Munoz, Vicente

PD-1276-15 PD-1276-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/25/2015 2:39:05 PM
Accepted 9/30/2015 11:56:42 AM
ABEL ACOSTA
NO.PD-_ _ CLERK

IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS

THE STATE OF TEXAS APPELLANT

v.
VICENTE MUNOZ APPELLEE

THE STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE COURT OF APPEALS, EIGHTH DISTRICT OF TEXAS
CAUSE NUMBER 08-13-00164-CR

JAIME ESPARZA
DISTRICT ATTORNEY
34th JUDICIAL DISTRICT

DOUGLAS K. FLETCHER
ASST. DISTRICT ATTORNEY
DISTRICT ATTORNEY'S OFFICE
500 E. SAN ANTONIO, ROOM 201
EL PASO, TEXAS 79901
(915) 546-2059 ext. 4402
FAX: (915) 533-5520
SBN: 24006412
September 30, 2015
ATTORNEYS FOR THE STATE
 IDENTITY OF PARTIES AND COUNSEL

APPELLANT: The State of Texas, 34th Judicial District Attorney's Office,
represented in the trial court by:
Jaime Esparza, District Attorney
Ghalib A. Serang, Assistant District Attorney
Dolores Reyes, Assistant District Attorney

On appeal by:
Jaime Esparza, District Attorney
Douglas K. Fletcher, Assistant District Attorney

and on petition for discretionary review by:
Jaime Esparza, District Attorney
Douglas K. Fletcher, Assistant District Attorney
500 E. San Antonio, Room 201
El Paso, Texas 79901
(915) 546-2059

APPELLEE: Vicente Munoz, represented in the trial court by:
Cary Antwine
8732 Alameda St.
El Paso, Texas 79901
(915) 85 8-0665

and on appeal by:
Matthew DeKoatz
P.O. Box 1886
El Paso, Texas 79950

TRIAL COURT: 171 st District Court, Honorable Judge Bonnie Rangel, presiding

COURT OF APPEALS: Eighth Court of Appeals, Honorable Chief Justice Ann
Crawford McClure, Honorable Justice Yvonne T. Rodriguez, and Honorable
Justice Steven Hughes

11
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 11

INDEX OF AUTHORITIES v

STATEMENT REGARDING ORAL ARGUMENT Vl

STATEMENT OF THE CASE Vll

STATEMENT OF PROCEDURAL HISTORY Vlll

GROUNDS FOR REVIEW 1

FACTUAL SUMMARY 1-2

GROUND FOR REVIEW ONE: 3
The Eighth Court of Appeals erred in holding that a nonconsensual blood
draw pursuant to the mandatory-blood-draw and implied-consent provisions
set forth in Chapter 724 of the Texas Transportation Code violated the Fourth
Amendment.

GROUND FOR REVIEW TWO: 4-6
The Eighth Court of Appeals erred in holding that the pre-McNeely
warrantless blood draw in this case violated the Fourth Amendment where
the officer obtained the blood-draw evidence based upon an objectively
reasonable, but ultimately mistaken belief that the mandatory blood-draw
provisions fell under a constitutionally valid exception to the Fourth
Amendment's warrant requirement.

PRAYER 7

SIGNATURES 7

CERTIFICATE OF COMPLIANCE 8

CERTIFICATE OF SERVICE 8

APPENDIX A 9

iii
APPENDIXB 10

iv
 INDEX OF AUTHORITIES

FEDERAL CASES

Heien v. North Carolina, _U.S._, 135 S.Ct. 530,
190 L.Ed.2d. 475 (2014) .................................................................................. 4-6

McNeely v. Missouri, _U.S._, 133 S.Ct. 1552,
185 L.Ed.2d 696 (2014) ...................................................................................... 3

Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627,
61L.Ed.2d343 (1979) ........................................................................................ 5

STATE CASES

Burcie v. State, No. 08-13-00212-CR, 2015 WL 2342876
(Tex. App.-El Paso 14 May 2015, pet. filed)
(not designated for publication) .......................................................................... 6

Munoz v. State, No. 08-13-00164-CR, 2015 WL 4719559
(Tex. App.-El Paso 31July2015, pet. filed)
(not released for publication) ........................................................................ viii, 3

State v. Villarreal, No. PD-0306-14, 2014 WL 6734178
(Tex. Crim. App. 26 November 2014, reh'g granted)...................................... 3, 6

STATUTES AND RULES

TEX PENAL CODE §38.23(a) ............................................................................ 4

TEX. R. APP. P. 68.2(a) .................................................................................... v111

TEX. TRANSP. CODE §724.012(b)(3)(B) ..................................................... 2, 5

v
 STATEMENT REGARDING ORAL ARGUMENT

The State does not believe that oral argument is necessary in this case, as the

State's arguments are and will be set out fully in this petition and brief, should this

Court grant review. However, should this Court determine that oral argument

would be helpful in resolving the issue raised in this petition, the State would

certainly welcome the opportunity to appear before the Court.

Vl
 STATEMENT OF THE CASE

On 5 September 2009, Vicente Munoz (hereinafter referred to as Munoz)

was arrested for driving while intoxicated (DWI). (SX 15-16). 1 Munoz refused to

perform any standardized field-sobriety tests (SFSTs) or submit a sample of his

breath. (SX 1 at 15-16). As Munoz had seven prior convictions for DWI, the

arresting officer took Munoz to a local hospital for a blood draw as mandated by

Texas law. (SX 1 at 16-17, 22). Munoz' blood-alcohol level was .25. (Supp. RR at

12, 31 ). On 26 June 2012, Munoz was indicted for the felony offense of DWI, third

or more. (CR at 3). The trial court denied Munoz' motion to suppress the evidence

from his warrantless blood draw. (SX 1 of RR 4 at 30, RR 2 at 23). A jury trial

began on 13 May 2013. (Supp. RR at 1). On 14 May 2013, the trial court, sua

sponte, set aside its prior order denying Munoz' motion to suppress the blood-draw

evidence and reopened the motion-to-suppress hearing. (RR 3 at 5, 10). After

receiving testimony from the arresting officer, the trial court granted Munoz'

motion to suppress, declared a mistrial, and dismissed the jury. (RR 3 at 6-17, 27).

1
Throughout this brief, references to the record will be made as follows: references to the clerk's
record will be made as "CR" and page number; references to the reporter's record will be made
as "RR" and volume and page number; references to the supplemental reporter's record will be
made as "Supp. RR" and page number; and references to exhibits will be made as either "SX" or
"DX" and exhibit number.
Vll
 STATEMENT OF PROCEDURAL HISTORY

On 16 May 2013, the State requested that the trial court reconsider its order

granting Munoz' motion to suppress. (RR 4 at 4). The trial court denied the State's

motion to reconsider on 20 May 2013. (CR at 115). On 22 May 2013, the trial

court issued findings of fact and conclusions oflaw. (CR at 116-118). The State

timely filed notice of appeal on 6 June 2013. (CR at 120).

On 31July2015, the Eighth Court of Appeals affirmed the trial court's

granting of Munoz' motion to suppress the results of his mandatory blood draw.

See Munoz v. State, No. 08-13-00164-CR, 2015 WL 4719559 at *7 (Tex. App.-El

Paso 31 July 2015, no pet. h.) (not yet released for publication). See (Appendix A).

On 14 August 2015, the State timely filed a request for rehearing. The

Eighth Court of Appeals denied, without written opinion, the State's motion for

rehearing on 26 August 2015.

The State now timely files this petition for discretionary review (PDR)

pursuant to rule 68.2(a) of the Texas Rules of Appellate Procedure. See TEX. R.

APP. P. 68.2(a).

Vlll
 GROUNDS FOR REVIEW

GROUND FOR REVIEW ONE: The Eighth Court of Appeals erred in
holding that a nonconsensual blood draw pursuant to the mandatory-blood-
draw and implied-consent provisions set forth in Chapter 724 of the Texas
Transportation Code violated the Fourth Amendment.

GROUND FOR REVIEW TWO: The Eighth Court of Appeals erred in
holding that pre-McNeely warrantless blood draw in this case violated the
Fourth Amendment where the officer obtained the blood-draw evidence based
upon an objectively reasonable, but ultimately mistaken belief that the
mandatory blood-draw provisions fell under a constitutionally valid exception
to the Fourth Amendment's warrant requirement.

FACTUAL SUMMARY

On 5 September 2009, El Paso Police Department Officer Jordan was

dispatched to investigate a report of a suspicious vehicle that had stopped and

remained parked for a lengthy time with its engine off and its lights on. (SX 1 at

10). No one had entered or exited the vehicle. (SX 1 at 19). Officer Jordan

observed Munoz asleep in the driver's seat with a large can of beer between his

thighs. (SX 1 at 14). Officer Jordan detected a very strong odor of an unknown

alcoholic beverage emanating from Munoz and the vehicle. (SX 1 at 14 ). Officer

Jordan woke up Munoz. (SX 1 at 15). As Officer Jordan was talking with Munoz,

she noted that he had slurred speech and red, bloodshot eyes. (SX 1 at 15). When

Munoz exited the vehicle, Officer Jordan observed that he had an unsteady balance

and that he looked disheveled. (SX 1 at 15). Munoz refused Officer Jordan's

request that he perform some standardized field-sobriety tests (SFSTs) and provide

1
a sample of his breath. (SX 1 at 15-16). After being advised of his statutory rights,

Munoz again refused to submit to a breath test. (SX 1 at 16). Munoz was taken into

custody and transported to the police station. (SX 1 at 16). Officer Jordan learned

that Munoz had seven prior convictions for DWI. (SX 1 at 16-17, 22). As required

by section 724.012(b)(3)(B) of the Texas Transportation Code, Munoz was taken

to a local hospital where a blood sample was drawn. (SX 1 at 17). TEX. TRANSP.

CODE §724.012 (b)(3). Officer Jordan did not seek a warrant for the blood draw

due to the Texas mandatory blood-draw statute. (RR 3 at 14-15, 17). Munoz'

blood-alcohol level was .25. (Supp. RR at 12, 31 ).

2
GROUND FOR REVIEW ONE:The Eighth Court of Appeals erred in
holding that a nonconsensual blood draw pursuant to the mandatory-blood-
draw and implied-consent provisions set forth in Chapter 724 of the Texas
Transportation Code violated the Fourth Amendment.

ARGUMENT AND AUTHORITIES

On 31 July 2015, the Eighth Court of Appeals rendered its decision

affirming the trial court's granting of Munoz' motion to suppress the results of his

mandatory blood draw. See Munoz, 2015 WL 4719559 at *7. See (Appendix A).

The Eighth Court of Appeals rejected the State's arguments that the United States

Supreme Court's decision in McNeely v. Missouri, _U.S._, 133 S.Ct. 1552, 185

L.Ed.2d 696 (2014), did not overrule the implied-consent provisions in the Texas

Transportation Code. See Munoz, 2015 WL 4719559 at *5. This Court has granted

the State's motion for rehearing in Villarreal2 regarding some of the same issues

presented by State in the present case. See (State's Motion for Rehearing and

Amended Motion for Rehearing in Villarreal). (Appendix B). In light of the

"uncertain precedential value" of Villarreal and the reasons set forth in the State's

brief on original appeal, this Court should grant the State's Petition for

Discretionary Review. See Munoz, 2015 WL 4719559 at *4 n.4, *5.

2
State v. Villarreal, No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. 26 November 2014,
reh' g granted).
3
GROUND FOR REVIEW TWO: The Eighth Court of Appeals erred in
holding that the pre-McNeely warrantless blood draw in this case violated the
Fourth Amendment where the officer obtained the blood-draw evidence based
upon an objectively reasonable, but ultimately mistaken belief that the
mandatory blood-draw provisions fell under a constitutionally valid exception
to the Fourth Amendment's warrant requirement.

ARGUMENT AND AUTHORITIES

I. Munoz' pre-McNeely warrantless blood draw did not violate the Fourth
Amendment.

The Texas exclusionary rule, as set forth in article 38.23 of the Texas Code

of Criminal Procedure, provides that "no evidence obtained by an officer or other

person in violation of any provision of the Constitution or laws of the State of

Texas or of the Constitution or laws of the United States of America, shall be

admitted in evidence against an accused on trial of any criminal case." TEX.

CODE CRIM PROC. art. 38.23(a). In the present case, the arresting officer acted

in objectively reasonable compliance with a presumptively valid statute, and thus,

there was no violation of the Fourth Amendment, and the exclusionary rule of

article 38.23 is not applicable.

On 15 December 2014, the United States Supreme Court issued its opinion

in Heien v. North Carolina, _U.S._, 135 S.Ct. 530, 190 L.Ed.2d. 475 (2014). In

Heien, a North Carolina deputy sheriff conducted a traffic stop ofHeien after

observing that his vehicle had only one operable brake light. Id. at 534. The deputy

became suspicious when Heien and his passenger acted nervously and gave

4
inconsistent stories about their itinerary. Id. After Heien consented to a search of

his vehicle, the deputy found a plastic baggie containing cocaine. Id. Heien's

motion to suppress was denied by the trial court. Id. The North Carolina Court of

Appeals reversed, however, after determining that the traffic stop was illegal

because North Carolina law only required one working brake light. Id. at 535. The

case eventually reached the United States Supreme Court. Id. Declaring that "the

ultimate touchstone of the Fourth Amendment is reasonableness" and that "to be

reasonable is not to be perfect," the Court held that a reasonable, mistaken belief as

to the law does not violate the Fourth Amendment. Id. at 536.

At the time of Munoz' arrest for driving while intoxicated, Texas

Transportation Code section 724.012(b)(3)(B) clearly mandated that, due to his

prior DWI convictions, a sample of his blood be obtained. TEX. TRANSP. CODE

§724.012(b)(3)(B). Officer Jordan acted under an objectively reasonable belief that

the blood-draw statute was lawful. See Michigan v. DeFillippo, 443 U.S. 31, 38, 99

S.Ct. 2627, 61 L.Ed.2d343 (1979) (finding that the enactment of a law forecloses

speculation by law-enforcement officers concerning its constitutionality). As

recently stated in Heien, when "the law turns out not to be what was thought, the

result is the same," there is no violation of the Fourth Amendment. See Heien, 135

S.Ct. at 536. And because Munoz' blood draw was conducted in compliance with a

5
presumptively valid statute, the officers did not violate the law, and thus, there

was no Fourth Amendment violation. See Heien, 135 S.Ct. at 536. 3

3
Nothing in the record indicates that Officer Jordan's badge came with a crystal ball attached,
and thus, she would have had no reason to believe her actions on 5 September 2009, were
unlawful based on court decisions five years in the future, See, e.g., Villarreal, 2014 WL
6734178 at *1, decided on 26 November 2014; Burcie v. State, No. 08-13-00212-CR, 2015 WL
2342876at*1 (Tex. App.-El Paso 14 May 2015, pet. filed) (not designated for publication).
6
 PRAYER

WHEREFORE, the State prays that this petition for discretionary review be

granted, and that upon hearing, the Court reverse the judgment of the Court of

Appeals and remand the case to the trial court for such proceedings as may be

appropriate.

Respectfully submitted,

JAIME ESPARZA
DISTRICT ATTORNEY
34th JUDICIAL DISTRICT

Isl Douglas Fletcher
DOUGLAS K. FLETCHER
ASST. DISTRICT ATTORNEY
DISTRICT ATTORNEY'S OFFICE
500 E. SAN ANTONIO, ROOM 201
EL PASO, TEXAS 79901
(915) 546-2059 ext. 4402
FAX: (915) 533-5520
EMAIL: dfletcher@epcounty.com
SBN: 24006412

ATTORNEYS FOR THE STATE

7
 CERTIFICATE OF COMPLIANCE

The undersigned does hereby certify that the foregoing petition for discretionary

review contains 1192 words.

Isl Douglas Fletcher
DOUGLAS K. FLETCHER

CERTIFICATE OF SERVICE

The undersigned does hereby certify that on 25 September 2015:

( 1) a copy of the foregoing petition for discretionary review was electronically
served upon appellee's attorney, Matthew DeKoatz at mateodekoatz@yahoo.com,

(2) a copy of the foregoing petition for discretionary review was electronically
served upon the State's Prosecuting Attorney at Lisa.McMinn@spa.texas.gov

Isl Douglas Fletcher
DOUGLAS K. FLETCHER

8
APPENDIX A

9
State v. Munoz, --- S.W.3d ---- (2015)

2015 WL 4719559 Affirmed.
Only the Westlaw citation
is currently available.

NOTICE: THIS OPINION HAS NOT West Headnotes (4)
BEEN RELEASED FOR PUBLICATION
IN THE PERMANENT LAW REPORTS.
[1] Criminal Law
UNTIL RELEASED, IT IS SUBJECT ~ Theory and Grounds of Decision
TO REVISION OR WITHDRAWAL.
in Lower Court
Court of Appeals of Texas, Appellate court must uphold the trial
El Paso. court's ruling if it is supported by the
record and correct under any theory
The State of Texas, Appellant, oflaw applicable to the case, and this
v. principal holds true even when the
Vicente Munoz, Appellee. trial judge gives the wrong reason for
his decision, and is especially true
No. 08-13-00164- with regard to admission of evidence.
CR I July 31, 2015
Cases that cite this headnote
Synopsis
Background: State appealed from decision
of the 171 st District Court, El Paso County, [2] Automobiles
granting defendant's suppression motion. """" Right to take sample or conduct
test; initiating procedure
Automobiles
~ Grounds or cause; necessity for
Holdings: The Court of Appeals, Yvonne T. arrest
Rodriguez, J., held that:
Nonconsensual search of intoxicated
driving suspect's blood conducted
[ 1] nonconsensual search of defendant's
pursuant to the rnandatory-blood-
blood conducted pursuant to the mandatory-
draw and implied-consent provisions
blood-draw and implied-consent provisions
in the Transportation Code, when
in Transportation Code violated the Fourth
undertaken in the absence of a
Amendment, and
warrant or any applicable exception
to the warrant requirement, violated
[2] statute, providing that evidence may not
the Fourth Amendment; there were
be admitted unless evidence was obtained by
no exigent circumstances, and
officer acting upon a warrant, did not apply
Transportation Code's mandatory-
since no warrant was issued.
blood-draw was not a valid exception
State v. Munoz, --- S.W.3d ---- (2015)

to the Fourth Amendment. U.S.
Const. Amend. 4; Tex. Transp. Code Cases that cite this headnote
Ann.§ 724.012(b).

Cases that cite this headnote
Appeal from the 171 st District Court of El Paso
[3] Courts County, Texas, (TC# 20120D03021)
~ In general; retroactive or
prospective operation Attorneys and Law Firms
Supreme Court's holding m Jaime E. Esparza, District Attorney, El Paso,
McNeely, 133 S.Ct. 1552, that TX, for State.
natural metabolization of alcohol
in the bloodstream does not Matthew DeKoatz, Attorney at Law, for
present a per se exigency that Appellee.
justifies an exception to the
Fourth Amendment's search warrant Before McClure, C. J., Rivera, and Rodriguez,
requirement for nonconsensual JJ.
blood testing in all drunk-driving
cases, applied to case on direct
appeal since case was not yet final OPINION
when McNeely was decided. U.S.
Const. Amend. 4. YVONNE T. RODRIGUEZ, Justice

Cases that cite this headnote *1 Vicente Munoz was charged by indictment
of Felony driving while intoxicated. The State
of Texas appeals the trial court's order granting
[4] Criminal Law
Vicente Munoz's motion to suppress his blood
~ Applicability when no warrant
test result that was obtained as a result of his
sought or yet obtained
arrest for DWI. The trial court's findings of fact
Exception to statute excluding and conclusions of law reflect the sole basis
unconstitutionally obtained for suppression of the blood test result was the
evidence, when the evidence was State's failure to show exigent circumstances to
obtained by a law enforcement support the warrantless, non-consensual blood
officer acting in objective good faith draw. Finding the State failed to establish a
reliance upon a warrant, did not valid exception to the warrant requirement, we
apply to case in which no warrant affirm the trial court's suppression order.
was issued. U.S. Const. Amend. 4;
Tex. Crim. Proc. Code Ann. art.
38.23(b).
FACTUAL SUMMARY
State v. Munoz, --- S.W.3d ---- (2015)

On September 5, 2009, about 8: 17 p.m., El Paso After Munoz was placed in custody, it was
Police Officer Jordan was on patrol when she determined he had seven prior convictions for
was dispatched to a call involving a suspicious DWI. Based on Munoz's prior convictions, he
vehicle. The reporter had observed a red pickup was immediately taken to the hospital for a
truck sitting in the street, with the engine off mandatory blood draw.
and the headlights on. Officer Jordan arrived
at approximately 8:20 p.m. and spoke with the
reporter. Officer Jordan approached the truck
PROCEDURAL BACKGROUND
on the driver's side. The officer discovered
Munoz asleep in the front seat with a can of On December 14, 2012, the trial court, after
beer between his legs, the keys in the ignition, a hearing on a motion to suppress statements,
the engine off, and the headlights on. Officer evidence, and the blood test result, orally
Jordan woke Munoz up and smelled a strong denied the motion. On May 2, 2013, Munoz
odor of an alcoholic beverage. When Munoz filed a second motion to suppress the blood test
exited the truck, the officer observed him to result relying on Missouri v. McNeely, - U.S.
have an unsteady balance, red blood-shot eyes, - , 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013).
and exhibit slurred speech. Munoz refused to On May 6, 2013, the trial court heard argument
submit to a breath test. Munoz was transported of counsel regarding Munoz's second motion
to the station at 9: 13 p.m. The station is about to suppress and denied it again. On the day
five to six blocks away and it takes a couple of of Munoz's jury trial, May 14, 2013, the trial
minutes from Munoz's vehicle to arrive there. court heard additional testimony from Officer
Jordan and suppressed the blood test result. 1
On the way to the station, Officer Jordan passed
Munoz argued that no exigent circumstances
the Municipal Court building which houses a
were shown and a warrantless blood draw
magistrate on duty from 9:00 p.m. to 8:00 a.m.
could not be permitted under McNeely. The
every night. Officer Jordan stated that to get
State argued McNeely did not apply in states
a warrant, she would have to go before the
which had legislatively-mandated blood draws
magistrate, "get it signed and get the warrant."
for repeat offenders such as Texas. Next, the
She acknowledged she did not attempt to get
State contended the blood test result should not
a warrant nor was she prevented from getting
be excluded because the officers were acting in
one. Officer Jordan testified that she was aware
good-faith reliance upon the law.
that she could have obtained a warrant had
she wanted. Officer Jordan explained to the
The trial court heard the initial motion to suppress in
court that she did not get a warrant because at
December 2014. McNeeZv was decided in April 2013,
that time the law allowed a mandatory blood and the trial court's suppression order was rendered a
draw if an individual had two prior convictions. month later.
She stated the only reason she failed to obtain *2 The trial court entered thirty-six findings
the warrant was because she relied on the of fact and six conclusions of law. The relevant
mandatory blood draw statute. Findings of Fact are as follows:
State v. Munoz, --- S.W.3d ---- (2015)

5. At 8:22 p.m., Detective Jordan arrived at 34. At 10:25 p.m., Officer Art Senclair
2 followed Texas Transportation Code
the scene.
section 724.012(b )(3)(B), and transported
Defendant to Las Palmas hospital for a blood
draw.
18. Defendant declined to submit to
Standardized Field Sobriety Tests (SFSTs) 35. Registered nurse Michael Windham
and the breath test. drew Defendant's blood at Las Palmas
hospital.

36. The lab result revealed that Defendant's
26. Approximately 10 minutes elapsed from blood alcohol level was 0.23.
the time Detective arrived at the scene to the
time Detective arrested the Defendant. The relevant Conclusions of Law are as
follows:

1. Missouri v. McNeely, 133 S.Ct. 1552
28. At 9: 15 p.m., Defendant arrived at the requires exigent circumstances in order to
station. conduct a warrantless blood draw.
29. At the station, EPPD Officer Art
Senclair discovered that the Defendant had
at least two prior Driving While Intoxicated 3. The State did not present any evidence that
convictions. constituted exigent circumstances.

30. EPPD did not acquire a warrant to draw
blood from the Defendant.
5. Texas Transportation Code, section
31. On September 5, 2009, Detective Jordan 724.012(b)(3)(B) allows for a warrantless
could have acquired a warrant for a blood blood draw on an individual with two or
draw, if she wanted to get one on that date. more previous DWI convictions.

32. On September 5, 2009, nothing 6. Pursuant to McNeely, this governmental
prevented Detective Jordan from acquiring a interest does not justify a departure from
warrant for a blood draw. obtaining a warrant, unless there are exigent
circumstances present.
33. There is a magistrate on duty every
night from 9:00 p.m. to 6:00 a.m. at the 2 In 2013, at the time of the hearing, Officer Jordan had
Municipal Court building which was closer been promoted to Detective.
to the location where Defendant was arrested
than the Police station where Defendant was
transported.

Works.
State v. Munoz, --- S.W.3d ---- (2015)

Section 724.012(b), so therefore, the blood
test result are not subject to the Fourth
DISCUSSION
Amendment's exclusionary rule. The State
further argues Munoz's 2009 blood test result
The State in a single point of error raises
was not obtained in violation of the law,
two sub-issues. First, the State contends that
because the blood draw occurred prior to the
the trial court erred by relying on Missouri
issuance of McNeely in April 2013. The State
v. McNeely in suppressing the warrantless
asserts that in 2009, the officers acted in
blood test result obtained pursuant to the
"objective reasonable reliance" under existing
implied-consent and mandatory-blood-draw
precedent and Munoz's warrantless blood draw
provisions in the Texas Transportation Code §
was proper and therefore, not subject to
724.012(b). 3 SeeTEX.TRANSP.CODE ANN.
exclusion under the Fourth Amendment.
§ 724.012(b)(West 2011). According to the
State, McNeely decided the narrow issue of
Munoz responds that under McNeely, a
whether the dissipation of alcohol constituted a
warrantless blood draw is reasonable only
per se exigency that allowed for a warrantless
if it falls within a recognized exception to
blood draw in DWI cases. Therefore, the State
the Fourth Amendment's warrant requirement.
concludes McNeely is inapplicable here given
Munoz contends, under these facts, the State
that the State relied on the Texas Transportation
has failed to secure a warrant or prove any
Code for implied consent of a warrantless
permissible constitutional exception applies.
blood-draw in DWI cases involving an accident
or prior convictions. TEX.TRANSP.CODE
ANN.§§ 724.011, 724.012(b).
STANDARD OF REVIEW
3 TEX.TRANSP.CODE ANN.§ 724.012(b) provides:
(b) a peace officer shall require the taking of a When reviewing a motion to suppress,
specimen of the person's breath or blood under any we apply a bifurcated standard of review.
of the following circumstances if the officer arrests
SeeCrain v. State, 315 S.W.3d 43, 48
the person for an offense under Chapter 49, Penal
Code, involving the operation of a motor vehicle ... (Tex.Crim.App.2010); State v. Terrazas, 406
and the person refuses the officer's request to submit S.W.3d 689, 692 (Tex.App.-El Paso 2013,
to the taking of a specimen voluntarily:
no pet.). We afford almost total deference
(3) at the time of the arrest, the officer possesses or to the trial court's findings of historical
receives reliable information from a credible source fact that are supported by the record, and
that the person:
to mixed questions of law and fact that
(B) on two or more occasions, has been previously tum on an assessment of a witnesses'
convicted of or placed on community supervision credibility or demeanor. Valtierra v. State,
for an offense under Section 49.04 [misdemeanor 310 S.W.3d 442, 447 (Tex.Crim.App.2010);
DWI] ....
Amador v. State, 221 S.W.3d 666, 673
*3 Second, even if McNeely applies, the State (Tex.Crim.App.2007); Guzman v. State, 955
posits, the officers acted in objective reasonable S.W.2d 85, 89 (Tex.Crim.App.1997). The trial
reliance upon then-binding precedent and court's determination of legal questions and its
State v. Munoz, --- S.W.3d ---- (2015)

application of the law to facts that do not tum In Schmerber v. California, 384 U.S. 757,
upon a determination of witness credibility and 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the
demeanor are reviewed de nova. See Valtierra, United States Supreme Court held that an
310 S.W.3d at 447; Amador, 221 S.W.3d at involuntary blood draw is permissible under
673; Kothe v. State, 152 S.W.3d 54, 62-63 a Fourth Amendment analysis. Initially, the
(Tex.Crim.App.2004); Guzman, 955 S.W.2d at Court noted that the taking of a blood specimen
89. from a person is a search and seizure under
the Fourth Amendment. Id. at 767, 86 S.Ct. at
[1] When, as here, the trial judge makes 1834. The Court outlined "special facts" under
express findings of fact, we must first which an involuntary blood draw is reasonable.
determine whether the evidence, when viewed Id. at 770-771, 86 S.Ct. at 1835-36. The
in the light most favorable to the trial court's Court's analysis concluded that, in light of the
ruling, supports those findings. Valtierra, potential for the destruction of alcohol evidence
310 S.W.3d at 447; State v. Kelly, 204 in a person's body, and involuntary blood
S.W.3d 808, 818 (Tex.Crim.App.2006). We draw is permitted under the Fourth Amendment
review a trial court's legal ruling de nova. where there is a delay by law enforcement in
State v. Iduarte, 268 S.W.3d 544, 548-49 investigating an accident; and there is no time
(Tex.Crim.App.2008). Furthermore, we must to apply for a warrant and locate a magistrate.
uphold the trial court's ruling if it is supported Id.
by the record and correct under any theory of
law applicable to the case. State v. White, 306 *4 In Missouri v. McNeely, the Court
S.W.3d 753, 757 n. 10 (Tex.Crim.App.2010). expounded further, explicitly stating that a
"This principal holds true even when the warrantless blood draw must fall under one
trial judge gives the wrong reason for his of the recognized exceptions to the Fourth
decision, and is especially true with regard to Amendment. 133 S.Ct. at 1558. The Court
admission of evidence." State v. Esparza, 353 held that the dissipation of alcohol from the
S.W.3d 276, 282 (Tex.App.-El Paso 2011, pet. body per se is insufficient to create an exigent
granted), ajj'dState v. Esparza, 413 S.W.3d 81 circumstance to justify a warrantless seizure
(Tex.Crim.App.2013), quotingRomero v. State, of a defendant's blood. McNeely, 133 S.Ct. at
800 S.W.2d 539, 543 (Tex.Crim.App.1990). 1560-61. The Court instructed us that whether
"The evident purpose of this rule is to ensure the exigent circumstances exception is satisfied
that a trial court ruling will be upheld if the must be viewed case by case in light of the
appellate court has assurance that the ruling totality of the circumstances. Id.
was just and lawful." Esparza, 353 S.W.3d at
282, quotingWhite, 306 S.W.3d at 757 n. 10. The Texas Court of Criminal Appeals finally
addressed the tension between our statutory
implied consent, Texas Transportation Code
section 724.012(b)(3)(B) and McNeely in State
SUPPRESSION OF
BLOOD TEST RESULT v. Villarreal. 4 State v. Villarreal, No. PD-
0306-14, - S.W.3d - - , - - , 2014 WL
State v. Munoz, --- S.W.3d ---- (2015)

6734178, at *1 (Tex.Crim.App. Nov. 26, consent or a warrant. Id. Villarreal argued
2014)(reh'g granted). In Villarreal, the facts are McNeely applied and thus the blood draw was
almost identical to the case at hand. unconstitutional. Id. The State contended that
McNeely did not apply to mandatory blood
4 We note the Texas Court of Criminal Appeals has draws because of our implied consent statutes.
granted the State's motion for rehearing in this case Id.
on February 25, 2015, but has not withdrawn its
opinion on original submission. While Villarreal's future
precedential value is not certain, we believe the opinion The Court, after extensive analysis, held
is persuasive and absent any other guidance from the "that a nonconsensual search of a DWI
Texas Court of Criminal Appeals, we will continue to
suspect's blood conducted pursuant to the
apply its reasoning. See Perez v. State, No. 01- l 2-
0 I OO l--CR, - S.W .2d - , - , 2015 WL 1245469, mandatory-blood-draw and implied-consent
at *6 (Tex.App.-Houston [!st Dist.] Mar. 17, 2015, pet. provisions in the Transportation Code, when
filed) (applying the Villarreal holding after the Texas
undertaken in the absence of a warrant
Court of Criminal Appeals granted rehearing).
or any applicable exception to the warrant
In 2012, Villarreal was stopped for a traffic requirement, violates the Fourth Amendment."
violation and observed to be swaying back Id., at - - , 2014 WL 6734178, at *21. Our
and forth, had red, watery eyes, and slurred sister courts in applying Villarreal have joined
speech, in addition to a strong odor of alcohol. the Texas Court of Criminal Appeals in soundly
Id. Villarreal was placed under arrest for rejecting the State's argument that McNeely
DWI. Id. After the discovery of Villarreal's has limited applicability when construed in
several previous convictions of DWI, the conjunction with the Texas Transportation
officer took Villarreal to a hospital for a blood Code§ 724.012(b)(3)(B). SeeState v. Tercero,
draw. Id., at - - , 2014 WL 6734178, at -S.W.3d-, No. 01-14-00120-CR, 2015
*2. Villarreal's blood test result indicated "a WL 1544519 (Tex.App.-Houston [1st Dist]
blood-alcohol concentration of. 16 grams of April 2, 2015, pet. filed); Chidyausiku v.
alcohol per hundred milliliters of blood." Id. State, 457 S.W.3d 627 (Tex.App.-Fort Worth
Due to Villarreal's prior convictions, he was 2015, pet. filed); State v. Garcia, 457 S.W.3d
subsequently indicted for a felony DWI. Id. 546 (Tex.App.-San Antonio 2015, pet. filed);
Lloyd v. State, 453 S.W.3d 544 (Tex.App.-
At the evidentiary hearing on Villarreal's Dallas 2014, pet. ref d); Cole v. State, 454
motion to suppress, the State's sole witness S.W.3d 89 (Tex.App.-Texarkana 2014, pet.
testified he "could have" obtained a warrant granted); Clement v. State, 461 S.W.3d 274
but did not and relied on "the mandatory- (Tex.App.-Eastland 2015, pet. filed); State v.
blooddraw provision in the Code."Id.; TEX. Martinez, No. 13-14-00117-CR, 2015 WL
TRANSP. CODE ANN. § 724.012(b). Further, 1957087 (Tex.App.-Corpus Christi April 30,
the officer stated his decision to conduct the 2015, no pet. h.)(mem. op., not designated
blood draw was based only on the statutory for publication); Evans v. State, No. 14-
authority and not on any emergency or exigent 13-00642-CR, 2015 WL 545702 (Tex.App.-
circumstances. Villarreal, - S.W.3d at--, Houston [14th Dist.] Feb. 10, 2015, pet. filed)
2014 WL 6734178, at *2. The parties stipulated (mem. op., not designated for publication).
Villarreal's blood draw was taken without his
State v. Munoz, --- S.W.3d ---- (2015)

(West 2005). That statute provides evidence
*5 [2] Likewise, our prev10us approach may not be used or admitted in the criminal trial
has followed Villarreal. SeeBurcie v. State, against the defendant if the evidence is obtained
No. 08-13-00212-CR, 2015 WL 2342876 by "an officer or other person in violation of
(Tex.App.-El Paso May 14, 2015, pet. any provisions of the Constitution or laws of the
filed)(not designated for publication). In State of Texas, or of the Constitution or laws of
Burcie, like the case before us, the facts the United States of America[.]" TEX.CODE
were not in dispute and the State had failed CRIM. PROC. ANN. art. 38.23(a). Moreover,
to raise any recognizable exception to the the State contends, in 2009, at the time of
Fourth Amendment. The record here shows Munoz's blood draw, the officers acted in
the officer relied on the implied consent under objective reasonable reliance of the existing
the Texas Transportation Code and could have law.
obtained a warrant but chose not to. Like
Villarreal and Burcie, the State relies on the First, the State argues that Munoz's blood test
implied consent and mandatory-blood-draw was not obtained in contravention of then
provisions of the Texas Transportation Code existing federal precedent and therefore, even
to support the admission of the blood test if McNeely applies, the blood test should
result. The trial court concluded as a matter of not be excluded. The State cites Davis v.
law the State failed to present "any evidence United States, for the proposition that the
that constituted exigent circumstances." The "exclusionary rule is limited to situations in
record supports that conclusion. Given that which deterrence is 'thought most efficaciously
the Texas Transportation Code's mandatory- served.' " Davis v. United States, - U.S.
blood-draw is not a valid exception to the - , 131 S.Ct. 2419, 2426, 180 L.Ed.2d
Fourth Amendment, the trial court did not err 285 (2011), citingU.S. v. Calandra, 414 U.S.
in suppressing the blood test result. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d
561 (1974). As the State correctly points out,
We find under Missouri v. McNeely and Davis made clear a constitutional violation
State v. Villarreal the State's first sub-issue is does not always mandate the applicability of
overruled. exclusionary rule. The Davis court explained
the exclusionary rule never applies to the
suppression of evidence when it was obtained
"as a result of nonculpable, innocent police
GOOD-FAITH RELIANCE
conduct." 131 S.Ct. at 2429. The State also
The State, in their second sub-issue, urges us pointed to the holdings in Krull, Leon, and
to find the trial court erred because in 2009 the Peltier to illustrate that the United States
blood draw was not obtained in violation of Supreme Court has prohibited the application
federal Fourth Amendment exclusionary rule of the Fourth Amendment's exclusionary rule
nor Texas' exclusionary rule found in Article when an officer has in good-faith, objectively
38.23 of the Texas Code of Criminal Procedure. and reasonably relied on a then constitutional
TEX.CODE CRIM.PROC.ANN. art. 38.23 statute or valid search warrant. Illinois v. Krull,
State v. Munoz, --- S.W.3d ---- (2015)

480 U.S. 340, 347, 350, 107 S.Ct. 1160, 1165- that the exclusionary rule does not apply in
66, 94 L.Ed.2d 364 (1987); United States v. this case." Elias, 2012 WL 4392245, at *7.
Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, SeeArizona v. Gant, 556 U.S. 332, 129 S.Ct.
82 L.Ed.2d 677 (1984); United States v. Peltier, 1710, 173 L.Ed.2d 485 (2009). Thus, Swink
422 U.S. 531, 537, 95 S.Ct. 2313, 2317-18, 45 refused to apply Mincey retroactively. Swink,
L.Ed.2d 374 (1975). 617 S.W.2d at 210. Likewise, Elias did not
apply Gant retroactively, relying on the federal
Relying on Swink v. State and Elias v. doctrine of the officers' good faith reliance
State, the State contends that McNeely under Davis. Elias, 2012 WL 4392245, at
should not be applied retroactively. Swink *7. Neither case alludes to or discusses the
v. State, 617 S.W.2d 203, 209-210 Texas exclusionary rule under Article 38.23
(Tex.Crim.App.l98l)(overruled on other and its application to an officer's good faith
grounds byGriffin v. State, 765 S.W.2d 422 reliance on then-constitutional statutes and
(Tex.Crim.App.1989)); State v. Elias, No. former binding precedent. TEX.CODE CRIM.
08-08-00085-CR, 2012 WL 4392245, at *7 PROC. ANN.ODE CRIM. PROC. ANN. art.
(Tex.App.-El Paso Sept. 26, 2012, pet. refd) 38.23. We note that Swink and Elias are
(not designated for publication). In Swink, the specifically limited to the application of Mincey
Texas Court of Criminal Appeals held "that the and Gant. Our research has failed to uncover
warrantless search and seizure of the premises any Texas case, under these facts, declining to
by the officers was permissible at the time of retroactively apply McNeely and the State has
their actions and that the holding of Mincey not cited to any.
will not be applied retroactively to this case."
Swink, 617 S. W.2d at 210. The Court explained [3] The United States Supreme Court in
the "search was conducted some six months Griffith explained that "failure to apply a
before the decision in Mincey while the trial newly declared constitutional rule to criminal
was held six months after the decision .... Thus, cases pending on direct review violates basic
at the time officers conducted the warrantless norms of constitutional adjudication." Gr(ffith
search of the murder scene, their actions did not v. Kentucky, 479 U.S. 314, 322, 107 S.Ct. 708,
run afoul of the holding in Mincey." Id. at 209. 713, 93 L.Ed.2d 649 (1987). The Griffith Court
SeeMincey v. Arizona, 437 U.S. 385, 98 S.Ct. held that a newly announced constitutional
2408, 57 L.Ed.2d 290 ( 1978). rule for conducting criminal prosecutions must
be applied retroactively to all cases, state or
*6 In Elias, relying on Davis v. United federal, pending on direct review or not yet
States, - U.S. - - , 131 S.Ct. 2419, 180 final when the rule was announced regardless
L.Ed.2d 285 (2011 ), we held that "the search whether they constitute a clear break from
of Elias's van was unconstitutional under the past. Griffith, 479 U.S. at 328, 107 S.Ct.
Gant, [however] the police conducted the at 716. SeeMcClintock v. State, 444 S.W.3d
search in 2007 in good faith reliance on 15 (Tex.Crim.App.2014). The Supreme Court's
appellate precedent authorizing the search retroactivity analysis for federal constitutional
incident to arrest. Accordingly, we conclude errors is binding upon the states when federal
constitutional errors are involved. James B. which only applies when a warrant issued by
Beam Distilling Co. v. Georgia, 501 U.S. 529, a neutral magistrate, based on probable cause,
535, 111 S.Ct. 2439, 2443, 115 L.Ed.2d 481 and is relied upon by the officer in good-
(1991 ). This case was not yet final when faith. TEX.CODE CRIM. PROC. ANN. art.
McNeely was decided in April 2013 and it 38.23(b). As a result of the lack of a warrant
applies here on direct appeal. being issued, the statutory exception in Article
38.23(b) does not apply here. Douds, 434
The court in Douds v. State, held the good- S.W.3d at 861; Anderson, 445 S.W.3d at 912;
faith reliance exception does not apply in Tercero, - S.W.3d at - - - - - , 2015 WL
Texas. Douds v. State, 434 S.W.3d 842, 1544519, at *6-7; Burks v. State, 454 S.W.3d
861 (Tex.App.-Houston [14th Dist.] 2014, 705, 709 (Tex.App.-Fort Worth 2015, pet.
pet. granted)(en bane). The Texas Supreme filed); Martinez v. State, No. 04-13-00764-
Court has resisted efforts to expand the CR, 2014 WL 5837162, at *2 (Tex.App.-
good-faith exception using federal precedent, San Antonio Nov. 12, 2014, pet. filed)(mem.
especially in those instances when the op., not designated for publication); Weems
federal exceptions conflict with our statutory v. State, 434 S.W.3d 655, 666 (Tex.App.-
exclusionary rule. Howard v. State, 617 S.W.2d San Antonio 2014, pet. granted); State v.
191, 193 (Tex.Crim.App.1979)(op. on reh'g) Stewart, No. 09-13-00421-CR, 2014 WL
(rejecting the federal good-faith doctrine of 5855905, at *4 (Tex.App.-Beaumont Nov. 12,
Michigan v. DeFillippo, 443 U.S. 31, 99 2014, pet. ref d)(mem. op., not designated for
S.Ct. 2627, 61 L.Ed.2d 343 (1979)); also publication).
seeState v. Daugherty, 931 S.W.2d 268
(Tex.Crim.App.1996). Other Texas Courts of *7 We overrule the State's second sub-issue.
Appeals have come to that same conclusion
'
specifically when evaluating the admissibility
of blood test results under McNeely. Doud~, CONCLUSION
434 S.W.3d at 862; see alsoState v. Anderson,
445 S.W.3d 895, 912 (Tex.App.-Beaumont We conclude the trial court did not abuse her
2014, no pet.); Tercero, - S.W.3d at--, discretion in determining there were no exigent
2015 WL 1544519, at *6. We decline the circumstances that justified a warrantless blood
State's invitation to create a good-faith reliance draw from Munoz. We affirm the trial court's
exception to the application of McNeely. order granting the motion to suppress.

[4] Lastly we consider whether Texas's
exclusionary rule as codified in the Code
Rivera, J., Not Participating
of Criminal Procedure article 38.23 allows
for the admission of the blood test result. All Citations
The exception to Texas's exclusionary rule
is legislative and found in Article 38.23(b) --- S.W.3d----, 2015 WL 4719559

10
State v. Munoz, --- S.W.3d ---- (2015)
2015wC4119559 - - - - - - - - - - ----------- ------~-----·----~--~·-----·-----·-

End of Document @2015 Thomson Reuters. No claim to original U.S. Government Works.

11
APPENDIXB

10
SHARO'll Kt:l.l.ER ABEL ACOSTA
PKl·S\Dlt-;(i JLIXi~ COURT OF CRIMINAL APPEALS CLERK
(512)46.'-15:'1
P.O. BOX 12308, CAPITOL STATION
LAWREl\CI!: E. MF.YF.RS
CtlERYLJOllNSOI'
AUSTIN, TEXAS 78711 SIAN SCHILHAB