PD-1011-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/5/2015 3:04:12 PM
AUGUST 7, 2015
Accepted 8/7/2015 10:53:51 AM
ABEL ACOSTA
No. 01-14-00112-CR CLERK
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
MICHAEL D. HOWARD
A/K/A MICHAEL DAVID HOWARD, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Tom Green County
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No. 13803300
STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
Bar I.D. No. 24031632
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512-463-1660 (Telephone)
512-463-5724 (Fax)
IDENTITY OF JUDGE, PARTIES, AND COUNSEL
* The parties to the trial court’s judgment are the State of Texas and Appellant,
Michael D. Howard a/k/a Michael David Howard
* The trial judge was the Hon. Tom Gossett, 391st Judicial District.
* Counsel for the State at trial and before the Court of Appeals was Meagan
White, Assistant District Attorney, Tom Green County, 123 West Beauregard,
San Angelo, Texas 76903.
* Counsel for the State before the Court of Criminal Appeals is Stacey M.
Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,
Texas 78711.
* Counsel for Appellant at trial was Evan Pierce-Jones, 125 South Washington
Street, San Angelo, Texas 76901.
* Counsel for Appellant before the Court of Appeals was John E. Sutton, P.O.
Box 871, San Angelo, Texas 76902.
TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
GROUNDS FOR REVIEW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Is a warrantless, mandatory blood draw conducted pursuant to T EX.
T RANS. C ODE § 724.012(b)(3)(B)—the repeat offender provision—
reasonable under the Fourth Amendment?
2. Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary
rules require suppression when, at the time of the search, the warrantless
blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(3)(B) and
binding caselaw?
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
APPENDIX (Opinion of the Court of Appeals)
i
INDEX OF AUTHORITIES
Cases
Cole v. State, PD-0077-15 (granted Apr. 22, 2015).. . . . . . . . . . . . . . . . . . . . 3 n.1, 4
Douds v. State, PD-0857-14 (granted Sept. 17, 2014; argued and submitted Mar. 18,
2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and submitted Jan.
14, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Howard v. State, No. 01-14-00112-CR, 2015 Tex. App. LEXIS 7635 (Tex.
App.—Houston [1st] July 23, 2015) (not designated for publication). . . . . . . . . 2-3
Missouri v. McNeely, 133 S. Ct. 1552 (2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014; argued and submitted Jan.
15, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
State v. Villarreal, PD-0306-14, 2014 Tex. Crim. App. 1898 (Tex. Crim. App. Nov.
26, 2014) (reh’g granted Feb. 25, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted Nov.
17, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 n.1
Statutes
T EX. C ODE C RIM. P ROC. art. 38.23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
T EX. T RANS. C ODE § 724.012(b)(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ii
No. 01-14-00112-CR
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
MICHAEL D. HOWARD
A/K/A MICHAEL DAVID HOWARD, Appellant
v.
THE STATE OF TEXAS, Appellee
Appeal from Tom Green County
* * * * *
STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State Prosecuting Attorney respectfully urges this Court to grant review.
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The trial court denied Appellant’s suppression motion that challenged the
warrantless draw of his blood under T EX. T RANS. C ODE § 724.012(b)(3)(B)—the
1
repeat offender provision—based on the Supreme Court’s then-recent decision in
Missouri v. McNeely, 133 S. Ct. 1552 (2013). 1 CR 82-86, 97-102, 105-07. A jury
later found him guilty of felony DWI and sentenced him to sixteen years’
imprisonment. 1 CR 147-49.
STATEMENT OF PROCEDURAL HISTORY
The court of appeals reversed the denial of Appellant’s motion to suppress and,
after concluding that the denial was harmful, reversed the trial court’s judgment.
Howard v. State, No. 01-14-00112-CR, 2015 Tex. App. LEXIS 7635 (Tex.
App.—Houston [1st] July 23, 2015) (not designated for publication). The State did
not seek rehearing.
GROUNDS FOR REVIEW
1. Is a warrantless, mandatory blood draw conducted pursuant to T EX.
T RANS. C ODE § 724.012(b)(3)(B)—the repeat offender provision—
reasonable under the Fourth Amendment?
2. Do the federal and state (T EX. C ODE C RIM. P ROC. art. 38.23) exclusionary
rules require suppression when, at the time of the search, the warrantless
blood draw was authorized by T EX. T RANS. C ODE § 724.012(b)(3)(B) and
binding caselaw?
2
ARGUMENT
Concluding that the blood draw was unreasonable, the court of appeals reversed
the trial court’s denial of Appellant’s suppression motion. Howard, 2015 Tex. App.
LEXIS 7635, at *1, 12. It held that Section 724.012(b)(3)(B) does not constitute a
valid a exception to the warrant requirement. Id. at *6-8. Regarding the remedy, the
court determined that the federal and state exclusionary rules require that the blood
test results be suppressed. Id. at *8-11.
1. The draw was reasonable under the Fourth Amendment.
The warrantless blood draw, conducted under Section 724.012(b)(3)(B), was
reasonable under Fourth Amendment jurisprudence. Review should be granted
because the same issue is pending on rehearing in State v. Villarreal, PD-0306-14,
2014 Tex. Crim. App. 1898 (Tex. Crim. App. Nov. 26, 2014) (reh’g granted Feb. 25,
2015), and in Holidy v. State, No. PD-0622-14 (granted Aug. 20, 2014; argued and
submitted Jan. 14, 2015), Reeder v. State, No. PD-0601-14 (granted Aug. 20, 2014;
argued and submitted Jan. 15, 2015), and Douds v. State, PD-0857-14 (granted Sept.
17, 2014; argued and submitted Mar. 18, 2015).1
1
Weems v. State, No. PD-0635-14 (granted Aug. 20, 2014; argued and submitted
Nov. 17, 2014), and Cole v. State, PD-0077-15 (granted Apr. 22, 2015), do not
implicate the repeat-offender provision.
3
2. Even if the Fourth Amendment was violated, the federal and state
exclusionary rules do not require suppression because police relied on
binding law authorizing the search at the time it was conducted.
In Cole, PD-0077-15 (granted Apr. 22, 2015), this Court also granted review to
decide whether the remedy of suppression under the federal and state (T EX. C ODE
C RIM. P ROC. art. 38.23) exclusionary rules, which are intended to deter police
misconduct, is appropriate when the blood draw was conducted pursuant to a
presumptively valid statute and case law interpreting it. Therefore, for the reasons
asserted in Cole, this Court should hold that the remedy of suppression is not
warranted.
4
PRAYER FOR RELIEF
WHEREFORE, the State of Texas prays that the Court of Criminal Appeals
grant review and reverse the decision of the court of appeals.
Respectfully submitted,
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No.13803300
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
Bar I.D. No. 24031632
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512-463-1660 (Telephone)
512-463-5724 (Fax)
5
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count tool this
document contains 357 words, exclusive of the items excepted by T EX. R. A PP. P.
9.4(i)(1).
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
6
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the State’s Petition for Discretionary
Review has been served on August 5, 2015, via certified electronic service provider
or email to:
Hon. Meagan White
Tom Green County District Attorney’s Office
123 West Beauregard
San Angelo, Texas 76903
meagan.white@co.tom-green.tx.us
Hon. John E. Sutton
P.O. Box 871
San Angelo, Texas 76902
jsuttlaw@wcc.net
/s/ STACEY M. GOLDSTEIN
Assistant State Prosecuting Attorney
7
APPENDIX
MICHAEL D. HOWARD A/K/A MICHAEL DAVID
HOWARD, Appellant v. THE STATE OF TEXAS, Appellee
NO. 01-14-00112-CR
COURT OF APPEALS OF TEXAS, FIRST DISTRICT,
HOUSTON
2015 Tex. App. LEXIS 7635
July 23, 2015, Opinion Issued
NOTICE: PLEASE CONSULT THE contends that his conviction should be
TEXAS RULES OF APPELLATE reversed because the trial court erred in
PROCEDURE FOR CITATION OF denying his motion to suppress evidence
UNPUBLISHED OPINIONS. relating to the warrantless blood draw. We
reverse the trial court's judgment and
PRIOR HISTORY: [*1] On Appeal remand for a new trial.
2
from the 391st District Court, Tom Green
County, Texas. Trial Court Case No. D-12- 1 See T EX. P ENAL C ODE A NN. §§
1004-SB. 12.42(a), 49.09(b)(2) (West Supp.
2014) (third-degree felony enhanced
by prior felony conviction, thereby
JUDGES: Panel consists of Chief Justice elevating punishment range to that of
Radack and Justices Brown and Lloyd. second-degree felony).
2 This appeal, originally filed in the
OPINION BY: Russell Lloyd Third Court of Appeals, Austin,
Texas, was transferred to the First
OPINION Court of Appeals, Houston, Texas.
See T EX. G OV'T C ODE A NN. § 73.001
MEMORANDUM OPINION (West 2013) (authorizing transfer of
cases).
A jury convicted appellant Michael D.
Howard a/k/a Michael David Howard of
Background
felony driving while intoxicated. The trial
1
court assessed his punishment at sixteen Howard was stopped for a traffic
years' confinement in the Institutional violation and was subsequently arrested for
Division of the Texas Department of DWI. After Howard refused to provide [*2]
Criminal Justice. On appeal, Howard a breath specimen, the arresting officer
transported him to a hospital where a Miller, called Sergeant Scott and informed
warrantless blood draw was taken pursuant him that Howard had two previous DWI
to Texas Transportation Code section convictions and had refused to provide a
724.012(b)(3)(B). See T EX. T RANSP. C ODE breath specimen. At that point, Sergeant
A NN. § 724.012(b)(3)(B) (West 2011). Scott met Howard and Officers Miller and
Howard filed a motion to suppress the N. Anderson at the hospital where Sergeant
blood analysis results, challenging the Scott assisted the officers in conducting a
w arrantless blood draw on Fourth mandatory blood draw. Although Howard
Amendment grounds. 3
had agreed to provide a blood specimen at
the jail, he revoked his consent to the blood
3 Howard also argued that the draw at the hospital. Sergeant Scott testified
warrantless blood draw violated the that the officers did not attempt to obtain a
Texas Constitution. T EX. C ONST. art. I, warrant because once Howard refused to
§§ 9, 10. We need not consider provide a breath specimen at the jail they
whether the warrantless blood draw "had the mandatory blood draw in effect."
violates the state constitution, Sergeant Scott testified that he believed that
however, because Howard did not Howard's consent to the blood draw was
separately brief his state and federal irrelevant in light of the mandatory blood
constitutional issues or argue that the draw statute.
Texas Constitution provides greater The trial court denied Howard's motion
protection than the United States to suppress. In its findings of fact and
Constitution. See Keehn v. State, 279 conclusions of law, the trial court found that
S.W.3d 330, 334 (Tex. Crim. App. there was no testimony as to any exigent
2009) (not reaching defendant's state circumstances that required the drawing of a
c o n s ti tu t i o n a l i s s u e r e g a r d i n g blood specimen from [*4] Howard without
warrantless search because defendant a search warrant and that the blood
did not brief state and federal specimen obtained from Howard was
constitutional issues separately); "mandated by C hapter 724, Texas
Black v. State, 26 S.W.3d 895, 896 Transportation Code." The trial court also
(Tex. Crim. App. 2000) ("The concluded that the warrantless blood draw
[defendant] offers no reason for was "authorized under the implied consent
construing the Texas Constitution as
law of Chapter 724, Texas Transportation
conferring greater protection in this Code."
area of the law than the federal
constitution, and therefore we will not At trial, Officer Miller testified about
address his state constitutional the circumstances of the traffic stop that led
argument."). to Howard's arrest and to his observations
of Howard. Officer Miller testified that
At the pre-trial hearing on Howard's based on his observations, he believed that
motion to suppress, Sergeant A. Scott Howard was intoxicated.
testified that he assisted Officer H. Miller in
obtaining [*3] Howard's blood specimen. O fficer A nderson adm inistered
Sergeant Scott testified that he remained at standardized field sobriety tests to Howard
the scene to inventory Howard's vehicle at the scene. Officer Anderson testified that
after Howard was arrested and transported although he was previously certified to
to the jail. The arresting officer, Officer administer such tests, his certification had
lapsed as of the date of the arrest. He also
testified that all of the tests he administered witnesses' credibility, and it may choose to
to Howard were flawed in some respect. believe or disbelieve all or any part of the
Although the court allowed Officers Miller witnesses' testimony. Maxwell v. State, 73
and Anderson to testify regarding their S.W.3d 278, 281 (Tex. Crim. App. 2002);
observations of Howard, Officer Anderson State v. Ross, 32 S.W.3d 853, 855 (Tex.
was prohibited from opining about whether Crim. App. 2000).
he believed that Howard was intoxicated When the trial [*6] court enters findings
based upon his performance on the field of fact, the appellate court considers all of
sobriety tests. the evidence in the record and "must
Dusky Wells, the medical technologist determine whether the evidence supports
who drew Howard's blood specimen, [*5] those facts by viewing the evidence in favor
and Marissa Silva, the forensic scientist of the trial court's ruling." Castro v. State,
with the Texas Department of Public Safety 373 S.W.3d 159, 164 (Tex. App--San
Laboratory in Midland who analyzed the Antonio 2012, no pet.) (citing Keehn v.
blood specimen, also testified for the State. State, 279 S.W.3d 330, 334 (Tex. Crim. App.
According to Silva, Howard's blood sample 2009)). Additionally, an appellate court
contained 0.198 grams of ethanol per 100 must "uphold the trial court's ruling if it is
milliliters, which was over twice the legal supported by the record and correct under
limit in Texas. any theory of law applicable to the case."
State v. Iduarte, 268 S.W.3d 544, 548 (Tex.
Warrantless Blood Draw Crim. App. 2008).
Howard contends that the trial court A blood draw conducted at the direction
erred in denying his motion to suppress the of a law enforcement officer is a search
blood analysis results because the evidence subject to the reasonableness requirement of
resulted from a warrantless, non-consensual the Fourth Amendment. Schmerber v.
blood draw that violated the Fourth California, 384 U.S. 757, 767, 86 S. Ct.
Amendment. 1826, 1834, 16 L. Ed. 2d 908 (1966); State
v. Villarreal, No. PD-0306-14, 2014 Tex.
A. Standard of Review and Applicable Crim. App. LEXIS 1898, 2014 WL 6734178,
Law at *9 (Tex. Crim. App. Nov. 26, 2014) (reh'g
We review a trial court's denial of a granted). A warrantless search of a person is
unreasonable unless it falls within a
motion to suppress evidence under a
recognized exception to the warrant
bifurcated standard of review. Turrubiate v.
requirement. Villarreal, 2014 Tex. Crim.
State, 399 S.W.3d 147, 150 (Tex. Crim. App.
App. LEXIS 1898, 2014 WL 6734178, at *8
2013). We give almost total deference to a
(citing Missouri v. McNeely, 133 S. Ct.
trial court's determination of historical facts,
1552, 1558, 185 L. Ed. 2d 696 (2013)); see
especially if those determinations turn on
also Katz v. United States, 389 U.S. 347,
witness credibility or demeanor, and we
357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576
review de novo the trial court's application
(1967) (holding that warrantless search or
of the law to facts not based on an
seizure is per se unreasonable unless it falls
evaluation of credibility and demeanor.
under recognized exception to warrant
Gonzales v. State, 369 S.W.3d 851, 854
requirement). Voluntary consent to search
(Tex. Crim. App. 2012). At a suppression
and the existence of exigent circumstances
hearing, the trial court is the sole and
are two of the recognized exceptions. See
exclusive trier of fact and judge of the
McNeely, 133 S. Ct. at 1558; Villarreal, Tex. App. LEXIS 2492, 2015 WL 1245469,
2014 Tex. Crim. App. LEXIS 1898, 2014 at *8 (Tex. App.--Houston [1st Dist.] Mar.
WL 6734178, at *8. 17, 2015, pet. filed). The Court of Appeals
also rejected the argument that the implied
B. Mandatory Blood Draw/Implied consent statute (§ 724.011(a)) constitutes an
Consent Statutes exception to the warrant requirement and
held that "in the context [*8] of a
The State argues that the trial court did
nonconsensual, warrantless bodily search of
not abuse its discretion in admitting the
a person suspected of criminal activity, a
blood analysis results because the
statute providing for irrevocable implied
warrantless blood draw was mandated by
consent cannot supply the type of voluntary
Transportation Code section
consent necessary to establish an exception
724.012(b)(3)(B), and alternatively, [*7]
to the Fourth Amendment warrant
that Howard is deemed to have consented to
requirement." Villarreal, 2014 Tex. Crim.
the blood draw pursuant to Transportation
App. LEXIS 1898, 2014 WL 6734178, at
Code section 724.011(a). See T EX. T RANSP.
*14. The court concluded that "implied
C ODE A NN. § 724.011(a) (West 2011)
consent that has been withdrawn or revoked
(providing that person arrested for DWI "is
by a suspect cannot serve as a substitute for
deemed to have consented, subject to this
the free and voluntary consent that the
chapter, to submit to the taking of one or
Fourth Amendment requires." 2014 Tex.
more specimens of the person's breath or
Crim. App. LEXIS 1898, [WL] at *11. In
blood for analysis to determine the alcohol
this case, the State conceded at the
concentration"); id. § 724.012(b)(3)(B)
suppression hearing that Howard revoked
(providing for mandatory-blood-specimen
his consent to the blood draw at the
collection for person twice before convicted
hospital.
of DWI). We construe these arguments as
asserting that the mandatory blood draw
C. Exclusionary Rule
statute and the implied consent statute each
constitute an exception to the Fourth The State further contends that even if
Amendment's warrant requirement. the blood draw violated Howard's Fourth
Amendment rights, the trial court was
While this case has been pending on
nevertheless correct in admitting the
appeal, the Court of Criminal Appeals
evidence because the state and federal
considered the question of whether a
exclusionary rules are inapplicable.
warrantless search of a DWI suspect's blood
Specifically, the State argues that there are
conducted pursuant to section 724.012(b)
applicable good-faith exceptions to the
complied with the Fourth Amendment. See
federal exclusionary rule and the Texas
Villarreal, 2014 Tex. Crim. App. LEXIS
exclusionary rule does not apply because
1898, 2014 WL 6734178, at *6-8. In doing
the police did not obtain the evidence in
so, the court rejected both arguments
violation of the law, as the law existed at
advanced by the State. Specifically, the
the time of the blood draw.
court held that the mandatory blood draw
statute (§ 724.012(b)) does not constitute a The State argues that the federal
recognized exception to the warrant exclusionary rule does not bar admission of
requirement. See 2014 Tex. Crim. App. the evidence in this case because the officer
LEXIS 1898, [WL] at *8, 17-18; see also relied [*9] in good faith on the mandatory
Perez v. State, No. 01-12-01001-CR, 2015 blood draw statute and on binding judicial
precedent. See Davis v. United States, 131 (declining to apply another federal good-
S. Ct. 2419, 2423-24, 2434, 180 L. Ed. 2d faith exception to Texas exclusionary rule
285 (2011) (stating that officer's good-faith because federal exception was "inconsistent
reliance on binding case law is exception to with the text of article 38.23"); see also
federal exclusionary rule); Illinois v. Krull, Weems v. State, 434 S.W.3d 655, 666 (Tex.
480 U.S. 340, 360, 107 S. Ct. 1160, 1172, App.--San Antonio 2014, pet. granted)
94 L. Ed. 2d 364 (1987) (stating that (rejecting argument that officer's good-faith
officer's good-faith reliance on statute is reliance on mandatory blood draw and
exception to federal exclusionary rule). implied consent statutes constituted good-
faith exception to article 38.23).
The Texas exclusionary rule provides
that "[n]o evidence obtained . . . in violation The State also argues that the Texas
of any provisions of the Constitution or exclusionary rule is inapplicable because
laws of the State of Texas, or of the "[a]t the time of the blood draw, Texas case
Constitution or laws of the United States of law clearly held that alcohol dissipation
America, shall be admitted in evidence alone constituted exigent circumstances in
against the accused on the trial of any DWI cases." According to the State,
criminal case." T EX. C ODE C RIM. P ROC. art. "McNeely changed the law when it rejected
38.23 (West 2005). The Court of Criminal a per se exigency in DWl cases, but
A p p eals has previously held that McNeely was issued after the search in this
"exceptions to the federal exclusionary rule case." This court recently addressed a
only apply to the Texas statutory similar argument and concluded that
exclusionary rule if they are consistent with M cN eely did not set out a new
the plain language of the statute." Douds v. constitutional rule, but rather clarified
State, 434 S.W.3d 842, 861 (Tex. App.-- Schmerber and reaffirmed the Supreme
Houston [14th Dist.] 2014, pet. granted). Court's prior rulings regarding the
Unlike the federal rule, the plain language admissibility [*11] of blood evidence
of Texas's statutory exclusionary rule only acquired without a warrant. See Tercero,
expressly recognizes one good-faith 2015 Tex. App. LEXIS 3284, 2015 WL
exception and that is for "a law enforcement 1544519, at *7.
officer acting in objective good faith
reliance upon a warrant issued by a neutral D. Harm Analysis
magistrate based on probable cause." T EX. We review the harm resulting from a
C ODE C RIM. P ROC. art. 38.23(b) (emphasis trial court's erroneous denial of a motion to
added). Accordingly, we decline [*10] to suppress and subsequent admission of
apply the federal good-faith exceptions evidence obtained in violation of the Fourth
urged by the State to the Texas exclusionary Amendment under the constitutional
rule set forth in Article 38.23 because the harmless-error standard. T EX. R. A PP. P.
federal exceptions are not "consistent with 44.2(a); see Hernandez v. State, 60 S.W.3d
the plain language of the [Texas] statute," 106, 108 (Tex. Crim. App. 2001)
which only recognizes one exception based (mandating application of rule 44.2(a) to
on an officer's good-faith reliance upon a harm analysis of trial court's erroneous
warrant. See State v. Tercero, No. 01-14- denial of motion to suppress under Fourth
00120-CR, 2015 Tex. App. LEXIS 3284, Amendment). This standard requires us to
2015 WL 1544519, at *7 (Tex. App.-- reverse the trial court's judgment of
Houston [1st Dist.] Apr. 2, 2015, pet. filed)
conviction unless we determine "beyond a cannot determine beyond a reasonable
reasonable doubt that the error did not doubt that the error did not contribute to
contribute to the conviction or punishment." Howard's conviction. See Perez, 2015 Tex.
T EX. R. A PP. P. 44.2(a). App. LEXIS 2492, 2015 WL 1245469, at *9-
10; Weems, 434 S.W.3d at 667.
Here, the jury charge instructed the
jurors that "[a] person is deemed to be We conclude that the warrantless taking
intoxicated within the meaning of the law of Howard's blood sample in this case
when he does not have the normal use of his violated his Fourth Amendment rights by
mental or physical faculties by reason of the requiring him to submit to a blood test
introduction of alcohol in his body, or without a warrant or a recognized exception
having an alcohol concentration of 0.08 or to the warrant requirement and that this
more." The State presented the testimony of error was harmful.
Officers Miller and Anderson regarding We sustain Howard's complaint that the
Howard's conduct leading up to and trial court erred in denying his motion to
following his arrest as evidence of suppress evidence relating to th e
intoxication. The State also presented the warrantless blood draw.
testimony of the medical technologist who
took Howard's blood sample on the night he Conclusion
was arrested. [*12] Finally, the State
presented the testimony of a forensic We reverse the trial court's judgment
scientist who testified that Howard's blood and remand for a new trial consistent with
sample contained 0.198 grams of ethanol this opinion.
per 100 milliliters and that this amount of Russell Lloyd
alcohol was over twice the legal limit in
Texas. Justice
Given the testimony regarding the Panel consists of Chief Justice Radack
taking of Howard's blood sample and his and Justices Brown and Lloyd.
toxicology results and the jury's instruction Do not publish. T EX. R. A PP. P. 47.2(b).
that intoxication means, in part, "having an
alcohol concentration of 0.08 or more," we