Cole, Steven

PD-0077-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/3/2015 5:25:30 PM
June 4, 2015 Accepted 6/4/2015 8:07:40 AM
ABEL ACOSTA
No. PD-0077-15 CLERK

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

STEVEN COLE, Appellant

v.

THE STATE OF TEXAS, Appellee

Appeal from Gregg County

* * * * *

STATE’S BRIEF ON THE MERITS

* * * * *

LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No.13803300

P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512/463-1660 (Telephone)
512/463-5724 (Fax)

ORAL ARGUMENT REQUESTED
NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

Appellant: Steven Cole.

Appellee: The State of Texas.

Counsel for Appellant at trial: James R. (Rick) Hagan, Attorney at Law, P.O. Box
3347, Longview, Texas 75606-3347.

Counsel for Appellant on appeal: Ebb Mobley, P.O. Box 2309, Longview, Texas
75606.

Counsel for the State at trial: Stacey L. Brownlee and Madison Hood, Assistant
District Attorneys, 101 East Methvin, Suite 333, Longview, Texas 75601.

Counsel for the State on appeal: Zan Colson Brown, Assistant District Attorney, 101
East Methvin, Suite 333, Longview, Texas, 75601, and Lisa C. McMinn, State
Prosecuting Attorney, P.O. Box 13046, Capitol Station, Austin, Texas 78711.
 TABLE OF CONTENTS

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

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

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

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1) Did the Court of Appeals conduct an incorrect exigent circumstances analysis
when it required proof of a “now or never” level of urgency?

2) Were exigent circumstances present to draw Appellant’s blood without a
warrant when the accident created a substantial period of delay before blood
could be drawn, the officer knew that it typically took 1-1 ½ hours to obtain
warrant, and he suspected the defendant was under the influence of illegal drugs
as opposed to alcohol, which has a predictable rate of elimination?

3) Does a warrantless blood draw conducted pursuant to TEX. TRANSP. CODE
§ 724.012(b) violate the Fourth Amendment?

4) If a warrantless blood draw conducted pursuant to TEX. TRANS. CODE §
724.012(b) violates the Fourth Amendment, must that evidence be suppressed
when, at the time of the search, the statute was presumptively valid and that it
dispensed with the warrant requirement?

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

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. Exigency to justify warrantless blood draw examines whether additional time
needed to obtain a warrant would “significantly undermine the efficacy of the
blood test.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

II. Exigent circumstances were present when police knew it would take 1-1 ½
hours to obtain a warrant, the accident had already created considerable delay
and limited the availability of officers to seek a warrant, and the suspected
intoxicant was a “a couple of hits of meth.”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. The accident caused a significant period of delay and limited the
number of police officers available to seek a warrant.. . . . . . . . . . . . . . . 9

B. The intoxicant in this case does not have a commonly known
elimination rate... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

III. The mandatory blood draw statute does not require a warrant and is
constitutional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. The statute dispenses with the need for a warrant.. . . . . . . . . . . . . . 14

B. Statutorily dispensing with a warrant is reasonable.. . . . . . . . . . . . 15

1. Advanced consent has been given in exchange for the driving
privilege... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

2. The State’s special need for safe roads outweighs a DWI
arrestee’s limited expectation of privacy... . . . . . . . . . . . . . . . . . . 17

3. The blood draw is a specific search incident to arrest for a
narrow class of offenses... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

4. Exigency is present due to the dissipation of alcohol and the
seriousness of the offense... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

IV. The remedy for a Fourth Amendment violation is not exclusion when police
complied with a presumptively constitutional statute and case law interpreting
it.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

i
 A. Under Davis, the Federal exclusionary rule does not require
suppression.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

B. Because the purpose of Art. 38.23 is to protect a suspect’s rights from
overzealous law enforcement, suppression is not required when the
violation is not based on misconduct.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

ii
 INDEX OF AUTHORITIES

Cases

Aliff v. State, 627 S.W.2d 166 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . . . . 23

Beckendam v. State, 441 S.W.3d 295 (Tex. Crim. App. 2014). . . . . . . . . . . . . . . 13

Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . 23

Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . 25

United States v. Chadwick, 433 U.S. 1 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Chavez v. State, 9 S.W. 3d 817 (Tex. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . 25

Cheek v. United States, 498 U.S. 192 (1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

New York v. Class, 475 U.S. 106 (1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Cole v. State, __S.W.3d__,
No. 06-13-00264-CR (Tex. App.–Texarkana, 2014). . . . . . . . . . . . . . 2, 6, 11

Danforth v. Minnesota, 552 U.S. 264 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . 28n

State v. Daugherty, 931 S.W.2d 268 (Tex. Crim. App. 1996). . . . . . . . . . . . . . . . 25

Davis v. United States, 131 S. Ct. 2419 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Douds v. State, 434 S.W.3d 842 (Tex App.–Houston [14th Dist.] 2014). . . . . . . .10

Board of Education v. Earls, 536 U.S. 822 (2002).. . . . . . . . . . . . . . . . . . . . . . . . 17

Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992).. . . . . . . . . . . . . . . . . . . 25

Arizona v. Gant, 556 U.S. 332 (2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Heien v. North Carolina, 135 S.Ct. 530 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . 28n

iii
Karnev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009). . . . . . . . . . . . . . . . . . . 23

Kentucky v. King, 131 S.Ct. 1849 (2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Maryland v. King, 133 S. Ct. 1958 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Illinois v. Krull, 480 U.S. 342 (1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

United States v. Knights, 534 U.S. 112 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Leon, 468 U.S. 897 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Manning v. State, 114 S.W.3d 922 (Tex. Crim. App. 2003). . . . . . . . . . . . . . 12-13

Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . . . . 8

Missouri v. McNeely, 133 S.Ct. 1552 (2013). . . . . . . . . . . . . . . . . . 7-10, 12, 20-13

Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . 25, 27

United States v. Montoya De Hernandez, 473 U.S. 531 (1985).. . . . . . . . . . . . . . . 6

United States v. Reid, 929 F.2d 990 (4th Cir. 1991).. . . . . . . . . . . . . . . . . . . . . . . 21

Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 17

Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . . . 26-27

Samson v. California, 547 U.S. 843 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Schmerber v. California, 384 U.S.757 (1966). . . . . . . . . . . . . . . . . . . . . . . . . 10, 22

Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989). . . . 17-20

State v. Villarreal, __S.W.3d__
No. PD-0306-14 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . 1, 14, 23

Welsh v. Wisconsin, 466 U.S. 740 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22n

iv
Wilson v. State, 311 S.W. 3d 452 (Tex. Crim. App. 2010).. . . . . . . . . . . . . . . . . . 26

Zap v. United States, 328 U.S. 624 (1946). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Statutes

TEX. CODE CRIM. PROC. art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 24, 26-27

TEX. TRANSP. CODE § 724.011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. TRANSP. CODE § 724.012. . . . . . . . . . . . . . . . . . . . 5, 10, 14-15, 19-20, 23, 27

TEX. TRANSP. CODE § 724.013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. TRANSP. CODE § 724.016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. TRANSP. CODE § 724.017. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. TRANSP. CODE § 724.019. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. TRANSP. CODE § 724.064. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Other

http://www.tabc.state.tx.us/publications/brochures/BACCharts.pdf. . . . . . . . . . 12n

v
 No. PD-0077-15
IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

STEVEN COLE, Appellant

v.

THE STATE OF TEXAS, Appellee

* * * * *

STATE’S BRIEF ON THE MERITS

* * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State Prosecuting Attorney respectfully presents its brief on the merits.

STATEMENT REGARDING ORAL ARGUMENT

The State did not originally request oral argument, and the Court did not grant

it. However, because the motion for rehearing has been granted in State v. Villarreal,

__S.W.3d__, No. PD-0306-14 (Tex. Crim. App. 2014), and because this case presents

an issue that has not been granted–the applicability of Art. 38.23–oral argument

would be helpful. Therefore, the State requests oral argument.

1
 STATEMENT OF THE CASE

A jury convicted Appellant of intoxication manslaughter, enhanced by two

prior felony convictions, and assessed a life sentence. The Court of Appeals reversed,

holding that the trial court erred by admitting blood test results obtained from a

nonconsensual, warrantless blood draw. Cole v. State, 454 S.W.3d 89 (Tex.

App.–Texarkana, 2014). This Court granted the State Prosecuting Attorney’s petition

for discretionary review on April 22, 2015. The Court granted one extension of time

until June 5, 2015, to file the State’s brief.

ISSUES PRESENTED

1) Did the Court of Appeals conduct an incorrect exigent circumstances analysis
when it required proof of a “now or never” level of urgency?

2) Were exigent circumstances present to draw Appellant’s blood without a
warrant when the accident created a substantial period of delay before blood
could be drawn, the officer knew that it typically took 1-1 ½ hours to obtain
warrant, and he suspected the defendant was under the influence of illegal drugs
as opposed to alcohol, which has a predictable rate of elimination?

3) Does a warrantless blood draw conducted pursuant to TEX. TRANSP. CODE
§ 724.012(b) violate the Fourth Amendment?

4) If a warrantless blood draw conducted pursuant to TEX. TRANS. CODE §
724.012(b) violates the Fourth Amendment, must that evidence be suppressed
when, at the time of the search, the statute was presumptively valid and that it
dispensed with the warrant requirement?

2
 STATEMENT OF FACTS

At around 10:20 p.m., Appellant ran a red light at the intersection of South and

South High Street in downtown Longview at an estimated 110-112 miles per hour.

RR. III: 24, 27-32, 115, 153-54, 165. He struck the driver’s side of a pickup truck

in the intersection, killing the driver, bending the truck into a half-moon shape, and

causing it to burst into flames. RR. III: 46-47, 51-53, 143, 162-65, 117-19, 175-76,

IV:47- 49. The vehicles came to rest approximately 245 feet away from the initial

point of impact. RR. III: 121. Due to the fire and degree of impact, there was a large

debris field, and traffic was blocked in all directions. RR. III: 37-39, 114-16.

Approximately fifteen officers worked the accident scene, which happened

near the time of shift change. RR. III: 38-39, 178-79. Officers from both the evening

and midnight shifts were present. RR. III: 179. Those officers were blocking

intersections and rerouting traffic so the accident could be investigated and the scene

eventually cleared. RR. III: 179-81. The minimum number of officers for the

evening shift is thirteen and eleven for the midnight shift. RR. III: 178-80. All the

officers at the scene were performing necessary functions. RR. III: 183-88, 193-94.

Officer Higginbotham testified that, although judges were on call to issue warrants,

it would have taken two officers and 1-1½ hours at best; thus, obtaining a warrant

would not have been feasible. RR. III: 183-85, 190-91. When asked what he would

3
do if a warrant was necessary, Higginbotham replied, “You do what you have to do,”

and “we would have had to take[] time out of everything else to procure one.” RR.

III: 191. Appellant was taken to the hospital for evaluation. RR. III: 234. He

admitted to taking “a couple of hits of meth,” and an officer observed that he was

“tweaking,” i.e., making involuntary bodily movements. RR. III: 87, 92, 221, 235.

He was arrested at the hospital at 11:38 and refused to voluntarily provide a specimen

of his blood. RR. III: 223-24; SX 9. After Officer Wright relayed this information

to her sergeant, she was given the order to proceed with the mandatory blood draw,

and Appellant’s blood was drawn without a warrant at 12:20 a.m. RR. III: 223-24;

SX 10. The results revealed 0.2 mg/L of amphetamine and 0.23 mg/L of

methamphetamine, which was described by the toxologist as being at the “very high

end of a therapeutic range,” but a “moderate dose” for recreational use that could

cause intoxication. RR. IV: 20-23; SX 13.

The trial court found exigent circumstances for the warrantless blood draw,

stating:

This case, you have one of the most major intersections in Longview,
Texas, shut down. You have numerous officers on the scene. While
there are other officers who could assist in some ways, the lead
investigator, the person who has the specialized training in order to do
an accident reconstruction, an accident investigation, is the officer who
has to remain on the scene. So there are those exigent circumstances.
You have factors that lead that officer having to remain there. There was

4
 a large debris field; fire; again, a major intersection being involved. It
was not just a typical little DWI arrest. Secondly, you also have the
defendant currently at the hospital being transported by EMS. The
officers also have to be concerned of whether he’s given any additional
medications, what his health and safety is. So there are other factors
involved, other–that do not give time for a warrant that may be there in
a regular DWI. Also, the timing of all to get the scene cleared is an
exigent circumstance.

RR. III: 197-98.

SUMMARY OF THE ARGUMENT

The warrantless blood draw was justified by exigent circumstances. When the

exigency at issue is the dissipation of alcohol or drugs in the bloodstream, the

applicable standard is not “now or never” as it is for the intentional destruction of

tangible evidence. The degradation of the probative value of alcohol and drug

evidence is a factor in the exigency analysis. Based on the severity of the accident

in this case–which occupied at least half of the combined evening and midnight shifts

of the Longview police force for hours–and an intoxicant with an elimination rate that

is not commonly known, an officer could reasonably believe that the additional 1-1½

hours needed to obtain a warrant would significantly undermine the blood test’s

efficacy and would have taken two officers away from their duties at the accident

scene.

Alternatively, TEX. TRANSP. CODE § 724.012 dispenses with the requirement

5
of a warrant. The Fourth Amendment requires only reasonableness; a search warrant

or exception is not essential for a search to be reasonable. A blood draw pursuant to

the statute is reasonable because it includes components of four well-recognized

exceptions to the warrant requirement: consent, special needs, search incident to

arrest, and exigent circumstances.

Even if a statutory, warrantless blood draw violates the Fourth Amendment,

suppression of the evidence is not the proper remedy under the federal exclusionary

rule or art. 38.23. The purpose of both exclusionary rules is to protect the rights of

suspects from overzealous law enforcement. That purpose is not served when officers

unknowingly violate the Fourth Amendment while relying on a presumptively

constitutional statute and case law interpreting it.

ARGUMENT

I. Exigency to justify warrantless blood draw examines whether additional time
needed to obtain a warrant would “significantly undermine the efficacy of the
blood test.”

Police need not obtain a warrant where exigent circumstances would make

doing so impractical. United States v. Montoya De Hernandez, 473 U.S. 531, 553

(1985). The Court of Appeals noted that warrantless searches have been upheld

“[w]here there are exigent circumstances in which police action literally must be ‘now

or never’ to preserve the evidence of the crime.” Cole, 454 S.W.3d at 98, n.5. (citation

6
omitted). It concluded that, because Appellant’s blood could have been drawn with

a warrant three hours and forty minutes after the accident, the period of delay “fails

to reach the ‘now or never’ level contemplated by exigent circumstances precedent.”

Id. at 103.

But not all destruction of evidence cases involve a threat of immediate

destruction. See Missouri v. McNeely, 133 S.Ct. 1552, 1561 (2013) (“The context of

blood testing is different in critical respects from other destruction-of-evidence cases

in which the police are truly confronted with a ‘now or never’ situation.”). That is

because, unlike a suspect in physical possession of easily disposable evidence that

can be destroyed quickly, dissipation of alcohol in the body occurs autonomically.

Id. See also Kentucky v. King, 131 S.Ct. 1849, 1857 (2011) (“drugs may be easily

destroyed by flushing them down a toilet or rinsing them down a drain.”). If “now

or never” were required in every case involving the possible destruction of evidence,

exigent circumstances could never be proven in a DWI.

In McNeely, the Court refused to hold that the dissipation of a substance in the

bloodstream presents a “per se exigency... in all drunk-driving cases.” 133 S.Ct. at

1556. Instead, the Court held that the existence of exigent circumstances must be

determined on a case-by-case basis, considering the totality of the circumstances. Id.

That fact that alcohol is naturally eliminated in the body will not dispense with the

7
need for a warrant, if, for example, the defendant is stopped for DWI in front of a

courthouse full of judges.

But exigency can still be found when dissipation of alcohol or drugs in the

bloodstream is combined with the passage of time or when it is reasonable to believe

a warrant cannot be obtained within a reasonable amount of time. “The relevant

inquiry is whether, given the facts and circumstances known to police at the time, it

would be objectively reasonable for an officer to conclude that taking the time

necessary to obtain a warrant before drawing a blood sample would significantly

undermine the efficacy of a blood-alcohol test.” Id. at 1561. In other words, the risk

to the evidence need not rise to the level of total destruction or elimination. The

degradation of the substance is also a factor. As the Supreme Court cautioned, “A

significant delay in testing will negatively affect the probative value of the results.”

Id.

Retrograde extrapolation of alcohol is possible because the degree of

absorption and elimination of alcohol are relatively fixed. But unknown

variables–such as when the defendant last ate, and when, how fast, and how much he

drank–will affect the equation so that the degree of intoxication at a given time is less

certain. Mata v. State, 46 S.W.3d 902, 908-13 (Tex. Crim. App. 2001). “Testing

nearer in time to the time of the alleged offense increases the ability to determine the

8
subject’s offense-time BAC.” Id. at 916. But “longer intervals may raise questions

about the accuracy of the calculation.” McNeely, 133 S.Ct. at 1563.

In short, exigent circumstances exist when the period of dissipation is

unknown, or it is known but the substance will be eliminated or its probative value

significantly undermined during the time required to obtain a warrant.

II. Exigent circumstances were present when police knew it would take 1-1 ½
hours to obtain a warrant, the accident had already created considerable delay
and limited the availability of officers to seek a warrant, and the suspected
intoxicant was a “a couple of hits of meth.”

McNeely noted that “special facts,” like an accident are not necessarily

required, and exigency can arise in even an “ordinary traffic stop.” Id. at 1568. The

ability to “obtain a warrant in an expeditions way” in a given case could be affected

by “the procedures in place for obtaining a warrant or the availability of a

magistrate.” Id. An evaluation of the reasonableness of the officer’s belief that

exigency existed examines “the practical problems of obtaining a warrant within a

timeframe that still preserves the opportunity to obtain reliable evidence.” Id.

A. The accident caused a significant period of delay and limited the
number of police officers available to seek a warrant.

When something out of the ordinary causes significant delay, the elimination

rate of the substance becomes increasingly important. In this case, two hours had

already elapsed from the time of the accident until Appellant’s blood was drawn

9
pursuant to TEX. TRANSP. CODE § 724.012(b). Getting a warrant would have

removed two officers from their duties at the accident scene and taken up to an

additional 1 ½ hours, for a total delay of 3 ½ hours. In Schmerber v. California, 384

U.S.757, 770-71 (1966), the Supreme Court found exigent circumstances when,

“Further delay in order to secure a warrant after the time spent investigating the scene

of the accident and transporting the injured suspect to the hospital to receive

treatment would have threatened the destruction of evidence.1 That determination

was adopted in McNeely. 133 S.Ct. at 1563 (Dissipation “may support a finding of

exigency in a specific case, as it did in Schmerber.”)

The Fourteenth Court of Appeals has held that the number of police involved

in the investigation, the ability to process a warrant application during the

investigation, and delay caused by the time needed to investigate is relevant to this

determination. Douds v. State, 434 S.W.3d 842, 853-54 (Tex App.–Houston [14th

Dist.] 2014, pet. granted). “The State should be responsible for asking officers who

handle accidents to explain the demands of a particular investigation that made it

1
Schmerber does not explicitly set out how much time elapsed from the
accident until the defendant’s blood was drawn, but it suggests the arrest (and
perhaps the decision to draw the blood) was made within two hours of the
accident. Id. at 769 (officer arrived at the scene shortly afer the accident, smelled
alcohol, and observed bloodshot watery eyes, then saw him at the hospital “within
two hours” and observed the same symptoms).
10
impractical for police to obtain a warrant before any blood alcohol evidence

dissipated.” Id. at 854.

That is exactly what the State did here. Officer Higginbotham explained his

accident investigation and the need for personnel to close off traffic at two major

intersections. RR. III: 178-81. Approximately half of the Longview police force on

duty during the evening and midnight shifts was at the accident scene, performing

necessary functions. RR. III: 38-39, 178-79. Yet the Court of Appeals observed,

“There is no indication that officers not on the scene were unavailable to help obtain

a warrant.” Cole, slip op. at 21. This criticism improperly focuses on evidence not

in the record instead of evidence that is in the record. In addition, under the Court of

Appeals’ theory, if there is even one remaining officer not actively involved in the

case, there will never be exigent circumstances. The exigent circumstances exception

requires impracticality in obtaining a warrant, not impossibility. See McNeely, 133

S.Ct. at 1561. (“We do not doubt that some circumstances will make obtaining a

warrant impractical such that the dissipation of alcohol from the bloodstream will

support an exigency justifying a properly conducted warrantless blood test.”).

B. The intoxicant in this case does not have a commonly known
elimination rate.

In addition to the substantial delay, this case involved methamphetamine, not

11
alcohol. Street drugs have different methods of ingestion with correspondingly

different rates of absorption.2 The Court of Appeals recognized the possibility that

methamphetamine has a different rate of elimination, but held, “Without some

indication of when the methamphetamine evidence would begin to dissipate, we

cannot conclude that such evidence would likely be destroyed even if obtaining the

warrant took an extra hour and a half.” Id. at 18 n. 7. But the issue is not the

evidence before the trial or appellate courts, but the reasonableness of the officer’s

actions based on the facts known to him at the time. See McNeely, 1564 S.Ct. at 1564

n.7 (officers’ determination of exigency must be assessed “from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”).

Although elimination rates of alcohol may be within the average police

officer’s wheelhouse,3 the same is not true for controlled substances. And assuming

an officer is familiar with that information, even experts cannot always readily

determine intoxication from toxicology reports. For example cocaine, metabolizes

in the body to form benzoylecgonine. Manning v. State, 114 S.W.3d 922, 924 (Tex.

2
The toxicologist testified that the rate of absorption of methamphetamine
depends on the means of ingestion. The fastest is by injection, followed by
snorting, smoking, and oral administration. RR. IV: 15. But this evidence was not
before the trial court at the time of its ruling.
3
http://www.tabc.state.tx.us/publications/brochures/BACCharts.pdf
12
Crim. App. 2003). That metabolite does not necessarily establish intoxication or

pinpoint the amount consumed or time of consumption. Id. (witness testified that the

amount of metabolite in defendant’s blood showed only that he had ingested cocaine

at some point, but it did not demonstrate intoxication.); Beckendam v. State, 441

S.W.3d 295, 297 (Tex. Crim. App. 2014) (expert witness testified that a large amount

of metabolite in the blood is consistent with either a large dose or with habitual

cocaine use.). Here, the toxologist testified that the amount of methamphetamine in

Appellant’s blood “could” cause intoxication. RR. IV: 20-23.

A reasonable officer should not be expected to know the rate of absorption,

elimination, or metabolization of street drugs of unknown purity and method of

administration. In addition, police in this case were concerned about the effect that

other medications Appellant might receive at the hospital would have on the ability

to determine what was in his system at the time of the accident. RR. III: 187. These

unknown factors make it all the more reasonable to believe that the evidence would

likely be destroyed, degraded, or compromised had the officer waited an additional

1 ½ hours to get a warrant.

III. The mandatory blood draw statute does not require a warrant and is
constitutional.

The Court of Appeals held that the warrantless blood draw was not permissible

13
under TEX. TRANSP. CODE § 724.012(b). Cole, 454 S.W.3d at 97 (citing State v.

Villarreal, __S.W.3d__ No. PD-0306-14, 2014 (Tex. Crim. App. 2014) (rehearing

granted)). Section 724.011(a) of the Transportation Code, known as the implied

consent provision, states:

If a person is arrested for an offense arising out of acts alleged to have
been committed while the person was operating a motor vehicle in a
public place ... the person is deemed to have consented, subject to this
chapter, to submit to the taking of one or more specimens of the person’s
breath or blood for analysis to determine the alcohol concentration or
the presence in the person’s body of a controlled substance, drug,
dangerous drug, or other substance.

Subsection (b) of Section 724.012 of the Transportation Code—the mandatory

blood-draw provision—states, in part:

A peace officer shall require the taking of a specimen of the person’s
breath or blood under any of the following circumstances if the officer
arrests the person for an offense under Chapter 49, Penal Code,
involving the operation of a motor vehicle or a watercraft and the person
refuses the officer’s request to submit to the taking of a specimen
voluntarily:

(1) the person was the operator of a motor vehicle or a watercraft
involved in an accident that the officer reasonably believes occurred as
a result of the offense and, at the time of the arrest, the officer
reasonably believes that as a direct result of the accident:

(A) any individual has died or will die...

A. The statute dispenses with the need for a warrant.

The mandatory blood draw provision implicitly dispenses with the need for a

14
warrant. Section 724.012(b) provides that under certain circumstances, “A peace

officer shall require the taking of a specimen of the person’s breath or blood....” On

the other hand, TEX. TRANSP. CODE § 724.013 states, “Except as provided by Section

724.012(b), a specimen may not be taken if a person refuses to submit to the taking

of a specimen designated by a peace officer.” Taken together, these provisions

require an officer to force the taking of blood from a defendant under certain

circumstances. If those circumstances are not present, the officer may not require a

specimen if the person refuses. Neither provision envisions the possibility of a search

warrant. Despite the prohibition against compelled taking of a specimen outside the

parameters of subsection (b), such a seizure is undoubtedly proper with a search

warrant. And subsection (b) requires the officer to obtain the specimen without

regard to whether a magistrate refuses to issue a search warrant. Furthermore, TEX.

TRANSP. CODE §§724.017(a), 724.16 (a), 724.019 (a), (d), and 724.064 refer to

specimens “taken at the request or order of a peace officer.” (emphasis added). A

search warrant is the “order” of a magistrate, not a peace officer.

B. Statutorily dispensing with a warrant is reasonable.

Warrantless blood draws under Section 724.012(b) following an arrest for DWI

are reasonable under Fourth Amendment jurisprudence when viewed under an

aggregate framework encompassing components of consent, special needs, search

15
incident to arrest, and exigent circumstances. Even if none of these components is

a sufficient substitute on its own, the totality of these considerations make a statutory

warrantless blood draw reasonable. See, e.g., United States v. Knights, 534 U.S. 112,

119-22 (2001) (search of probationer reasonable based on a known and accepted cart

blanche probation search condition—which significantly reduced privacy

expectations and was needed to promote legitimate state interests—and reasonable

suspicion of wrongdoing); Samson v. California, 547 U.S. 843, 852-56 (2006)

(suspicionless search of parolee reasonable based on a known and accepted cart

blanche parole search condition, which eliminated any expectation of privacy and

served the state’s substantial interest of preventing recidivism).

1. Advanced consent has been given in exchange for the driving
privilege.

The statute establishes, under narrowly tailored circumstances, irrevocable

consent to provide a blood or breath specimen. The implied nature of the consent

derives from the fact that use of the State’s roadways is a privilege that is conditioned

upon following the laws, rules, and regulations that govern usage. Appellant was on

notice of the terms of the implied consent mandatory blood draw provision. See

Cheek v. United States, 498 U.S. 192, 199 (1991) (every person is presumed to know

the law). Because Appellant voluntarily chose to use public roadways, any belated

challenge to irrevocability and voluntariness based on post-arrest events as a means
16
to escape accountability should not be entertained. Cf. Rhodes v. State, 240 S.W.3d

882, 891 (Tex. Crim. App. 2007) (the doctrine of estoppel by contract bars a party

who accepts the benefits of a contract from complaining about its existence, validity,

or effect); Board of Education v. Earls, 536 U.S. 822, 828-38 (2002) (sanctioning a

mandatory drug-testing policy for students as a condition of participation in

extracurricular activities); Zap v. United States, 328 U.S. 624, 628-30 (1946) (consent

to search pursuant to a contractual agreement upheld as a valid waiver of privacy

interests despite the subject’s subsequent protest at the time of the search), vacated

on other grounds, 330 U.S. 800 (1947). Although licensed drivers do not enter into

a contract per se, their implicit agreement to consent under conditions outlined in the

statute is given in exchange for the privilege of driving. That agreement is

contractual in nature even if not in fact.

2. The State’s special need for safe roads outweighs a DWI
arrestee’s limited expectation of privacy.

The principles behind the special needs exception support warrantless blood

draws under §724.012(b). Considering the State’s interest in maintaining safe roads

and waterways, mandatory testing under the narrowly tailored circumstances provided

in §724.012(b) strikes an appropriate balance with individual privacy interests. In

Skinner v. Railway Labor Executives’Association, 489 U.S. 602, 652 (1989), the

Supreme Court addressed a Fourth Amendment challenge to railroad regulations
17
mandating blood and urine testing of employees after certain accidents and

authorizing such testing of employees who violated certain safety rules. The Court

recognized that the government’s special needs, apart from law enforcement, make

the “warrant and probable-cause requirement impracticable.” Id. at 619. The

government has a legitimate, non-law enforcement interest in regulating railroad

employees engaged in “safety-sensitive tasks” to prevent accidents that cause

personal injury and property damage. Id. at 620-21. The Court then determined that

the regulations satisfy the purpose of a warrant. Id. at 622. Because of “the

standardized nature of the tests and minimal discretion vested with those charged with

administering the program, there are virtually no facts for a neutral magistrate to

evaluate.” Id. And the discretion used to determine whether to test employees who

violated the rules is based on limited, objective criteria that prevent unbridled

discretion. Id. at 622 n.6. Further, requiring a warrant may result in the destruction

of evidence of impairment. Id. at 623-24.

Next, the Court held that the regulations are reasonable despite the absence of

any individualized suspicion of impairment. Id. at 624-33. The privacy interests

implicated by the tests are minimal and employee expectation of privacy is

diminished by participation in a heavily regulated industry. Id. at 624-27. The Court

also observed that the regulations serve as an effective deterrent because employees

18
are aware that they will be tested “upon the occurrence of a triggering event.” Id. at

629-30.

Unlike the regulations at issue in Skinner, Section 724.012(b) does not

dispense with the probable cause, individualized suspicion requirement. The

arresting officer must have probable cause to believe that the person committed an

offense under Chapter 49. TEX. TRANS. CODE § 724.012(b). Section 724.012(b) only

dispenses with the warrant requirement, and the various interests examined in Skinner

justify warrantless blood draws.

Operating a vehicle is a “safety-sensitive” activity, as it becomes “lethal when

operated negligently by persons who are under the influence of alcohol or drugs.”

Skinner, 489 U.S. at 628. So like the government’s interest in the regulations in

Skinner, Texas has a significant interest in ensuring safety by regulating the conduct

of those who use its public roads. Mandatory draws, administrative license

revocations, and penalties for driving while intoxicated, have a deterrent effect and

therefore further safety.

Additionally, as in Skinner, the circumstances under which a draw is mandatory

are known to the public and carefully circumscribed to limit officer discretion based

on objective criteria. Therefore, the statute substantially fulfills the purposes of a

warrant—to protect against random and arbitrary intrusion, limit the objective and

19
scope of the search, and ensure objectivity. See Skinner, 489 U.S. at 622. And as

with the railroad regulations, blood test results obtained under §724.012(b) help the

state “obtain invaluable information about the causes of major accidents . . . and to

take appropriate measures to safeguard the general public.” Id. at 630.

The public interests served by §724.012(b) substantially outweigh the

individual privacy interests implicated and justify dispensing with the warrant

requirement. Although everyday drivers are not as pervasively regulated as

commercial carriers, that distinction is offset by the statute’s narrow circumstances

and probable cause requirement.

3. The blood draw is a specific search incident to arrest for a
narrow class of offenses.

Section 724.012(b) may also be regarded as a codification of the search

incident to arrest exception. The exigency-based consideration of preventing the loss

or destruction of evidence is not essential to the search incident to arrest exception.

McNeely, 133 S. Ct. at 1559 n.3 (“We have recognized a limited class of traditional

exceptions to the warrant requirement that apply categorically and thus do not require

an assessment of whether the policy justifications underlying the exception, which

may include exigency-based considerations, are implicated in a particular case.”);

United States v. Chadwick, 433 U.S. 1, 14 (1977) (search incident to arrest may be

“made whether or not there is probable cause to believe that the person arrested may
20
have a weapon or is about to destroy evidence.”). Nevertheless, the statute operates

to obtain evidence of the offense of arrest before it is destroyed by the process of

dissipation in the body.

While a venipuncture blood draw is “an invasion of bodily integrity [that]

implicates an individual’s ‘most personal and deep-rooted expectations of privacy,’”

McNeely, 133 S.Ct. at 1558, those interests are countered by the diminished

expectation of privacy experienced by DWI arrestees. “[A]utomobiles are justifiably

the subject of pervasive regulation by the State. Every operator of a motor vehicle

must expect that the State, in enforcing its regulations, will intrude to some extent

upon that operator’s privacy[.]” New York v. Class, 475 U.S. 106, 113 (1986). And

most importantly, the reduced expectation of privacy following an arrest for DWI

further justifies the warrantless taking of a blood sample to determine blood alcohol

content. Cf. United States v. Reid, 929 F.2d 990, 994 (4th Cir. 1991) (breathalyzer

search incident to DWI arrest held to be constitutional).

In addition, the suspect’s privacy rights are protected by the narrowly tailored

scope of the search, which is tied to the arrestable offense and supported by probable

cause. Cf. Arizona v. Gant, 556 U.S. 332, 344, 351 (2009) (a vehicle search incident

to arrest is permissible when there is reason to believe that evidence of the offense of

arrest could be found in the vehicle). The blood specimen is used only to determine

21
a person’s level of intoxication and does not lead to the discovery of incriminating

evidence of past crimes. Compare with Maryland v. King, 133 S. Ct. 1958, 1980

(2013) (DNA collected from arrestees during booking compared to unsolved-crime

database).

4. Exigency is present due to the dissipation of alcohol and the
seriousness of the offense.

Finally, §724.012(b) includes an element of exigency. The dissipation of

evidence of intoxication from the body, though it does not constitute exigent

circumstances in every case, McNeely, 133 S. Ct. at 1563, is an important

consideration because the delay in obtaining a warrant may result in the destruction

of evidence. See Schmerber, 384 U.S. at 770-71.4

4
The seriousness of the offense plays a role in the exigency determination.
See Welsh v. Wisconsin, 466 U.S. 740, 749-51 (1984) (warrantless entry into a
home requires probable cause and exigent circumstances, and the gravity of the
offense is a factor in evaluating exigency). The Court did not draw a bright line
rule between misdemeanors and felonies, but stated, “it is difficult to conceive of a
warrantless home arrest that would not be unreasonable under the Fourth
Amendment when the underlying offense is extremely minor.” It noted that “the
penalty that may attach to any particular offense seems to provide the clearest and
most consistent indication of the State’s interest in arresting individuals suspected
of committing that offense.” Id. at 754 n.14. The same rationale should apply to
the State’s interest in securing evidence to prove a particular offense. It goes
without saying that Texas prioritizes the prosecution of DWI, especially in cases
that cause death or injury, are committed by repeat offenders, or potentially
endanger children.
22
IV. The remedy for a Fourth Amendment violation is not exclusion when police
complied with a presumptively constitutional statute and case law interpreting
it.

The blood draw in this case occurred in 2011, before any court held that a

warrantless blood draw that complies with §724.012(b) violates the Fourth

Amendment. At the time of the search, the statute was presumptively constitutional.

See Karnev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (“Statutes are

presumed to be constitutional until it is determined otherwise.”). Before Villarreal,

this Court had held that the statute “expands on the State’s search capabilities by

providing a framework for drawing DWI suspects’ blood in the absence of a search

warrant,” and “enabl[es] [officers] to draw blood in certain limited circumstances

even without a search warrant.” Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim.

App. 2002). And prior to McNeely, this Court held that dissipation of alcohol from

the blood stream alone constitutes exigency which, combined with probable cause

and a reasonable method of drawing blood, does not require a warrant. Aliff v. State,

627 S.W.2d 166, 169-70 (Tex. Crim. App. 1982). The officer in this case acted in

reliance on a presumptively constitutional statute that required him to compel a

specimen of Appellant’s breath or blood and on case law that held a warrant was not

required. So even if the statute or the officer’s actions in compelling a warrantless

blood draw is found to be unconstitutional, the evidence in this case should not be

23
suppressed under either the Federal or Texas exclusionary rules.

A. Under Davis, the Federal exclusionary rule does not require
suppression.

The Supreme Court has held that 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 a statute that was later declared

unconstitutional, Illinois v. Krull, 480 U.S. 342, 349-57 (1987), or on binding judicial

precedent that was subsequently overruled. Davis v. United States, 131 S. Ct. 2419,

2428-34 (2011). Applying the exclusionary rule to a search that was permissible at

the time does not serve the rule’s purpose of deterring police misconduct. Id. at

2424-28. For purposes of the Fourth Amendment, the good-faith exception prevents

suppression.

B. Because the purpose of Art. 38.23 is to protect a suspect’s rights from
overzealous law enforcement, suppression is not required when the
violation is not based on misconduct.

Suppression is also not justified under TEX. CODE CRIM. PROC. art. 38.23(a),

which prohibits admission of evidence “obtained...in violation of [the law.]”5

5
“No evidence obtained by an officer or other person in violation of any
provisions 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 the
accused on the trial of any criminal case.”

24
Subsection (b) creates an exception for “objective good faith reliance upon a warrant

issued by a neutral magistrate based on probable cause.” This Court has observed

that subsection (b) is the only legislative exception to subsection (a), and it is

impermissible for the courts to imply exceptions. State v. Daugherty, 931 S.W.2d

268, 270 (Tex. Crim. App. 1996). But as explained below, the Court has interpreted

“obtained...in violation of [the law]” to be inapplicable in certain situations.

In Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991), this Court

held that a reviewing court should examine the plain language of a statute when

interpreting its meaning, and should consult extratextural sources only if the plain

language is ambiguous or leads to absurd results that the legislature could not have

intended. The role of the courts is to “seek to effectuate the ‘collective’ intent or

purpose of the legislators who enacted the legislation.” Id. The literal text of

subsection (a) seems to apply to any violation of the law, but this Court has not

always applied the plain meaning of that language, which it acknowledged in Chavez

v. State, 9 S.W.3d 817, 819 (Tex. Crim. App. 2000). See also Miles v. State, 241

S.W.3d 28, 32 (Tex. Crim. App. 2007) (Art. 38.23 “is considerably more complex in

application than its simple words suggest.”).

For example, this Court has held that a defendant must establish standing to

complain about a private person’s illegal seizure of evidence from a third party.

25
Fuller v. State, 829 S.W.2d 191, 201-02 (Tex. Crim. App. 1992). And in Miles, the

Court held that a person’s violation of traffic laws in order to make a citizen’s arrest

did not implicate article 38.23, noting that “only those acts which violate a person’s

privacy rights or property interests are subject to the state or federal exclusionary

rule.” 241 S.W.3d at 36, 46; see also Wilson v. State, 311 S.W. 3d 452, 459 (Tex.

Crim. App. 2010) (the violation of the law at issue must be related “to the purpose of

the exclusionary rule or to the prevention of the illegal procurement of evidence of

crime.”).

In Rocha v. State, 16 S.W.3d 1 (Tex. Crim. App. 2000), this Court held that

Article 38.23 does not apply to evidence obtained in violation of the Vienna

Convention. First, it held that a treaty is not a “law []of the United States.” Id. at 14-

16. That determination could have ended the analysis, but the Court went on to

discuss the policy implications of its holding. It concluded that, because a treaty

does not create enforceable individual rights and a violation of the treaty has other

means of enforcement, article 38.23 did not provide a remedy. Id. at. 18-19.

By holding that not all violations of the law require suppression, the Court has

implicitly determined that “violation of the law” is ambiguous. See, e.g., Rocha, 16

S.W.3d at 16 (“The consequences of a particular construction” of a statute is

appropriate when addressing an ambiguous statute). Therefore, it is appropriate to

26
consider the purpose of article 38.23 when determining whether a violation of the law

requires exclusion.

The purpose of article 38.23 is: “to protect a suspect’s privacy, property, and

liberty rights against overzealous law enforcement,” and “to deter unlawful actions

which violate the rights of criminal suspects in the acquisition of evidence for

prosecution.” Wilson, 311 S.W.3d at 459. It is not designed to protect citizens from

overzealous legislation or overzealous court opinions. Similarly, it’s purpose is not

simply the protection of a suspect’s rights against any violation of the law. If that

were the case, all violations, even those in Miles and Rocha, would require

suppression. Instead, the exclusionary sanction is aimed at deterring misconduct by

law enforcement. That purpose is not served by suppressing evidence obtained by

police who comply with the dictates of a presumptively valid statute and case law

interpreting it, even if that statute or case law is later invalidated. Under those

circumstances,

[E]xcluding the evidence will not further the ends of the exclusionary
rule in any appreciable way; for it is painfully apparent that . . . the
officer is acting as a reasonable officer would and should act in similar
circumstances. Excluding the evidence can in no way affect his future
conduct unless it is to make him less willing to do his duty.

United States v. Leon, 468 U.S. 897, 919-20 (1984) (internal citations and quotations
omitted).

If this Court determines that §724.012(b) is unconstitutional or that it has

27
always required a search warrant despite prior case law to the contrary, then any

officer who executed a search under the statute without a warrant violated the Fourth

Amendment.6 But at the time of the blood draw in this case, the evidence was not

obtained in violation of the statute, the case law interpreting it, or a reasonable

interpretation of the Fourth Amendment. Therefore, the evidence was admissible and

the Court of Appeals’ judgment should be reversed.

In the alternative, this case should be remanded for the Court of Appeals to

address harm from the admission of the blood test results. Evidence of intoxication

in this case was strong, and the toxologist’s testimony about the amount of

amphetamine and methamphetamine in Appellant’s system was not especially

damning. Appellant drove over 100 mph in downtown Longview, admitted to

methamphetamine use, and was “tweaking.” RR. III: 87, 92, 154, 221, 235. On the

other hand, the toxologist testified that the amount of methamphetamine in

6
Like a tree falling in the woods when no one is around to hear it, a Fourth
amendment violation is still a Fourth Amendment violation even if no one knows
it at the time. See Danforth v. Minnesota, 552 U.S. 264, 271 (2008) (“[T]he
source of a “new rule” is the Constitution itself, not any judicial power to create
new rules of law. Accordingly, the underlying right necessarily pre-exists our
articulation of the new rule.”); Heien v. North Carolina, 135 S.Ct. 530 (2014) (“In
those cases, however, we had already found or assumed a Fourth Amendment
violation. An officer’s mistaken view that the conduct at issue did not give rise to
such a violation—no matter how reasonable—could not change that ultimate
conclusion.”).
28
Appellant’s system was a “moderate” recreational dose that “could” have caused

intoxication. RR. IV: 20-23. Because the lab report and supporting testimony did

little more than corroborate Appellant’s admission that he had taken “a couple of hits

of meth,” any error was harmless.

29
 PRAYER FOR RELIEF

WHEREFORE, the State of Texas prays that the Court of Criminal Appeals set

this case for submission, and that after submission, this Court reverse the decision of

the Court of Appeals. In the alternative, the State prays that the Court remand to the

Court of Appeals for a harm analysis with regard to the admission of the blood test

results.

Respectfully submitted,

/s/ LISA C. McMINN

LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No. 13803300

P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512/463-1660 (Telephone)
512/463-5724 (Fax)

30
 CERTIFICATE OF COMPLIANCE

I certify that, according to the WordPerfect word count tool, this document

contain 7983 words.

/s/ LISA C. McMINN
LISA C. McMINN
State Prosecuting Attorney

CERTIFICATE OF SERVICE

I certify that on this 3rd day of June, 2015, the State’s Brief on the Merits was

served via certified electronic service provider to:

Zan Colson Brown
Assistant District Attorney
101 East Methvin, Suite 333
Longview, Texas, 75601
Zan Colson Brown
zan.brown@co.gregg.tx.us

Ebb Mobley
P.O. Box 2309
Longview, Texas 75606
ebbmob@aol.com

/s/ LISA C. McMINN
LISA C. McMINN
State Prosecuting Attorney

31