12,13
vi
Skinner v. Railway Labor Executives’ Ass’n,
489 U.S. 602 (1989)............................................................................ 9-12

Smith v. State,
No. 13-11-00694-CR, ___ S.W.3d ___, 2014 WL 5901759
(Tex. App.—Corpus Christi 2014, pet. granted) ................................. 6 & n

State v. Reese,
353 Wis.2d 266, 844 N.W.2d 396 (Wis. App. 2014) ............................. 16n

State v. Villarreal,
___ S.W.3d ___, 2014 WL 6734178 (Tex. Crim. App. 2014)
(reh’g granted Feb. 25, 2015) ......................................................... passim

Thornton v. State,
145 S.W.3d 228 (Tex. Crim. App. 2004) .............................................. 16n

United States v Peltier,
422 U.S. 531 (1975)............................................................................. 15n

Weems v. State,
434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted) .......... 6 & n

Welsh v. Wisconsin,
466 U.S. 740 (1984)................................................................................. 8

Vernonia School District 47J v. Acton,
515 U.S. 646 (1995)............................................................................... 11

ADDITIONAL AUTHORITIES

U.S. CONST. amend. IV .......................................................................... 9,12

TEX. CODE CRIM. PROC. art. 14.04................................................................ 9

TEX. CODE CRIM. PROC. art. 18.16 ................................................................ 7
vii
TEX. CODE CRIM. PROC. art. 38.23 ...................................................... 4,15-17

TEX. PENAL CODE §1.07 ............................................................................. 15

TEX. PENAL CODE §49.04 ............................................................................. 7

TEX. PENAL CODE §49.00 ............................................................................. 7

TEX. TRANSP. CODE §524.01 ...................................................................... 10

TEX. TRANSP. CODE §724.012 ............................................................. passim

TEX. R. APP. P. 66.3 .................................................................................... 6

viii
 IN THE COURT
OF CRIMINAL APPEALS OF TEXAS

GENE ALLEN BURKS, §
APPELLANT §
§
V. § NO. PD-0157-15
§
THE STATE OF TEXAS, §
APPELLEE §

STATE'S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF
THE COURT OF CRIMINAL APPEALS:

Comes now the State of Texas, by and through her Tarrant County

Criminal District Attorney, and respectfully urges this Court to grant

discretionary review of this cause in accordance with the rules of appellate

procedure.

STATEMENT REGARDING ORAL ARGUMENT

The reasonableness of statutory mandatory blood draws merits

argument. Likewise, argument should be granted to discuss the

inapplicability of the exclusionary rule to cases where, at the time of the

seizure, the officer’s conduct conformed to ubiquitous, nationally-

recognized criterion that did not violate constitutional protections.

1
 STATEMENT OF THE CASE

Appellant premised a pretrial suppression claim on the Supreme

Court’s decision in Missouri v. McNeely, 569 U.S. ___, 133 S.Ct. 1552

(2013). (1CR at 14-17). The trial judge rejected the defense argument

attacking the validity of blood seized pursuant the Texas implied-consent

statute. (2RR at 11-16). Appellant pled guilty to felony driving-while-

intoxicated [DWI], and the trial court sentenced him to ten years’

incarceration, probated. (1CR at 5,49-54,56-58). TEX. PENAL CODE

§§49.04, 49.091; TEX. TRANSP. CODE §724.012(b).

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

The Fort Worth Court of Appeals reversed the trial court in a

published opinion authored by Justice Sue Walker. Burks v. State, No. 02-

13-00560-CR, ___ S.W.3d ___, 2015 WL 115964 (Tex. App.—Fort Worth

January 8, 2015). Rehearing was not sought. The State files this petition,

due on March 11, 2015, following one extension.

1
Statutory cites throughout are to the current version.
2
 STATEMENT OF FACTS

The parties stipulated to the case’s facts including those

encompassing the stop of Appellant’s vehicle, the factors culminating in his

felony DWI arrest, and the mandatory-draw predicate under Texas’ implied-

consent statute. TEX. TRANSP. CODE §724.012(b). (1CR at 48; 2RR at 5-7;

3RR at SX1). When denying the motion to suppress, the judge found that:

• the circumstances surrounding Appellant’s offense did not present
any factual exigency, (2RR at 12);

• officers conducted the blood draw under the authority of
Transportation Code Section 724.012(b), (2RR at 12,14);

• the totality of the circumstances warranted reliance on the limited
provisions of the implied-consent statute, (2RR at 13);

• officers could have obtained a warrant, (2RR at 14);

• as a licensed driver, Appellant had notice of the implied-consent
provisions applied, (2RR at 15);

• public safety/welfare considerations supported the judge’s decision to
reject suppression, (2RR at 13-16).

The Fort Worth Court rejected the trial court’s ruling. Burks, 2015 WL

115964, at *1-3 (Tex. App.—Fort Worth January 8, 2015). The court relied

on this Court’s decision in Villarreal. State v. Villarreal, ___ S.W.3d ___,

2014 WL 6734178 (Tex. Crim. App. 2014) (reh’g granted Feb. 25, 2015).

3
The lower court’s opinion also applied article 38.23(b) and held that the

Texas exclusionary rule did not apply to a warrantless seizure. Id. at *3.

QUESTIONS PRESENTED FOR REVIEW

FIRST QUESTION FOR REVIEW

Does a warrantless, nonconsensual blood draw
conducted pursuant to TEX. TRANSP. CODE §724.012(b)
violate the Fourth Amendment?
(2RR at 11-16)

SECOND QUESTION FOR REVIEW

Are Fourth Amendment warrant-preference exceptions
the sole measure of Fourth Amendment reasonableness
in warrantless scenarios?
(2RR at 11-16)

THIRD QUESTION FOR REVIEW

Do exclusionary rule principles mandate suppression of
blood evidence seized via a warrantless, nonconsensual,
valid-at-the-time mandatory blood draw?
TEX. CODE CRIM. PROC. art. 38.23(b). (2RR at 11-16)

4
 ARGUMENTS AND AUTHORITIES

This Court is in the midst of deciding the issues presented herein.

Whilst a November 2014 decision addressed the merits of the Fourth

Amendment issue in one of the several McNeely-related cases pending

before this Court at that time, the case is in flux since the Court recently

granted rehearing. Villarreal, 2014 WL 6734178 (Tex. Crim. App. 2014)

(reh’g granted Feb. 25, 2015). Per the Court’s docket, Villarreal is now set

for submission on March 18, 2015, the same day another McNeely case is

set for submission. See Douds v. State, 434 S.W.3d 842 (Tex. App.—

Houston [14th] 2014, pet. granted Sep. 17, 2014).

The State’s petition focuses on two aspects of any McNeely-related

consequences: the validity of a statutorily compelled draw and the

invalidity of the exclusionary rule. Note that Villarreal only went to the

merits of the mandatory-draw issue, not addressing the applicability of the

exclusionary rule. Villarreal, 2014 WL 6734178. However, Douds

addressed the exclusionary rule’s applicability. Douds, 434 S.W.3d at 861.

In other words, this Court has already granted review on the issues

presented herein.

5
 Review should be granted because this case involves important

questions of law that are have not been finally addressed by this Court,

matters in conflict in the interim appellate courts, and the misapplication of

a Supreme Court decision that does not undermine the validity of the

country’s implied-consent statutes. TEX. R. APP. P. 66.3(a)(b)(c)(d)(f).2

I. Valid, compelled statutory blood draw

The State’s appellate stance is in lockstep with that of prosecutors

from other counties across the State who have already had cases granted

for review on a McNeely-related issue.3 Hence, the State respectfully asks

this Court to dispose of the instant case in a manner consistent with the

petitions in Villarreal, Smith, McGruder, Douds, Weems, Holidy, and

Reeder. Here, the officer reasonably relied on an existing, ubiquitous

statute to obtain a compelled blood draw. The seizure occurred when the

2
See Villarreal, 2014 WL 6734178 (reh’g granted); Smith v. State, No. 13-11-
00694-CR, ___ S.W.3d ___, 2014 WL 5901759 (Tex. App.—Corpus Christi 2014, pet.
granted); McGruder v. State, No. 10-13-109-CR, ___ S.W.3d ___, 2014 WL 3973089
(Tex. App.—Waco 2014, pet. granted); Douds, 434 S.W.3d 842 (pet. granted); Weems
v. State, 434 S.W.3d 655 (Tex. App.—San Antonio 2014, pet. granted); Holidy v. State,
No. 06-13-00261-CR, 2014 WL 1722171 (Tex. App.—Texarkana 2014, pet. granted);
Reeder v. State, 428 S.W.3d 924, 930 (Tex. App.—Texarkana 2014, pet. granted); see
also McNeely, 133 S.Ct at 1566 & n.9 (referencing nationwide reliance on implied-
consent provisions).
3
See cases cited supra note 2.
6
officer—at the time of the offense—possessed probable cause that

Appellant’s impaired and intoxicated conduct constituted felony DWI. TEX.

PENAL CODE §§49.04, 49.09; TEX. TRANSP. CODE §724.012(b).

In addition, the State differs with Villarreal’s original-submission

reasoning and further asserts that several important arguments should be

considered on the merits.

A. Codification of Fourth Amendment principles

Villarreal failed to consider that the implied-consent statute codified

Fourth Amendment principles. For instance, this Court has previously

recognized a statutory codification of the exigency exception. See Miles v.

State, 241 S.W.3d 28, 39-40 & n.54 (Tex. Crim. App. 2007) (citing TEX.

CODE CRIM. PROC. art. 18.16). McNeely recognized that every case

involving the dissipation of alcohol included some exigency. McNeely, 133

S.Ct. at 1561, 1568. This ever-present exigency must be considered when

assaying the reasonableness of statutory draws.

Combine the static alcohol-evaporation exigency consideration with

the Legislature’s clear codification of the gravity-of-the-offense exigency.

The implied-consent statute extinguished a defendant’s right to refuse

where an officer possesses probable cause to believe that certain
7
enumerated, egregious circumstances exist. TEX. TRANSP. CODE

§724.012(b). Defendants only lose their refusal right under carefully

circumscribed scenarios involving felonious intoxication-related offenses

and/or resultant injuries necessitating hospitalization. Id.4

This statutory limitation amounts to a codification of an additional

recognized exigency unrelated to blood-alcohol dissipation. Welsh v.

Wisconsin held that the Fourth Amendment authorizes common-sense

consideration of the underlying offense’s gravity when weighing the

existence of an exigency. Welsh v. Wisconsin, 466 U.S. 740, 751-52

(1984) (exigency calculations include consideration of a crime’s severity).

Consideration of a crime’s gravity is the essence of reasonableness

because the state’s interest is greater in a more serious case. Cf. TEX.

CODE CRIM. PROC. art. 14.04 (authorizing warrantless arrests for felonies

where an officer did not observe the offense).

Of course, it almost goes without saying that Texas’ implied-consent

legislation codified Fourth Amendment probable cause requirements. U.S.

4
Notably, under the Texas statute, the McNeely and Schmerber defendants would have
retained their right to refuse based upon the less serious nature of their crimes. Compare
McNeely, 133 S.Ct. at 1556-57 (DWI); Schmerber v. California, 384 U.S. 757, 758-59 (1966)
(DWI arising from a one-car collision).
8
CONST. amend. IV. Predicate elements of the implied consent statute

codify this well-known quantum-of-evidence as a requirement for a

compelled search. TEX. TRANSP. CODE §724.012(b). Probable cause,

along with the exigencies based upon the gravity-of-the-crime and the

dissipation-of-alcohol exigency, create a framework that provides a neutral

set of guidelines authorizing a narrowly defined seizure from an already-in-

custody arrestee. These provisions embrace the essence of Fourth

Amendment reasonableness.

B. Special-needs framework adds to the
reasonableness calculation

The now-withdrawn Villarreal decision rejected application of the

Supreme Court’s special needs doctrine to the mandatory blood draw

framework. Villarreal, 2014 WL 6734178, at *14-15; see Skinner v. Railway

Labor Executives’ Ass’n, 489 U.S. 602, 619 (1989). However, the Court

did not consider that blood drawn pursuant to Chapter 724’s mandate also

implicates administrative license revocation [ALR] procedures, a separate

regulatory process that focuses on protecting the traveling public by

removing offenders from the road. See TEX. TRANSP. CODE §524.012(b)(1)

(mandating license suspension based upon BAC).

9
 “The primary purpose of the administrative license suspension statute

is not to deter the licensee or to seek retribution, but to protect the public

from the carnage on the public roads of Texas caused by drunk drivers.”

Ex parte Tharpe, 935 S.W.2d 157, 159 (Tex. Crim. App. 1996). Such

regulation focuses on the government’s strong interest in removing

intoxicated drivers from the road, just as railroad regulation in Skinner

sought to increase railway safety by detecting intoxicated employees.

Compare Skinner, 489 U.S. at 620-21 with Ex parte Tharpe, 935 S.W.2d at

159.

Special needs’ principles recognize the statute’s provision of a

neutral, detached vehicle for protecting citizens from impaired drivers and

defendants from unfettered discretion. The special-needs exception

constitutes another factor to consider in a non-dualistic analysis that

renders Texas’ compelled-draw framework reasonable.

C. Erroneous Consideration of the “Less Intrusive Means” Test

The original Villarreal decision considered the ready availability of

warrants when rejecting the validity of Texas’ mandatory draw statute.

Villarreal, 2014 WL 6734178, at *18 (finding no compelling need to uphold

warrantless, nonconsensual blood searches where warrants are “often
10
readily available”). However, factors such as electronic warrants and the

availability of a magistrate shift the focus away from an officer’s conduct

and, instead, weigh considerations of alternative means. See McNeely,

133 S.Ct. at 1561-63.

The Supreme Court often rejects arguments applying less-intrusive-

alternative-practices attacks in Fourth Amendment cases. Vernonia School

District 47J v. Acton, 515 U.S. 646 (1995) (upholding warrantless, random

urine screening of athletes and rejecting an argument for drug testing

based upon suspicion of drug use); Skinner, 489 U.S. at 629 n.9 (upholding

random, suspicionless drug screening of railway employees following

safety breaches and rejecting arguments voicing less drastic and equally

effective means). One footnote in Skinner flatly rejects the propriety of

considering less-drastic alternatives in scenarios that include warrantless

and even suspicionless seizures for toxicological testing, similar to

Appellant’s facts. Skinner, 489 U.S. 602, 629 n.9. Villarreal mistakenly

applied this discounted, post-hoc consideration on original submission.

11
II. Implied-Consent Draws Are Reasonable

Reasonableness has always been the linchpin of the Fourth

Amendment, venerated in the provision’s plain language. U.S. CONST.

amend IV; Hulit v. State, 982 S.W.2d 431, 435-36, 438 (Tex. Crim. App.

1998). Discernment of what is “reasonable” requires courts to consider the

balance between an individual’s privacy and the legitimate governmental

interests, especially when public safety is of utmost concern. See

Maryland v. King, 569 U.S. ___, 133 S.Ct. 1958, 1979 (2013); Michigan

Dept. of State Police v. Sitz, 496 U.S. 444, 455 (1990); Segundo v. State,

270 S.W.3d 79 (Tex. Crim. App. 2008), cert. denied, 558 U.S. 828 (2009).

Villarreal viewed the choice between applying a Fourth Amendment

exception and consideration of a reasonableness balancing approach as

mutually exclusive analytical constructs. The State respectfully believes

that this black-white consideration of these two concepts is mistaken,

especially in light of the fact that this Court has conducted the

reasonableness balancing approach to similar issues. See Segundo, 270

S.W.3d at 96-99; McGee v. State, 105 S.W.3d 609 (Tex. Crim. App. 2003);

Hulit, 982 S.W.2d at 434 n.1, 436.
12
 Years ago, the Supreme Court recognized that a framework requiring

a driver’s consent was anything but nonsensical. The Breithaupt court

pointed to then recently adopted implied-consent provisions and wrote:

It might be a fair assumption that a driver on the highways in
obedience to a policy of the State, would consent to have a
blood test made as part of a sensible and civilized system
protecting himself as well as other citizens not only from the
hazards of the road due to drunken driving, but also from some
use of dubious lay testimony.

Breithaupt v. Abram, 352 U.S. 432, 435 n.2 (1957). The State contends

that compelled draws under implied-consent provisions are inherently

reasonable when all side’s needs are weighed. Indeed, Fourth

Amendment reasonableness underpins the statute. The well-known

exceptions—as argued in the myriad cases already before this Court—

considered individually and in concert with each other, alongside a

balancing of the competing interests, all support the continued viability of

Texas’ implied-consent framework.

III. Exclusionary rule inapplicable and not invoked

Statutory mandatory blood-draws are reasonable. But see State v.

Villarreal, 2014 WL 6734178 (opinion on original submission; under re-

13
submission).5 When the ink dries on Villarreal and future McNeely-related

decisions and if those cases are adverse to the State on the merits, the

rules requiring evidence exclusion should not apply to mandatory blood-

draw scenarios that occurred prior to the Supreme Court’s April 2012

pronouncement.

Federally, the good-faith exception to the Fourth Amendment’s

exclusionary rule applies when law enforcement, at the time of the search,

acted objectively reasonably by relying on (1) a statute, later declared

unconstitutional, or (2) binding judicial precedent, subsequently overruled.

Illinois v. Krull, 480 U.S. 342, 349-57 (1987) (statutes); Davis v. United

States, ___ U.S. ___, 131 S. Ct. 2419, 2428-34 (2011) (caselaw).

Under state law, the Texas exclusionary rule is not invoked

because—at the time of the offense—no violation occurred. The State

recognizes that article 38.23(b)—Texas’ limited good faith exception—

requires a warrant. TEX. CODE CRIM. APP. §38.23(b). Notwithstanding,

invocation of exclusionary rule principles relies on article 38.23(a). That

subsection’s plain language requires a violation for exclusion to be

5
See cases cited supra note 2.
14
triggered. When Appellant’s blood was drawn, no one credibly questioned

the validity of the officer’s statutory authority.6 In other words, at the time of

the seizure, the officer followed then-existing law. See TEX. CODE CRIM.

PROC. art. 38.23(a); see also TEX. PENAL CODE §1.07(a)(30) (defining “law”

as meaning the state and federal constitution and statutes, in addition to

the written opinions of a court of record); see also Davis, 131 S.Ct. at 2427-

28 (“obtained” applies to unlawfulness at the time of the seizure; exclusion

not triggered in an absence of police culpability). Simply put, these

circumstances do not invoke exclusion.7

The Supreme Court mentioned, in dictum, the application of the

exclusionary rule versus Fourth Amendment violations in a non-blood-draw

scenario decided recently. In Heien, the Court weighed the validity of an

investigatory stop where the officer misunderstood the traffic code provision

6
See Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002); TEX. TRANSP. CODE
§724.012(b); see also Karev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App 2009) (statutes
presumed constitutional until held otherwise).
7
See also United States v. Peltier, 422 U.S. 531, 541-42 (1975) (upholding
suspicionless, warrantless seizure of person by roving border patrol agents based upon
constitutional-at-time statute); Krull, 480 U.S. at 349–50 (exclusionary rule inapplicable when
police rely on statute later found unconstitutional); Mapp v. Ohio, 367 U.S. 643, 656 (1961)
(exclusionary rule seeks to deter officers from violating law to obtain evidence); Thornton v.
State, 145 S.W.3d 228, 233-34 (Tex. Crim. App. 2004) (exclusion not justified where marginal or
nonexistent deterrent benefits); accord State v. Reese, 353 Wis.2d 266, 844 N.W.2d 396, 402
(Wis. App. 2014) (no exclusion in McNeely case since no time-of-seizure misconduct).
15
he relied on to support the stop. See Heien v. North Carolina, ___ S.Ct.

___, 2014 WL 7010684, at *6-9 (December 15, 2014). The Supreme Court

considered the reasonableness of the officer’s mistake that lead to the stop

and arrest when considering remedies. In so doing, the Court pointed out

the myriad decisions finding exclusionary-rule invocation inappropriate

where the officer’s conduct—valid at the time—was later declared

unconstitutional. Id. With only one justice dissenting, the Supreme Court’s

decision pondered the exclusionary rule’s limits which had been briefly

considered in Michigan v. DeFillippo, 443 U.S. 31,33,37-38 (1979)

(suggesting that exclusion might have been appropriate had the provision

been “grossly and flagrantly unconstitutional”) (citation omitted). Although

the Heien discussion is merely dicta, it reiterates the importance of focusing

on the fact that the instant officer’s conduct fully complied with mandatory,

settled law at the time of Appellant’s arrest. McNeely and subsequent

caselaw questioning implied-consent blood draws came later. Since, no

violation occurred at the time of the Appellant’s 2011 blood draw, article

38.23’s exclusionary provision does not apply.

16
 CONCLUSION AND PRAYER

Review should be granted and the decision of the Court of Appeals

should be reversed, upholding this felony DWI conviction.

Respectfully submitted,

SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas

DEBRA WINDSOR
Chief, Post-Conviction
Assistant Criminal District Attorney

/s/ Tanya S. Dohoney
TANYA S. DOHONEY
Assistant Criminal District Attorney
Tim Curry Criminal Justice Center
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687
(817)884-1672 FAX
State Bar No. 02760900
CCAAppellateAlerts@tarrantcountytx.gov

17
 CERTIFICATE OF COMPLIANCE

This document, prepared in a conventional typeface no smaller than

14-point for text and 12-point for footnotes, complies with the typeface

requirements of TEX. R. APP. P. 9.4(e). This document also complies with

the word-count limitations of TEX. R. APP. P. 9.4 (i) because it contains less

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prepare the document.

/s/ Tanya S. Dohoney
TANYA S. DOHONEY

CERTIFICATE OF SERVICE

A true copy of the State’s petition has been e-served to opposing

counsel, Hon. Abe Factor, 5719 Airport Freeway, Fort Worth, Texas 76117

at lawfactor@yahoo.com, and to the State Prosecuting Attorney, Hon. Lisa

McMinn, information@spa.texas.gov, P.O. Box 13046, Austin, Texas

78711, on this 11th day of March, 2015.

/s/ Tanya S. Dohoney
TANYA S. DOHONEY

H:\DOHONEY.D11\BRIEFS\011615 burks mcneely post-villarreal.doc

18
COURT OF APPEALS’ OPINION

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Tex. Transp. Code Ann. § 724.012(b)(3)(B).
Only the Westlaw citation is currently avail-
able.OPINION [2] Automobiles 48A 419

48A Automobiles
Court of Appeals of Texas, 48AIX Evidence of Sobriety Tests
Fort Worth. 48Ak417 Grounds for Test
Gene Allen Burks, Appellant 48Ak419 k. Grounds or cause; necessity
v. for arrest. Most Cited Cases
The State of Texas, State Exigency presented by the natural dissipation
of alcohol in the blood, as justification for a war-
NO. 02–13–00560–CR rantless blood or urine sample upon an arrest for
DELIVERED: January 8, 2015 driving under influence (DUI), must be determined
case by case based on the totality of the circum-
Background: Defendant was convicted pursuant to
stances. U.S. Const. Amend. 4.
guilty plea in the 372nd District Court, Tarrant
County, David Scott Wisch, J., of driving while in- [3] Criminal Law 110 392.38(4)
toxicated (DWI)-felony repetition. Defendant ap-
pealed. 110 Criminal Law
110XVII Evidence
Holdings: The Court of Appeals, Sue Walker, J., 110XVII(I) Competency in General
held that: 110k392.1 Wrongfully Obtained Evidence
(1) statute providing for mandatory blood draws, 110k392.38 Good Faith or Objectively
regardless of defendant's lack of consent, in case in- Reasonable Conduct Doctrine
volving felony DWI, was not recognized exception 110k392.38(4) k. Reliance on stat-
to warrant requirement, and ute, ordinance, or precedent; mistake of law. Most
(2) exception to statutory exclusionary rule when Cited Cases
police officer acts in good faith reliance on warrant Exception to statutory exclusionary rule when
did not apply to warrantless mandatory blood draw. police officer acts in good faith reliance on warrant
did not apply to warrantless mandatory blood draw
Reversed and remanded.
that did not fit within any exception to warrant re-
West Headnotes quirement. U.S. Const. Amend. 4; Tex. Transp.
Code Ann. § 724.012(b)(3)(B); Tex. Crim. Proc.
[1] Automobiles 48A 414 Code Ann. art. 38.23(b).

48A Automobiles [4] Criminal Law 110 392.38(4)
48AIX Evidence of Sobriety Tests
48Ak414 k. Right to take sample or conduct 110 Criminal Law
test; initiating procedure. Most Cited Cases 110XVII Evidence
Statute providing for mandatory blood draws, 110XVII(I) Competency in General
regardless of defendant's lack of consent, in case in- 110k392.1 Wrongfully Obtained Evidence
volving felony driving while intoxicated (DWI) was 110k392.38 Good Faith or Objectively
not recognized exception to warrant requirement Reasonable Conduct Doctrine
under Fourth Amendment. U.S. Const. Amend. 4; 110k392.38(4) k. Reliance on stat-
ute, ordinance, or precedent; mistake of law. Most

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Cited Cases Amendment's warrant requirement, nor can it be
There is no exception to the statutory exclu- justified under a general Fourth Amendment balan-
sionary rule with respect to evidence obtained in vi- cing test, we will reverse the trial court's suppres-
olation of the constitution or laws of the United sion order and judgment and remand the case to the
States or Texas for a police officer's good faith reli- trial court.
ance on a statute. Tex. Crim. Proc. Code Ann. art.
38.23(a). II. FACTUAL AND PROCEDURAL BACK-
GROUND
West Codenotes Burks was indicted for felony DWI. He filed a
Recognized as UnconstitutionalTex. Transp. Code “Motion to Suppress Blood Alcohol Test Results
Ann. § 724.012(b)(3)(B). Obtained Without Consent or Valid Search War-
rant.” Prior to a hearing on Burks's motion, the
FROM THE 372ND DISTRICT COURT OF TAR- parties agreed to stipulate to the evidence for pur-
RANT COUNTY, TRIAL COURT NO. 1302810D, poses of the hearing as follows:
Hon. David Scott Wisch, Judge.Abe Factor, Fort
Worth, TX, Tim Robinson, Grapevine, TX, for Ap- 1. On October 31, 2012, around 8:59 p.m., North
pellant. Richland Hills Police Officer Kevin Croft # 767
possessed reasonable suspicion and probable
Joe Shannon, Jr., Crim. Dist. Atty., Charles Mallin, cause to initiate a traffic stop of the Defendant's
Asst. Crim. Dist. Atty., Chief Appellate Div., Tan- motor vehicle which was being operated by the
ya S. Dohoney, Jennifer Jackson, Fort Worth, TX, Defendant in Tarrant County, Texas in a public
for State. place. Officer Croft executed this stop based
upon information relayed to North Richland Hills
PANEL: WALKER, MEIER, and GABRIEL, JJ. PD dispatch by a credible 911 caller, Philip Hare.
Officer Croft also based the stop upon his person-
al observation of the Defendant's vehicle chan-
OPINION ging lanes without signaling as required under
SUE WALKER, JUSTICE Section 545.104 of the Texas Transportation
I. INTRODUCTION Code.
*1 Appellant Gene Allen Burks appeals his
conviction for driving while intoxicated 2. On October 31, 2012, Officer Kevin Croft had
(DWI)-felony repetition. See Tex. Penal Code Ann. probable cause to arrest the Defendant for Driv-
§§ 49.04, .09 (West Supp. 2014). In a single point, ing While Intoxicated [DWI] under Chapter 49,
he argues that the trial court erred by denying his Texas Penal Code. The officer reasonably be-
motion to suppress blood alcohol test results ob- lieved that the Defendant committed the offense
tained using the mandatory-blood-draw procedure of DWI based upon: the information gleaned
of the Texas Transportation Code and without his from the 911 caller; the Defendant's physical ap-
consent or a valid search warrant. See Tex. Transp. pearance which was consistent with having im-
Code Ann. §§ 724.011(a), 724.012(b), 724.013 bibed alcohol; the Defendant's admission to
(West 2011). Following the court of criminal ap- drinking alcohol; and the Defendant's poor per-
peals's recent opinion in State v. Villarreal, No. formance on field sobriety tests. Officer Croft ar-
PD–0306–14, ––– S.W.3d ––––, 2014 WL 6734178 rested the Defendant, without warrant, at approx-
(Tex.Crim.App. Nov. 26, 2014), in which the court imately 9:19 p.m.
held that such a warrantless, nonconsensual draw of
a DWI suspect's blood does not categorically fall 3. Prior to the Defendant's arrest, the Defendant
within any recognized exception to the Fourth told Officer Croft he had consumed two beers;

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after the Defendant's arrest, at approximately able to review and sign search warrants.
10:35 p.m. and after having been properly However, this process is not as streamlined as it
Mirandized and agreeing to waive his Miranda is during “No–Refusal” periods.
rights and answer questions, the Defendant told
Officer Croft that he drank four or five beers. The 10. Officer Croft obtained the Defendant's com-
Defendant exclaimed to Officer Croft that he had pelled blood sample pursuant to the mandatory
not been that intoxicated in a long, long time. provisions of Texas Transportation Code Section
724.012(b). Other than the ever-present exi-
4. Officer Croft read the Defendant the DIC–24 gency-related factors that exist in the cases enu-
Statutory Warning at approximately 10:09 p.m. merated in Section 724.012(b), that is, the con-
and requested a specimen of the Defendant's stant dissipation of alcohol from the bloodstream
blood. The Defendant refused to provide a speci- and the severity of the offense committed, here,
men of his blood voluntarily. by a DWI recidivist, no other exigencies arose
from the circumstances of the offense. Officer
*2 5. The requirements set forth in Texas Trans- Croft relied on the mandatory terms of Texas'[s]
portation Code Section 724.012 to obtain a man- implied-consent statute.
datory blood sample from the Defendant were
met. Specifically, (1) that Officer Croft had reas- 11. The Defendant was in possession of a valid
onable grounds to believe that the Defendant op- Texas driver's license at the time of this offense.
erated a motor vehicle in a public place while in-
toxicated, (2) the Defendant refused Officer After a hearing, the trial court denied Burks's
Croft's request to submit to the taking of a speci- motion to suppress. Burks pleaded guilty pursuant
men voluntarily, and (3) at the time of the arrest, to a plea bargain, and in accordance with the plea
Officer Croft possessed or received reliable in- bargain, the trial court sentenced Burks to ten years'
formation from a credible source that the Defend- confinement and a $1,500 fine, suspended imposi-
ant on two or more occasions had been previ- tion of the confinement portion of the sentence, and
ously convicted or placed on community supervi- placed Burks on community supervision for five
sion for an offense under Section 49.04, 49.05, years.
49.06, or 49.06[sic].
III. BLOOD DRAW VIOLATED FOURTH
6. The Defendant's blood draw was conducted AMENDMENT
around 10:10 p.m. using medically-accepted pro- [1][2]In Missouri v. McNeely, the United States
cedures. Philip Fabian, a registered professional Supreme Court held that the natural dissipation of
nurse, drew the Defendant's blood at the North alcohol in the bloodstream does not present a per se
Hills Hospital emergency room, a sanitary place. exigent circumstance justifying a blood test without
a warrant in all DWI cases. ––– U.S. ––––, 133
7. The date of arrest, October 31, 2012, was not S.Ct. 1552, 1563, 185 L.Ed.2d 696 (2013). Exi-
during a “No-refusal” period where magistrates gency in this context must be determined case by
are available in a streamlined manner to review case based on the totality of the circumstances. Id.
and sign search warrants.
Texas's implied-consent and mandatory-
8. North Richland Hills PD officers are trained blood-draw statutes provide a statutory scheme
and experienced regarding obtaining search war- whereby the taking of blood samples is premised on
rants. “implied consent” and is required in certain DWI
investigations, including felony DWI, even if the
9. North Richland Hills PD has magistrates avail- suspect refuses consent. See Tex. Transp. Code

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Ann. §§ 724.011(a), 724.012(b), 724.013. Our sis- blood draw. See Tex. Transp. Code Ann. §
ter courts have grappled with the import of 724.012(b)(3)(B). Following Villarreal, we hold
McNeely upon our mandatory-blood-draw and im- that this warrantless, nonconsensual blood draw
plied-consent statutes. The court of criminal ap- conducted pursuant to the mandatory-blood-draw
peals recently resolved the issue: and implied-consent provisions of the Texas Trans-
portation Code violated the Fourth Amendment.
We hold that the provisions in the Transportation See ––– S.W.3d at ––––, 2014 WL 6734178, at *21.
Code do not, taken by themselves, form a consti-
tutionally valid alternative to the Fourth Amend- [3][4]The State alternatively argues that be-
ment warrant requirement. We thus reject the cause the officer in this case was following the
State's assertion that a warrantless, nonconsensu- mandatory terms of the transportation code, the ex-
al blood draw conducted pursuant to those provi- clusionary rule should not apply here. See Tex.
sions can fall under one of the established excep- Code Crim. Proc. Ann. art. 38.23(a) (West 2005)
tions to the warrant requirement described above, (providing that “[n]o evidence obtained by an of-
and we further reject the State's suggestion that ficer ... in violation of any provisions of the Consti-
such a search may be upheld under a general tution or laws of the State of Texas, or of the Con-
Fourth Amendment balancing test. stitution or laws of the United States of America,
shall be admitted in evidence against the accused
*3 Villarreal, ––– S.W.3d at –––– – ––––, on the trial of any criminal case”). But there is no
2014 WL 6734178, at *10–16. Specifically, the exception to our statutory exclusionary rule for an
court in Villarreal rejected the State's arguments officer's good faith reliance on a statute. See id. art.
that (1) a warrantless, nonconsensual blood test un- 38.23(b) (providing the only exception for officers
der the transportation code should be upheld as cat- acting in good-faith reliance upon a warrant); State
egorically reasonable under the consent excep- v. Anderson, 445 S.W.3d 895, 912
tion—applicable in the form of a prior waiver (Tex.App.–Beaumont 2014, no. pet. h.) (explaining
through implied consent, the automobile exception, that the federal exclusionary rule, unlike Texas's,
the special-needs exception, or the search-incid- has at least three good faith exceptions) (citing
ent-to-arrest exception, (2) a blood draw should be Davis v. United States, ––– U.S. ––––, 131 S.Ct.
treated as a seizure instead of a search, and (3) such 2419, 2427–28, 180 L.Ed.2d 285 (2011)); Polk v.
a search may be upheld on the basis that it is reas- State, 704 S.W.2d 929, 934 (Tex.App.–Dallas
onable under a general Fourth Amendment balan- 1986), aff'd, 738 S.W.2d 274 (Tex.Crim.App.1987).
cing test. Id. at –––– – ––––, 2014 WL 6734178, Because there was no warrant in this case, the stat-
*10–17. The State raises these same arguments in utory exception in article 38.23(b) does not apply.
this appeal. See Anderson, 445 S.W.3d at 912; Douds v. State,
434 S.W.3d 842, 861 (Tex.App.–Houston [14th
In this case, Burks did not consent to a blood
Dist.] 2014, pet. granted) (en banc).
draw, and a warrant to draw his blood was not ob-
tained. The State does not rely on the exigent cir- We hold that the trial court erred by denying
cumstances exception to the warrant requirement. Burks's motion to suppress the blood alcohol test
There was no accident or injury; as stated in the results, and we sustain Burks's sole point.
stipulated facts, the only “exigency” was “the con-
stant dissipation of alcohol from the bloodstream IV. CONCLUSION
and the severity of the offense committed, here, by Having sustained Burks's sole point and having
a DWI recidivist.” Officer Croft relied exclusively held that the blood alcohol test results should have
on the “mandatory provisions” of transportation been suppressed, we reverse the trial court's order
code section 724.012(b)(3)(B) for the warrantless denying Burks's motion to suppress and the trial

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--- S.W.3d ----, 2015 WL 115964 (Tex.App.-Fort Worth)
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court's judgment and remand this case to the trial
court for further proceedings consistent with this
opinion.

Tex.App.-Fort Worth, 2015
Burks v. State
--- S.W.3d ----, 2015 WL 115964 (Tex.App.-Fort
Worth)

END OF DOCUMENT

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.