PD-0731-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/7/2015 9:07:44 AM
Accepted 7/7/2015 4:44:29 PM
ABEL ACOSTA
CLERK
No. PD 0731-15
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
AT AUSTIN, TEXAS
HENRY WILSON RICHARDS,
Appellant
vs.
THE STATE OF TEXAS,
Appellee
Appellee is seeking discretionary review of an opinion from the Fifth District
Court of Appeals at Dallas County in Cause No. 05-14-00075-CR, reversing
the judgment of the 282nd Judicial District Court of Dallas County in Cause
No. F12-63948
STATE‟S PETITION FOR DISCRETIONARY REVIEW
Counsel of Record:
SUSAN HAWK PATRICIA POPPOFF NOBLE
CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY
DALLAS COUNTY, TEXAS STATE BAR NO. 15051250
FRANK CROWLEY COURTS BLDG
133 N. RIVERFRONT BLVD,LB-19
DALLAS, TEXAS 75207-4399
July 7, 2015 (214) 653-3634
pnoble@dallascounty.org
Attorneys for the State of Texas
IDENTITY OF JUDGE, PARTIES, and COUNSEL
Trial Court Judge:
The Honorable Andy Chatham, Judge Presiding
282nd Judicial District Court of Dallas County, Texas
Parties to the Judgment:
Henry Wilson Richards, Appellant/Respondent
The State of Texas , Appellee/Petitioner through Dallas County Criminal
District Attorneys, Craig Watkins, Dallas County Criminal District
Attorney (at time of trial), and Susan Hawk, Dallas County Criminal
District Attorney (at time of appeal), 133 N. Riverfront Blvd., LB 19,
Dallas, Texas 75207-4399, phone#214-653-3600.
Trial and Appellate Counsel:
Michael Mowla, Attorney for Appellant/Respondent on appeal, 445 E. FM
1382 #3-718, Cedar Hill, Texas 75104, phone#972-795-2401, email:
Michael@mowlalaw.com.
Stanley Mays, Attorney for Defendant at trial, 2516 MLK Blvd., Dallas,
Texas 75215, phone#214-421-9000.
Joe Flores, Dallas County Assistant District Attorney representing the
State of Texas at trial, 133 N. Riverfront Blvd., LB 19, Dallas, Texas
75207-4399, phone#214-653-3600.
Patricia Poppoff Noble, Dallas County Assistant District Attorney
representing the State of Texas on appeal, 133 N. Riverfront Blvd., LB 19,
Dallas, Texas 75207-4399, phone#214-653-3600.
AMENDED TABLE OF CONTENTS
INDEX OF AUTHORITIES…………………………………………………………iii
STATEMENT REGARDING ORAL ARGUMENT………………………………..1
STATEMENT OF THE CASE……………………………………………………….1
STATEMENT OF PROCEDURAL HISTORY……………………………………..1
QUESTIONS PRESENTED FOR REVIEW……………………………………….2
1. Does an argument in the trial court that the United States Supreme
Court has found the Texas statute authorizing a warrantless
nonconsensual blood draw is unconstitutional preserve for review an
argument that the search in this case was unreasonable under the
Fourth Amendment?
2. Did the court of appeals err when it reversed a conviction without
addressing the State’s preservation argument?
3. Did the court of appeals err by relying on a nonfinal opinion from this
Court which is not a part of the jurisprudence of this State to reverse
the conviction?
ARGUMENT……………………………………………………………………………3
PRAYER……………………………………………………………………………….16
CERTIFICATE OF SERVICE AND WORD COUNT ………………………….17
INDEX OF AUTHORITIES
Cases
Brown v. State,
807 S.W.2d 615 (Tex. App. – Houston [14th Dist.] 1991, no pet.) ........... 13
Cook v. State,
832 S.W.2d 62 (Tex. App. – Dallas 1992, no pet.) ....................................... 14
Garcia v. State,
833 S.W.2d 564 (Tex. App. – Dallas 1992), aff’d, 868 S.W.2d 337 (Tex.
Crim. App. 1993) ...................................................................................................... 14
Gipson v. State,
383 S.W.3d 152 (Tex. Crim. App. 2014) ................................................... 10, 11
Henderson v. State,
822 S.W.2d 171 (Tex. App. – Houston [1st Dist.] 1991, no pet.) .............. 13
Leal v. State,
456 S.W.3d 567 (Tex. Crim. App. 2015) ............................................................ 8
Leal v. State,
No. 14-13-00208-CR, 2015 Tex. App. LEXIS 6460 (Tex. App. – Houston
[14th Dist.] June 25, 2015) (op. on remand) (not yet reported) .................. 9
Lloyd v. State,
453 S.W.3d 544 (Tex. App. – Dallas 2014, pet. ref‟d)..................... 12, 15, 16
Lyssy v. State,
429 S.W.3d 37 (Tex. App. – Houston [1st Dist.] 2014, no pet.) ................. 7
Mayo v. State,
17 S.W.3d 291 (Tex. App. – Fort Worth 2000, pet. ref‟d) .......................... 14
Meadoux v. State,
325 S.W.3d 189 (Tex. Crim. App. 2010) ......................................................... 11
Missouri v. McNeely,
__U.S.__, 133 S.Ct. 1552 (2013) .............................................................. 4, 12, 15
iii
Perez v. State,
No. 01-12-01001-CR, __ S.W.3d __, 2015 Tex. App. LEXIS 2492 (Tex.
App. – Houston [1st Dist.] Mar. 17, 2015,no pet. h.) (op. on reh‟g) ........... 7
Richards v. State,
No. 05-14-00075-CR, 2015 Tex. App. LEXIS 5129 (Tex. App. – Dallas
May 20, 2015, pet. filed) (mem. op., not designated for publication) . 2, 4,
6
State v. Villarreal,
No. PD-0306-14, _ S.W.3d _ 2014 WL 6734178 (Tex. Crim. App. Nov.
26, 2014)................................................................................................... 12, 13, 14, 15
Vasquez v. State,
814 S.W.2d 773 (Tex. App. – Houston [14th Dist.] 1991, pet. ref‟d) ...... 13
Yeager v. State,
727 S.W.2d 280 (Tex. Crim. App. 1987) ......................................................... 13
Statutes
Tex. Transp. Code Ann. §724.012 (West 2011) ......................................... 4, 7, 12
Rules
Rule 66.3 (f) ................................................................................................................... 11
Tex. R. App. P. 47.1 .................................................................................................... 10
Tex. R. App. P. 66.3 (a) .............................................................................................. 11
Tex. R. App. P. 66.3 (b) .............................................................................................. 16
TEX. R. APP. P. 68 ......................................................................................................... 1
iv
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State of Texas submits this petition for discretionary
review pursuant to TEX. R. APP. P. 68, and would show the
following:
STATEMENT REGARDING ORAL ARGUMENT
If discretionary review is granted, the State will waive oral
argument, unless this Honorable Court desires to have the parties
deliver oral argument.
STATEMENT OF THE CASE
Henry Wilson Richards (hereinafter, “Appellant”) was convicted
of driving and operating a motor vehicle in a public place while
intoxicated and having been twice before convicted of driving a
motor vehicle while intoxicated. (CR: 35).
STATEMENT REGARDING PROCEDURAL HISTORY
After the trial court overruled his motion to suppress evidence,
on January 17, 2014, appellant pleaded guilty to driving while
intoxicated (DWI), and the trial court sentenced him to ten years‟
confinement, probated for five years, and a $2000 fine. (CR: 35,
44). Appellant appealed his conviction by raising a single issue
challenging the denial of the motion to suppress alleging the
1
warrantless nonconsensual blood draw constituted an
unconstitutional search and seizure. On May 20, 2015, the Court
of Appeals for the Fifth District of Texas at Dallas delivered an
unpublished opinion reversing the judgment and remanding the
cause for further proceedings consistent with its opinion finding the
trial court erred in its denial of the motion to suppress. Richards v.
State, No. 05-14-00075-CR, 2015 Tex. App. LEXIS 5129 (Tex. App.
– Dallas May 20, 2015, pet. filed) (mem. op., not designated for
publication) (see APPENDIX). The State did not file a motion for
rehearing in the court of appeals. The State‟s petition for
discretionary review was originally due to be filed on or before June
19, 2015. By order of this Court, the petition is now due to be filed
on or before July 20, 2015.
QUESTIONS PRESENTED FOR REVIEW
1. Does an argument in the trial court that the United States
Supreme Court has found the Texas statute authorizing a
warrantless nonconsensual blood draw is unconstitutional
preserve for review an argument that the search in this case
was unreasonable under the Fourth Amendment?
2
2. Did the court of appeals err when it reversed a conviction
without addressing the State’s preservation argument?
3. Did the court of appeals err by relying on a nonfinal opinion
from this Court which is not a part of the jurisprudence of this
State to reverse the conviction?
ARGUMENT
Appellant appealed his DWI conviction. After the trial court
overruled his motion to suppress evidence, Appellant pleaded guilty
and he was convicted of felony DWI based on his having been twice
before convicted of DWI. In a single issue on appeal, Appellant
argued the trial court erred by denying his motion to suppress
blood test evidence because the warrantless, nonconsensual blood
draw constituted an unconstitutional search and seizure that
violated his Fourth Amendment rights. The court of appeals agreed
and overturned the judgment. This was error.
I.
Alleged error was not preserved for review.
In its opinion, after reviewing the facts of the case, the court of
appeals began its analysis by stating: “Before trial, appellant filed a
3
motion to suppress, alleging the warrantless, nonconsensual blood
draw was a violation of his Fourth Amendment rights.” Richards,
2015 Tex. App. LEXIS 5129, at *2. This is not an accurate
characterization of the complaint presented in the motion.
The motion to suppress argued that the United States
Supreme Court had found the Texas mandatory blood draw statute
unconstitutional. The motion to suppress stated that Appellant‟s
blood alcohol results were “illegally obtained” by a mandatory blood
draw “completed pursuant to Texas Transportation Code §724.012.”
(CR: 27). The motion cited Missouri v. McNeely, __U.S.__, 133 S.Ct.
1552 (2013) and argued only that the blood evidence must be
suppressed because: “The United States Supreme Court, in its
decision in McNeely, has in essence ruled that §724.012 of the
Texas Transportation Code is unconstitutional based on the Fourth
Amendment of the U.S. Constitution.” (CR: 28). As written, the
motion to suppress presented only a facial challenge to the validity
of the Texas statute.
During the hearing on the motion, after the arresting officer
testified, Appellant maintained his focus on arguing the Texas
statute is unconstitutional in light of McNeely:
4
MR. MAYS: . . . I think Judge Sotomayor, when she wrote
this opinion [referring to McNeely], she made it
clear absent exigent circumstances when
you‟re going to physically intrude the body,
you must have a warrant absent exigent
circumstances. So I think that would put this
– I think that would put this [referring to
§724.012, the statute under which Appellant‟s
blood sample was taken] in doubt.
THE COURT: Right. You are – you are officially making now
the claim that the –
MR. MAYS: The statute‟s un – unconstitutional.
THE COURT: Okay. I just – we need to make that clear for
the record.
MR. MAYS: Right. Right.
THE COURT: So you are telling me that Section 724.012 is
unconstitutional under the Texas Constitution
and under the United States Constitution?
MR. MAYS: That‟s correct.
THE COURT: Okay. Because I need to make that clear for
the record –
MR. MAYS: Right.
THE COURT: - because there‟s – there‟s – there‟s other cases
– and you‟ll agree with me, I think – other
cases that – that say that 724.012 is
constitutional. And that comes from the Court
of Criminal Appeals that said that in the past
not in relation to McNealy [sic] though.
MR. MAYS: Right.
5
COURT‟S RULING
THE COURT: So I‟m going to – I‟m going to deny your motion
to suppress because I‟ve got to go with what
the Texas Court of Criminal Appeals says
today. . . I can‟t overrule the Texas Court of
Criminal Appeals.
(RR2: 14-16).
Appellant raised one point on appeal which the court of
appeals understood to be related to the search, not the statute. The
opinion states:
“In a single issue, appellant argues the trial court erred
by denying his motion to suppress. Appellant claims that,
because he did not consent to the blood draw and the State
did not have a warrant to draw his blood, the search was
reasonable only if the State could show exigent circumstances.
Because the State did not do so, appellant claims the search
violated his Fourth Amendment rights, the motion should have
been granted, and the blood alcohol concentration evidence
should have been suppressed.
Richards, 2015 Tex. App. LEXIS 5129, at *2-3.
The State had argued to the court of appeals that this point
was not preserved. However, the State‟s preservation argument
goes unnoticed in the court‟s opinion. The record shows that the
pretrial complaint differs from the appellate argument. Neither one
can preserve the other for review. Another court of appeals has
found that appellants cannot overcome the preservation hurdle by
6
presenting the same type of nonconforming arguments at trial and
on appeal. See Perez v. State, No. 01-12-01001-CR, __ S.W.3d __,
2015 Tex. App. LEXIS 2492, at *18, (Tex. App. – Houston [1st Dist.]
Mar. 17, 2015,no pet. h.) (op. on reh‟g) (finding a motion arguing
that the acquisition of the State‟s evidence was not pursuant to a
search warrant, was absent exigent circumstances, and made
without probable cause to believe the defendant engaged in criminal
activity or that such evidence, if any, was in danger of being
destroyed does not preserve for review an argument that the
mandatory blood draw statute itself is unconstitutional); Lyssy v.
State, 429 S.W.3d 37, 41 (Tex. App. – Houston [1st Dist.] 2014, no
pet.) (holding a DWI arrestee failed to preserve for review his
contention that Tex. Transp. Code Ann. §724.012 (West 2011) is
unconstitutional given the McNeely decision, because the
arguments and evidence at the hearing were narrowly focused on
whether there was a failure to observe the statute‟s terms; although
he did complain that the search was warrantless and conducted in
the absence of exigent circumstances, he did so in a general form).
Preservation is a critical step in the appellate process which
the appellate court cannot overlook. This was demonstrated
7
recently in Leal v. State, 456 S.W.3d 567, 568 (Tex. Crim. App.
2015), where this Court remanded the case to the 14th District
Court of Appeals. This Court called upon the intermediate
appellate court to address whether Leal preserved his claim that the
warrantless blood draw violated his Fourth Amendment rights by
filing a motion to suppress challenging the legality of his DWI stop.
Leal also filed an amended motion to suppress challenging the
warrantless blood draw on Fourth Amendment grounds, but this
Court did not find that the Fourth Amendment argument was
addressed in the suppression hearing. On remand, the court of
appeals explicitly held what it had held only implicitly in its original
opinion: Leal preserved his claim. The opinion on remand explains
that: Leal‟s additional argument presented by his amended motion
had been brought to the trial court‟s attention; it did not need to be
discussed at the suppression hearing to prevent waiver; and it was
implicitly overruled. The court explicitly held that Leal had done all
that was required to preserve his Fourth Amendment argument:
raise his initial and subsequent objections by motion and amended
motion, and obtain an adverse ruling. Leal v. State, No. 14-13-
8
00208-CR, 2015 Tex. App. LEXIS 6460 (Tex. App. – Houston [14th
Dist.] June 25, 2015) (op. on remand) (not yet reported).
Appellant should not receive the same benefit of the doubt
which was given to Leal. In Appellant‟s case, the court asked
Appellant to state his complaint clearly for the record. He had only
one: he wanted the evidence suppressed because the Texas statute
is facially unconstitutional. There was simply no other argument.
The trial court could not possibly have made an implicit ruling that
would preserve the ground for reversal presented to the court of
appeals.
A complaint that a nonconsensual search and seizure violated
the Fourth Amendment cannot be preserved by arguing to the court
that the Supreme Court has decided that the Texas mandatory
blood draw statute itself is unconstitutional. The State asked the
court of appeals to determine whether Appellant adequately
preserved for review his Fourth Amendment complaint, stating,
“The issue preserved for appeal is a very narrow one: Has the
United States Supreme Court in McNeely ruled that Texas
Transportation Code §724.012 is unconstitutional?” In addition,
the State argued,
9
Issue One presents a challenge to the statute as applied
to Appellant‟s case. But he never argued to the trial court that
the statute was unconstitutional as applied to him, only that
the Supreme Court had found it facially invalid. Without
proper preservation, even constitutional error may be waived.
See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App.
2000). To preserve for appellate review an attack on the
constitutionality of a statute as applied to his case, an appellant
must have first raised the issue in the trial court. TEX. R.
APP. 33.1 (A)(1); Curry v. State, 910 S.W.2d 490, 496 (Tex.
Crim. App. 1995) (holding that the constitutionality of a
statute as applied to the defendant must be raised in trial
court to preserve error); see also Lacy v. State, Nos. 07-10-
00408-CR, 07-10-00409-CR, 07-10-00410-CR, 2011 Tex. App.
LEXIS 5942, at *1 (Tex. App. – Amarillo July 29, 2011, pet.
ref‟d) (mem. op., not designated for publication) (holding due
process challenge to punishment enhancement was not
preserved for appellate review because defendant lodged no
objections during sentencing).
State‟s brief at 13-14.
The court of appeals did not address or acknowledge the
preservation issue. This is error.
A court of appeals must issue a written opinion “that
addresses every issue raised and necessary to final disposition of
the appeal.” Tex. R. App. P. 47.1. Issues of procedural default are
systemic and must be reviewed by the courts of appeals, even when
the issue is not raised by the parties. Gipson v. State, 383 S.W.3d
152, 159 (Tex. Crim. App. 2014). “An appellate court „may not
reverse a judgment of conviction without first addressing any issue
10
of error preservation.‟” Id. (emphasis in original) (quoting Meadoux
v. State, 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010)).
Therefore, discretionary review is appropriate in this case
under Tex. R. App. P. 66.3 (a) because the Dallas court of appeals‟
decision to address an argument on appeal which does not conform
to the argument presented at the suppression hearing conflicts with
other decisions of another court of appeals on the same issue.
Review is also appropriate under Rule 66.3 (f) because in failing to
address the preservation issue shown by this record, the court of
appeals has so far departed from the accepted and usual course of
judicial proceedings, as to call for an exercise of this Court‟s power
of supervision. For these reasons, the States prays that this Court
will grant review of the decision of the court of appeals, vacate the
judgment of the court of appeals, and remand this case to that
court to address whether Appellant preserved his claim that the
warrantless blood draw violated his Fourth Amendment rights.
11
II.
The court of appeals should not have followed the majority
opinion in Villarreal, when this Court has granted rehearing but has
not withdrawn or changed its original opinion or issued a new
opinion or judgment.
In addressing the involuntary blood draw taken under the
authority of the Texas Transportation Code, the court of appeals
reversed the present case under State v. Villarreal, No. PD-0306-14,
_ S.W.3d _ 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014) and
Lloyd v. State, 453 S.W.3d 544 (Tex. App. – Dallas 2014, pet. ref‟d),
in light of the holding in McNeely (which held that dissipation of
blood alcohol evidence does not alone present a per se exigent
circumstance sufficient to amount to an exception to the warrant
requirement, an argument not made by the State in the present
case). Relying on these authorities, the court of appeals concluded
that Appellant did not impliedly consent, for Fourth Amendment
purposes, to the blood draw under Texas Transportation Code
§724.012 and that the warrantless blood draw violated Appellant‟s
Fourth Amendment rights.
There are two problems with the court‟s analysis. First, the
court cited and relied on Villarreal without any additional notation
12
indicating the court‟s awareness that Villarreal has been pending on
rehearing since February of 2015, at least three months prior to the
court‟s decision in the present case. As of this date, Villarreal
remains pending on rehearing in this Court. Villarreal is therefore
not final and not part of the jurisprudence of this State. See Yeager
v. State, 727 S.W.2d 280, 281 n.1 (Tex. Crim. App. 1987)(stating
that parties appearing before the Court of Criminal Appeals and the
courts of appeals “should proceed with caution” when relying on
nonfinal opinions, and that a case that pending before the Court of
Criminal Appeals on rehearing is not final and is not “part of the
jurisprudence of this State.”); Henderson v. State, 822 S.W.2d 171,
173 (Tex. App. – Houston [1st Dist.] 1991, no pet.) (finding that a
decision which is pending on motion for rehearing is “not final” and
“is not part of the jurisprudence of this State”); Vasquez v. State,
814 S.W.2d 773, 776 n.1 (Tex. App. – Houston [14th Dist.] 1991,
pet. ref‟d)(finding an opinion pending rehearing in the Court of
Criminal Appeals is “not final” or “part of the jurisprudence of this
State”, and the court of appeals is “not constrained” to follow it);
Brown v. State, 807 S.W.2d 615, 616 (Tex. App. – Houston [14th
Dist.] 1991, no pet.) (finding that the court of appeals is not
13
constrained to follow an opinion of the Court of Appeals which is
pending on rehearing because it is “not final” and “not part of the
jurisprudence of this State”); Mayo v. State, 17 S.W.3d 291, 297 n.2
(Tex. App. – Fort Worth 2000, pet. ref‟d) (finding a case on
rehearing in the Court of Criminal Appeals is “not yet final,” and it
is “not part of the jurisprudence of this State.”);Garcia v. State, 833
S.W.2d 564, 569 n.4 (Tex. App. – Dallas 1992), aff’d, 868 S.W.2d
337 (Tex. Crim. App. 1993) (finding an opinion pending on
rehearing in the Court of Criminal Appeals for 10 months is “not
final” or “part of the jurisprudence of this State,” and therefore,
deciding not to follow it); Cook v. State, 832 S.W.2d 62, 67 n.2 (Tex.
App. – Dallas 1992, no pet.) (recognizing that because the Court of
Criminal Appeals had granted rehearing in a case, it is not “final”
authority on the issue before the court and “not part of the
jurisprudence of this State”).
In Villarreal, this Court set precedent by holding that the
implied consent statute and mandatory blood draw provisions are
not a constitutionally valid alternative to the Fourth Amendment‟s
warrant requirement. Villarreal, 2014 Tex. Crim. App. LEXIS 1898.
at *19. Since then, this Court has granted the State‟s motion for
14
rehearing in Villarreal, and ordered the case resubmitted so that
this Court could consider the arguments presented by the State in
its rehearing motion. To date, this Court has not withdrawn or
changed its opinion or judgment in Villarreal, nor has the Court
issued a new opinion or judgment. Villarreal is not binding
authority. The State‟s arguments should not have been rejected
based on Villarreal before this Court makes a final ruling in that
case.
Second, the court‟s reliance on Lloyd presents a problem. In
Lloyd, the State argued appellant gave “implied consent” which was
irrevocable “as a person twice previously convicted of driving while
intoxicated” and sufficient aggravating factors were present to
satisfy the exigent circumstances requirement. The State also
argued “sufficient aggravating factors,” specifically appellant‟s two
prior convictions, his refusal to engage in sobriety tests, and his
refusal to consent to a voluntary blood draw, satisfied the exigent
circumstances requirement. In Lloyd, the court‟s rejection of the
State‟s arguments rests on one primary authority: the original
opinion in Villarreal.
15
In the present case, the State made arguments to the court of
appeals which have not been addressed by McNeely, and cannot be
said to have been finally decided by this Court in Villarreal.
Perhaps the court of appeals intended to avoid the problem of
relying on a nonfinal decision in Villarreal. While adding Lloyd as
secondary authority might solve that problem, it created another.
Lloyd relies on the same nonfinal decision in Villarreal. Moreover,
arguments were presented by the State in the present case which
are not addressed in Lloyd. The State‟s arguments in the present
case which fall outside the scope of Lloyd have not been, but should
be, fairly determined.
Therefore, discretionary review is appropriate in this case
under Tex. R. App. P. 66.3 (b) because the court of appeals has
decided an important question of state law that has not been, but
should be, finally decided and settled by this Court.
PRAYER
The State prays that this Honorable Court will grant
discretionary review of the opinion of the Dallas court of appeals in
the instant case.
16
Respectfully submitted,
/s/Patricia Poppoff Noble
SUSAN HAWK PATRICIA POPPOFF NOBLE
District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 15051250
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3634
pnoble@dallascounty.org
CERTIFICATE OF SERVICE AND WORD COUNT
I hereby certify that a true copy of the foregoing brief was
served on, Michael Mowla, attorney for Appellant, and on Ms. Lisa
McMinn, State‟s Prosecuting Attorney by efiletexas.gov and by
United States mail, on July 2, 2015.
I hereby further certify that the length of this brief is 3,709
words using Microsoft Word 2010.
/s/Patricia Poppoff Noble
PATRICIA POPPOFF NOBLE
17
APPENDIX
Page 1
HENRY WILSON RICHARDS, JR., Appellant v. THE STATE OF TEXAS,
Appellee
No. 05-14-00075-CR
COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS
2015 Tex. App. LEXIS 5129
May 20, 2015, Opinion Filed
NOTICE: PLEASE CONSULT THE TEXAS RULES Criminal Law & Procedure > Appeals > Standards of
OF APPELLATE PROCEDURE FOR CITATION OF Review > Deferential Review > Credibility & Demeanor
UNPUBLISHED OPINIONS. Determinations
[HN1] The court reviews a trial court's ruling on a motion
PRIOR HISTORY: [*1] On Appeal from the 282nd to suppress evidence under a bifurcated standard. The
Judicial District Court, Dallas County, Texas. Trial Court court grants almost total deference to the trial court's
Cause No. F-1263948-S. determinations of historical facts and mixed questions of
law and fact that rely on credibility when supported by
CASE SUMMARY: the record. But when mixed questions of law and fact do
not depend on the evaluation of credibility and demeanor,
the court reviews the trial court's ruling de novo.
OVERVIEW: HOLDINGS: [1]-Blood test evidence
should have been suppressed in a DWI trial because the
warrantless, nonconsensual blood draw violated the Criminal Law & Procedure > Criminal Offenses >
Fourth Amendment; the implied-consent statute did not Vehicular Crimes > Driving Under the Influence >
justify the warrantless blood draw, and the factors of the Blood Alcohol & Field Sobriety > Implied Consent >
mandatory blood draw statute were not exigent Refusals to Submit
circumstances. Criminal Law & Procedure > Search & Seizure >
Warrantless Searches > Consent to Search >
OUTCOME: Reversed and remanded. Sufficiency & Voluntariness
Constitutional Law > Bill of Rights > Fundamental
LexisNexis(R) Headnotes Rights > Search & Seizure > Scope of Protection
[HN2] To the extent the State suggests that the
implied-consent and mandatory-blood-draw provisions in
the Transportation Code categorically extinguish a DWI
suspect's right to withdraw consent when some
Criminal Law & Procedure > Appeals > Standards of
aggravating circumstance is present, that suggestion
Review > De Novo Review > Motions to Suppress
cannot be squared with the requirement that, to be valid
Criminal Law & Procedure > Pretrial Motions &
for Fourth Amendment purposes, consent must be freely
Procedures > Suppression of Evidence
and voluntarily given based on the totality of the
Page 2
2015 Tex. App. LEXIS 5129, *1
circumstances, and must not have been revoked or to ten years' confinement, probated for five years, and
withdrawn at the time of the search. $2000 fine. In a single issue, appellant argues the trial
court erred in denying his motion to suppress blood test
evidence because the warrantless, nonconsensual blood
Constitutional Law > Bill of Rights > Fundamental draw constituted an unconstitutional search and seizure
Rights > Search & Seizure > Exigent Circumstances and violated his Fourth Amendment rights. We agree with
Criminal Law & Procedure > Criminal Offenses > appellant. We reverse the trial court's judgment and
Vehicular Crimes > Driving Under the Influence > remand this case for further proceedings.
Blood Alcohol & Field Sobriety > Admissibility
[HN3] The factors of the mandatory blood draw statute On December 30, 2012, Officer Shannon Smith
are not exigent circumstances that provide an exception observed appellant driving faster than the speed limit and
to the warrant requirement; exigent circumstances are almost colliding with another vehicle. Smith stopped
those exigencies of the situation that make the needs of appellant, who "opened up his door immediately." Smith
law enforcement so compelling that a warrantless search observed appellants' eyes were red and his breath smelled
is objectively reasonable under the Fourth Amendment. of alcohol. After performing field sobriety tests, Smith
These include, for example, the threat of imminent arrested appellant [*2] for DWI. Appellant refused to
removal or destruction of evidence, threat to human life, give a blood sample. Smith took appellant to the Lew
rendering emergency assistance to injured occupants, or Sterrett Justice Center where Smith discovered records
hot pursuit of a fleeing suspect. However, as a general indicating appellant had been convicted of DWI twice
rule, the context of blood testing is different in critical before. Although Smith could have "easily" obtained a
respects from other destruction-of-evidence cases in warrant, she did not do so. After approximately two
which police are truly confronted with a now or never hours, blood was drawn from appellant without his
situation. Such cases should be considered on a consent pursuant to section 724.012 of the Texas
case-by-case assessment of exigency, not a categorical Transportation Code.
rule. In fact, in those drunk-driving investigations where
police officers can reasonably obtain a warrant before a Before trial, appellant filed a motion to suppress,
blood sample can be drawn without significantly alleging the warrantless, nonconsensual blood draw was a
undermining the efficacy of the search, the Fourth violation of his Fourth Amendment rights. Following a
Amendment mandates that they do so. hearing, the trial court denied appellant's motion. The
trial court entered findings of fact that, among other
COUNSEL: For Appellants: Michael Mowla, Cedar things, appellant refused to give a blood sample, blood
Hill, TX. evidence was nevertheless seized without a warrant, and
the blood evidence was seized under Texas
For Appellees: Patricia Poppoff Noble, Dallas, TX. Transportation Code section 724.012. While this appeal
was pending, the Court of Criminal Appeals, relying on
JUDGES: Before Justices Bridges, Fillmore, and Brown. Missouri v. McNeely, U.S. , 133 S.Ct. 1552, 185 L.
Opinion by Justice Bridges. Ed. 2d 696 (2013), issued its opinion in State v.
Villarreal, No. PD-0306-14, S.W.3d , 2014 Tex.
OPINION BY: DAVID L. BRIDGES Crim. App. LEXIS 1898, 2014 WL 6734178 (Tex. Crim.
App. Nov. 26, 2014), addressing involuntary blood draws
OPINION taken under the authority of the Texas Transportation
Code.
MEMORANDUM OPINION In a single issue, appellant argues the trial court erred
by denying his motion to suppress. Appellant claims that,
Opinion by Justice Bridges
because he did not consent to the blood draw and the
Henry Wilson Richards appeals his driving while State did not have a warrant [*3] to draw his blood, the
intoxicated (DWI) conviction. After the trial court search was reasonable only if the State could show
overruled his motion to suppress evidence, appellant exigent circumstances. Because the State did not do so,
pleaded guilty to DWI, and the trial court sentenced him appellant claims the search violated his Fourth
Page 3
2015 Tex. App. LEXIS 5129, *3
Amendment rights, the motion should have been granted, invoke the mandatory blood draw statute. See TEX.
and the blood alcohol concentration evidence should have TRANSP. CODE ANN. § 724.012; Lloyd, 453 S.W.3d at 548.
been suppressed. [HN3] These factors are not exigent circumstances that
provide an exception to the warrant requirement; exigent
[HN1] We review a trial court's ruling on a motion to circumstances are those "exigencies of the situation" that
suppress evidence under a bifurcated standard. State v. "make the needs of law enforcement so compelling that
Kerwick, 393 S.W.3d 270, 273 (Tex. Crim. App. 2013). [a] warrantless search is objectively reasonable under the
We grant almost total deference to the trial court's Fourth Amendment." Mincey v. Arizona, 437 U.S. 385,
determinations of historical facts and mixed questions of 394, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). These [*5]
law and fact that rely on credibility when supported by include, for example, the threat of imminent removal or
the record. Id. But when mixed questions of law and fact destruction of evidence, threat to human life, rendering
do not depend on the evaluation of credibility and emergency assistance to injured occupants, or hot pursuit
demeanor, we review the trial court's ruling de novo. Id. of a fleeing suspect. See Kentucky v. King, U.S. , 131
S.Ct. 1849, 1856, 179 L. Ed. 2d 865 (1978). However, as
The State argues that, by accepting the privilege to a general rule, the "context of blood testing is different in
drive, a person accepts the responsibility to be subject to critical respects from other destruction-of-evidence cases
the reasonable regulations the State will use to protect the in which police are truly confronted with a 'now or never'
welfare and safety of the general public, including those situation." McNeely, 133 S.Ct. at 1561. Such cases should
of the implied-consent statute, section 724.012, and be considered on a case-by-case assessment of exigency,
Administrative License Revocation program. The State not a categorical rule. Id. In fact, in "those drunk-driving
argues the implied-consent statute is "a codification of investigations where police officers can reasonably obtain
exigent circumstances that gives helpful guidance to law a warrant before a blood sample can be drawn without
enforcement officials" and these exigent circumstances significantly undermining the efficacy of the search, the
[*4] made a warrant unnecessary in this case. Fourth Amendment mandates that they do so." Id. Here,
no exigent circumstances existed which would justify a
To the extent the State relies on the implied-consent
warrantless search.
statute to justify the warrantless blood draw in this case,
such reliance is misplaced. The court of criminal appeals, Appellant did not consent to the draw, and the taking
in Villarreal, held as follows: of his blood did not fall under another recognized
exception to the warrant requirement. We therefore
[HN2] To the extent the State suggests conclude the warrantless, nonconsensual blood draw
that the implied-consent and violated appellant's Fourth Amendment rights. See
mandatory-blood-draw provisions in the McNeely, 133 S.Ct. at 1561-63; Villarreal, 2014 Tex.
Transportation Code categorically Crim. App. LEXIS 1898, 2014 WL 6734178 at *20;
extinguish a DWI suspect's right to Lloyd, 453 S.W.3d at 548. The trial court therefore
withdraw consent when some aggravating abused its discretion in denying appellant's motion to
circumstance is present, that suggestion suppress. We sustain appellant's sole issue.
cannot be squared with the requirement
that, to be valid for Fourth Amendment We reverse [*6] the trial court's judgment and
purposes, consent must be freely and remand for further proceedings consistent with this
voluntarily given based on the totality of opinion.
the circumstances, and must not have been
revoked or withdrawn at the time of the Do Not Publish
search. TEX. R. APP. P. 47.2(b)
Villarreal, 2014 Tex. Crim. App. LEXIS 1898, 2014 WL /David L. Bridges/
6734178 at *11; see Lloyd v. State, 453 S.W.3d 544,
DAVID L. BRIDGES
547-48 (Tex. App.--Dallas 2014, pet. ref'd).
JUSTICE
As to the presence of exigent circumstances in this
case, the State essentially relies on the same factors that
Page 4
2015 Tex. App. LEXIS 5129, *6
JUDGMENT this opinion.
Based on the Court's opinion of this date, the Judgment entered May 20, 2015.
judgment of the trial court is REVERSED and the cause
REMANDED for further proceedings consistent with