PD-1263-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/26/2015 6:30:51 PM
February 27, 2015 Accepted 2/27/2015 9:35:53 AM
ABEL ACOSTA
NO. PD-1263-14 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
_____________________________________________
MICHAEL ANTHONY MCGRUDER
APPELLANT-PETITIONER
V.
THE STATE OF TEXAS
APPELLEE - RESPONDENT
______________________________________________
PETITIONER’S BRIEF
__________________________________________________________________
On Appellant’s Petition for Discretionary Review from
The Tenth Court of Appeals, Waco, Texas
Cause No.10-13-00109-CR
affirming the 85th Judicial District Court, Bryan, Texas,
in Trial Cause No. 11-05822-CRF-85
_______________________________________________
MARY JO HOLLOWAY
Attorney at Law
10222 Old Stagecoach
Chappell Hill, Texas 77426
(979) 830-1210
FAX: 979-830-5538
State Bar No. 09887175
mjholloway44@hotmail.com
Attorney for Appellant
Identity of All Parties and Counsel
Pursuant to Tex. R. App. §68.4(a), the parties to this suit are as follows:
Petitioner/Appellant/Defendant
MICHAEL ANTHONY MCGRUDER
Counsel for Defendant/Appellant/Petitioner
Counsel on Appeal: MARY JO HOLLOWAY, Attorney at Law, 10222 Old
Stagecoach, Chappell Hill, Texas 77426
Brief for the Texas Criminal Defense Association as Amicus Curie
Supporting Appellant: submitted by Bobby Mims, Gena Blount Bunn,
Angela Moore, and David Schulman
Trial Counsel, BRONO SHIMEK, 218 North Main, Bryan, Bryan, Texas
77803.
THE STATE OF TEXAS
Appeal Counsel: DOUG HOWELL, III. Asst. District Attorney of Brazos
County, and JESSICA ESCUE, Brazos County Assistant District Attorney
Trial Counsel: JESSICA ESCUE, Brazos County Assistant District
Attorney, and BRIAN BAKER, Brazos County Assistant District Attorney;
Jarvis Parsons, Brazos County District Attorney, Brazos County Courthouse,
300 East 26th Street, Bryan, Texas 77803.
TRIAL JUDGE
HON. J. D. LANGLEY, 85th District Court presiding,
300 East 26th Street, Suite 225, Bryan, Texas 77803
TENTH COURT OF APPEALS, at WACO, TEXAS
HONORABLE TOM GRAY, Chief Justice
HONORABLE AL SCOGGINS, Justice
HONORABLE REX D. DAVIS, Justice
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS..................................................................................i
INDEX OF AUTHORITIES............................................................................ii
STATEMENT OF THE CASE.........................................................................1
STATEMENT OF PROCEDURAL HISTORY...............................................2
STATEMENT OF FACTS…………………………………………………….3
SUMMARY OF THE ARGUMENT…………………………………………3
GROUND FOR REVIEW........................................................................... 4
Appellant presents the following grounds for review:
A Did the Court of Appeals err in finding the Appellant’s facial
constitutional challenge to Texas Transportation Code Section
724.012(b)(3)(B) failed and presumed the statute to be constitutionally valid”
ARGUMENT AND AUTHORITIES................................................................5
CONCLUSION AND PRAYER.......................................................................18
CERTIFICATE OF SERVICE......................................................................….19
CERTIFICATE OF COMPLIANCE…………………………………………..20
i
INDEX OF AUTHORITIES
TEXAS/U.S. STATUTES
U. S. CONST. AMEND. IV…………………………………………….. 5
TEX. CONST. art. I §9…………………………………………………… 5
TEX. PENAL CODE ANN.§49.04………………………………………. 2
TEX. TRANSP.CODE ANN. §724.012(b)(West 2011)………………1,5,6,9,12,13
TEX. TRANSP.CODE ANN. §724.011, §724.012……………………… 11
TEX. GOV’T CODE §311.016(2)………………………………………….10,11
CASES
Aviles v. State, 385 S.W.3d 110 (Tex. App. – San Antonio 2012, pet. ref’d),
vacated, 134 S. Ct. 902, 187 L.Ed.2d 767 (2014), op. on remand Tex. App. LEXIS
8508(Tex. App. – San Antonio Aug. 6, 2014, pet. granted PD-1055-14)………..
………………………………………………………………….. 13,16
Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002)…………... 15
Cole v. State, No. 06-13-00179-CR (Tex. App. – Texarkana Dec. 18, 2014, pet
filed in PD-0077-15)………………………………………………….. 10,14
Douds v. State, 434 S.W. 842 (Tex. App. – Houston [14th Dist.], June 5, 2014, pet.
granted PD-0857-14)…………………………………………………….. 8,11
Forsyth v. State, 438 S.W.3d 216 (Tex. App. – Eastland July 31, 2014, pet. granted
PD-1163-14)………………………………………………..5,6,7,12,14,15
Holidy v. State, No. 06-13-00261-CR (Tex. App. –Texarkana April 30, 2014, pet.
granted PD-0622-14)…………………………………………………… 8,14
Johnson v. United States , 333 U. S. 10, 17 (1948)………………………..10
Jones v. United States, 357 U. S. 493, 499 (1958)………………………….10
McGruder v. State, No. 10-13-00109-CR (Tex. App. –Waco, delivered August 14,
2014, pet. granted PD-1263-14)………………………………………2,5,6,7,12,15
Missouri v. McNeely, 133 S. Ct. 1552 (2013)…………………………… 12
Reeder v. State, 428 S.W.3d 924(Tex. App. – Texarkana 2014, pet. granted
PD-0601-14)……………………………………………………. 8
Santikos v. State, 836 S.w.2d 631 (Tex. Crim. App. 1992)……………………..7
State v. Anderson, No. 09-13-00400-CR (Tex. App. – Beaumont, Oct. 8, 2014)..16
State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011)…………………..13
State v. Rosseau, 550 S.W.3d 550 (Tex. Crim. App. 2013)……………………..7
Sutherland v. State, 436 S.W. 3d 28 (Tex. App. – Amarillo 2014, pet. granted
PD-0860-14)……………………………………………………………………8,14
Villarreal v. State, No. 13-13-00253-CR,(Tex. App.– Corpus Christi January 23,
2014, pet. granted PD-0306-14, reh. granted, Feb. 25, 2015)…………………8,12
Weems v. State, 434 S.W.3d 655, Tex. App. LEXIS 5109 (Tex. App. – San
Antonio 2014, pet. granted PD-0635-14)……………………………. 11,12,16
ii
STATEMENT REGARDING ORAL ARGUMENT
This Court has granted Appellant’s PDR with a stipulation of no oral
argument.
0
NO. PD-1263-14
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
_________________________________________________________________
MICHAEL ANTHONY MCGRUDER
Appellant-Petitioner
V.
THE STATE OF TEXAS
Appellee-Respondent
__________________________________________________________________
PETITIONER’S BRIEF
_________________________________________________________________
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Petitioner-Appellant , MICHAEL ANTHONY MCGRUDER, in this cause,
by and through his attorney of record, MARY JO HOLLOWAY, files the
foregoing Brief on the merits:
STATEMENT OF THE CASE
The majority of the Tenth Court of Appeals found the Appellant’s argument
was a “facial constitutional” challenge to Texas Transportation Code Section
724.012(b)(3)(B) which failed, and presumed the statute to be constitutionally
valid. One justice dissented. The Court of Appeals’ justices disagreed on a material
question of law necessary to the court’s decision, the majority opinion conflicts
with other Courts of Appeal on this issue , and the Court of Appeals has decided an
1
important question of state law that has not been, but should be settled by this
Court.
STATEMENT OF PROCEDURAL HISTORY
Proceedings in The Trial Court
After a non-jury trial, the trial court found Appellant Guilty of felony
driving while intoxicated with repeat offender enhancement allegations. TEX.
PENAL CODE ANN.§49.04; 3RR at 26. The trial court heard testimony from the
Appellant and other State witnesses, found Appellant’s two prior conviction
enhancements “True” beyond a reasonable doubt, and sentenced him to Thirty
(30) years, in the Texas Department of Criminal Justice, Institutional Division. CR
at 17; 5RR at 6-7; 4RR at 32. A timely notice of appeal was filed on April 1, 2013.
CR at 7.
Proceedings in the Court of Appeals
On August 14, 2014, the Tenth Court of Appeals affirmed the conviction,
with Justice Gray and Justice Scoggins joining in the majority opinion, and with
Justice Davis issuing a dissenting opinion. McGruder v. State, No. 10-13-00109-
CR (Tex. App. –Waco, delivered August 14, 2014, pet. granted PD-1263-14). No
motion for rehearing was filed. On January 28, 2015, this Court granted
Petitioner’s petition for discretionary review.
2
STATEMENT OF FACTS
On September 27, 2011, College Station police stopped Michael McGruder
after receiving a dispatch call regarding a suspicious truck, with junk in the back,
being seen in an apartment complex parking area. 2RR at 25-26; 35-36; 64-66.
Upon seeing McGruder’s truck matching the description, Officer Summers
followed it, found it parked, and confronted McGruder after he had gotten out.
2RR at 25-39. Several officers arrived, they claimed they smelled alcohol, and
McGruder admitted he had one large beer earlier. 36- 39; 75. McGruder refused
field sobriety tests, and a breath sample. 2RR at 76-78. McGruder was taken to the
police station, and upon learning of McGruder’s two prior DWI convictions, the
officer decided to do the “mandatory blood draw” paperwork, and testified at trial
that the blood draw becomes mandatory when a DWI suspect has two prior DWI
convictions. 2RR at 90-92. McGruder was taken to a hospital where his blood was
drawn. 2RR at 99; 118-122. Trial counsel filed no pretrial motion to suppress, but
objected at trial to the admission of the State’s blood draw exhibits and testimony.
SUMMARY OF THE ARGUMENT
The Tenth Court of Appeals majority justices construed Appellant’s
argument to be a facial challenge to the constitutionality of the Texas
Transportation Code Section 724.012(b). One justice dissented. The justices have
disagreed on a material question of law. The appellate court’s rationale conflict’s
with other appellate courts’ on this issue.
3
GROUND FOR REVIEW
GROUND ONE:
“Did the Court of Appeals err in finding the Appellant’s facial
constitutional challenge to Texas Transportation Code Section
724.012(b)(3)(B) failed and presumed the statute to be constitutionally valid”
Review is proper under the Texas Rule of Appellate Procedure 66.3
because the justices of the Tenth Court of Appeals have disagreed on a
material question of law necessary to the court’s decision, the Tenth Court of
Appeals Opinion conflicts with other Courts of Appeal on this issue , and the
Tenth Court of Appeals has decided an important question of state law that
has not been, but should be settled by the Court of Criminal Appeals, that is
Section 724.012(b)(3)(B) of the Texas Transportation Code is not
unconstitutional.
4
ARGUMENT AND AUTHORITIES
GROUND FOR REVIEW, RESTATED: “ Did the Court of Appeals err in
finding the Appellant’s facial constitutional challenge to Texas Transportation
Code Section 724.012(b)(3)(B) failed and presumed the statute to be
constitutionally valid”
The Tenth Court of Appeals construed Appellant, Michael McGruder’s,
argument claiming the statute violates the Texas and United States Fourth
Amendment constitutional prohibitions against unreasonable search and seizures to
be a facial challenge to the constitutionality of the Texas Transportation Code
Section 724.012(b)(3)(B). McGruder v. State, No. 10-13-00109-CR (Tex. App. –
Waco, delivered August 14, 2014, pet. granted PD-1263-14); TEX.TRANSP.
CODE Ann. §724.012(b); U. S. CONST. AMEND. IV; TEX. CONST. art. I, §9.
The Tenth Court of Appeals majority applied a “hyper-technical” analysis in
determining the McGruder was making only a facial challenge. The appellate
ignored the McGruder’s arguments in his brief and supplemental replies which
asserted application of the statute was unconstitutional to the extent that the statute
permitted the mandatory blood draw in the absence of a warrant or a recognized
exception to a warrant. Id.; see, Forsyth v. State, 438 S.W.3d 216, 218 (Tex. App.
– Eastland July 31, 2014, pet. ref.’d)(finding the warrantless blood draw violated
the Appellant’s rights under the Fourth Amendment where he argued that section
5
724.012(b)(3)(B) was “…unconstitutional as applied because the statute requires
police to forcibly take a blood sample from a DWI arrestee without a warrant and
without demonstrating an exception to the warrant..”). The defendant in Forsyth
also argued the statute was unconstitutional on its face, which was not specifically
addressed by the appellate court because the issue was not presented below. But,
the Forsyth appellate court did imply a facial constitutional challenge to the statute
by stating “..the government’s interests in combatting drunk drivers does not
outweigh the privacy interests of individuals to the extent that individuals arrested
for DWI, who have already been twice convicted of DWI, should be forced to
submit a breath or blood specimen without requiring the arresting officer to secure
a warrant or rely on an exception to the warrant requirement”). Id. Also in this
case, McGruder rebutted the State’s arguments that exigent circumstances, implied
consent law, and “good-faith” exceptions to a warrant justified the warrantless
blood draw.
The statute is silent on the need for an officer to get a warrant prior to
obtaining a blood draw. TEX. TRANSP.CODE ANN. §724.012(b)(3)(B)(West
2011). The majority opinion states “Section 724.012 (b) merely requires and
officer to take a blood or breath specimen in certain circumstances and the
defendant “failed to point “to anything else which would show the statute to be
unconstitutional..”. McGruder v. State, No. 10-13-00109-CR at *7,9 (majority
6
opinion). The appeal court reasoned McGruder must establish the statute always
operates unconstitutionally in all possible circumstances, and must establish there
are no circumstances under which the statute will be valid. McGruder v. State, No.
10-13-00109-CR at *6 (majority opinion); citing, State v. Rosseau, 550 S.W.3d
550, 557 (Tex. Crim. App. 2013); Santikos v. State, 836 S.w.2d 631, 633 (Tex.
Crim. App. 1992).
Common Facts Result in Common Results
The statute mandates the taking of a blood specimen, and is commonly
referred to as requiring a “mandatory blood draw”. The applicability, reasoning,
and facts of those cases cited by the Court of Appeals do not support the majority
decision. The facts in this case are common in other sister courts’ opinions with the
appellate courts finding that a warrantless, nonconsensual blood draw under
Section 724.012(b), absent any exigent circumstances, violates the Fourth
Amendment where the officers relied on the mandatory statute. Forsyth v. State,
438 S.W.3d 216, 219 (Tex. App. – Eastland July 31, 2014, pet. granted PD-1163-
14)( the arrestee was taken directly to hospital, with officer stating that he could
not have secured a warrant because that “is not what you do according to law and
policy..”) ; Weems v. State, 434 S.W.3d 615 (Tex. App. – San Antonio May 14,
2014, pet. granted PD-0635-14)(defendant with two prior DWIs and passenger
was injured in car crash, and warrantless blood draw because officer relied on law
7
in the statute ) ; Douds v. State, 434 S.W. 842 (Tex. App. – Houston [14th Dist.],
June 5, 2014, pet. granted PD-0857-14)(auto accident with injury and officer stated
“..his decision to obtain a blood draw was based on his reasonable belief that
section 724.012 of the Texas Transportation Code had been satisfied and allowed
him to do so..”); Holidy v. State, No- 06-13-00261-CR, 2014 Tex. App. LEXIS
4621 at *2-3( Tex. App. – Texarkana April 30, 2014, PD-0622-14) (mem. op., not
designated for publication)( after traffic stop, defendant twice before convicted of
DWI, consented to blood draw because officer told him he had to consent and had
no choice); Reeder v. State, 428 S.W.3d 924, 930 (Tex. App. – Texarkana 2014,
pet. granted PD-0601-14)(defendant had accident when swerved to miss a deer,
taken to hospital, officer had warrantless blood drawn when defendant refused
because he had two previous DWIs); Sutherland v. State, 436 S.W. 3d 28,
31(Tex. App. – Amarillo 2014, pet. granted PD-0860-14)( after traffic stop, officer
testified he relied solely on the mandatory blood draw provision in the Texas
Transportation Code when he learned the defendant had two prior DWI
convictions provided from dispatch ), Villarreal v. State, No. 13-13-00253-CR
(Tex. App. Corpus Christi, Jan. 23, 2014, pet. granted PD-0306-14, under
submission), State v. Baker, 12-12-00092-CR (Tex. App. Tyler 10-16-2013, pet.
ref.’d)(mem. op., not designated for publication)(defendant in jet ski accident told
by officer that law required him to get warrantless blood draw).
8
Having to Follow the Law
Section 724.012(b) of the Transportation Code reads:
A peace officer shall require the taking of a specimen of a person’s
breath or blood under any of the following circumstances… and the person refuses
the officer's request to submit to the taking of a specimen voluntarily:…. (3) at the
time of the arrest, the officer possesses or receives reliable information from a
credible source that the person:… (B) on two or more occasions, has been
previously convicted of or placed on community supervision for an offense under
Section 49.04, 49.05, 49.06, or 49.065, Penal Code….(c) The peace officer shall
designate the type of specimen to be taken.
TEX. TRANSP. CODE §724.012(b).
Blood draws administered under this statute are commonly called
“mandatory blood draws”. Because the Section 724.12(b) statute is mandatory, the
arresting officer had no discretion but to obtain McGruder’s breath or blood when
the statutory circumstances existed as here when the officer discovered he had two
prior DWI convictions. Prior to the arresting officer forcibly obtaining a
warrantless blood draw, McGruder had refused consent for a breath test. The
record does not demonstrate any exigent circumstances as an exception to
obtaining a warrant. The results of the blood test measured McGruder’s blood
alcohol at 0.09 BAC. 2RR at 145-147.
As discussed above, when it comes to unlawful searches and seizures, in
practice, officers routinely express an interpretation of the law from Section
724.012(b) as requiring them to involuntarily take a defendant’s blood under all
circumstances as expressed in this appellate court dissenting opinion. When he
9
learned McGruder had two prior DWI convictions, Officer Paris decided not to get
a warrant, had McGruder handcuffed to a chair, had his blood involuntarily drawn,
ignoring any violation of his Fourth Amendment right to be free from unreasonable
search and seizure. 2RR at 90-92. The officer concluded the statute authorized the
warrantless mandatory blood draw. 2RR at 91-92. In a recent appellate decision in
Cole v. State the Texarkana Court of Appeals, in reversing the trial court’s denial
of the defendants motion to suppress his involuntary blood draw, described the
warrant requirement as one of “the most fundamental distinctions between our
form of government, where officers are under the law, and the police-state where
they are the law..”…and “[t]he exceptions to the rule that a search must rest upon a
search warrant have been jealously and carefully drawn..”. Cole v. State, 06-13-
00179-CR at *7 (Tex. App. – Texarkana Dec. 18, 2014, pet filed in PD-0077-15),
citing, Johnson v. United States , 333 U. S. 10, 17 (1948), and Jones v. United
States, 357 U. S. 493, 499 (1958).
The Texas Two-Step
In addressing the appellate Court’s opinion concluding McGruder claims
that Tex. Transp. Code §724.012(b)(3)(B) is facially unconstitutional, the statute
requires an arresting officer to do a “one-step process” which is actually a “two-
step process”. The arresting officer is mandated by the law, he “shall”, not that he
“may”, obtain the blood draw evidence of the repeat offender. TEX. GOV’T
10
CODE §311.016(2). But a “one size does not fit all”, as the Section 724.012(b)
statute does not contain additional Fourth Amendment requirements. Compliance
with the Fourth Amendment requires another step of analyzing the totality of the
circumstances analysis to the particular facts surrounding a warrantless blood
draw. The legislature cannot violate the constitution by the placing the “shall”
mandate in the mandatory blood draw statute.
Further, the Texas Court of Criminal Appeals has previously rejected any
effort to broaden the “good-faith exception” using federal precedent. An officer’s
“good faith” reliance on the statute is not enough. TEX. TRANSP. CODE ANN.
§724.011; TEX. TRANSP. CODE §724.012 (b); Douds v. State, No. 14-12-
00642-CR( “…The Texas Court of Criminal Appeals has held that exceptions to
the federal exclusionary rule only apply to the Texas statutory exclusionary rule if
they are consistent with the plain language of the statute..”), and citing, Weems v.
State, No. 04-13-00366-CR, slip op. at 14 (Tex. App. –San Antonio, May 14,
2014)( “[T]he implied consent and mandatory blood draw statutes are not
exceptions to the Fourth Amendment’s warrant requirement..”).
Current court of appeals opinions in several cases indicate the finding of a
facial constitutionality problem with the Transportation Code 724 statute.
Dissenting Justice Davis found, “while it appears that no court has explicitly
passed on the facial constitutionality of section 724.012(b) some have criticized the
11
statute from a Fourth-Amendment perspective with language that I believe
indicates a problem with the statute…”. McGruder v. State, No. 10-13-00109-CR,
PD-1263-14, at *2 (dissenting opinion). The officer is presumed to know the law,
not the additional requirements to effectuate the law, and make the blood draw
valid under all existing circumstances. State v. Villarreal, No. 13-13-00253-CR
(the statute required the officer to obtain a breath or blood sample, it did not
require the officer to do so without first obtaining a warrant).
Also, reliance on the Texas implied consent statue alone is insufficient,
because no implied consent statute trumps the 4th Amendment. Id.; Forsyth v.
State at 222(in rebuttal to States’ claim that the Supreme Court in McNeely cited
favorably to implied consent statutes, stating “…McNeely did not address whether
the implied consent was a valid exception to the warrant requirement… but “did
refer to implied consent laws as an example of a tool that States have “ to secure
BAC evidence without undertaking warrantless nonconsensual blood draws”’).
The Supreme Court “did not indicate whether an officer could take a person’s
blood based on implied consent alone..”. Id.
Statute’s Silence on Warrant Requirements
Also, the problem is that Transp. Code Section 724.012(b)(3)(B) is silent on
the requirement of search warrants. Weems v. State, 434 S.W. 3d 655, Tex. App.
LEXIS 5109( the State’s argument was rejected that the statute “…mandates blood
12
draws under certain scenarios, [and] is “a reasonable substitute” for the Fourth
Amendment’s warrant requirement…”, and in referring to McNeely, the law “
…prohibits per se rules that justify an exception to the Fourth Amendment’s
warrant requirement”.). Statutes cannot limit the protections of the Fourth
Amendment. Aviles v. Texas, 385 S.W.3d 110 (Tex. App. – San Antonio 2012, pet.
ref’d), vacated, 134 S. Ct. 902 (2014), op. on remand, Tex. App. LEXIS 8508(Tex.
App. – San Antonio Aug. 6, 2014, pet. granted PD-1055-14); Villarreal v. State,
No. 13-13-00253-CR,(Tex. App.– Corpus Christi January 23, 2014, pet. granted
PD-0306-14, reh. granted, Feb. 25, 2015); Sibron v. New York, 392 U. S. 40
(1968)( “..New York is, of course, free to develop its own law of search and
seizures to meet the needs of local law enforcement…It may not, however
authorize police conduct which trenches upon Fourth Amendment rights,
regardless of the labels which it attaches to such conduct..”); State v. Johnston, 336
S.W.3d 649, 661 (Tex. Crim. App. 2011).
As argued by the McGruder dissent, “[p]lainly, the statute’s silence on
warrants explains the officers’ views that the statute authorizes them to compel
warrantless blood draws”, and although it “…does not explicitly require an officer
to obtain a blood or breath sample without a warrant..”, “… it also does not instruct
an officer to obtain a warrant in the absence of exigent circumstances”. McGruder
v. State, No. 10-13-00109-CR at *3(dissenting opinion). The Section 724.012 (b)
13
“silent statute” allows unguided and unrestrained discretion to an arresting officer
to determine if exception exists allowing a warrantless blood draw. Id. at *5.
Other sister courts have held a warrantless, nonconsensual blood draw under
the statute, absent exigent circumstances, violates the Fourth Amendment. Cole v.
State , No.06-13-00179-CR (December 18, 2014)(searches outside the judicial
process, without prior approval by a judge or magistrate, are per se unreasonable
under the Fourth Amendment, subject only to a few specifically established and
well-delineated exceptions); State v. Baker, No.12-12-00092-CR at *5, 12 (Tex.
App. – Tyler, Oct. 16, 2013, pet. ref’d)(mem. op., not designated for publication).
The dissenting McGruder Justice concluded, even though no court has
passed on the facial constitutionality of Section 724.012(b), some have indicated a
facial problem with the statute. Id. at *2; citing, Forsyth v. State, 438 S.W.3d
216(Tex. App. – Eastland July 31, 2014); Holidy v. State, No. 06-13-00261-CR
(Tex. App. –Texarkana April 30, 2014); Sutherland v. State, No. 07-12-00289-CR
(Tex. App. – Amarillo, April 7, 2014); and see also, State v. Anderson, No. 09-13-
00400-CR(Tex. App. – Beaumont, October 8, 2014)(accident where a child was
injured, and evidence was suppressed by trial court where defendant was told
mandatory blood draw was required). The appellate court in Anderson seemed to
look at the facial constitutionality of Section 724, but did not rule on the State’s
claim of implied consent because it found the original trial court’s decision did not
14
find 724.011 unconstitutional because “we have no reason to fault the
constitutionality of the mandatory blood draw statute in this case because it did not
require [the officer] to obtain a blood draw without first securing a warrant…..It is
the officer’s failure to obtain a warrant and the State’s failure to prove an exception
to the warrant requirement, not the mandatory nature of the blood draw provision,
that the trial court determined violates the Fourth Amendment..”.
Majority Reliance on Beeman
The McGruder majority opinion supported its findings by agreeing with the
Beeman opinion language that “[t]his does not give officers the ability to forcibly
obtain blood samples from anyone arrested for DWI” to support their position and
conclusion. McGruder v. State, at *7-8. But, as the dissenting justice pointed out,
Beeman is not controlling as it involved a warrant, the language cited was dicta,
and the Texas implied consent statute at that time did not contain the provision
directing officers to take a blood specimen of a twice previously convicted DWI
arrestee. McGruder v. State at *3-4(dissenting opinion); Beeman v. State, 86
S.W.3d 613, 616 (Tex. Crim. App. 2002); Forsyth v. State at 221.
Finding Section 724.012(b) does not instruct the officer to obtain a
warrant in the absence of exigent circumstances, the dissent correctly concluded
that the officer “..did compel or forcibly obtain a blood sample without the
defendant’s consent solely because of section 724.012(b)..”. McGruder
15
v. State, at *3(dissenting opinion). The majority’s reasoning based on the Beeman
opinion is not applicable to the facts in this case, and has recently been determined
to be found un-controlling law by this Court and other court of appeals. See, State
v. Anderson, No. 09-13-00400-CR (Tex. App. – Beaumont, Oct. 8, 2014)(rejecting
the State’s argument, “…[i]n light of the holding in McNeely, and the inapposite
facts before us, we find the dicta in Beeman is not controlling); Weems v. State,
434 S.W.3d 655(Tex. App. – San Antonio, 2014, pet. granted, PD-0635-14)(
reliance on Beeman dicta rejected after the Supreme Court granted certiorari and
vacated the judgment in Aviles); Aviles v. State, 385 S.W.3d 110 (Tex. App.—San
Antonio 2012), vacated, 134 S. Ct. 902 (2014), op. on remand, Tex. App. LEXIS
8508(Tex. App. – San Antonio Aug. 6, 2014, pet. granted PD-1055-14).
This case illustrates the severe consequences and excessive State conduct the
statute mandates. Appellant was arrested for driving after drinking one large beer,
having had two prior convictions 17 and 18 years ago, and after refusing to give
his consent to his blood draw, he was involuntarily chained to a chair for the State
to get their mandated blood evidence to obtain a conviction. STATE EXHIBIT
Nos. 17, 22, 23.
Other issues not addressed
The Tenth Court of Appeals by considering on the facial constitutional
argument, failed to address McGruder’s other issues. Regardless of whether the
16
term “mandatory” applies to the actions of the officer, i.e., “you have to get the
defendant’s blood”, or to the actions of the defendant, i.e., “you have to give up
your blood”, as set out in Villerreal, the State must have a warrant or one of the
recognized exceptions to a warrant. Villarreal v. State, (No. 13-13-00253-CR, Tex.
– Corpus Christi January 23, 2014, pet. granted PD-0278-14).
The taking of McGruder’s blood and the evidence obtained therein used to
convict him in the absence of a warrant and with no applicable exception to the
warrant requirement violated the Fourth Amendment. Admission of the warrantless
blood draw evidence violated Appellant’s constitutional rights, and contributed to
his conviction.
The Court of Appeals erred in finding the facial constitutionality challenge
failed, and failed to address other arguments. The applicability, reasoning, and
facts of those cases used to support the majority’s opinion do not support the court
of appeals decision. The justices have disagreed on a material question of law. The
appellate court’s rationale conflict’s with other appellate courts’ on this issue, and
calls for this Court’s supervision.
17
CONCLUSION AND PRAYER
WHEREFORE, Appellant, MICHAEL ANTHONY MCGRUDER, prays
that the Court of Criminal Appeals after full briefing on the merits, that the case be
set for submission, and that after submission, this Court reverse the decision of the
Tenth Court of Appeals and remand the cause to the trial court for a new trial.
RESPECTFULLY SUBMITTED,
/s/ MARY JO HOLLOWAY
Mary Jo Holloway
Attorney at Law
10222 Old Stagecoach
Chappell Hill, Texas 77426
(979) 830-1210
FAX: (979) 830-5538
TBN: 09887175
mjholloway44@hotmail.com
ATTORNEY FOR MICHAEL MCGRUDER
18
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 26th day of February, 2015 the
following has been completed:
(1) 10 copies of the above and foregoing petition for discretionary appeal have
been mailed by U.S. Mail to the Clerk of the Court of Criminal Appeals,
State of Texas, for filing pursuant to TRAP '9.2; 9.3(b) ;
(2) Document has been sent by electronic service through the Electronic Filing
Manager to:
Clerk of the Court of Criminal Appeals
Supreme Court Building
P.O. Box 12308
Austin, Texas 78711, for filing pursuant to TRAP 9.2; 9.3(b);
Copies have been emailed/eserved to the following parties:
1. State Prosecuting Attorney, Lisa C. McMinn
P.O. Box 13046
Capitol Station
Austin, Texas 78711
Email: information@spa.texas.gov
LisaMcMinn@SPA.texas.gov
2. Brazos County District Attorney's Office
Jarvis Parsons, District Attorney
c/o Doug Howell, Asst. District Attorney
300 East 29th Street
Bryan, Texas 77803
dhowell@brazoscountytx.gov
by electronic service through the Electronic Filing Manager.
/s/ MARY JO HOLLOWAY
MARY JO HOLLOWAY
19
CERTIFICATE OF COMPLIANCE WITH TEX.R.APP.P. 9.4
I certify that the foregoing document has a word count of 4,633 words
based on the word count program in Word 2010.
/s/ MARY JO HOLLOWAY
MARY JO HOLLOWAY
20